( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3664 OF 2009 WITH CRIMINAL APPLICATION NO. 359 OF 2010 Dinkar Sadashiv Maid .. Applicant Versus Suresh Balwant More .. Respondent Shri S.T. Shelke, Advocate for the applicant. CORAM : P.R. BORKAR,J. DATED : 11.02.2010 P.C. :- 1. Heard Adv. Shri S.T. Shelke for the applicant. 2. Criminal Application No. 3664 of 2009 is an application under section 378 (4) of the Cr.P.C. for leave to file appeal against order of acquittal passed by the learned Judicial Magistrate, First Class, Akole, in S.T.C. No. 73 of 2008 decided on 24.09.2009, whereby sole respondent was acquitted of offence punishable under section 138 of the Negotiable Instruments Act. Since, pending the application, ( 2 ) the respondent is reported to be dead on 17th October, 2009, Criminal Application No. 359 of 2010 is filed for bringing his legal representatives on record. 3. Provision of Section 394 of the Cr.P.C. is as follows :- “394. (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. Explanation – In this section, “near relative” means a parent, spouse, lineal descendant, brother or sister.” 4. The appeal as against order of acquittal is provided under section 378 of the Cr.P.C. and therefore as per sub-section (1) of section 394 of the Cr.P.C. appeal finally abates on death of the accused i.e. the respondent in these applications. The sub-section deals with contingencies ( 3 ) where the appeal is against the conviction and that is not applicable to the facts of the present case. 5. Therefore, Criminal Application No.359 of 2010 for bringing legal representatives of respondent/accused is not tenable in law. In the result Criminal Application No. 359 of 2010 is dismissed and Criminal Application No. 3664 of 2009 stands abated. [P.R. BORKAR,J.] snk/2010/FEB10/cra3664.09