Section 138 NI Act: Legal Heirs Of Deceased Convict Can Challenge Conviction: SC [Read Judgment]

The Supreme Court has held that legal heirs of a deceased accused convicted under Section 138 of Negotiable Instrument Act have a right to challenge the conviction of their predecessor only to show that he was not guilty of any offence.

In M. Abbas Haji vs. T.N. Channakeshava, while allowing the application filed by the legal heirs to prosecute an appeal filed by the deceased accused, the bench comprising Justice Deepak Gupta and Justice Aniruddha Bose observed:

The legal heirs, in such a case, are neither liable to pay the fine or to undergo imprisonment. However, they have a right to challenge the conviction of their predecessor only for the purpose that he was not guilty of any offence. We have, therefore, allowed the application filed by the legal heirs to prosecute this appeal.

In the instant case, the Trial Court dismissed the complaint mainly on the ground that the handwriting expert had opined that the signatures on the cheque were not those of the accused. The High Court, on appeal filed by the complainant, convicted the accused on following grounds (1) Accused did not step into the witness box to state that he had not signed the cheque; (2) that the opinion of the handwriting expert was only an opinion and not conclusive; (3) that the Accused failed to prove that he had sent a reply to the notice sent to him by the complainant because so-called reply was not marked in evidence and no postal receipt of the same was placed on record.

Section 138 NI Act Proceedings are quasi-criminal proceedings

The contention before the Apex Court was that the High Court overstepped the limits which Appellate Court is bound by criminal cases setting aside an order of acquittal. While rejecting this contention, the bench observed:

Proceedings under Section 138 of the Act are quasi-criminal proceedings. The principles, which apply to acquittal in other criminal cases, cannot apply to these cases.

Affirming the High Court judgment and upholding the conviction recorded by it, the bench observed:

As far as the present case is concerned, in addition to three reasons, given by the High Court, we are of the view that the original appellant has not even explained how the leaves of the cheque entered into the hands of the complainant. It is urged that in cross-examination of the complainant some suggestions were made that since the complainant was visiting the office of the original appellant, he had access to the same. The complainant had only admitted that he visited the office of the original appellant but he denied all the other suggestions. Thereafter, it was for the original appellant to prove his part of the case. The High Court, in our opinion, was right in holding the original appellant guilty under Section 138 of the Act. 

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