IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 Crl.MC.No. 3196 of 2006() ------------------------- JUDGMENT IN CRA.65/2000 DATED 24.3.2006 CC.412/1996 of JUDL.MAGISTRATE OF FIRST CLASS-II, CHERTHALA .................... PETITIONER: ------------- SARASWATHI AMMA, W/O. LATE PANKAJAKSHAN NAIR, AGED 52 YEARS, SAJI NIVAS, WARD NO.XI, EZHUPUNNA PANCHAYATH, ERAMALLOOR MURI, EZHUPUNNA VILLAGE, CHERTHALA TALUK. BY ADV. SRI.C.K.SAJEEV RESPONDENT(S): --------------- 1. THATTARUPARAMBIL FINANCIERS, EZHUPUNNA SOUTH P.O., REPRESENTED BY IT'S MANAGING PARTNER, ALEX ABRAHAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 3. THE DISTRICT COLLECTOR, ALAPPUZHA. 4. THE VILLAGE OFFICER, EZHUPUNNA. BY ADV. SRI.J.OM PRAKASH FOR R1 PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU FOR R2 TO R4 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20/3/2009, THE COURT ON 03/04/2009, PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.5466/06 IN Crl.M.C.NO.3196/06 //DISMISSED// 3.4.09 SD/-M.C.HARI RANI, JUDGE. TRUE COPY P.A.TO JUDGE M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.3196 OF 2006 ----------------------------------------------------- DATED THIS THE 3rd DAY OF APRIL, 2009 O R D E R The petitioner is the widow of the accused in Crl.Appeal No.65/2000 which was disposed of by this Court as per judgment dated 24.3.2006. In pursuance of the finding of this Court in that judgment, revenue recovery proceedings were initiated against the accused/deceased Pankajakshan Nair, which is challenged in this petition by the wife of Pankajakshan Nair, under Section 482 of Cr.P.C. with the prayer to quash Annexure-A4 judgment and Annexure A2 warrant. 2. Statement of facts alleged in this petition are as follows: The petitioner is the widow of P.K.Pankajakshan Nair, who died on 10.6.2001. True copy of the death certificate is produced as Annexure-1. In the last week of August, 2006, the petitioner herein was served with an intimation from the Office of the 4th respondent-Village Officer, Ezhupunna, styled as “Warrant to Levy Fine By Attachment and Sale” to realise compensation of CRL.M.C.No.3196/06 -2- Rs.33.600/- from the assets of her deceased husband P.K.Pankajakshan Nair, in pursuance of the judgment dated 24.3.2006, whereby he was convicted for the offence under Section 138 of the Negotiable Instruments Act. Copy of the warrant issued by the J.F.C.M.-II, Cherthala is produced as Annexure-2. Subsequently, the petitioner enquired the matter and came to understand that the first respondent herein, Thattaruparambil Financiers, Ezhupunna South P.O. represented by its Managing Partner Alex Abraham, as complainant filed a private complaint under Section 138 of Negotiable Instruments Act against her husband-P.K.Pankajakshan Nair and as per judgment dated 3.11.1999 in C.C.No.412/96, the learned J.F.C.M.-II, Cherthala acquitted her husband under Section 255(1) of Cr.P.C. Copy of that judgment is produced as Annexure-3. The first respondent/ complainant preferred Crl.Appeal No.65/2000 before this Court and as per judgment dated 24.3.2006, copy of which is produced as Annexure-4, this Court allowed the appeal and set aside the order of acquittal of the trial court. The accused Pankajakshan Nair was convicted under Section 138 of Negotiable Instruments Act and sentenced to undergo imprisonment till the rising of the court and to pay a sum of Rs.33,600/- towards compensation to the complainant CRL.M.C.No.3196/06 -3- under Section 357(3) Cr.P.C. with the default clause that the accused shall undergo simple imprisonment for a period of three months. Subsequently, as per Annexure-2 dated 22.7.2006, the learned J.F.C.M.-II, Cherthala has issued warrant to realise compensation of Rs.33,600/- from the assets of the deceased Pankajakshan Nair, by attachment and sale under Section 386(1) (a) of Cr.P.C. Subsequently, this petition is filed under Section 482 of Cr.P.C. by the wife of deceased Pankajakshan Nair with the prayer to quash Annexure-4 judgment and Annexure-2 warrant for levy of fine and all further proceedings. 3. Heard the learned counsel appearing for the petitioner and for the first respondent. 4. It is submitted by the learned counsel for the petitioner that P.K. Pankajakshan Nair, the accused in C.C.No. 412/96 had expired on 10.6.2001 as revealed from Annexure-1, death certificate dated 23.7.2001 issued by the Registrar of Birth and Death, Ezhupunna Grama Panchayat. The deceased Pankajakshan Nair was the owner in possession of about 20 cents of land and a residential building No.E.P.XI/84 (Old No.80) therein in Ezhupunna Village, which has been devolved upon the petitioner and their two female children as the sole CRL.M.C.No.3196/06 -4- successors-in-interest of the deceased. Annexure-2 warrant was issued by the learned Magistrate on 22.7.2006 to realise compensation of Rs.33,600/- from the assets of deceased Pankajakshan Nair in pursuance of the judgment passed by this Court on 24.3.2006 in Crl.Appeal No.65/2000. According to the learned counsel, the warrant to levy compensation by attachment and sale of property as per Section 386(1)(a) of Cr.P.C. is liable to be set aside. 5. This argument is opposed by the learned counsel for the first respondent and submitted that the judgment dated 24.3.2006 passed by this Court as per Annexure-4 cannot be recalled by filing a petition under Section 482 of Cr.P.C. There is no case for the petitioner that there is any clerical or arithmetical error in the judgment to apply Section 362 of Cr.P.C. So, there is no question to review the judgment already passed by this Court and the inherent power of this Court under Section 482 of Cr.P.C. can be applied only in rarest of rare cases. 6. It is revealed from Annexure-1 that P.K.Pankajakshan Nair died on 10.6.2001. The date of death of deceased Pankajakshan Nair, who was the accused in C.C.No.412/96 in the proceedings initiated under Section 138 of Negotiable Instruments Act as noted in CRL.M.C.No.3196/06 -5- Annexure-1 is not disputed. As per Annexure-3 judgment dated 3.11.1999, the trial court acquitted the accused. Subsequently, Crl.Appeal No.65/2000 was filed before this Court and Annexure-3 judgment dated 3.11.1999, was reversed and the accused was convicted and sentenced to undergo imprisonment till the rising of the court and to pay a sum of Rs.33,600/- towards compensation to the complainant under section 357(3) of Cr.P.C. with the default clause to undergo simple imprisonment for three months. That appeal was accordingly allowed by this Court on 24.3.2006. Thus Annexure-4 judgment was passed by this Court on 24.3.2006 against a dead person, who died on 10.6.2001. On a perusal of Annexure-4 judgment, it is revealed that the appellant/complainant was represented by a counsel and no appearance was made by the first respondent/accused. For the second respondent-State of Kerala, Public Prosecutor was present. Thus, there was no representation on behalf of the first respondent before this Court and the appellant has not brought to the notice of this Court, regarding the death of the first respondent in Crl.Appeal No.65/2000. Hence, Annexure -4 judgment passed against a dead person is a nullity. Therefore, the finding of conviction and sentence passed against a dead person cannot be CRL.M.C.No.3196/06 -6- executed by initiating steps to recover the compensation amount from the assets of the deceased. Therefore, Annexure-2 warrant for levy of fine and all further proceedings thereto are quashed. The Crl.M.C. is disposed of accordingly. M.C.HARI RANI, JUDGE. dsn