IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 WP(C).No. 4086 of 2011(I) -------------------------------- PETITIONER(S): ------------------- 1. SAKUNTHALA, AGED 55 YEARS, W/O.LATE SURESH, CHANKOOR HOUSE, VAYANOKAM MURI, OACHIRA VILLAGE, NJAKANAL P.O., KARUNAGAPPALLY TALUK. 2. DHANYA SURESH, AGED 27 YEARS, D/O.LATE SURESH, CHANKOOR HOUSE, VAYANOKAM MURI, OACHIRA VILLAGE, NJAKANAL P.O., KARUNAGAPPALLY TALUK. 3. DHANEESH, AGED 25 YEARS, D/O.LATE SURESH, CHANKOOR HOUSE, VAYANOKAM MURI, OACHIRA VILLAGE, NJAKANAL P.O., KARUNAGAPPALLY TALUK. 4. DINESH, AGED 22 YEARS, D/O.LATE SURESH, CHANKOOR HOUSE, VAYANOKAM MURI, OACHIRA VILLAGE, NJAKANAL P.O., KARUNAGAPPALLY TALUK. BY ADV. SRI.N.CHERIAN KURIAN RESPONDENT(S): --------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, (DEPARTMENT OF REVENUE), SECRETARIAT, THIRUVANANTHAPURAM - 690 001. 2. V.SAHADEVAN, S/O.VELAYUDHAN, SWATHI, CHERAVALLYMURI, KAYAMKULAM VILLAGE, K.P.ROAD, 1ST MILE KAYAMKULAM - 685 051. 3. THE DEPUTY TAHSILDAR, REVENUE RECOVERY, MAVELIKARA - 685 054. R1, R3 BY GOVT.PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No. 4086 of 2011 ------------------------------- Dated this the 27th day of May, 2011. J U D G M E N T Deceased father of the petitioners, Sri.Suresh, was the accused in C.C.No.301/05 of the Judicial First Class Magistrate Court, Kayamkulam, in which he was sentenced to undergo simple imprisonment for a period of 1 year and to pay compensation to the tune of Rs.50,000/- for offence punishable under section 138 of Negotiable Instruments Act. Under section 357(3) Cr.P.C., a default sentence was also incorporated to undergo simple imprisonment for 2 months in case of default in payment of the compensation. In appeal, the substantive sentence was modified to the extent of imposing imprisonment till the raising of the court, with confirmation of the compensation part along with the default sentence imposed by the trial court. 2. The deceased father of the petitioners had failed in effecting payment of the compensation awarded and consequently he underwent simple imprisonment for 2 2 W.P.(C).No. 4086 of 2011 months. Subsequently, he died on 17.6.2010, as evidenced from Ext.P4 death certificate. Grievance of the petitioners is that, now the 3rd respondent had initiated steps for recovery of the amount of compensation, by issuing Ext.P5 demand notice, under section 7 of the Kerala Revenue Recovery Act. Contention of the petitioners is that, the amount is not liable to be recovered from the petitioners since their father had already undergone the default sentence. It is also contended that no steps of recovery has been initiated against the legal heirs of the defaulter, by issuing proper notice of demand to them. 3. Considering the contentions as stated above, I take note of the fact that it is settled legal position that, inspite of undergoing default sentence, compensation awarded under section 357(3) of Cr.P.C. is liable to be recovered. Therefore, the petitioners are not entitled to refute the liability on the ground that their deceased father had undergone default sentence. However, I take note of the fact that the defaulter had expired as early as on 17.6.2010. 3 W.P.(C).No. 4086 of 2011 Recovery steps against the legal heirs can be proceeded only after issuing proper notice to them. The 3rd respondent shall also take note of the fact that the recovery can be effected only to the extent of the estate of the deceased, if any inherited to the petitioners. 4. Under the above mentioned circumstances, proceedings of recovery now pursued on the basis of Ext.P5 demand notice is unsustainable and the same is hereby quashed. 5. It is made clear that the 3rd respondent will be free to proceed against the petitioners, after issuing proper notices as contemplated under the statute, if they are legally liable for payment of the amounts due. C.K.ABDUL REHIM, Judge ami/