IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3196 of 2006()
1. SARASWATHI AMMA, W/O. LATE PANKAJAKSHAN
... Petitioner
Vs
1. THATTARUPARAMBIL FINANCIERS,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
3. THE DISTRICT COLLECTOR,
4. THE VILLAGE OFFICER,
For Petitioner :SRI.C.K.SAJEEV
For Respondent :SRI.J.OM PRAKASH
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :03/04/2009
O R D E R
M.C.HARI RANI, J.
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CRL.M.C.No.3196 OF 2006
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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
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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
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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
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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
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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