Eliyamma vs State of Kerala and Sankaran Master

Thomas P. Joseph, J.—The defacto complainant in C.C. No. 403 of 2004 of the court of learned Judicial First Class Magistrate-I, Perambra is the Petitioner before me, challenging Annexure-A1, order dated 29.09.2010 on C.M.P. No. 2961 of 2010. The husband of Petitioner filed a complaint against the second Respondent for ffence punishable u/s 138 of the Negotiable Instruments Act. That case ended in conviction of the second Respondent. Second Respondent filed Crl.R.P. No. 4435 of 2007 in this Court challenging his conviction and sentence. This Court while refusing to interfere with the conviction, modified the sentence as one of fine with a direction to pay `80,000/- by way of compensation to the husband of Petitioner. This Court also directed the second Respondent to deposit the amount in the trial court. Complainant (husband of Petitioner) died on 02.06.2007. His legal representatives including Petitioner filed C.M.P. No. 2961 of 2010 before the learned Magistrate acknowledging receipt of compensation and requesting to record payment and satisfaction and drop up proceeding for recovery of the amount from the second Respondent. That petition was dismissed by learned Magistrate observing that this Court in Crl.R.P. No. 4435 of 2007 directed deposit of the amount in the trial court. That order is under challenge. I have heard learned Counsel for Petitioner and the learned Public Prosecutor.

It is submitted by learned Counsel that the complainant died on 02.06.2007. This Court disposed of the Criminal Revision Petition only on 11.12.2007 but, without taking note of the death of the complainant (who was Respondent in the Criminal Revision Petition).

True that the principle of abatement does not apply in the matter of a revision. But, the defacto complainant was a necessary party to the revision,as could be seen from Section 401(2) of the Code of Criminal Procedure which states that no order shall be passed in revision to the prejudice of the accused or other person unless he had an opportunity of being heard either personally or by pleader in his own defence. In this case, this Court interfered with the sentence and modified it as one of fine. The sentence could not have been modified without hearing the complainant (Respondent in the Criminal Revision Petition). Even as per the submission of the learned Counsel, complainant died on 02.06.2007 and the Criminal Revision Petition disposed of on 11.12.2007. In otherwords the Criminal Revision was disposed of with a dead complainant on record and without impleading his legal representatives. In my view the order disposing of the revision is therefore a nullity. In such situation Petitioner or other legal representatives of deceased complainant could not have filed C.M.P. No. 2961 of 2010 before the learned Magistrate.

It is not as if Petitioner or other legal representatives are not without any remedy. The proper course open to them in my view is to seek reopening of the Criminal Revision Petition and impleadment of Petitioner and/or, other legal representatives of deceased complainant as parties to the said revision and get the revision disposed of on merit.

Learned Counsel submitted that Petitioner and other legal representatives of deceased complainant are prepared to take necessary steps in the revision as aforesaid. In the circumstances it is directed that coercive steps against second Respondent will stand in abeyance for a period of one month from this day.

Resultantly this Criminal Miscellaneous Case is disposed of without prejudice to the right of Petitioner and other legal representatives the deceased complainant to seek reopening of Crl.R.P. No. 4435 of 2007, their impleadment and for disposal of the said revision as provided under law. Coercive steps if any initiated against the second Respondent/accused in C.C. No. 403 of 2004 of the court of learned Judicial First Class Magistrate-I, Perambra will stand in abeyance for a period of one month from this day.