Kerala High CourtDharmarajan.M.R vs M.Visalakshy Amma on 28 June, 2006IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT:

                 THE HONOURABLE MR.JUSTICE B.P.RAY

     MONDAY, THE 2ND DAY OF DECEMBER 2013/11TH AGRAHAYANA, 1935

                     Crl.MC.No. 720 of 2007 ( )
                     ---------------------------
  (TO RECALL THE ORDER IN CRL.R.P.NO.1056 OF 1996 DATED 28.6.2006)

  AGAINST THE JUDGMENT IN C.R.A.NO.211/1996 of ADDITIONAL SESSIONS
   JUDGE, FAST TRACK COURT -1, THIRUVANANTHAPURAM DATED 16-08-2003

      AGAINST THE JUDGMENT IN S.T.NO.75/1993 of CHIEF JUDICIAL
           MAGISTRATE,THIRUVANANTHAPURAM DATED 11-07-1996

PETITIONER(S)/1ST RESPONDENT:
------------------------------
       DHARMARAJAN.M.R., C/O.MRS.KAMALA BHAI,
       KAILASAM, ULLANNUR, PATHANAMTHITTA DISTRICT.

       BY ADVS.SRI.GOPAKUMAR R.THALIYAL
               SRI.N.P.PRAJEESH

RESPONDENTS/REVISION PETITIONERS & 2ND RESPONDENT:
--------------------------------------------------
          1. M.VISALAKSHY AMMA,
       T.C.26/1610 NARAYANA BHAVAN, GOVERNMENT PRESS ROAD
       TRIVANDRUM.

          2. P.VIJAYAKUMAR, T.C.26/1610,
       NARAYANA BHAVAN, GOVERNMENT PRESS ROAD, TRIVANDRUM.

          3. P.ANILKUMAR,
       T.C.26/1610, NARAYANA BHAVAN, GOVERNMENT PRESS ROAD
       TRIVANDRUM.

          4. P.SURESH KUMAR,
       T.C.26/1610, NARAYANA BHAVAN, GOVERNMENT PRESS ROAD
       TRIVANDRUM.

          5. STATE OF KERALA, REPRESENTED BY THE
       PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

      R5 BY PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKEN
        R1 & R4  BY ADV. SRI.N.NANDAKUMARA MENON (SR.)
        R1 & R4  BY ADV. SRI.P.K.MANOJKUMAR

       THIS CRIMINAL MISC. CASE  HAVING BEEN FINALLY HEARD  ON
02-12-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Crl.MC.No. 720 of 2007 ( )
                              APPENDIX




PETITIONER'S ANNEXURES:

ANNEXURE 1: TRUE COPY OF THE ORDER PASSED BY THE CHIEF JUDICIAL
MAGISTRATE COURT, THIRUVANANTHAPURAM IN S.T.CASE NO.75 OF 1993 DATED
11.7.1996

ANNEXURE II: TRUE COPY OF THE JUDGMENT PASSED BY THE  ADDITIONAL
SESSIONS JUDGE, FAST TRACK COURT -1, THIRUVANANTHAPURAM IN
C.R.A.NO.211/1996 of DATED 16-08-2003.


ANNEXURE III: TRUE COPY OF THE ORDER PASSED BY THIS HONOURABLE COURT
IN CRL.R.P.NO.1056 OF 1996 DATED 28.6.2006


ANNEXURE 1V: TRUE COPY OF THE NOTICE ISSUED BY THE CHIEF JUDICIAL
MAGISTRATE COURT, THIRUVANANTHAPURAM IN S.T.CASE NO.75 OF 1993 DATED
19.12.2006

ANNEXURE V: TRUE COPY OF THE ORDER ISSUED FROM THE ADDITIONAL
SESSIONS COURT, THIRUVANANTHAPURAM  DATED 9.6.1997

ANNEXURE VI: TRUE COPY OF THE REPORT OF THE SUB. INSPECTOR OF
POLICE,MUSEUM POLICE STATION

ANNEXURE VII: TRUE COPY OF THE ORDER ISSUED FROM THE OFFICE OF THE
IInd ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM DATED 18.8.1997

ANNEXURE VIII: TRUE COPY OF THE REPORT FILED BY THE SI OF
POLICE,MUSEUM POLICE STATION,THIRUVANANTHAPURAM

ANNEXURE IX: TRUE COPY OF THE NOTICE ISSUED TO ADVOCATE
K.MURALEEDHARAN NAIR.

RESPONDENTS' ANNEXURES:

ANNEXURE 1: THE PHOTOSTAT COPY OF THE DEATH CERTIFICATE DATED
30.08.1996 REGISTRATION NO.1404/96 ISSUED BY THE GOVERNMENT OF
KERALA, DEPARTMENT OF URBAN AFFAIRS, TRIVANDRUM CORPORATION


                                                     //TRUE COPY//


                                                     P A TO JUDGE



                           B.P.RAY, J.
          ---------------------------------------------
                   Crl.M.C. No.720 of 2007
          ---------------------------------------------
          Dated this the 2nd day of December, 2013

                            O R D E RPetitioner has filed this Crl.M.C to recall Annexure-

III order, passed by this Court in Crl.R.P.No.1056 of 1996

dated 28.06.2006, filed by the legal heirs of the deceased

N.Parameswaran Pillai. The case of the petitioner is that the

petitioner was convicted underSection 138of the Negotiable

Instruments Act and sentenced to pay a fine of Rs.60,000/-

and in default of payment of fine to undergo simple

imprisonment for a period of three months. Vide Annexure-II

judgment dated 16.08.2003 of the Additional Sessions Judge

Fast Track Court-I, Thiruvananthapuram the petitioner was

acquitted from all the charges levelled against him in

Crl.A.No.211 of 1996. Thereafter, after disposal of Crl.Appeal,

the legal heirs of Late N.Parameswaran Pillai, that is, the

respondents No.1 to 4 have filed the aforementioned criminal

revision petition i.e., Crl.R.P.No.1056 of 1996 challenging the

order of acquittal passed in the aforesaid Crl. Appeal.     The

appeal was filed against the judgment in Annexure-1 for

enhancement of the sentence.        Admittedly, no notice wasCrl.M.C. No.720 of 2007          2served on the petitioner. While hearing this Crl.M.C, this Court

called for the records in Crl.Appeal.No.211 of 1996 from the

Court of the Additional Sessions Judge, Fast Track Court-I,

Thiruvananthapuram.2. On a perusal of the records, it appears the deceased N.

Parameswaran Pillai was not substituted the petitioner was

acquitted of the charges. Learned counsel for the petitioner

relying on judgment reported in Kunjuvarkey v. State of

Kerala (2000 (3) KLT 889) submits that the judgment has

attained its finality and, therefore, it cannot be recalled or

reviewed at this distance of time. I find that judgment was

passed against a man who is no more. Even though there is

no provision for substitution it could have been informed as to

whether they want to prosecute the case or not in view of the

provisions contained inSection 394Cr.P.C. Therefore, I have

no hesitation to recall the judgment passed in Crl.Appeal

No.211 of 1996 dated 16.08.2003 of the court of the

Additional          Sessions Judge     Fast     Track    Court-I,

Thiruvananthapuram. It is open to the petitioner to substitute

the legal heirs or give them notice as to whether they want to

prosecute the same or not. The Criminal Revision petition shallCrl.M.C. No.720 of 2007         3be heard by the appropriate court, and Crl.Appeal shall also be

heard by the appropriate court. Crl M.C disposed of

accordingly.Send back the trial court records in accordance with law.

It is open to the respondents 1 to 4 to seek impleadment in

the appeal before the Sessions court. The learned counsel for

the petitioner undertakes to appear in the Crl.Revision petition

No.1056 of 1996 pending before this Court. No further notice

be issued in that revision.B.P.RAY, JUDGE

mns