IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 30TH MAY 2008 / 9TH JYAISHTA 1930 Crl.MC.No. 1155 of 2004 ------------------------- ST.3279/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... PETITIONER/ACCUSED: -------------------- BHARATHAN, S/O. AYYAPPAN, AGTED 37 YEARS, PARAKAL HOUSE, P.O. PAZHUVIL, THRISSUR DISTRICT. BY ADV. SRI.V.M.KRISHNAKUMAR RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. T.RRAMACHANDRAN, S/O. RAMDAS VAIDYAR, THACHAPPILLY HOUSE, P.O. THRITHALLUR, THRISSUR DISTRICT. BY ADV. SRI.N.P.SAMUEL FOR R2 by PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.M.C.NO.1155 of 2004 ========================= Dated this the 30th day of May 2008 ORDER The petitioner was the accused in S.T.No.3279/96 on the file of the Judicial First Class Magistrate Court, Kodungallur. The above case was filed by the second respondent in this petition under Section 138 of the Negotiable Instruments Act. After trial, the petitioner was found guilty and convicted and sentenced to pay a fine of Rs.1000/- and in default to undergo simple imprisonment for two months. The petitioner was also ordered to pay Rs.80,000/- as compensation to the complainant/2nd respondent under Section 357(1) Cr.P.C. with no default clause. After the conviction, the petitioner has remitted the fine amount of Rs.1000/- and has defaulted to pay the compensation amount of Rs.80,000/- as ordered by the learned Magistrate. For that reason non-bailable warrant was issued against the petitioner for several times. The present petition is filed by the petitioner to set aside that order of the Magistrate in issuing non- bailable warrant against him. 2. Heard both counsel appearing for the petitioner and the 2nd respondent and also the learned Public Prosecutor. CRMCCRL.M.C.1155/2004 -2- 3. The judgment passed by the Judicial First Class Magistrate, Kodungallur would reveal that the petitioner was found guilty for the offence punishable under Section 138 of the Negotiable Instruments Act and have convicted and sentenced to pay a fine of Rs.1000/- with default clause of simple imprisonment for two months. The petitioner has paid that fine amount. Further, direction to the petitioner to pay Rs.80,000/- as compensation has not been paid. No default clause is mentioned by the learned Magistrate with regard to the compensation amount. As per Section 431 of the Code of Criminal Procedure any money other than fine payable by virtue of any order made under the Code of Criminal Procedure and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine. In the light of the above provisions in the Cr.P.C., the impugned order of the learned Magistrate in issuing non-bailable warrant against the petitioner is liable to be set aside. The Magistrate can proceed under Section 421 of Code of Criminal Procedure to recover the amount in accordance with the procedures prescribed therein. In the result, this Crl.M.C.is closed and the learned Magistrate is directed to proceed in accordance with the procedures prescribed under Section 421 of the Code of Criminal procedure. M.C. HARI RANI JUDGE ks. CRMCCRL.M.C.1155/2004 -3-