IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 Bail Appl..No. 9136 of 2011() ----------------------------- ST.1378/2010 of J.M.F.C.-I, KOLENCHERRY .................... PETITIONER : ACCUSED : ------------------------------ ABDUL HAKKIM, S/O.HAMSA HAJI, AGED 42 YEARS, KANNARKRT, FLAT NO.9 VYTTILA KARA(NEAR TOC - H- SCHOOL TOC-H-ROAD,)POONITHURA VILLAGE, KANAYANOOR TALUK ERNAKULAM DIST. BY ADV. SRI.P.A.MUJEEB RESPONDENT(S): --------------- STATE OF KERALA, THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.R.RENJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------- B.A.No.9136 of 2011 --------------------------- Dated this the 3rd day of November, 2011 O R D E R The petitioner is the accused in S.T.No.1378 of 2010 on the file of the court of the Judicial Magistrate of the First Class-I, Kolencherry. The offence alleged against the petitioner is under Section 138 of the Negotiable Instruments Act. 2. In paragraph 2 of the Bail Application, it is stated thus : “2. The allegation is that the accused had borrowed an amount of ` 3,50,000/- from the complainant. The petitioner is already paid fully amount to the complainant. Petitioner is out of station in connection with his business. The petitioner bonafide believing that his case is withdrawing the complaint. Now one police constable informed to the petitioner non-bailable warrant is pending against the petitioner.” 3. It is stated that non bailable warrant was issued by the court for the arrest of the petitioner and therefore, he has BA 9136/11 2 filed this application for anticipatory bail. 4. In Vineeth Somarajan vs. State of Kerala (2009 (3) KLT 576), it was held that when warrant is issued against the accused, his remedy is to approach the court which issued the warrant for recalling the warrant and for granting bail; and not to move under Section 438 Crl.P.C. for anticipatory bail. If the petitioner surrenders before court and moves an application for bail and for recalling the warrant, the same would be considered by the court as indicated in Vineeth Somarajan vs. State of Kerala (2009(3) KLT 576). Reserving the right of the petitioner to move the court which issued the non-bailable warrant, to recall the warrant and to grant bail, this Bail Application is closed. K.T.SANKARAN JUDGE csl