IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 Crl.MC.No. 3023 of 2009 ---------------------------------- [CC.NO.465/2003 OF JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM) .................... PETITIONER/ ACCUSED: ----------------------------------- M.ABDUL KADER HAJI, S/O.MOLAYIL MOHAMMED, MOOLAKKADAN HOUSE, LBS COLLEGE, POVIL, VOVIKANAM P.O., MULIYAR, KASARAGODE TALUK, KASARAGODE DISTRICT. BY ADVS. MR.P.VIJAYA BHANU, MR.P.VENUGOPAL. RESPONDENTS/ COMPLAINANT & LEGAL REPRESENTATIVE OF THE COMPLAINANT & STATE: --------------------------------------------------------------------------------------------------- 1. KUTTI HASSAN HAJI (DIED) S/O.AHAMEDKUTTY HAJI, CHOLASSERI HOUSE, VADAKKEMANNA, KODU P.O., MALAPPURAM. 2. AHAMEDKUTTY, S/O.KUTTY HASSAN HAJI, CHOLASSERI HOUSE, VADAKKEMANNA, KODUR P.O., MALAPPURAM. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R3 BY PUBLIC PROSECUTOR MR. AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3023 OF 2009 ------------------------------------------ Dated 17th September 2009 O R D E R Petitioner was convicted and sentenced for the offence under Section 138 of the Negotiable Instruments Act. Under Annexure-A order in Crl.R.P.372/2008. The conviction was confirmed and sentence was modified to a fine of Rs.2,50,000/- making it clear that on payment of fine, it is to be paid to the complainant as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner was directed either to deposit the fine before the Magistrate or to pay the compensation to the complainant and produced a memo to that effect before the Magistrate. It is also provided that on the failure to deposit or to pay the fine, petitioner has to suffer simple imprisonment for three months. According to the petitioner, as the complainant died, he paid the compensation to Ahamedkutty, the second respondent, son of the original complainant who received it on behalf of the legal heirs and also CRMC 3023/09 2 filed an affidavit of second respondent before the learned Magistrate. But the learned Magistrate as per Annexure-D order holding that in spite of the direction to produce legal heir certificate, petitioner did not produce the same, issued a non bailable warrant. Said order is challenged in this petition. 2. Learned counsel appearing for petitioner was heard. 3. When the revision was disposed by this court, sentence was modified to fine with a default sentence making it clear that petitioner is at liberty to deposit the fine before the trial Magistrate or to pay the same to the complainant directly and produce the receipt, as the fine was directed to be paid to the complainant as compensation under Section 357(1) of Code of Criminal Procedure. Petitioner was also granted seven months time to pay the same. As the complainant was no more, petitioner paid the amount to one of his legal heirs, who received the same on behalf of all the legal heirs. In such circumstances, learned Magistrate was not justified in issuing a non bailable warrant, without deciding the question whether the payment received by CRMC 3023/09 3 second respondent is on behalf of all the legal heirs or not. Annexure-D order is therefore quashed. Learned Magistrate is directed to consider the question whether the amount received by second respondent is for and on behalf of all the legal heirs of the original complainant. If it is for on behalf of the legal heirs, learned Magistrate is directed not to proceed against the petitioner. Petition is disposed of accordingly. M.SASIDHARAN NAMBIAR, JUDGE. uj.