IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 Crl.MC.No. 1672 of 2010() ------------------------- ST.1713/2005 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... PETITIONER(S): ACCUSED ------------------------------------------- N. GOPAKUMAR, S/O. NARAYANAN, NEYTHURUTHIYIL HOUSE, KIZHAKKUMBHAGOM KARA, ETTUMANOOR. BY ADV. SRI.P.C.HARIDAS RESPONDENT(S): COMPLAINANT ------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHAJI PAILY, AATTUPURATHU HOUSE, MANJOOR.P.O, KOTHANALLOOR VILLAGE. PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C..No.1672 of 2010 = = = = = = = = = = = = = = Dated this the 26 th day of May, 2010 ORDER Petitioner, who was the accused in S.T.No.1713/2005 on the file of J.F.C.M. Ettumanoor, seeks to set aside the order dated 03.04.2010 passed by the learned Magistrate directing the issue of committal warrant against the petitioner for the rest of the sentence. 2. The above prosecution was one under Section 138 of the Negotiable Instruments Act involving a cheque for Rs.85,000/-. The trial court convicted the accused and sentenced him to undergo simple imprisonment for two months and to pay the cheque amount as compensation and on default to pay the compensation to undergo simple imprisonment for two months. On appeal preferred by him before the Sessions Court as Crl.Appeal No.301 of 2008, the learned Additional Sessions Judge as per judgment dated 26.10.2009 confirmed the conviction but modified the Crl. M.C. No. 1672 of 2010 2 sentence directing him to undergo imprisonment till the rising of the court and to pay a sum of Rs.85,000/- and on default to pay the fine to suffer simple imprisonment for two months. The matter was taken up before this Court in revision as Crl.R.P.No.364/2010. As per final order dated 29.1.2010 (Annexure 3) this Court confirmed the conviction but modified the sentence to one of imprisonment till the rising of the court and to pay the cheque amount as compensation within two months from 29.1.2010. There was no default sentence imposed by this Court. The petitioner has undergone imprisonment till the rising of the Court, but he did not pay the compensation amount of Rs.85,000/-. However, under the mistaken impression that there was a default sentence for non-payment of compensation, the learned Magistrate committed the petitioner to custody. It is the said order of committal to custody, which is assailed in this Crl.M.C. In the absence of any default sentence for the non-payment of the Crl. M.C. No. 1672 of 2010 3 compensation amount, the learned Magistrate can only take steps under Section 431 read with 421 Cr.P.C as if the compensation amount were a fine. Instead of resorting to that, the petitioner could not have been arrested and committed to the Prison. As per letter dated 22.5.2010, the learned Magistrate has also expressed his regret for overlooking the fact that there was no default sentence. This Court had, as per order dated 17.5.2010, already ordered the release of the petitioner from custody and he has already been released from custody. No further order remains to be passed in this case. It is clarified that the compensation can be recovered only as if it were a fine. Dated this the 26th day of May, 2010. V. RAMKUMAR, JUDGE sj