IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 Crl.MC.No. 3064 of 2009 ------------------------------- ORDER IN C.M.P NO. 1241/2009 IN ST.1806/2006 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE ............................................... PETITIONER(S): ACCUSED -------------------------------------- BENNY PETER, ST.MARY'S ENTERPRISES,KAMBALAKADU, WAYANAD DISTRICT. BY ADV. SRI.K.P SARVOTHAMAN RESPONDENT(S): COMPLAINANT & STATE -------------------------------------------------------------- 1. SUKUMARAN NAIR R.V., 16/769 AI,AMINA BUILDING,(SCHOLAR BUILDING), NEAR SANGAM THEATRE,CALICUT - 673602. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.K.B.ARUNKUMAR FOR R1 PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3064 OF 2009 ------------------------------------------ Dated 24th September 2009 O R D E R Petitioner was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. Annexure-A1 judgment shows that petitioner was convicted and sentenced to a fine of Rs.1,10,000/- and in default simple imprisonment for three months. It also provides that on realisation of fine, the entire fine amount is to be paid to the first respondent as compensation under Section 357(1) of Code of Criminal Procedure. Though petitioner filed appeal and later a revision, both the appeal and revision were dismissed. 2. According to the petitioner as the direction was to deposit fine of Rs.1,10,000/- which is to be paid to first respondent as compensation, petitioner did not deposit the fine before the court but directly paid fine to the first respondent, which is liable to be paid to first respondent as compensation. Learned Magistrate without considering CRMC 3064/09 2 this aspect issued non bailable warrant holding that the fine was not deposited. Petitioner filed C.M.P.1241/2009 to re-call warrant. But under Annexure-A4 order, learned Magistrate dismissed the petition holding that as the fine was not deposited and he has to undergo default sentence. 3. Learned counsel appearing for petitioner and learned counsel appearing for first respondent were heard. 4. Though strictly speaking Annexure-A1 judgment which was confirmed in appeal and revision only provides for deposit of fine amount before the court, it is clear that said amount on deposit is to be paid to first respondent as compensation. In such circumstances, when first respondent himself appears and admitted that he has already received the entire amount, which he is entitled to, under the judgment, it is not in the interest of justice to direct the petitioner to undergo the default sentence. It would have been better for the petitioner to seek a clarification from the court before paying compensation to first respondent. But as first respondent has admitted that the amount has already CRMC 3064/09 3 been received, it is not in the interest of justice to stand on technicalities and direct the petitioner to undergo the default sentence. 5. In such circumstances, Annexure-A4 order is quashed. In view of the submission by the learned counsel appearing for the first respondent it is recorded that the petitioner has paid the fine amount, which is liable to be paid to the first respondent as compensation. M.SASIDHARAN NAMBIAR, JUDGE. uj.