JUDGMENT P. Govinda Menon, J 1. The Commissioner of the Tellicherry Municipality has filed this appeal against the order of the Judicial Sub Magistrate, Tellicherry acquitting the respondent who was prosecuted for offences under sections 355 read with sections 251 (1) and 267 of the Kerala Municipalities Act, 1960 hereinafter referred to as the Act. 2. The charge against the accused was that he failed to comply with the requisition made by the Commissioner to cut and remove two coconut trees and secure another one which were standing near house No. 17/338A endangering the safety of the inmates of the house. Section 251 (1) of the Act is in the following terms : "If any tree or any branch of a tree or the fruit 'of any tree be deemed by the Commissioner to be likely to fall and thereby endanger any person or any structure, the Commissioner may by notice require the owner of the said tree to secure, lop or cut down the said tree so as to prevent any danger therefrom." Section 267 of the Act reads : " If any tree or branch of any tree appears to the Commissioner to be likely to be a nuisance to the adjacent house or wells or tanks, the Commissioner may by notice require the owner of the said tree to chop, secure or cut down the said tree so as to prevent the nuisance therefrom." Section 355 is the penal section. It reads: "(1) Whoever (a) ...... (b) ...... (c) fails to comply with any direction lawfully given to him or any requisition lawfully made upon him under or in pursuance of the provisions of any of the said sections or rule, shall on conviction be punished with fine which may extend to the amount mentioned in that behalf in the fourth column of the said schedule. ** ** ** ** Schedule V, mentions S. 251 (1) failure to obey requisition to secure lop, or cut down dangerous trees Fine extending to Rs. 50. ** ** ** ** Schedule V, mentions S. 251 (1) failure to obey requisition to secure lop, or cut down dangerous trees Fine extending to Rs. 50. P.W. 1 the Municipal Overseer has sworn that on a prior occasion a notice was issued for cutting down the trees and for failure to comply with the notice the accused had been tried and convicted in C.C. 285 of 1962, that after the conviction the trees were not cut and removed, that as ordered by the Commissioner he again inspected the place and a fresh notice Ex. P-4 was issued. P.W. 2 is the peon of the municipality who served the notice on the accused. In spite of receipt of notice the accused did not comply with the terms of the notice and so he was prosecuted. 3. Learned Sub-Magistrate acquitted the accused on the ground that section 267 of the Act has no application, because the tree stands in the compound of the accused and no question of nuisance to the adjacent house would arise and secondly that the prosecution is barred by the principle of autrefois convict as laid down in section 403 (1), Cr.P.C The view of the learned Magistrate that the conviction in the earlier case would be a bar to this prosecution is wholly wrong. Section 403 would be a bar for the prosecution of the accused if he is tried for the same offence, but the learned Magistrate was in error in thinking that the offence in this case is the same as the offence with which he was tried and convicted in the previous case. There the offence was failure to comply with the notice dated 25th July 1961 but here it is failure to obey a fresh notice Ex. P-4, dated 1st November 1962. Whether the acquittal or conviction in a previous case of failure to comply with the directions contained in the notice would be a bar to the prosecution of the accused for failure to obey a fresh notice has been considered in the case in Secretary, Malabar Market Committee, Kozhihode v. Bapputty 1961 KLJ 1373 , where the entire case-law has been discussed and it was held that the offences are not the same and therefore section 403, Cr.P.C. will have no application. It is unfortunate that this decision which the Magistrate is bound to follow has been overlooked resulting in a wrong acquittal of the accused. Learned Counsel for the appellant referred to certain other decisions, but it is unnecessary to deal with them as the decision referred to above is directly in point. It might also be pointed out that the view taken by the learned Magistrate regarding section 267 is equally incorrect. What the section says is that if any tree is a source of nuisance or danger to a house adjacent to it (tree) the Commissioner may require the owner of the said tree to chop, secure or cut down the said tree. It is the Commissioner who must be satisfied about the need and the observations of the Magistrate in paragraph 7 of the judgment is thoroughly unjustified. Learned counsel for the petitioner did not attempt to support the view taken by the learned magistrate on both the points. The acquittal of the accused is, therefore, unsustainable in law and has to be set aside. We find the accused guilty and convict him of the offence charged, but we take a lenient view and sentence him to pay a fine of Rs. 5, in default to simple imprisonment for two days. 4. Learned Counsel for the respondent, however, made a submission that the trees are really not in such a dangerous condition as to fall on the house and endanger the safety of the persons residing in the house, that from 1961 onwards when the Commissioner first issued notice to this date nothing untoward has happened, that even after the heavy rains this year there was no trouble, that the trees ordered to be cut are really good yielding ones and that it would be very hard if the accused is ordered to cut and remove them and even if the trees appear to be leaning on the house it could be easily set right by securing the trees with proper copper wires. There is considerable force in the submission made. There is considerable force in the submission made. The Commissioner will, I hope, give due consideration to this and before any further action is taken he will personally go and inspect the place in the presence of the accused and see whether the trees are really in such a dangerous condition and if it is so, whether the object could not be achieved by directing the trees to be properly secured and fastened by tying it up with copper wires. He will then give the accused proper directions in a fresh notice giving reasonable time for complying with the terms of the notice and if still the accused fails to comply with the terms of the notice he can do the work himself and recover the costs from the accused in the manner provided in S. 386 of the Act. Appeal is allowed.