IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 8TH APRIL 2008 / 19TH CHAITHRA 1930 Crl.Rev.Pet.No. 1227 of 2008() ------------------------------ CRA.838/2005 of ADDL. SESSIONS COURT, THRISSUR ST.4646/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER: REVISION PETITIONERS/APPELLANTS/ACCUSED ---------------------------------------------------------------------------------------------------------------- 1. MOHANAN, S/O.VELAYUDHAN, PALLATH HOUSE, KAIPAMANGALAM, THRISSUR DIST. 2. SREEKUMAR, S/O.SEKHARAN, KOZHIPARAMBIL HOUSE, KAIPAMANGALAM, THRISSUR DIST. BY ADV. SRI.U.O.JOSE RESPONDENTS: RESPONDENT/ AND THE STATE ---------------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.1227 of 2008 = = = = = = = = = = = = = = Dated this the 7 th day of April, 2008 ORDER Petitioners were the sureties for the accused in S.T.No.4646 of 2005 on the files of the J.F.C.M, Kodungallur which was a prosecution under Section 138 of the Negotiable Instruments Act, 1881. Consequent on the non appearance of the accused in the S.T.case, proceedings were initiated against the petitioners under Section 446 Cr.P.C. The bond amount was Rs.45,000/-. To the show cause notice issued to them, the petitioners had no valid explanation. The learned Magistrate accordingly, imposed the bond amount as penalty on each of the revision petitioners and on default the petitioners were directed to undergo simple imprisonment for six months in Civil Prison. On appeal preferred by the petitioners before the Sessions Court,Thrissur as Crl.Appeal No.838/2005, the lower appellate court, taking into account the poverty of the petitioners, reduced the penalty amount to Rs.10,000/- each and confirmed the order of the trial court in all other respects. It is the said order which Crl.R.P.No. 1227 of 2008 2 is assailed in this revision. 2. Having regard to the fact that the accused in the S.T case had subsequently compounded the matter and having further regard to the fact that the petitioners are impecunious persons, I am inclined to reduce the penalty to Rs.5,000/- (Rupees five thousand only) each. The revision petitioners shall deposit the reduced penalty within three months from today, failing which proceedings shall be initiated against them for realisation of the same. The learned Magistrate has committed a grave error of law in directing the petitioners to undergo imprisonment in civil prison for six months on their default to pay the penalty which is not permissible under Section 446 Cr.P.C. Such a direction can only be made when the amount of penalty is finally found to be irrecoverable, after recovery proceedings have been initiated against them. This Crl.R.P.is disposed of as above. V. RAMKUMAR, JUDGE sj