IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 Crl.Rev.Pet.No. 387 of 2009 ----------------------------- AGAINST THE JUDGEMENT/ORDER IN 5.12.2008 OF THE SESSIONS JUDGE, ERNAKULAM IN CRA.269/2008CONFIRMING THE ORDER DATED 27.2.2008 ON THE CHIF JUDICIAL MAGISTRATE, ERNAKULAM IN M.C.NO.5/2008 IN C.C.NO.731/1998 .................... REVN. PETITIONER/APPELLANT/2ND COUNTER PETITIONER: ----------------------------------------------------------------- GOPALAKRISHNAN NAIR, S/O.KUNJAN NAIR, 51 YEARS, PERUMPILLIL VADAKKE VEEDU, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK ERNAKULAM. BY ADV. MR.BIJU .C. ABRAHAM RESPONDENT/ RESPONDENT/COMPLAINANT: ------------------------------------------------ STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, ERNAKULAM. PUBLIC PROSECUTOR MR.P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 387 of 2009 ORDER ON CRL.M.P.NO.1157/2009 IN CR.R.P.NO.387/2009 DISMISSED. 2.2.2009. SD/- M.SASIDHARAN NAMBIAR, JUDGE. // TRUE COPY // P.A TO JUDGE. M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.No. 387 OF 2009 -------------------------------------------------- Dated this the 2nd day of February, 2009 O R D E R Revision petitioner is the second counter petitioner in M.C. 5 of 2008 and second surety to the accused in C.C.731 of 1998 on the file of Chief Judicial Magistrate, Ernakulam. Revision petitioner along with other surety executed a bond for Rs.1,00,000/- agreeing to pay the same as penalty on failure of the accused to appear. When the accused failed to appear, notice was issued to the sureties to produce the accused. Out of the two sureties, only revision petitioner appeared before Chief Judicial Magistrate and sought time to produce the accused. Time was granted. On the failure to produce the accused, learned Magistrate forfeited the bond and registered M.C.5 of 2008 against both the sureties and issued show cause notice why the penalty shall not to be realised. Only revision petitioner appeared before the learned Magistrate. Learned Magistrate, finding that there is no sufficient cause to grant remission of the entire amount, directed the sureties to pay a CRRP 387/2009 2 penalty of Rs.25,000/- each. Revision petitioner challenged that order before Sessions Court, Ernakulam in Crl. Appeal 269 of 2008. Learned Sessions Judge, on going through the records, found that there was no procedural irregularity. Learned Sessions Judge also found that there is no reason to interfere with the order and dismissed the appeal. It is challenged in the revision. 2. Before filing the revision, revision petitioner approached this Court by filing WP(C)No. 1327 of 2009, when proceedings were initiated for realisation of the penalty by revenue recovery proceedings. This Court as per judgment dated 13.1.2009 granted revision petitioner three weeks time to file revision and directed revenue recovery authorities to keep the order in abeyance for three weeks to enable revision petitioner to challenge the order in revision. Revision is filed accordingly. 3. Learned counsel appearing for revision petitioner submitted that though the amount agreed in the bond is Rs.1,00,000/- and the penalty imposed was Rs.25,000/-, because of the financial conditions of the revision petitioner he is not in a CRRP 387/2009 3 position to pay that much amount and therefore leniency may be shown. Learned counsel also submitted that revision petitioner may be granted sufficient time to pay the penalty. 4. When revision petitioner has no specific case that subsequent to the execution of the bond his financial condition has been deteriorated and having made Chief Judicial Magistrate to believe that he has the capacity to pay Rs.1,00,000/-, it is not open to the revision petitioner to contend that he is not financially sound to pay 1/4 th of the amount covered by the bond as penalty. Therefore it is not for the revision petitioner to challenge the order on the ground of his financial conditions. Still taking a lenient view, penalty imposed by the Chief Judicial Magistrate, as confirmed by learned Sessions Judge, is reduced to Rs.10,000/-. Revision petitioner is permitted to pay that amount within three months from today. M. SASIDHARAN NAMBIAR, JUDGE okb