IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 28TH MAY 2008 / 7TH JYAISHTA 1930 Crl.Rev.Pet.No. 3736 of 2007() -------------------------------------------- (CRL.APPEAL NO.93/2001 OF 1ST ADDL.SEESIONS COURT,KOLLAM) REVN. PETITIONER: APPELLANT:COUNTER PETITIONER: ------------------------------------------------------------------------------------- K.H.CHERIAN, KANNAMPUZHA HOUSE, NEAR CHOWARA FERRY, THOTTUMUGHAM P.O. ALUVA - 5. BY ADV. SRI.RAJESH VIJAYENDRAN RESPONDENT: RESPONDENT:COMPLAINANT: --------------------------------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, KOLLAM, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ====================================== CRL.R.P. NO.3736 OF 2007 ====================================== Dated this the 28th day of May 2008 ORDER Petitioner is the accused in C.C.460/1998 on the file of the JFCM I, Kottarakkara which was the prosecution under Section 138 of the Negotiable Instruments Act, 1881. The bond amount was Rs.7,000/-. Consequent on the failure of the petitioner to appear before the Magistrate, proceedings were initiated against him as M.C.51/2001 under Section 446 Cr.P.C. 2. To the show cause notice issued to him, he had no explanation to offer. Learned Magistrate, thereupon, as per order dated 25.4.2001 imposed the bond amount as penalty and further directed that on default to pay the penalty, he shall undergo simple imprisonment for six months. 3. On appeal, preferred by the petitioner before the Sessions Court, Kollam as Crl.Appeal No.93/2001, the lower appellate court confirmed the penalty imposed by the trial court, but modified the order of the trial court holding that the question of detention in the civil prison can arise only if the penalty is crrp 3736/2007 2 ultimately found to be irrecoverable. 4. Since the proceedings under Section 138 of the Negotiable Instruments Act have since been settled and the case has been disposed of, I am inclined to reduce the penalty to Rs.3,000/-. The petitioner shall deposit the reduced penalty within one month from today, failing which recovery proceedings shall be initiated against him. The question of detaining the petitioner in civil prison under Section 446 Cr.P.C. does not arise since detention in civil prison can be had only in the case of sureties and not in the case of an accused. Both the courts below have ignored this aspect to the matter. In the result, the revision is allowed in part as above. V.RAMKUMAR, JUDGE css/