K. J. Thomas v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 9TH DAY OF JULY 2012/18TH ASHADHA 1934 Crl.Rev.Pet.No. 1375 of 2012 () ------------------------------(AGAINST THE ORDERS DATED 30.5.2009 IN CRA.95/2009 of SESSIONS COURT,KOTTAYAM IN CC.281/2000 of JUDICIAL ,VAIKOM) REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------ K.J. THOMAS, AGED 60 YEARS S/O JOSEPH, KONATHAPPILLIL HOUSE KANNUKETTUSSERY KARA, VAIKOM. BY ADVS.SRI.C.A.CHACKO SMT.C.M.CHARISMA COMPLAINANT(S)/RESPONDENT/RESPONDENT/STATE: ------------------------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.BIJU MEENATOOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: al. **C.T. RAVIKUMAR, J. =========================== CRL. R.P. NO. 1375/2012 =========================== Dated this the 9[th] day of July 2012** ## **O R D E R** This revision petition has been filed against the order in Criminal Appeal No. 95/2009 of the Court of Sessions, Kottayam. The petitioner was the accused in C.C.281/2000 on the file of the Judicial First Class Magistrate Court, Vaikom. He was tried for an offence under Section 138 of the Negotiable Instruments Act. Earlier he was enlarged on bail on execution of a bond for Rs. 30,000/- with two solvent sureties for the like sum. After the trial the revision petitioner herein was found guilty and was convicted for the offence punishable under Section 138 of the N.I. Act. In the appeal filed by him as Criminal Appeal No. 477/2003 the appellate court confirmed the conviction but, modified the sentence **CRL. R.P. NO. 1375/2012** #2 # imposed by the trial court. On account of the revision petitioner's failure to appear before the trial court to suffer the modified sentence warrant was issued against him. In spite of repeated warrants the presence of the revision petitioner could not be obtained. Thereupon, notices were issued to the sureties directing them either to produce the revision petitioner or to show cause as to why the bail bond should not be forfeited. Though several opportunities were granted to them they failed to produce the revision petitioner and also failed to show cause for non-forfeiture. It was thereafter, that the impugned order was passed forfeiting the bail bond and imposing a penalty of Rs. 30,000/- each and in default to undergo simple imprisonment for two months in civil jail, pursuant to proceedings under Section 446 of the Code of Criminal Procedure against the petitioner as also against his sureties. The sureties, thereupon, approached this court by filing Criminal R.P. No. 3391/2008. Though this court found that on merits the order passed against the **CRL. R.P. NO. 1375/2012** #3 # sureties did not call for any interference taking a lenient view the amount of penalty imposed against them was reduced from Rs. 30,000/- to Rs. 5,000/- each, as per Annexure-I order. 2. The grievance of the revision petitioner is against the same order whereby he was directed to pay penalty of Rs.30,000/- and in default of payment to undergo simple imprisonment for two months in civil jail on forfeiture of the bail bond. That order was passed on 22[nd] August 2006. Admittedly, the revision petitioner herein preferred an appeal against the said order as Criminal M.A. No. 95/2009 belatedly and it was moved along with a petition to condone the delay. However, the appellate court declined to condone the delay and dismissed the application for condoning the delay. Consequently, the appeal was also dismissed. It is in the said circumstances that this revision petition has been filed. ## **CRL. R.P. NO. 1375/2012** #4 # 3. It is to be noted that this revision petition was filed with considerable delay. However, the same was condoned on condition. Now, the question to be considered is whether any interference with the penalty imposed against the petitioner under Section 446 of the Code of Criminal Procedure is called for. 4. I have heard the learned counsel appearing for the petitioner and also the learned Public Prosecutor. I have already adverted to the circumstances that led to the forfeiture of the bail bond and also imposition of penalty on the revision petitioner. The learned counsel appearing for the petitioner submits that subsequently against his conviction by the trial court the matter was taken up in appeal and while confirming the conviction the sentence was reduced to imprisonment till the rising of the court. In fact, it is the failure on the part of the petitioner to appear before the trial court to suffer the said modified sentence that ## **CRL. R.P. NO. 1375/2012** #5 # culminated in the present situation as is obvious from the impugned order itself. 4. This court in **Thundichi v. State of Kerala** reported in **2009 (4) KLT 67** held that there is no necessity of recording of any satisfaction, reason and proof at the stage of forfeiture of bond, as the mere absence of the accused on a particular date fixed for appearance would automatically result in forfeiture of the bail bond. Evidently, sufficient opportunities were granted to the sureties of the revision petitioner and notice of forfeiture was issued to them. Already this court found in Crl.R.P.No.3391/2008 that on merits the order calls for no interference. In such circumstances, the impugned order invites no interference as regards the forfeiture of the bail bond and also the decision to impose penalty on the revision petitioner. **CRL. R.P. NO. 1375/2012** #6 # 5. What now remains to be considered is whether there is any scope for interfering with the quantum of penalty imposed. Annexure I would reveal that in the case of the sureties this court took a lenient attitude and reduced the penalty imposed on the sureties from Rs. 30,000/- to Rs. 5,000/-. But at the same time, I am of the considered view that in the case of the petitioner the penalty cannot be reduced to that extent for the reason that it was his own action in wilfully abstaining from appearing before the court to suffer the modified sentence that made the sureties as well to pay the penalty. Still, in the interest of justice, I am taking a lenient view considering the entire circumstances and the penalty is reduced to Rs. 15,000/-. Accordingly, this revision petition is allowed in part. The order forfeiting the bail bond is confirmed and the quantum of penalty imposed on the petitioner is further reduced to Rs.15,000/-. The revision petitioner is granted time till 28-10-2012 for remitting the penalty. In case of failure on the part of the petitioner to **CRL. R.P. NO. 1375/2012** #7 # pay the penalty of Rs. 15,000/- within the above stipulated time, further proceedings shall be initiated for recovery of the amount of fine in accordance with the procedure prescribed in the Code of Criminal Procedure. Sd/- ## **C.T. RAVIKUMAR** **(JUDGE)** kvr/ /True copy/ P.A. to Judge