IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 7TH JULY 2011 / 16TH ASHADHA 1933 CRL.A.No. 2519 of 2006() ------------------------ M.C.NO SC.649/2004 of ADDL.SESSIONS COURT (ADHOC-1), KASARAGOD ................................... APPELLANT: 3RD RESPONDENT ---------------------------- ABDULKHADER, AGED 45 YEARS, S/O.IBRAHIM, KARAYIKKATTU HOUSE, KUMBALA P.O., KOIPADY VILLAGE, KASARAGOD. BY ADV. SRI.S.SUDHISH KUMAR SRI.K.B.DAYAL RESPONDENT(S): IST RESPONDENT/STATE ----------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (S.H.O., KUMBALA POLICE STATION). 2. M.P.MUHAMMAD ABDULLA @ SALTHU, AGED ABOUT 30 YEARS, S/O.ABDULLA, CHOORITHADKA, KODIMMA, ICHILAMPADY VILLAGE, KASARAGOD DISTRICT. RY BY PUBLIC PROSECUTOR SRI S. DILIP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2011, ALONG WITH CRA 631/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A Nos.2519/2006 & 631 of 2007 of 2011 ---------------------------------------- Dated the 7th Day of July , 2011 JUDGMENT As both the above appeals are arising out of a common order, the same are heard together and are being disposed of by this common judgment. 2. The counter petitioners 2 and 3/sureties in M.C.No.5 of 2006 in M.C.No.649 of 2004 of the court of the Additional Sessions Judge, (Adhoc-1), Kasaragod are the appellants in both the above appeals - Crl.A.No.2519/06 is filed by the 3rd counter petitioner and Crl.A.No.631/2007 is filed by the 2nd counter petitioner - as they are aggrieved by the order dated 13-3-2006 of the said court in the above proceedings under section 446 Cr.P.C by which the learned Sessions Judge imposed a penalty of Rs.25,000/- each against them. 3. The first counter petitioner in the M.C. proceedings is the accused in S.C.No.649/2004 wherein the offence alleged against him is under section 55(a) of the Abkari Act. On conviction, the trial court found that the accused is guilty of the above offence and accordingly, he was sentenced to undergo Crl.A.Nos2519/06 & 631/07. -:2:- rigorous imprisonment for a period of three years and to pay a fine of Rs.one lakh. The default sentence was fixed as one month rigorous imprisonment. Since the sentence was not exceeding three years, the trial court suspended the execution of the sentence for a period of one month so as to enable the accused to file appeal and released him on bail on his executing a bond and Rs.25000/- with two solvent sureties for the like amount. 4. Thus the appellants in both these appeals are the sureties while suspending the execution of sentence as ordered by the trial court under section 389(3) Cr.P.C. The said order was in force till 22.11.2005 but thereafter the accused did not appear. Thus it was incumbent upon the sureties to produce the accused before the court, but they failed and therefore, the trial court issued notice to the sureties - the appellants herein. Though on several dates the case was posted, the accused as well as the sureties were remained absent on all those dates. It is true that absent petitions were filed on behalf of the sureties. But it is discernible from the order that recording the submission made on behalf of the sureties that they were in search of the accused, time was granted to them to produce the accused. But the appellants failed to produce the accused. Thus the M.C was registered under section Crl.A.Nos2519/06 & 631/07. -:3:- 446 Cr.P.C and posted the case to 15.2.2006 for the production of the accused. But on that day also the sureties were absent and applications were filed to excuse their absence and after allowing those applications, the case was posted to 3.3.2006. On 3.3.2006, the appellants who are the sureties were absent , but only counter petitioner No.2/appellant in Crl.A.No.631/2007 alone has filed excuse petition. There was no representation on behalf of the other surety. Finally, the court adjourned the case to 13.3.2006, as last chance, for the sureties to produce the accused. On that day also the sureties failed to produce the accused and therefore the learned Sessions Judge issued the impugned order imposing a penalty of Rs.25,000/- on each of the sureties and the M C against the accused was split up. It is the above order imposing penalty of Rs.25,000/- is under challenge in this appeal. 5. The learned counsels for the appellants submitted that the appellants were not in a position to produce the accused as he had absconded. The above submission is not sufficient to relieve the appellants from their contractual obligation. Therefore according to me the learned Session Judge is right in forfeiting the bond amount and also imposing penalty on the appellants under section 446 Cr.P.C Crl.A.Nos2519/06 & 631/07. -:4:- 6. However, it appears that the accused in the above case was subsequently arrested and sent to the jail and from 13.5.2010 onwards he is in the jail. But it is relevant to note that as per the materials made available in Crl.A.No.2519/2006, it appears that the accused in the present case was admitted in jail on 13.5.2010 though the he was convicted as per the judgment idated 7.5.2005. Because of the failure on the part of the sureties/appellants, the accused could be brought to the jail only after 5 years from the date of judgment of trial court. However, as the accused had already been arrested and detained in jail, I am of the view that, while upholding the findings of the trial court and imposing penalty, the penalty amount fixed by the court below can be modified having regard to the facts and circumstances and also considering the fact that the accused, for whom the appellants stood as sureties, had already been arrested, the amount can be reduced into Rs.12,500/- which will be sufficient to meet the ends of justice. In the result the above appeals are disposed of confirming the finding of the learned Sessions Judge in the order dated 13.3.2006 in M.C.No.5/2006 under section 446 Cr.P. C but the penalty amount is modified and reduced into Rs.12,500/-. Accordingly, each of the Crl.A.Nos2519/06 & 631/07. -:5:- appellants are directed to deposit the above modified penalty amount of Rs.12,500/- in the trial court within 45 days from today, failing which the trial court is free to take coercive steps to realise the above revised penalty amount, in accordance with the procedure and law. V.K.MOHANAN, JUDGE kvm/-