IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 CRL.A.No. 415 of 2010() --------------------------------- (AGAINST THE ORDER DATED 11.8.2009 IN M.C.NO.109/2009 IN S.C.NO.768/2004 OF ADDL. DISTRICT AND SESSIONS COURT, (ADHOC)-III, KASARAGOD) APPELLANT(S): APPELLANTS/RESPONDENTS ------------------------------------------------------------------ 1. ABDULLA KUNHI HAJI, AGED 68 YEARS, S/O.P.A.MAMUNHI, H.NO.111/214 MOGRAL PUTHUR PANCHAYATH, NAR JUMA MASJID, MOGRAL PUTHUR, KASARAGOD DISTRICT. 2. KHADEEJA, AGED 50 YEARS, W/O.ABDULLA KUNHI HAJI, H.NO.111/214 MOGRAL PUTHUR PANCHAYATH, NAR JUMA MASJID, MOGRAL PUTHUR, KASARAGOD DISTRICT. BY ADV. SRI.K.P.HARISH RESPONDENT(S): PETITIONER -------------------------------------------- STATE - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.AMJAD ALI, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.415 of 2010 ------------------------------- Dated this the 5th day of March, 2010. J U D G M E N T This appeal is at the instance of the sureties, in S.C.No.768/04 on the file of the Addl. District and Sessions Judge (Ad-hoc)-III, Kasaragod, who were stood as sureties for the 2nd accused in the above case, wherein the substantial offences alleged are u/s.326 and s.308 of IPC. As the accused was absconding, a notice was ordered to the appellants herein. According to the court below, even after the service of the notice on the appellant, they did not turn up and no reason was assigned for not initiating proceedings against them. Under the above circumstances, court below imposed penalty of Rs.10,000/- each on the appellants. 2. The learned counsel for the appellants submitted that, no notice was served on the appellants and it was under the above circumstances, the appellants could not appear and submit their explanations. Apart from the above mere Crl. APPEAL No.415 of 2010 2 submission, no material produced to substantiate the above submission. 3. From the order, it appears that the notice was duly served on the appellants but according to the learned counsel, the appellants were residing at Kasaragod and not in the address furnished by them while they executed the bond. Therefore according to me, the finding of the court below that the service of notice to the appellants has been done, is appears to be correct. Under the above circumstances, I find no fault with the finding arrived on by the court below. 4. However, from the order it appears that a sum of Rs.10,000/- was ordered to realise from the appellants as penalty u/s.446 of Cr.P.C. From the order itself, it appears that the accused is not available, even within the jurisdiction of this court and he had gone abroad. However, it is the duty of the appellants to procure the presence of the accused in terms of the undertaken made by them. But there is no willful latches or negligence in their part to make available the absconding Crl. APPEAL No.415 of 2010 3 accused. Under the above circumstances, I am of the view that certain modifications can be made with respect to the amount of penalty ordered by the court below. Accordingly, I am of the view that a direction to pay a sum of Rs.3,500/- by each of the appellants is sufficient to meet ends of justice. In the result, this appeal is disposed of, modifying the order of penalty ordered by the court below and reducing the same from Rs.10,000/- to Rs.3,500/-. At the time of consideration of the delay petition, by order dated 18.2.2010 in Crl.M.A.No.1565/10, this court directed each of the appellants to deposit a sum of Rs.3,500/- and accordingly the same were deposited as evidenced by receipt dated 23.2.2010 issued from the court below. If that be so, the amount so deposited by the appellants can be adjusted towards the penalty, as reduced and re fixed by this court. Thus the Trial Court is directed to, adjust the amount which has already been deposited by the appellants as per the order dated 18.2.2010, towards the penalty as re fixed by this court. The coercive steps if any already taken shall Crl. APPEAL No.415 of 2010 4 be dropped. The above appeal is disposed of accordingly. V.K.MOHANAN, Judge. ami/