IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 CRL.A.No. 257 of 2009() ----------------------- AGAINST THE ORDER DATED 10/10/2007 IN MC.2/2007 IN SC.587/2006 of VI ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT(S): APPELLANTS/RESPONDENTS:- -------------------------------------- 1. FIROS, S/O MUHAMMEDALI, KAPPUNKAL HOUSE, ALANALLOOR PANCHAYATH, ALANALLOOR III MANNARKKAD, PALAKKAD. 2. CHANDU, S/O PARANGODAN, VALLIYALIL HOUSE ALANALLOOR PANCHAYATH, ALANALLOOR III, MANNARKKAD, PALAKKAD. BY ADV. SRI.O.V.MANIPRASAD RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI C.M. KAMMAPPU THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A . No.257 of 2009 ---------------------------------------------- Dated, 3rd February, 2009 JUDGMENT Appellants are the sureties for the sole accused in S.C.No.587/2006 which, is a case instituted upon a police report for the offences, punishable under sections 489-B and C read with section 34 of the IPC. Since the accused jumped over the bail condition, the court below initiated proceedings against the sureties under section 446 Cr.P.C. and finally ordered each of them to pay a penalty of Rs.10,000/- and it is further ordered that if the penalty is not paid or recovered, they shall be detained in civil prison for a period of two months. It is the above order challenged in this appeal. 2. Heard the learned counsel Sri O.V.Maniprasad, appearing for the appellants as well as the learned Public Prosecutor. 3. The learned counsel submitted that on 11.4.2007, the date on which S.C.No.587/2006 was posted, the accused Crl.257/09 -:2:- could not appear before the court as his mother-in-law expired and that the said fact could not be informed his counsel. So, according to the learned counsel, there was no willful laches on the part of the accused. According to the learned counsel, after the said incident, the accused was also admitted in Baby Memorial Hospital, Kozhikode on 12.7.2007 where he had undergone surgery on 16.7.2007. Thereafter again the accused had undergone treatment in various hospitals. It is also the case of the counsel for the appellant that the first appellant was out of India and he was not aware of the proceedings pending before the court below. The second appellant on receipt of notice, informed the accused and consequently, the accused appeared before the court below and he had undergone the ordeal of trial and finally the case ended in an acquittal as per the judgment dated 18.12.2007 in S.C.No.587/2006. 4. In the above circumstances, the learned counsel submitted that a lenient view may be taken. It is also submitted that at the time of the said impugned order, as directed by Crl.257/09 -:3:- this court, the appellants have already deposited a sum of Rs.1500/- and thus the penalty amount may be revised as the amount already deposited. 5. The order impugned shows that the accused was released on bail on 23.12.2006 upon the suretyship of the appellants, but they failed to procure the presence of the accused and to make available him to proceed with the trial. Though notice was ordered, the same could not be served on the first appellant as he was abroad. Though notice was received by the 2nd appellant, there was no convincing explanation , according to the court below. However, I find no illegality with the order passed by the trial court. 6. It is a fact that though proceedings were initiated against the appellant, subsequently, accused had already appeared before the court and he had already undergone ordeal of trial and the same resulted in acquittal of the accused. It is also a fact which is not disputed that the accused had undergone treatment during the relevant period and his absence was due to the sudden death of his mother-in-law. Crl.257/09 -:4:- Considering the above facts and circumstances, I am of the view that a lenient view can be taken and the penalty amount imposed by the court below can be reduced and refixed as 3000/- per head. 7. In the circumstances explained above, the amount imposed as penalty as per the impugned order is reduced from Rs.10,000/- to Rs.3,000/-. Each of appellants are directed to make the payment of Rs.3000/-, within one month from today before the court below. If the amount is not paid as directed, the trial court can take all coercive steps for the realisation of the said amount. With the above modification, the appeal is allowed partly and accordingly the same is disposed of . V.K.MOHANAN, JUDGE kvm/- Crl.257/09 -:5:-