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. 252 of 2009() ----------------------- AGAINST THE ORDER IN MC.2/2008 IN SC.831/2006 of ADDL. SESSIONS COURT (ADHOC) I, KOLLAM .................... APPELLANT(S): -------------- 1. SUSEELAN, S/O.VELU, SIYA BHAVANAM KANJIRAMCODE CHERRY MULAVANA VUILLAGE 2. THANKACHAN, S/O.PHILIPOSE, SUNIL BHAVANAM, KOTTARAKKARA VILLAGE,. BY ADV. SRI.S.SUDHEESHKAR SRI. K.SIJU SRI.PRATHEESH.P RESPONDENT(S): --------------- STATE OF KERALA, REP. BY 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.252 of 2009 ---------------------------------------------- Dated, 3rd February, 2009. JUDGMENT This is an appeal at the instance of the sureties against the order dated 12.5.2008 in M.C.No.2/2008 in S.C.No.831/2006 on the file of the court of Additional District & Sessions Judge (Adhoc)-1, Kollam. As per the impugned order, each of the appellants were directed to remit an amount of Rs.10,000/- as penalty. It is the above order under challenge. 2. I have heard the learned counsel appearing for the appellants and also the learned Public Prosecutor. 3. The learned counsel submitted that as the first accused, for whom the appellants stood as sureties, is in gulf country and therefore, the appellants are not in a position to procure the presence of the said accused and the appellants are poor workers and they are incapable of paying such huge amount. The learned counsel submitted that a lenient view may be taken. 4. Going by the materials , it can be seen that the date of CRL.A. 252/09 -:2:- occurrence of the incident was on 13.2.2005 based upon which the case was registered for the offences punishable under sections 308 and 34 of IPC. On completing the investigation, police filed final report based upon which S.C.No.831/2006 was instituted. Out of the two accused, Ist accused is the first counter petitioner in the order under challenge who was released on bail upon the suretyship of the appellants. When the case was taken for consideration on 12.5.2008. The first accused was not available to face the charge and hence, proceedings were initiated against the counter petitioners in the above order. The appellants, in pursuance of the notice issued from the trial court, applied for time to produce the accused, as a last chance. On the date of the impugned order, they were not present and there was no representation also. No explanation was offered against the forfeiture of the bond executed by them for Rs.25,000/-. In the above circumstances, the court below forfeited the bond amount and the counter petitioners including the appellants are ordered to remit Rs.10,000/- each and ordered to issue distress warrant against the counter petitioners thereon. For the reasons stated in CRL.A. 252/09 -:3:- the impugned order, I find no illegality with the order passed by the court below. 5. Though in the grounds of the appeal memorandum it is stated that no notice was issued to the appellants, the order itself shows that in pursuance of the notice, they appeared before the court below and sought time for producing the accused. But on the date of the order, they were absent and they were not represented. The learned counsel submitted that the appellants are poor workers and they are not having that much financial capacity to comply with the order and a lenient view may be taken. Considering the particular facts and circumstances involved in the case, I am of the view that the amount of Rs.10,000/- ordered by the court below can be reduced and refixed as Rs.7500/-. 6. It is pointed out that as per the order dated 11.12.2008 in Crl.M.A. No.12089 of 2008, as a condition of stay of the impugned order, each of the appellants were directed to deposit a sum of Rs.5000/-. Counsel for the appellants submitted that the said amount was already deposited and the Registry noted the remittance and receipt of payment produced before this court CRL.A. 252/09 -:4:- along with a memo. If that be so, the said amount can be appropriated towards the payment of the amount now fixed by this Court. Even then each of the appellant has to pay an additional amount of Rs.2500/-. 7. Therefore, there will a direction directing each of the appellants to pay a sum of Rs.2500/- within one month from today towards the compliance of this order. Thus, if the amount is paid as directed above, all coercive steps initiated against the appellants, if any, shall be dropped. If the additional amount is not paid as directed within time, the court below is free to take all coercive steps towards the realization of the amount of Rs.2500/- each from the appellants. With the above modification, the appeal is allowed partly and the same is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.A. 252/09 -:5:-