IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 CRL.A.No. 656 of 2009() ----------------------- ( SC.847/2007 of III ADDL. SESSIONS COURT (ADHOC), FAST TRACK COURT NO.1, THRISSUR ) .................... APPELLANT(S): COUNTER PETITIONERS 2 & 3/SURETIES OF ACCUSED ----------------------------------------------------------- 1. ABU, S/O.THERUVATH KHADER KUTTY, MANATHALA VILLAGE & DESOM, CHAVAKKAD TALUK. 2. SAFIYA, W/O.HAMSA, KOLATHATTIL HOUSE, MANATHALA VILLAGE & DESOM, CHAVAKKAD TALUK. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU RESPONDENT(S): STATE -------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECTUOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI PUZHAKKARA MOHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A No.656 of 2009 ---------------------------------------------- Dated 7th April, 2009. JUDGMENT This appeal is preferred under section 449 Cr.P.C. at the instance of the sureties of one of the accused, namely, Manzoor in S.C.No.847/2007. Though the said accused was released on bail upon the suretyship of the appellants herein, he subsequently jumped over the bail which resulted in registering Crl.M.C. No.2138/2008 against the appellants as well as the absconding accused, and finally, the impugned order was passed imposing penalty of Rs.25,000/- each on the appellants. It is the above order challenged in this appeal. 2. I have heard the learned counsel appearing for the appellants as well as the learned Public Prosecutor. 3. The learned counsel submitted that the first counter petitioner in the impugned order had gone abroad in search of employment and the appellants are not in a position to produce him before the court below. It is also submitted that the trial against the remaining accused were proceeded further which resulted in the acquittal of those accused and the de facto complainant is now ready to settle the dispute and in the above circumstances, a lenient view Crl.A. 656/09. -:2:- may be taken regarding the penalty amount. 4. The Learned Public Prosecutor stoutly opposed the prayer stating that in the absence of the absconding accused, the court below was constrained to undertake the trial against the other accused and it is also for the court to conduct fresh trial on securing the presence of the absconding accused. 5. I have carefully considered the contention advanced. Being the sureties for the counter petitioner No.1 in the impugned order, it is the contractual obligation of the appellants to produce the said accused as and when required and in spite of notice received by the appellants, they did not produce the accused. It was in the above circumstances, the court below passed the impugned order by which a penalty of Rs.25,000/- each was imposed against the appellants. Therefore, it cannot be said that the order of the court below is illegal or incorrect. 6. While fixing the penalty under section 446(1) Cr.P.C., the only consideration and criteria should be as to whether the appellants/sureties tried to discharge their contractual obligation earnestly and their failure was due to the reason beyond their control. In this juncture, it is relevant to note that the second appellant is the mother of the absconding accused who is the first counter petitioner in the impugned order, whereas, the first appellant is in no way connected with Crl.A. 656/09. -:3:- the absconding accused. If that be so, according to me, the case of the first appellant has to be treated separately. It is also submitted by the learned counsel that the trial against the other accused ended in acquittal and the de facto complainant is ready to settle the dispute. Under the above circumstances, I am of the view that certain modifications can be effected with respect to the amount ordered against the appellants. 7. In the result, the penalty amount ordered against the first appellant is reduced from Rs.25,000/- and refixed as Rs.10,000/- The second appellant is the mother of the absconding accused who is reportedly went abroad in search of employment and so, the beneficiary is the mother , the second appellant, and therefore, the second appellant is not entitled to the same consideration as that of the first appellant. Thus, the amount imposed against the 2nd appellant by way of penalty is reduced and refixed as Rs.20,000/-. Thus, while confirming the impugned order, the amount of penalty imposed against them are fixed as Rs.10,000/- and Rs.20,000/- respectively against appellants 1 and 2. 8. When the above appeal came up for consideration, by order dated 30.3.2009 in Crl.M.A, No.3379/2009, interim stay was granted as on condition that the first appellant deposits a sum of Rs.10,000/- and 2nd appellant deposits Rs.20,000/- on or before 4.4.2009 before the court Crl.A. 656/09. -:4:- below. Today when this matter taken up for consideration, the learned counsel placed before me receipt Nos.75 and 76 dated 4.4. 2009 issued by the Head Clerk/Sheristadar of the court below showing the remittance as ordered by this Court in the said petition. If that be so, the amount so deposited can be adjusted towards the payment of penalty, as revised and refixed by this Court. Therefore, the court below is directed to adjust the above amount towards the payment of the penalty amount as revised and refixed by this Court. Since the amount modified and fixed by this Court is ordered to adjust with the deposit made by the appellants, no further proceedings are required in pursuance of the impugned order. Therefore, there will be a direction to drop all coercive steps including, if any, already taken pursuant to the impugned order. The appeal is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- Crl.A. 656/09. -:5:-