IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 CRL.A.No. 2271 of 2010() ------------------------ ( AGAINST THE ORDER DATED 26/05/2009 IN MC 53/2009 IN SC.497/2004 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-III), KASARAGODE) .................... APPELLANTS: APPELLANTS/RESPONDENTS ------------------------------------ 1. BEEFATHIMA,AGED 42 YEARS, W/O.MOOSA, D/O.AHAMMED, DOOR NO.111/223, CHENGALA PANCHAYATH, KUNNIL(H) PANALAM,P.O.CHEROOR, CHENGALA VILLAGE, KASARAGOD DISTRICT. 2. C.M.MAHIN, AGED 50 YEARS,S/O KADAVATH MUHAMMED, BUSINESS,VI/153,KMC JAFAR MANZIL, FIRTHOUS,CHALAKKUNNU, VIDYANAGAR, KASARAGOD DISTRICT. BY ADV. SRI.K.P.HARISH RESPONDENT: PETITIONER ------------------------- STATE-REPRESENTED BY THE P.PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SMT. LALIZA T.Y. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 2271 of 2011 ---------------------------------------- Dated the 2nd day of December, 2011 JUDGMENT The appellants herein are the sureties for the 3rd accused in S.C.No.497 of 2004 of the court of Additional District and Sessions Judge, (Adhoc)-III, Kasaragod and the present appeal is preferred challenging the order dated 26.5.2009 in M.C.No.53 of 2009 in S.C.No.497 of 2004, by which the trial court imposed penalty of Rs.15,000/- on each of the appellants under section 446 Cr.P.C. 2. The learned counsel for the appellant submitted that the appellants happened to be the sureties for the 3rd accused in the above Sessions case because of the their acquaintance and neighbourhood with the 3rd accused and that the said accused is not in station and he is still absconding. So according to the learned counsel, the appellants are not in a position to produce the accused and therefore a lenient view may be taken in the matter. CRA 2271/10 2 3. From the submission of the learned counsel, it appears that because of the failure of the appellants in producing the 3rd accused for whom they stood as sureties, in spite of the bail bond executed by them, the trial court has to undertake two trial and the first trial is already over and thereby the accused Nos. 1 and 2, who faced the trial are convicted. As the 3rd accused is still absconding, the proceedings against him is pending in the L.P Register. In the absence of any contention to the effect that the order impugned is tainted due to any illegality or irregularity, I find no reason to interfere with the impugned order. Being the sureties, the appellants are contractually obliged to produce A3 for whom they stood as sureties. But they failed to produce the accused in spite of notice served on them. Thus according to me, the order impugned deserves no interference and accordingly, the findings of the learned Magistrate under section 446 Cr.P.C is confirmed. CRA 2271/10 3 4. However, considering the fact that the accused for whom the appellants stood as sureties is beyond their reach. I am of the view that while confirming the order under Section 446 Cr.P.C, the penalty amount fixed by the court below can be modified and reduced. According to me, an amount of Rs.7500/- can be fixed as the penalty instead of Rs.15,000/- and the same will be sufficient to meet the ends of justice. Accordingly, in modification of the penalty amount fixed by the trial court as per the order impugned, the penalty amount is reduced into Rs.7500/- (Rs.Seven thousand and five hundred only) from Rs.15,000/- and each of the appellants is directed to pay a panalty of Rs.7500/- under section 446 Cr.P.C. The learned counsel for the appellant submitted that in terms of the order passed by this Court on 12.7.2011 in Crl.M.A.No.6093/2011, each of the appellants has already deposited a sum of Rs.7,500/- in the trial court as evidenced by the receipt Nos.236/11-12 and 237/11-12 dated 25.11.2011 issued from the court of CRA 2271/10 4 Addl District & Sessions Judge, (Adhoc)-III, Kasaragod, produced before the Registry of this Court as per memo dated 1.12.2011 and the same may be adjusted towards the revised penalty amount. I find no reason to reject the above request. Accordingly, there will be a direction to the trial court that the amount of Rs.7500/- deposited by each of the appellants as evidenced by the receipts and the memo mentioned above, issued from the said court , be adjusted towards the amount fixed by this court towards the penalty. As the appellants have already deposited the revised penalty amount, the coercive steps if any initiated against the appellants shall stand cancelled. The appeal is disposed of accordingly. V.K.MOHANAN, JUDGE KVM/- CRA 2271/10 5 kvm/-