IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 CRL.A.No. 742 of 2009() ----------------------- MC.13/2005 of SESSIONS COURT, KOZHIKOE .................... APPELLANT(S): LEGAL HEIRS OF THE 1ST RESPONDENT & 2ND RESPONDENT/SURETIES: ---------------------------------------------------------------------- 1. LEELA, W/O. GOPALAKRISHNAN, MUGHALEL, KAVILUMPARA AMSOM DESOM, VATAKARA TALUK. 2. ASHA, D/O. GOPALAKRISHNAN, MUGHALEL, KAVILUMPARA AMSOM DESOM, VATAKARA TALUK. 3. ANEESH, S/O. GOPALAKRISHNAN, MUGHALEL, KAVILUMPARA AMSOM DESOM, VATAKARA TALUK. 4. MUHAMMADALI, S/O. ABDULLA, THAZHETHENGULLATHIL @ UTHARKANDI, KAYAKKODI AMSOM, DEVARKOVIL DESOM, VATAKARA TALUK BY ADV. MR.P.V.KUNHIKRISHNAN RESPONDENT(S): PETITIONERS: -------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OFKERALA, ERNAKULAM. 2. TAHSILDAR, VATAKARA. BY SR. PUBLIC PROSECUTOR MR. PUZHAKKARA MUHAMED THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== CRL.A. No.742 OF 2009 ===================== Dated this the 22nd day of May 2009 JUDGMENT This appeal is preferred by the legal representatives of deceased Gopalakrishnan and one Muhammadali against the order passed by the Sessions Court, Kozhikode in M.C.No.13 of 2005. Gopalakrishnan and Muhammadali stood as sureties to the second accused in S.C.No.158 of 2005 on executing a bond for Rs.25,000/-. The second accused did not enter appearance and the sureties did not produce the accused and therefore the court cancelled the bail, forfeited the bond and initiated proceedings against the sureties and thereafter directed Gopalakrishnan and Muhammadali to pay a sum of Rs.25,000/- each within two months from the date of order. The default sentence of 3 months' simple imprisonment was ordered. Thereafter Gopalakrishnan died and therefore his legal representatives along with Muhammadali had come up in appeal. 2. At the stage of condoning the delay of 1194 days this Court directed the legal representatives of Gopalakrishnan,viz., appellants 1 to 3 to deposit before the court below Rs.10,000/- and also directed the 4th CRL A.742/2009 -:2:- appellant to deposit a further sum of Rs.10,000/-. I am informed that the said amounts had been deposited as ordered by this Court. In appeal under Section 446 of the Code of Criminal Procedure the court has to find out and also can take into consideration whether there has been total deliberate disobedience by the sureties in fulfilling the terms of the bond which they have executed. The present appellants have got a case that they had not been served with proper notice which prevented them from appearing before court and making proper representation. Whatever it may be, there was a duty cast upon these persons to produce the accused and there has been some laches. But, I feel considering the financial circumstances, it is desirable that some leniency can be shown to them in the imposition of penalty. 3. After hearing the learned counsel for the appellants and the learned Public Prosecutor, I find it proper that justice can be served by reducing the penalty to Rs.10,000/- by appellants 1 to 3 together and Rs.10,000/- by the 4th appellant. As that amount is already in deposit the court can convert it as penalty ordered by this Court. To this extent, the appeal is allowed and it is made clear that no further penal proceedings need be taken against these CRL A.742/2009 -:3:- appellants for realisation of any further amount. M.N.KRISHNAN, JUDGE Cdp/-