IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 5TH MARCH, 2009 / 14TH PHALGUNA, 1930 CRL.A.No. 380 of 2009 (Order in Crl.M.C.No.1782 of 2008 S.C.No.110 of 2006 of III Additional Sessions Court, Thrissur) APPELLANT/COUNTER PETITIONER N0.2: ---------------------------------------------------------- SURESH, S/O.RAVUNNI, MANALUR THATTAN HOUSE, THRISSUR TALUK. BY ADV. SRI.JIJO PAUL RESPONDENT/STATE & COUNTER PETITIONER NO.1: ----------------------------------------------------------------------------- THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRIC.M.NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 380 of 2009 - B --------------------------------------------- Dated this the 5th day of March, 2009 J U D G M E N T This appeal is preferred by the surety (second counter petitioner) for the first accused (first counter petitioner) in S.C.No.110 of 2006. As the first accused failed to appear before the court below, the court below initiated proceedings under Section 446 of the Code of Criminal Procedure against the sureties and the first accused and finally, by the impugned order, it was ordered to pay a penalty of Rs.25,000/- by each of the sureties. It is the above order of penalty challenged in this appeal. 2. I have heard learned counsel for the appellant as well as the learned Public Prosecutor. Learned counsel submits that the appellant is working as a goldsmith and because of the impugned order, his whole savings which is only an extent of 4 cents of land with a small house therein is being proceeded against. According to the learned counsel, he is the only person to look after his family consisting of his mother, wife, three children and widowed sister and her two children. Therefore, it is submitted that a lenient view may be Crl.A.No. 380 of 2009 :-2-: taken. 3. Admittedly, the appellant/petitioner stood as surety for the first accused in the Sessions Case. I find no illegality in the impugned order as it is the duty of the appellant/surety to produce the first accused for whom he stood as surety before the court below at appropriate time. Therefore, there was failure on the part of the appellant to procure the presence of the first accused and to make available him for the trial. Hence, the order of the court below cannot be treated as illegal or incorrect one. 4. However, considering the social background of the appellant, I am of the view that some leniency can be shown to the appellant. Accordingly, the penalty amount is reduced and refixed as Rs.5000/- instead of Rs.25,000/-. 5. When this Court passed an order on 20.02.2009 staying the operation of the impugned order, the appellant/petitioner was directed to deposit a sum of Rs.5000/- as a condition for staying the impugned order. It is submitted that complying with the above direction, the appellant had already deposited a sum of Rs.5000/-. By filing a memo dated 24.2.2009, the petitioner has produced the receipt issued from the Sessions Court showing the remittance. If that be so, the said amount shall Crl.A.No. 380 of 2009 :-3-: be appropriated and treated as payment towards the penalty amount as reduced and refixed by this order. In the light of the above direction, all further coercive proceedings against the appellant need not be continued and the same will stand terminated. The Criminal Appeal is disposed of as above. V.K.Mohanan, Judge. MBS/ Crl.A.No. 380 of 2009 :-4-: V.K.MOHANAN, JJ. -------------------------------------------- Crl.A.NO. OF 200 -------------------------------------------- J U D G M E N T DATED: -1-2009 Crl.A.No. 380 of 2009 :-5-: