IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 CRL.A.No. 1379 of 2010() ------------------------ AGAINST THE ORDER DATED 24/02/2010 IN MC 109/2009 IN SC.84/2007 of ADDL. SESSIONS COURT (ADHOC-I), PATHANAMTHITTA .................... APPELLANT(S): APPELLANTS/SURETIES/COUNTER PEPTITIONERS ------------------------------------------------------ 1. GEETHA, AGED 35 YEARS,D/O.CHELLAMMA, RESIDING AT THAZHATHETHIL VEEDU,THENGAMMAM, PALLICKAL VILLAGE,ADOOR TALUK,PATHANAMTHITTA. 2. PRASAD, AGED 40 YEARS, S/O.GOPALAN,PULIYANTHARAYIL PUTHEN VEEDU, MUNDAPPALY,PERINGANAD VILLAGE,ADOOR TALUK, PATHANAMTHITTA. BY ADV. SRI.V.SETHUNATH RESPONDENT(S): COMPLAINANT/STATE -------------------------------- THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI VENUGOPAL M.R. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A No.1379 of 2010 ---------------------------------------- Dated the 17th Day of August 2010 JUDGMENT This appeal is preferred by the sureties in S.C.No.84/2007 of the court of Additional District & Sessions Judge, (Adhoc)-1, Pathanamthitta, challenging the order dated 24.2.2010 in M.C.No.109/2009 of the same court. 2. The learned counsel for the appellants submitted that the accused for whom, the appellants stood as sureties, has subsequently appeared before the court below and he was enlarged on bail and the accused therein cooperating with the trial which is yet to be concluded. Therefore, the learned counsel submitted that a lenient view may be taken in the matter of penalty. 3. From the impugned order it appears that as the accused did not appear, who was released upon the suretyship of the appellants and though notice was issued to the appellants they did not produce the accused and no CRL.A.NO.1379/10 :-2-: explanation was offered and hence the court below in exercise of the powers under section 446, imposed penalty of Rs.10,000/- each on the appellants. Thus it is crystal clear that the appellants failed to discharge their contractual obligation to produce the accused. The subsequent surrender of the absconding accused is not a ground to set aside the order issued by the court below under section 446 Cr.P.C. Therefore, I find no reason to interfere with the order of penalty imposed against the appellants. But considering the fact that the accused has subsequently appeared and has been released on bail, who is now facing the trial, I am of the view that while upholding the correctness of the order impugned, the amount of penalty imposed by the court below can be reduced to Rs.3,500/- against each of the appellants is concerned. In the result, this appeal is disposed of confirming the order imposing penalty against the appellants, the CRL.A.NO.1379/10 :-3-: penalty amount is reduced to Rs.3500/- and each of the appellants is directed to pay a sum of Rs.3500/-. The learned counsel for the appellants submitted that in terms of the order issued by this court on 2.8.2010 in Crl.M.A.No.6700/10, the first appellant had already deposited a sum of Rs.3500/- as evidenced by receipt dated 7.8.2010 issued from the District court, Pathanamthitta. It is also the submission of the learned counsel for the appellants that the 2nd appellant had already deposited a sum of Rs.10504/- in the Peringanad Village and the amount so deposited by the appellants can be adjusted towards the amount of penalty as modified and fixed by this court. Accordingly, there will be a direction to the court below to adjust the amount deposited by the first appellant as per receipt dated 7.8.2010 of the District court towards the penalty amount revised and refixed by this court. In the case of the 2nd appellant, the court below is directed to a adjust an CRL.A.NO.1379/10 :-4-: amount of Rs.3500/- as fixed by this court out of the amount already deposited by the 2nd appellant in the Village Office as per the receipt dated 28.7.2010 and the Sessions court is further directed to release the balance amount in favour of the 2nd appellant on receiving the entire amount from the Village Officer concerned. Coercive step, if any, against the appellants stands cancelled. This Crl.Appeal is disposed of accordingly. V.K.MOHANAN, kvm/- JUDGE