IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH MARCH 2011 / 16TH PHALGUNA 1932 Crl.MC.No. 624 of 2011() ------------------------------------- MC.19/2007 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... PETITIONER(S): ------------------------- 1. ABDUL SATHAR, S/O. THAHA, MANGALATHU HOUSE, THALAYOLAPARAMBU, VADAYAR VILLAGE, VAIKOM, KOTTAYAM. 2. SUBAIDA, D/O. ABUBEKKAR, MUKULEL HOUSE, THALAYOLAPARAMBU, VADAYAR VILLAGE, VAIKOM, KOTTAYAM. 3. M.T.NOUSHAD, MANGALATHU HOUSE, THALAYOLAPARAMBU, VADAYAR VILLAGE, VAIKOM, KOTTAYAM. BY ADVS. SRI.JIJI THOMAS SRI.V.E.NAVAS RESPONDENT(S): ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.MOHAMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.624 of 2011 -------------------------------------- Dated this the 7th day of March, 2011. ORDER Petitioners are the sureties of accused in C.C.No.190 of 2000 of the court of learned Judicial First Class Magistrate, Vaikom for offence punishable under Section 138 of the Negotiable Instruments Act. They executed bond and got the accused released on bail. Accused failed to appear in court and thereon the bail bond was forfeited. Learned Magistrate initiated proceeding against petitioners under Section 446 of the Code of Criminal Procedure (for short, “the Code”) and filed M.C.No.19 of 2007. Petitioners were directed to pay penalty of `.10,000/- each and in default of payment to undergo imprisonment in the civil prison for two months each. Submission of petitioners is that later the main case was settled outside court and the accused was acquitted under Section 320(8) of the Code as seen from Annexure-B, order of this Court dated June 3, 2009. In the circumstances, it is requested that the order imposing penalty on petitioners may be quashed. I have heard learned counsel for petitioners and the learned Public Prosecutor. Learned Public Prosecutor submitted that an order under Section 446 of the Code is subject to appeal under Section 449 of the said Code. 2. It is true that a statutory appeal is provided under Section 449 of the Code. But that need not always prevent this Court from acting under Section 482 of the Code in case circumstances warranted so. It is seen that Crl.MC No.624/2011 2 the main case is settled between the parties and the accused was acquitted as per Annexure-B, order of this Court under Section 320(8) of the Code though, subsequent to forfeiture of the bail bond. Having regard to the fact that main case was settled I am inclined to take a lenient view in the matter. Resultantly this petition is allowed and Annexure-A, order dated October 31, 2007 in M.C.No.19 of 2007 in C.C.No.190 of 2000 of the court of learned Judicial First Class Magistrate, Vaikom is modified to the extent that penalty payable by petitioners is modified as `.1,000/- (Rupees one thousand only) each and in default of payment within two months from this day to undergo detention in civil prison for one week each. THOMAS P.JOSEPH, Judge. cks