IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 CRL.A.No. 470 of 2011() ----------------------- AGAINST THE ORDER DATED 15/12/2009 IN MC.169/2009 IN SC.636/2005 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGODE .................... APPELLANT(S): APPELLANTS ------------------------ 1. IBRAHIM, S/O.ABDULLA, DRIVER, MALLAMKAI HOUSE, KARADKA VILLAGE & POST, KASARAGOD TALUK. 2. YOUSAF, S/O.ABDULLA, NELLIKKATTE, NEKRAJE VILLAGE & POST, KASARAGOD, HOSDURG TALUK. BY ADV. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENT: --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, ERNAKULAM. BY P.P. SMT. REKHA C. NAYAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.M.A.NO. 2492 OF 2011 IN CRL.A. 470/2011 DISMISED. 21.6.2011 SD/- V. K. MOHANAN, JUDGE. //TRUE COPY// V.K.MOHANAN, J. ------------------------------------------ Crl.A. No. 470 of 2011 ---------------------------------------- Dated the 21st Day of June, 2011 ORDER Appellants are sureties for the accused in S.C.No.636 of 2005 on the file of the court of Additional District and Sessions Court (Adhoc)-III, Kasaragod in which the offence involved is under the provisions of the Abkari Act. As the appellants failed to produce the accused, the Sessions Court initiated proceedings under Section 446 Cr.P.C and instituted M.C. No.169/2009 and finally the learned Sessions Judge, after forfeiting the bond, imposed a penalty of Rs.25,000/- on each of the appellants and it is also directed in the order that if realisaiton of the penalty becomes ineffective, the appellants shall suffer imprisonment in the Civil Prison for a term of two months each. Accordingly distraint warrants were issued against the appellants. It is the above order of the learned Sessions Judge challenged in this appeal. 2. Heard the counsel for the appellants and the learned Public Prosecutor. CRL.A No.470/11 -:2:- 3. I have perused the order impugned. The learned counsel for the appellants submitted that the appellants had produced the accused on 19.12.2009 and thereafter the trial was proceeded which finally ended in acquittal by judgment dated 15.6.2010. According to the learned counsel, the proceedings initiated by the court below and the procedure adopted are illegal, irregular and improper. It is also the submission of the learned counsel that the penalty amount fixed by the court below is exorbitant. 4. The contention advanced by the learned counsel, according to me, is unsustainable and not acceptable. As and when the appellants, who are sureties to the accused, executed the bond, they are bound to produce the accused in terms of the undertaking made by them. From the impugned order it appears that, though notice was issued to the appellants either to produce the acucsed or to show cause, they miserably failed to comply with the direction issued in the notice in spite of the fact that they have received the notice. It was under the above CRL.A No.470/11 -:3:- circumstances, the learned Sessions Judge forfeited the bond executed by the appellants and proceedings were initiated under section 446 Cr.P.C. Therefore, I find no reason to interfere with the order of the learned Sessions Judge as the same is legal, correct and proper. 5. However, the learned counsel for the petitioner submitted that though the proceeding under section 446 Cr.P.C was initiated on 15.12.2009, within 4 days i.e on 19.12.2009, the accused was produced and accordingly, the trial of the Sessions case was proceeded further which finally terminated by judgment dated 15.6.2010 and the accused was acquitted and therefore, a lenient view may be taken in the matter. Though I have found that the order imposing penalty on the appellant is correct, having regard to the fact that the accused was subsequently produced before the trial court on 19.12.2009 and the accused was acquitted in the trial, I am of the view that the amount fixed as penalty requires modification. Having regard to the facts and circumstances involved in the case, I am of the view that a sum of Rs.5000/- each is sufficient CRL.A No.470/11 -:4:- to meet the ends of justice and the penalty amount can be reduced to Rs.5000/-. Counsel for the appellants have submitted that the appellants have already deposited a total sum of Rs.10,000/- in the trial court. If that be so, the amount already deposited by the appellants can be adjusted towards the penalty amount now revised and fixed by this Court. Therefore, there will be a direction to the Sessions court that the amount already deposited by the appellants shall be adjusted towards the penalty amount as modified and fixed by this Court. Coercive steps if any initiated against the appellants shall stand cancelled. V.K.MOHANAN, JUDGE kvm/-