IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 CRL.A.No. 2056 of 2010() ------------------------ AGAINST THE ORDER DATED / / IN MC.75/2010 IN SC.600/2007 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGODE .................... APPELLANT(S): IS RESPONDENT --------------------------- VASANTHA,AGED 43 YEARS, S/O.BAIVA,KOLARI HOUSE,NEKRAJE.P.O, KASARAGOD. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): PETITIONER AND STATE ----------------------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.A.No.2056 of 2010 ------------------------------------ Dated this the 18th day of August, 2011 JUDGMENT The appellant herein is one of the sureties for the sole accused in SC No.600/2007 of the court of Addl. District and Sessions Judge, (Adhoc-III), Kasargod. The challenge in this appeal is against the order dated 31.8.2010 of the said court issued u/s.446 of Cr.P.C in MC No.75/2010 in SC No.600/2007, by which the learned judge imposed a penalty of Rs.15,000/- against the appellant as well as the other sureties. 2. Heard counsel for the appellant as well as the learned Public Prosecutor. 3. Learned counsel submitted that the accused had subsequently appeared before the trial court and he faced the trial which culminated in his conviction and consequently, the said accused has filed an appeal which pending before this court. Thus, according to the learned Crl.A.No.2056 of 2010 2 counsel the order issued by the learned Sessions Judge liable to be set aside. 4. I am unable to sustain the above contention, since the accused, for whom the appellant stood as one of the sureties, released on bail, on the basis of the bond executed by herself and therefore, the appellant is duty bound to produce the accused as and when required by the court below because the terms of the contract undertaken is binding on her. But from the impugned order, it can be seen that though notice was served on the appellant and time was granted to produce the accused, she failed to comply with the direction and thereby failed to fulfill her undertaking made by herself before the court. If that be so, the subsequent appearance of the accused and the logical conclusion of the trial is not a ground to relieve the appellant from her contractual obligation and liability thereto. Therefore, the order of the sessions judge under Section 446 forfeiting the bond and imposing the penalty is factually and legally sustainable and correct. Crl.A.No.2056 of 2010 3 5. However, after the impugned order the accused had appeared before the court below and he faced trial and finally, the accused is convicted for the charges leveled against the accused. If that be so, according to me, while confirming the finding and the order u/s.446 issued against the appellant, I am of the view that the amount fixed towards the penalty can be modified and reduced to the tune of Rs.7,500/- which will sufficient to meet the ends of justice. Accordingly, the penalty amount fixed as per the impugned order is modified and reduced into Rs.7,500/-. The learned counsel for the appellant submitted that on the basis of the order passed by this Court on 20.7.2011 in Crl.M.A.No.9765/2011 the appellant has already deposited a sum of Rs.7,500/- in the trial court as evident from the receipt dated 3.8.2011 which produced as per the memo dated 5.8.2011 as directed by this Court and therefore, the said amount may be adjusted towards the modified penalty amount. I find no reason to reject the above request. In the result, this appeal is disposed of and the order of Crl.A.No.2056 of 2010 4 the court below issued u/s.446 of Cr.P.C. is approved but the penalty amount is modified and reduced into Rs.7,500/-. Accordingly, there will be a direction to the trial court to adjust Rs.7,500/- deposited by the appellant as per the order dated 20.7.2011 in Crl.M.A.No.9765/2011, as evident from the receipt mentioned above, towards the modified penalty amount. Accordingly, the coercive steps, if any, initiated against the appellant is stand recalled. Crl. Appeal is disposed of accordingly. V.K.MOHANAN, JUDGE pm/