IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 CRL.A.No. 1708 of 2011() ------------------------ AGAINST THE ORDER DATED 29/11/2010 IN MC 13/2010 IN SC.98/2009 of .................... APPELLANT(S): APPELLANTS ------------------------ 1. ELDHOSE,S/O.SCARIA,AGED 40 YEARS, OLICKAL HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, *2. JOSPEH ,S/O.THOMAS, AGED 70 YEARS, AYILOOKARA HOUSE, KEERAMPARA KARA, KEERAMPARA VILLAGE * [THE APPEAL WITH RESPECT TO THE SECOND APPELLANT IS DISMISSED BY ORDER DATED 02-09-2011 IN CRL.M.A No.6419/2011] BY ADV. SRI.S.DILEEP (KALLAR) RESPONDENT: --------------------- STATE OF KERALA, REP.BY THE SUB INSPECTOR OF POLICE, ADIMALY, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SMT. LOWSY THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1708/2011. APPENDIX PETITIONER'S ANNEXURE ANNEXURE-I – TRUE COPY OF THE NOTICE No.B2-5632/11 DATED 12-07-2011. RESPONDENT'S EXHIBITS NIL TRUE COPY P.A. TO JUDGE AMG V.K. MOHANAN, J. ----------------------------------------------------------- Crl. A No. 1708 OF 2011 ----------------------------------------------------------- DATED THIS THE 12th DAY OF OCTOBER, 2011 JUDGMENT The appellant herein the first counter petitioner in M.C No.13 of 2010 in S.C No.98 of 2009 on the file of III-Additional District and Sessions Judge (Adhoc-II), Thodupuzha. 2. The above Sessions case was instituted on the basis of the police report preferred by the Sub Inspector of Police, Adimali Police station, in which the allegation is that the accused committed offences punishable under Section 7 (a) read with Section 25 (1-A) of Arms Act. The vehicle bearing registration No.KL-8Q-684, a Maruti 1000 vehicle, 1994 model, was involved in the above case which was hypothicated to Capital Credit Syndicate, Adimali of which the present appellant is the Finance Manager. When the above Sessions case was pending, upon the application made by the 1st appellant herein who is PW5 in the above Sessions case, the vehicle was released in favour of the appellant on imposing certain conditions and the counter petitioners No.2 and 3 are the sureties for the release of the said vehicle. 3. During the trial of the above Sessions case, the appellant herein was directed to produce the vehicle in spite of Crl. A No.1708 of 2011 -2- repeated direction. The sureties also failed to produce the vehicle. Thus, on failure of the appellant and the sureties to produce the vehicle in spite of the bond executed by them, the bond was forfeited and Section 446 proceedings was instituted and accordingly notice were served on the counter petitioners including the appellant. On the appearance of the counter petitioners and on the basis of their request, though time was granted to produce the vehicle, they failed to produce the vehicle in question and no explanation was offered for non-production of the vehicle. Accordingly, by order dated 29-11-2010, the bond executed by the appellant as well as other sureties was forfeited and accordingly the M.C was allowed and each of the counter petitioners, therein is directed to pay Rs.50,000/- within one month from the date of the order. It is also made clear in the order that if the amount is not paid and cannot be recovered, the counter petitioners be detained in civil jail for a period of 2 months. 4. Challenging the above order though the appeal is originally preferred by the 1st and 3rd counter petitioners, subsequently the appeal preferred by the 3rd counter petitioner/the 2nd appellant is dismissed. Thus I have heard Dileep S. Kallar, counsel for the appellant and the learned Public Crl. A No.1708 of 2011 -3- Prosecutor. 5. Counsel for the appellant strenuously submitted that there was some negligence on the part of the appellant in producing the vehicle in question since the vehicle is out of his reach and he is not in a position to produce the same. Thus, according to the learned counsel, a lenient view may be taken in fixing the penalty and accordingly, the order of the learned Sessions Judge may be modified. On the other hand, learned Public Prosecutor submitted that the order of the learned Sessions Judge is fully justified since the appellant miserably failed to produce the vehicle contrary to the undertaking made by him before the court below and therefore no interference is warranted. 6. I have carefully considered the arguments advanced by the counsel for the appellant and the Public Prosecutor and I have perused the order impugned. It is beyond dispute that the vehicle in question is a Maruti 1000 car and manufactured during the year 1994. It is also beyond dispute that the vehicle was released in favour of the appellant on his executing a bond subject to the conditions incorporated in the bond itself and therefore the appellant is bound to produce the vehicle as and when required by the trial court. But in this case in spite of Crl. A No.1708 of 2011 -4- notice issued by the trial court and time granted for the production of the vehicle, the appellant has miserably failed to produce the vehicle. The above failure on the part of the appellant will amount to violation of the contractual obligation and therefore, according to me, learned Judge of the trial court is fully justified in forfeiting the bond and imposing penalty against the appellant. However, it is relevant to note that as indicated earlier, the vehicle in question is manufactured in the year 1994 and therefore, instead of imposing penalty of Rs.1,50,000/- which is the bond amount, an amount of Rs.1,25,000/- can be imposed against the appellant and therefore the oder issued by the learned Sessions Judge fixing the penalty amount as Rs.1,50,000/- requires modification. Accordingly, in modification of the penalty amount imposed against the appellant by reducing Rs.25,000/-, the penalty amount is fixed as Rs.1,25,000/-. 7. Counsel for the appellant submitted that as ordered by this Court on 22-07-2011 in Crl.M.A No.6419 of 2011, the appellant has already deposited Rs.1,25,000/- in trial court and to show the remittance, the petitioner has produced receipt issued from the trial court before this court and it is further submitted by the learned counsel that the above remittance Crl. A No.1708 of 2011 -5- made by the petitioner may be ordered to adjust towards the penalty amount now fixed by this court. I do not find no reason to reject the above request. In the result this appeal is disposed of confirming the order dated 29-11-2000 in M.C No.13/2010 in S.C No.982009 on the file of the 3rd Additional District & Sessions Court (Adhoc-II), Thodupuzha but the penalty amount is modified and reduced into Rs.1,25,000/- and there will be a further direction to the trial court to adjust Rs.1,25,000/- deposited by the appellant before the court below in terms of the order dated 22-07-2011 in Crl.M.A No.6419 of 2011, towards penalty amount now modified and fixed by this Court. Accordingly, any coercive steps, if any, initiated against the appellant alone, shall stand recalled. Criminal Appeal is disposed of accordingly. Sd/- V.K. MOHANAN, JUDGE. AMG True copy P.A to Judge