IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 CRL.A.No. 826 of 2010 ------------------------------------ MC.33/2009 IN SC.878/2008 of SESSIONS COURT, KOLLAM .................... APPELLANTS/COUNTER PETITIONERS 2 & 3: 1. JAYANANDAN, SON OF PANKAJAKSHAN, NEDUVILA PUTHEN VEEDU, PUTHALATHAZHAM CHERRY. 2. SARALA, DAUGHTER OF ARJUNAN, SABU BHAVAN, MULLUVILA CHERRY. BY ADV. SRI.ALAN PAPALI SRI.SOJAN MICHEAL RESPONDENT/COMPLAINANT: STATE OF KERALA, (CRIME NO.825/2004 OF KOLLAM EAST POLICE STATION-S.C.878/2008 OF THE COURT OF SESSIONS, KOLLAM), REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.A.No.826 of 2010 -------------------------- ORDER Petitioners were sureties to the seventh accused in S.C.No.878/2008 on the file of Sessions Court, Kollam. At the committal stage, seventh accused was released on bail. Petitioners were sureties at that time. They executed a bond undertaking to produce the seventh accused as and when called for and on their failure, agreed to remit Rs.15,000/- each. After the case was committed, seventh accused did not appear. Learned Sessions Judge, therefore, forfeited the bond executed by the petitioners before the committal court on 17.6.2009 and initiated proceedings under Section 446 of Code of Criminal Procedure. Petitioners were directed to show cause why penalty shall not be realised. Petitioners, though appeared, only sought time to produce the seventh accused and they did not show any cause why the CRA 826/10 2 bond shall not be forfeited or the penalty realised. Learned Sessions Judge, therefore, passed Annexure-I order dated 21.10.2009 directing them to pay the penalty of Rs.15,000/- each, the amount undertaken by them in the bond. This appeal is filed challenging the order. 2. Learned counsel appearing for the appellants and learned Public Prosecutor were heard. 3. Learned counsel would argue that seventh accused had gone to Gulf on 6.5.2008 after he was released on bail by the committal court and he did not receive any summons from the Sessions Court and therefore, did not appear and subsequently the disputes were settled with the defacto complainant and on getting information about the pendency of the sessions case, seventh accused appeared and the matter has been compounded and in such circumstances, the order is to be quashed. 4. Appellants, with open eyes, agreed to be the sureties for the seventh accused and executed a CRA 826/10 3 bond undertaking that they will produce the seventh accused as and when called for and on their failure, to pay penalty of Rs.15,000/- each. Seventh accused, as undertaken in the bond, did not appear. It is in such circumstances, learned Sessions Judge forfeited the bond. The bond executed before the committal court binds the seventh accused to appear before the Sessions Court. Seventh accused had left India without the permission of the Magistrate or the Sessions Judge. It is in such circumstances, learned Magistrate forfeited the bond on the failure of the seventh accused to appear. When appellants/sureties were directed to produce the seventh accused, they could not produce him. Annexure-II copy of the bail application filed before this Court, which was disposed on 9.3.2010, shows that till 9.3.2010, seventh accused did not appear. In such circumstances, I find no reason to interfere with the finding of the learned Sessions Judge that CRA 826/10 4 appellants are liable to pay the penalty. 5. Then the only question is regarding the quantum of penalty. Considering the entire facts and circumstances of the case, interest of justice will be met if the penalty is reduced to Rs.4,000/- each. Appeal is allowed in part. The penalty imposed by the Sessions Judge, Kollam in M.C.No.33/2009 is reduced to Rs.4,000/- each. 23rd June, 2010 (M.Sasidharan Nambiar, Judge) tkv