IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.2070 of 2001 (Old No.1043 of 1996) Mohari Singh S/o Shera Singh R/o Village Ram Jeewanpur, P.S. Gadapur, District Udham Singh Nagar Versus …….….…. Appellant The State …….….…Respondent Dated: May 17, 2010 Sri S.K. Mandal, learned counsel for the appellant Sri Amit Bhatt, learned Addl. G.A. for the State HON. DHARAM VEER, J. The present appeal, preferred by the appellant u/s 449 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the order dated 27.05.1996 passed by the II Additional Sessions Judge, Nainital in Misc. Case No.2 of 1996, State Vs. Suchha Singh and Mohari Ram. 2. Heard learned counsel for the parties and perused the entire material on record. 3. In brief, the prosecution case is that Suchha Singh and the appellant Mohari Ram stood as the sureties of accused Smt. Hasno, who was an accused in Case Crime No.370/1992 u/s 18/22 of NDPS Act, PS Lalkuan, Distt. Nainital. On the basis of the bail bonds submitted by Suchha Singh and the present appellant, each for Rs.15,000/-, the accused Smt. Hasno was released on bail by the trial court. 4. When the notice was issued to the present appellant to present the accused Smt. Hasno, then the present appellant moved an application, which was duly supported by his affidavit, before the court below on 7.3.1995 with the averments that after receiving the summon, he came to Nainital and got the record of the case inspected through his advocate, and then he came to know that someone else, by giving the extract of his Khatauni, stood as surety of Smt. Hasno, impersonating himself to be Mohari Ram. It was also stated that in the bail bonds, the photograph of one Sardar has been affixed and the applicant neither signs nor puts his thumb impression, hence he prayed for dismissal of the notice. 5. On this application, the court below directed to send a copy of affidavit to the P.S. concerned and also to call for report after verification of fact from the S.O. by 18.5.1995. On the basis of this order, S.O. Lalkuan submitted his report on 25.6.1995 whereby, he informed that the applicant is the resident of P.S. Gadarpur, hence, the report may be called from PS Gadarpur. On the basis of the report of SO Lalkuan, the court below also called for a report from SO Gadarpur to report after the verification of the contents of the applicant of the applicant, however the SO Gadarpur had not submitted any report as required by the trial court. The appellant was also examined in the trial court where he also stated that Suchha Singh was not known to him nor he had filed the surety bonds for the accused Hasno and further, that he is an illiterate person and the surety bonds were not signed by him. 6. Sri S.K. Mandal, learned counsel for the appellant argued that from the evidence and the affidavit filed by the appellant before the trial court, it reveals that the surety bonds were not filed by the appellant of accused Hasno and somebody else, impersonating himself to be Mohari Ram and taking the extract of Khatauni from Lekhpal or Patwari, has filed the surety bonds. I find substance in this argument advanced by the counsel for the appellant. 7. From a perusal of the evidence available on record, it reveals that after passing of the order by the court below for the S.O. Gadapur, he had not submitted any report about the verification of the contents made by the appellant in the application and in affidavit and even the photograph annexed in the surety bond, is not the same photograph as filed by the appellant before the trial court. Even, there is a statement on oath of the appellant before the trial court where he has specifically denied that he did not appear as surety for the accused Smt. Hasno and somebody else, by impersonating himself as Mohari Ram and taking his extract of Khatauni from Lekhpal or Patwari, had filed the surety bonds and on the basis of those surety bonds, the appellant is not entitled to pay the amount of the surety bonds. 8. Thus, for the reasons as above recorded and the facts and circumstances of the case, it appears that the surety bond of the appellant, on the basis of which Smt. Hasno has been released on bail, was neither signed nor furnished by the present appellant Mohari Ram before the trial court. Hence, the present appellant is not liable to pay the amount of Rs.15,000/- as surety bonds. Accordingly, the appeal is allowed. Order dated 27.5.1996 passed by the Second Additional Sessions Judge, Nainital in Misc. Case No.2/1996, State Vs. Suchha Singh & Mohari Ram, so far as it only relates to the present appellant Mohari Ram is concerned, is set aside. (Dharam Veer, J.) May 17, 2010 Rajeev Dang