IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933 CRL.A.No. 1966 of 2011() ------------------------ CRL.M.C.NO.399/2011 IN S.C.NO..928/2009 of ADDL. DIST & SESSIONS COURT (ADHOC), FAST TRACK COURT NO.1, THRISSUR .................... APPELLANT: -------------- SELVARAJ, S/O. KATTINGAL PATHROSE, KALLUR VILLAGE, KALLUR DESOM, MUKUNDAPURAM TALUK. BY ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI.P.M.RAFIQ SRI.VIPIN NARAYAN RESPONDENT ------------------- STATE OF KERALA , REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT. LOWSY A. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1966 of 2011 ---------------------------------------- Dated the 14th day of November, 2011 JUDGMENT This is an appeal filed under section 449 of the Code of Criminal Procedure, by one of the sureties for the Ist accused in Sessions Case No.928 of 2009 of the Court Additional District & Sessions Judge, Fast Track Court No.1, Thrissur. 2. As the appellant, who is the 2nd surety for the Ist accused, failed to produce the said accused in spite of notice issued against him, by order dated 30.4.2011 in M.C.No.399/11 in S.C.No.928 of 2009, the trial court imposed a penalty of Rs.50,000/- against the appellant. It is the above order under challenge in this appeal. 3. From the impugned order it appears that the allegation against the accused, who are two in numbers, is that while they were transporting 1700 litres of spirit in the secret chambers of a tipper lorry bearing Reg. No.KL 7 R 3252, it was detected by the police on the N.H.47 at CRL.A.No.1966/11 2 Ollukkara at 1.00 p.m on 9.3.2008. In fact, the first accused was released on bail upon the suretyship of the appellant as well as other surety. But they failed to produce the accused when required by the court below and they had remained absent despite of service of notice. From the impugned order it appears that several opportunities were given to them to appear and to produce the accused but they did not turn up. The above fact itself is sufficient to hold that the appellant has miserably failed to discharge his obligation undertaken by himself before the court below. As there was failure on the part of the appellant to discharge his contractual obligation, according to me, the learned Judge of the trial court is correct in his finding and imposing penalty under section 446 of Cr.P.C and therefore, the order imposing penalty against the appellant under Section 446 of Cr.P.C is confirmed. 4. It is relevant to note that the counsel for the appellant submitted that A1 for whom the appellant stood as one of the sureties, expired on 1.11.2011. It is true, that if the said submission is correct, A1 died after the impugned CRL.A.No.1966/11 3 order. Thus, on the date of the impugned order, the appellant was contractually obliged to produce A1, but he failed in discharging his obligation. Considering the fact that A1 is no more, according to me, while confirming the order imposing penalty under Section 446 Cr.P.C, the penalty amount can be modified and reduced into Rs.35,000/- which will be sufficient to meet the ends of justice. In the result, this appeal is disposed of confirming the order of the trial court under section 446 Cr.P.C, but the penalty amount is modified and reduced into Rs.35,000/-. It is pointed out by the learned counsel that, in terms of the order passed by this Court on 10.11.2011 in Crl.M.A No.8729 of 2011, the appellant has already deposited a sum of Rs.35,000/- in the trial court as evidenced by receipt dated 8.11.2011 issued from the Registry of the trial court and produced before this court, by memo dated 11.11.2011. The counsel requests that, the said amount may be adjusted towards the penalty amount now revised and fixed by this Court. I find no reason to reject the above CRL.A.No.1966/11 4 request. Accordingly, there will be a direction to the trial court that an amount of Rs.35,000/- which is already deposited by the appellant in the trial court in terms of the order dated 11.10.2011 in Crl.M.A.No.8729 of 2011 of this Court shall be adjusted towards the modified penalty amount as fixed by this Court. Since the petitioner/appellant has already deposited the revised penalty amount, the coercive steps if any issued against the appellant stands cancelled. This Crl.Appeal is disposed of as above. V.K.MOHANAN, JUDGE. kvm/- CRL.A.No.1966/11 5