IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 CRL.A.No. 398 of 2009() ----------------------- CC.13/2007 of SPL.COURT SPE/CBI-1, ERNAKULAM .................... APPELLANT(S): ACCUSED NO.2 -------------------------- SHAKUNTHALA, AGED 50 YEARS, D/O.SEKHARAN NAIR, ELAYATTIL HOUSE, NIRAMARUTHUR P.O., TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.V.JOHN SEBASTIAN RALPH RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE STANDING COUNSEL FOR CBI, KOCHI UNIT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R1 R2 BY P.P. SMT. K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON ON 20/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.398 OF 2009 ---------------------------------------------- Dated, 20th March, 2009. JUDGMENT This is an appeal preferred under section 449 Cr.P.C.at the instance of 2nd accused in C.C.No.13/2007 on the file of the Court of Special Judge (SPE/CBI)-II, Ernakulam. 2. C.C.No.13/2007 is instituted on the basis of the complaint preferred by the C.B.I, Kochi Unit on the allegation that the appellant along with other accused had caused a loss of certain amount to the post office by defrauding the depositors and thereby committed the offences under sections 120-B read with Sections 420, 467, 468, 471, 477-A of IPC and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act 1988. 3. The appellant/accused is hailing from Malappuram district. On her appearance in the court below, she was released on bail on her executing a bond as directed by the court below. When the case was taken on 20.1.2009, she did not appear and hence, the court below passed the impugned order by which non bailable warrant was issued against the appellant, her bail was cancelled and notices were issued to the sureties for producing the appellant/accused Thus, challenging the above order, the accused preferred this appeal. CRL.A No.398/09 -:2:- 4. I have heard Sri John S.Ralph, the counsel appearing for the appellant and Sri M.V.S.Namboothiry, the learned/Standing Counsel appearing for the Ist respondent/C.B.I. 5. The learned counsel submitted that being a lady, especially, who is hailing from Malappuram District, she was vigilant in defending her case and on all posting dates, she was represented in the court and on the date of the impugned order also, the accused contacted her counsel and in turn, the counsel for the accused on verification from the court below realised that there was no sitting in the court since the presiding officer was retired from service and no other Judge was appointed as presiding officer. Thus on the strength of the information so received from the office of the court below, the counsel was of the opinion that the next posting date of the case would be notified in the notice board and therefore, the counsel thought that his presence was not required in the court. It is the further case of the counsel that, contrary to his expectation and the information received from the court below, the case was called on 20.1.2009 in the Special court of CBI-I, Ernakulam, that too, without any intimation or notice, either to the parties or to the counsel representing them. Thus according to the learned counsel, it was on CRL.A No.398/09 -:3:- the above circumstances, the accused/appellant failed to appear before the court and no representation was made on her behalf. It is also the case of the counsel that in the absence of any finding of proof that the appellant had willfully and deliberately defaulted in appearing the court, the bail bond cannot be cancelled or the same cannot be forfeited. In support of the above submission, the learned counsel invited my attention to the decision of this court in Usman v. State of Kerala (2005(4) KLT 348) and Rajan v. State of Kerala (2006(4) KLT 429). 6. The learned counsel for the C.B.I., during his submission, endorsed the factual position put forward by the counsel for the appellant and no further argument was advanced. 7. In Usman v. State of Kerala , this Court has held that the bond has to be forfeited by the person who executes the bond and not by court and no power is given to a court to forfeit a bond as if forfeiture is the outcome of the court's order. In the above decision it is further held that mere non-appearance before court due to reasons beyond a person's control will not be sufficient for any person to incur a penalty. In Rajan v. State of Kerala, (cited supra) this court has held that it is only in cases where there is wilful default on the part of accused to appear in court, forfeiture of CRL.A No.398/09 -:4:- bond will follow and penalty will incur. As indicated above, the facts which leading to the issuance of the impugned order are beyond dispute. Originally, the case was pending before the court of Special Judge (SPE/CBI), Court No.II. But on 20.1.2009, there was no sitting in that court as the presiding officer has already retired. According to the counsel, when he contacted the office of Court No.II, he was informed that there was no sitting. In this juncture, it has to be remembered that the appellant is a lady, hailing from Malappuram District and on all previous posting dates, she was adequately represented through her counsel and there was no occasion of taking any coercive steps against her laches or negligence. It is also relevant to note that on the basis of information gathered by the counsel for the appellant, he had also not appeared before the court and he had no idea that the case will be called in Court No.1, especially, in this case, none of the accused is in custody. The submission of the learned counsel for the appellant that no notice was given regarding the calling upon the case in Court No.II , is not controverted by the CBI. In the above factual scenario, I am of the opinion that the absence of the appellant/accused was not wilful and there is no material to come into a contra conclusion. In the above circumstances, the CRL.A No.398/09 -:5:- impugned order is liable to set aside. 8. Under the circumstances discussed and referred above, the impugned order is set aside. The non bailable warrant issued against the accused/appellant will stand cancelled, bail granted to the 2nd accused will stand revived and notice issued against the sureties are cancelled. The appellant is directed to appear before the court below on 15.4.2009, the next posting date of the case shown in the impugned order, and the court below is directed to proceed with the case in accordance with law and procedure. The appeal is disposed of as above. V.K.MOHANAN, JUDGE kvm/- CRL.A No.398/09 -:6:- V.K.MOHANAN, J. No.... Judgment/Order Dated: