IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 CRL.A.No. 1759 of 2011 (AGAINST THE ORDER DTD.23.6.2010 IN CRL.M.C.NO.625/2010 IN SC NO.64/2006 OF THE COURT OF ADDL.SESSIONS JUDGE,ADHOC-I, THALASSERY) APPELLANTS/SURETIES: --------------------------------- 1. PERINGALI JANARDHANAN NAMBIAR, S/O.GOVINDAN, MOORIKALLIL HOUSE, SIVAPURAM AMSOM, KANHILERI, KANNUR DISTRICT. 2. KOLLANANDI VALSAN, S/O.BAPUTTY, KULATHAN MAVIN VEETTIL, SIVAPURAM AMSOM, KANHILERI, KANNUR DISTRICT. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1759 of 2011 ---------------------------------------- Dated this the 18th day of November, 2011 J U D G M E N T The above appeal is preferred by the sureties in a sessions case as they are aggrieved by the order dated 23.6.2010 in Crl.M.C.No.625/2010 in S.C.No.64/2006 of the court of Additional Sessions Judge(Adhoc-I), Thalassery, issued under Section 446 of Cr.P.C. 2. The above sessions case was instituted for the offences punishable under Sections 55(g) and 8(1) and (2) of the Abkari Act against the sole accused therein for whom the appellants herein stood as sureties. But, subsequently, the accused absconded and the appellants failed to produce the accused when required by the trial court and consequently, proceedings under Section 446 of Cr.P.C. have been initiated against the appellants, which are finally culminated in the above impugned order by which the learned Judge of the trial court imposed a penalty of `.20,000/- each on the CRL.A.NO.1759 of 2011 :-2-: appellants. 3. Counsel for the appellants submitted that subsequently, the accused has entered appearance and the trial was proceeded and finally, by judgment dated 27.1.2011, the trial court acquitted the accused and therefore, a lenient view may be taken in fixing the penalty. 4. From the order impugned, it appears that as the accused absconded violating the bail conditions, the bond executed by the appellants was forfeited and a show cause notice was served on them, but according to the learned Judge, on 23.6.2010, when the case was taken, the appellants failed to appear before the court or to show the reasons for not proceeding against them under Section 446 of Cr.P.C. It is under that factual situation, the court issued the impugned order. From the facts contained therein, according to me, the learned Judge of the trial court is fully justified in forfeiting the bond executed by the appellants and imposing penalty under Section 446 of Cr.P.C. because the appellants have miserably failed to produce the accused CRL.A.NO.1759 of 2011 :-3-: and thereby violated the contractual obligation undertaken by them. Hence, the finding of the court below against the appellants under Section 446 of Cr.P.C. is confirmed. 5. However, considering the fact that subsequently, the accused appeared before the court below and faced the trial and co-operated with the trial of the case which is finally culminated in the acquittal of the accused, I am of the view that while confirming the findings and the order under Section 446 issued by the court below, the penalty amount can be modified and reduced into `.10,000/- (Rupees Ten Thousand only) which will be sufficient to meet the ends of justice. 6. In the result, this appeal is disposed of confirming the order issued by the learned Judge of the trial court under Section 446 of Cr.P.C., but the penalty amount imposed by the court below is modified and reduced to `.10,000/-. Thus, accordingly, each of the appellants is directed to pay penalty amount of `.10,000/- under Section 446 of Cr.P.C. 7. Counsel for the appellant submitted that as ordered by this CRL.A.NO.1759 of 2011 :-4-: Court on 13.10.2011 in Crl.M.A.No.8734 of 2011, each of the appellants/petitioners has deposited a sum of `.10,000/-, altogether a sum of `.20,000/- as evidenced by receipt No.76 dated 27.10.2011. According to the learned counsel, the amount so remitted may be adjusted towards the amount now revised and refixed by this Court. According to me, the said submission can be considered positively. Accordingly, there will be a direction to the trial court that the amount already deposited by the appellants vide receipt No.76 dated 27.10.2011 issued by the District Court, Thalassery is directed to be adjusted towards the penalty amount now revised and refixed by this Court. As the appellants/petitioners have already deposited the revised penalty amount, the coercive steps, if any, taken against the appellants shall stand cancelled. This Criminal Appeal is disposed of as above. V.K.MOHANAN, Judge MBS/ CRL.A.NO.1759 of 2011 :-5-: V.K.MOHANAN, J. CRL.A.No. 796 OF 2003 CRL.A.NO.1759 of 2011 :-6-: JUDGMENT Dated:4.10.2011