IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 CRL.A.No. 663 of 2010 ------------------------- (AGAINST THE ORDER IN MC.36/2006 IN SC.675/2005 of ADDL.SESSIONS COURT- TRIAL OF ABKARI ACT CASES,NEYYATTINKARA) .................... APPELLANT(S): APPELLANT/COUNTER PETITIONER -------------------------------------------------------- UPENDRANATHAN, S/O.SAHADEVAN, CHENKALOOR THOTTATHY PUTHEN VEEDU MARIYODE DESOM, MARANALLOOR VILAGE BY ADV. SRI.R.V.SREEJITH. RESPONDENT(S)/PETITIONER: ---------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, O/O.THE ADVOCATE GENERAL HIGH SCHOOL BUILDINGS, ERNAKULAM (S.I. OF POLICE MALAYINKEEZH POLICE STATION, THIRUVANANTHAPURAM BY PUBLIC PROSECUTOR SRI.C.S.HRITHIK. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 663 of 2010 --------------------------------------------- Dated this the 26th day of March, 2010 J U D G M E N T This appeal is preferred by one of the sureties in S.C.No.675 of 2005 on the file of the Court of the Additional Sessions Judge for the Trial of Abkari Act Cases, Neyyattinkara, against whom proceedings under Section 446 of the Code of Criminal Procedure is issued by which a sum of Rs.10,000/- was imposed as penalty. 2. The appellant along with another person stood as sureties for the second accused in the above sessions case, which was instituted for the offence punishable under Section 55(a) of the Abkari Act and upon their suretyship, the second accused was released on bail, but subsequently, he jumped over the bail condition and hence, the court below registered M.C.No.36 of 2006 against the sureties. Thus, the appellant challenged in this appeal the order of penalty of Rs.10,000/- imposed against him. Crl.ANO.663 of 2010 :-2-: 3. The learned counsel for the appellant submitted that the appellant is unable to produce the accused for whom he stood as one of sureties since the accused had gone abroad. So, according to the learned counsel, a lenient view may be taken in the matter of penalty amount. 4. As per the undertaking of the appellant and as per the contractual obligation, the appellant is bound to produce the accused for whom he stood as surety. In the present case, though notice was served on the appellant in the above proceedings, no explanation was offered and hence the court below is constrained to pass the impugned order. Under the above factual and legal background, I find no illegality with the order of the court below imposing penalty against the appellant. 5. However, from the facts and circumstances involved in the case, it appears that the second accused had gone abroad and the appellant is not in a position to procure the presence of the accused in terms of the undertaking made Crl.ANO.663 of 2010 :-3-: by him while executing the bond. Therefore, I am of the view that while sustaining the order imposing penalty, the amount fixed by the court can be modified and same can be reduced and fixed as Rs.5000/- which will be sufficient to meet the ends of justice. Learned counsel brought to my notice that as ordered by this Court in Crl.M.A.No.5848 of 2008, the appellant had already deposited a sum of Rs.5000/-. If that be so, I am of the view that the said remittance can be adjusted towards the penalty amount as revised and refixed by this Court. In the result, this appeal is disposed of by sustaining the order dated 26.7.2007 in M.C.No.36 of 2006 in S.C.No.675 of 2005, but reducing the penalty amount from Rs.10,000/- to Rs.5,000/- and the court below is directed to adjust the amount of Rs.5,000/-, which is already deposited by the appellant as per order dated 2.7.2008 of this Court mentioned above, towards the payment of the amount of penalty as reduced and refixed by this Court. It Crl.ANO.663 of 2010 :-4-: is made clear that as the appellant had already deposited a sum of Rs.5000/-, he need not make any further payment and the coercive steps, if any, taken against the appellant shall stand cancelled. This Criminal Appeal is disposed of as above. V.K.Mohanan, Judge MBS/ Crl.ANO.663 of 2010 :-5-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T DATED: -2-2010 Crl.ANO.663 of 2010 :-6-: