IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL APPEAL NO.2109 OF 2016
BETWEEN:
RAMAPPA,
S/O BIDDAPPA,
AGED ABOUT 62 YEARS,
R/AT MUGANAHALLI VILLAGE,
BANGARAPETE TALUK,
KOLAR DISTRICT - 563215. ...APPELLANT
(BY SRI VISHALAXA KADIWAL, ADVOCATE)
AND:
STATE OF KARNATAKA
BY MARIKUPPAM POLICE STATION,
K.G.F.BANGARPET TALUK
KOLAR DISTRICT - 563215. ...RESPONDENT
(BY SRI K NAGESHWARAPPA, HCGP)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 449
CR.P.C PRAYING TO SET ASIDE THE ORDER OF III ADDL. DISTRICT
AND SESSIONS JUDGE, KOLAR SITTING AT K.G.F DATED
14.11.2016 PASSED IN CRL. MISC NO.533/2016 REJECTING THE
APPLICATION FILED BY THE APPELLANT UNDER SECTION 446(3)
OF CR.P.C AND ORDERED THE APPELLANT TO PAY A PENALTY OF
RS.1,00,000/- TO THE STATE, BEING SURETY BOND AMOUNT OF
RS.50,000/- FOR ACCUSED NO.2 AND 3 EACH OF
S.C.NO.175/2011.
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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed for setting aside the order dated 14.11.2016 passed on petition under Section 446(3) Cr.P.C. in Crl.Misc.No.533/2016 by III Addl. District and Sessions Judge, Kolar (sitting at KGF).
2. The facts briefly stated are that the appellant had offered surety to accused Nos.2 and 3 in S.C.No.175/2011 on the file of III Addl. District and Sessions Judge, Kolar. Accused Nos.2 and 3 were regular in attending the trial. When the case was posted on 26.08.2016 for pronouncement of judgment, the accused Nos.2 and 3 remained absent. The judgment was pronounced in their absence. Accused Nos.2 and 3 were convicted for the offence punishable under Sections 143, 144, 147, 148, 302, 201 read with Section 149 of IPC. Due to absence of accused Nos.2 and 3 proceedings were initiated against the appellant to recover the bond amount. The Sessions Court has 3 directed to pay penalty of Rs.1,00,000/- to the State, being surety bond amount for a sum of Rs.50,000/- to accused Nos.2 and 3 each. Being aggrieved by the said order, the appellant- surety has preferred the appeal.
3. Learned counsel for the appellant would contend that the appellant had offered surety in good faith. Accused were regular in attending the trial, but only on the date of judgment they remained absent and absconded. The appellant surety is poor, he has made hectic efforts to secure their presence. The penalty imposed is too harsh and the same will cause hardship to the appellant.
4. As could be seen from the impugned order, accused Nos.1, 4 and 6 in S.C.No.175/2011 are in prison and they are facing sentence of imprisonment for life, imprisonment for a period of seven years, imprisonment for a period of two years for the offence punishable under Sections 143, 144, 147, 148, 302, 307, 201 read with 149 IPC. It is observed that the appellant- Ramappa is a professional surety and he has offered surety in 4 other sessions cases viz., S.C.No.208/2013 before II Addl. City Civil and Sessions Judge at Bengaluru, S.C.No.1214/2015 at CCH-52, City Civil and Sessions Judge, Bengaluru, S.C.No.584/2012 at V City FTC Court at Bengaluru and he is also facing threat of attachment of the property in C.Mis. No.173/2012, C.Mis.No.7303/2014 and C.Mis.No.8418/2015, which were registered on the basis of forfeiture of surety bonds and for recovery of surety bond amount. In all those criminal cases attachment warrants of land of appellant-Ramappa were issued by the Court through Deputy Commissioner, Kolar and 50% of the surety bound amount was given up from recovery with a condition to pay balance surety bond amount of Rs.12,500/- to the State.
5. In the facts and circumstances of the case, it is evident that the appellant is a professional surety. However, looking to the financial condition of the appellant, this Court is of the view that some portion of the penalty may be remitted. Hence, the following :
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ORDER i. Appeal is allowed-in-part.
ii. The order dated 14.11.2016 passed in Crl.Mis.No.533/2016 by the III Addl. District and Sessions Judge, Kolar (sitting at KGF), in so far as appellant herein is modified as under:
"The appellant shall pay penalty of Rs.40,000/- i.e., Rs.20,000/- each in respect of accused Nos.2 and 3, to the State being the surety bond amount for accused Nos.2 and 3 in S.C.No.175/2011 within one month from the date of receipt of certified copy of this judgment."
Sd/-
JUDGE BSR