Karnataka High Court
Bhimappa S/O Balappa Demannavar vs The State Of Karnataka on 23 August, 2022
Bench: J.M.Khazi
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CRL.A No. 2558 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.2558 OF 2013 (A-)
BETWEEN:
BHIMAPPA S/O BALAPPA DEMANNAVAR
AGED 42 YEARS, OCC: AGRICULTURIST,
R/O.KONDASKOPA VILLAGE,
TQ AND DIST: BELGAUM
...SURETY/APPELLANT
(BY SRI. SANJAY S KATAGERI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH TILAKWADI POLICE STATION,
BELGAUM REPRESENTED BY ADDL.S.P.P.,
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD.
...STATE/RESPONDENT
(BY SRI.RAMESH CHIGARI, HCGP)
THIS CRIMINAL APPEAL IS FILED U/SEC. 449(ii) OF
CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED
20.12.2012 IN S.C.NO.17/2012 PASSED BY THE II ADDL.
DISTRICT AND SESSIONS JUDGE, BELGAUM AND ALL
CONSEQUENTIAL ORDERES THEREOF, BY ALLOWING THIS
APPEAL.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING.
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CRL.A No. 2558 of 2013
JUDGMENT
In this appeal filed under Section 449(ii) of Code of
Criminal Procedure, (for short "Cr.P.C") appellant who has
stood as surety to accused in S.C. No.17/2012, has challenged
the order dated 20.12.2012 by which his bond for a sum of
Rs.1,00,000/- is forfeited and he was directed to pay penalty of
Rs.1,00,000/- and also the property bearing No.93A/1 is
attached.
2. Brief facts leading to this appeal are that appellant
stood as surety to the accused by name Vinod T. Naidu, who
was charged with the offence punishable under Section 306 of
IPC in S.C. No.17/2012 on the file of II Additional Sessions
Judge, Belagavi. After framing charge and fixing the date of
trial, from 08.11.2017 accused remained absent and as such
the trial Court cancelled his bail and issued notice to the
appellant calling upon him to show cause as to his surety bond
shall not be forfeited to the State and he be directed to pay the
penalty.
3. In pursuance to the service of notice, though
appellant appeared before the trial Court and sought time to
CRL.A No. 2558 of 2013
produce the accused, he failed to do so. Therefore, vide order
dated 20.12.2012 his surety bond came to be forfeited and he
was directed to pay penalty. Further vide order dated
01.02.2013 the property No.93A/1 which was offered by way of
security for compliance with the conditions of the surety bond
executed by him came to be attached.
4. Appellant has challenged this order in the present
appeal contending that instead of forfeiting the surety bond the
trial Court ought to have secured the presence of accused
through other means, keeping the option of forfeiting the
surety bond as a last resort. He had offered land in Sy. No.28/3
as a security for executing the surety bond. Instead of
attaching the said property, wrongly the trial Court has
attached property No.93A/1 and thereby creating
encumbrance. The trial Court ought to have given remission to
the appellant by reducing the penalty.
5. During the course of arguments learned counsel
appearing for the appellant submits that subsequently the
presence of the accused is secured and after trial he has been
CRL.A No. 2558 of 2013
acquitted and therefore the appellant be absolved from the
liability of paying the penalty.
6. Alternatively the learned counsel for the appellant
submits that vide order dated 21.02.2013 while granting
interim stay, this Court directed the appellant to deposit
Rs.10,000/- before the trial Court and the penalty payable by
the appellant may be reduced to Rs.10,000/- and the amount
deposited by the accused be adjusted towards the said penalty.
7. On the other hand learned High Court Government
Pleader submits that since the appellant failed to secure the
presence of the accused, the trial Court has rightly forfeited the
surety bond and directed him to pay penalty of Rs.1,00,000/-
and the impugned order does not call for interference.
8. Heard the arguments and perused the record.
9. It is undisputed that appellant has stood as surety
to the accused. When he was unable to secure the presence of
the accused as offered through the surety bond executed by
him, the trial Court has rightly forfeited the bond and directed
him to pay the penalty and also created charge over the
CRL.A No. 2558 of 2013
property offered by the appellant as security for realization of
the bond amount. While executing the surety bond the
appellant has offered land in Sy. No.28/3 and house property
No.93A/1. Looking to the bond amount, instead of attaching
both properties, the trial Court has proceeded to attach house
property No.93A/1. No faults could be found with the same.
10. However as an alternative argument, learned
counsel for the appellant submits that subsequently the
presence of accused was secured by the trial Court and after
due trial he has been acquitted and taking into consideration of
the same, the penalty amount may be reduced to Rs.10,000/-
which is already deposited by the appellant before the trial
Court. To evidence the fact that the accused was secured and
trial was concluded resulting his acquittal, appellant has
produced the certified copy of judgment in S.C. No.17/2012.
Having regard to the fact that subsequently the trial Court has
secured the presence of the accused and proceeded with the
matter and ultimately the accused is acquitted, this Court is of
the considered opinion that it would be appropriate to reduce
the penalty to Rs.10,000/-, which the appellant has already
deposited before the trial Court as per the order dated
CRL.A No. 2558 of 2013
21.02.2013 while granting the interim stay. This fact is
evidence by copy of the receipt produced by learned counsel for
appellant on 10.06.2013. To this extent the impugned order is
required to be modified and accordingly the following;
ORDER
Appeal is partly allowed.
The impugned order dated 20.12.2012 passed
by the II Additional Sessions Judge., Belagavi, is
modified reducing the penalty amount to Rs.10,000/-.
Consequently the order dated 01.02.2013
attaching property No.93A/1 of Kondaskoppa is
recalled.
Sd/-
JUDGE
YAN/PJ
