Aboobakkar vs State Of Karnataka
2022 Latest Caselaw 12705 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 31 S T DAY OF OCTOBER, 2022

                          BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

       CRIMINAL APPEAL NO.1811 OF 2022

BETWEEN:

Aboobakkar
Aged about 61 years,
C/o Abdul Rahiman,
R/at No.2-201,
Poyyagadde House,
Bantwal Taluku, Kanyana,
D.K.District-574279
                                                ...Appellant
(By Sri Nishit Kumar Shetty, Advocate)

AND:

State of Karnataka
By Vittal Police Station,
Mang aluru, D.K.,
Represented by
Special Public Prosecutor,
High Court Build ing,
Beng aluru-560001.

                                              ...Respondent
(By Sri Mahesh Shetty, HCGP)

     This Criminal Appeal is filed under Section 449
Cr.P.C.,   praying   to   set   aside   the   ord er   dated
11.04.2022 p assed by the III Additional District and
Sessions Judge, Mang aluru in Crl.Misc.No.1626/2017
on application filed by the appellant under section
                           :: 2 ::


446(3) of Cr.P.C., for remission of penalty and allow
the application filed by the appellant und er Section
449 of Cr.P.C., for remission of penalty.

     This Criminal Ap peal coming on for orders this
day, the Court delivered the following:

                        JUDGMENT

Heard Sri Nishit Kumar Shetty, learned

Counsel for the appellant and the learned High

Court Government Pleader for respondent-State.

2. I.A.No.1/2022 is allowed and delay of

125 days in filing the appeal is condoned.

3. This is an appeal filed under Section 449

of Cr.P.C., challenging the order passed by the III

Additional District and Sessions Judge, D.K.,

Mangaluru, partly allowing the appellant's

application under Section 446(3) of Cr.P.C.

4. The events that lead to filing of this

appeal are that the appellant stood as surety for

accused No.2 in S.C.No.1/2016 and since accused

No.2 failed to appear before the court, notice was :: 3 ::

ordered to the appellant. But he did not appear.

Therefore bail bond was forfeited and FLW was

ordered. Then the appellant appeared before the

court and applied for remission of the amount

specified in bail bond. Having regard to the facts

and circumstances, the Sessions Judge reduced

the penalty amount to Rs.50,000/-. The bail bond

was for Rs.1,00,000/-.

5. The submission of Sri Nishit Kumar

Shetty is that the appellant could not trace

accused No.2 because the latter had absconded.

The police arrested accused No.2 and produced

him before the court and later on the trial ended

in acquittal of accused No.2. The appellant is a

poor man and his age is 61 years. He possess

only one property, he has no means to pay the

penalty amount and in this view the court below

ought to have reduced the penalty amount to

Rs.20,000/-. Therefore he requests for reducing :: 4 ::

the penalty from Rs.50,000/- to Rs.20,000/-. In

support of his arguments, he places reliance on

the judgment of the Hon'ble Supreme Court in the

case of Mohammed Kunju and another vs.

State of Karnataka [(1999)8 SCC 660].

6. Learned High Court Government Pleader

opposes the appeal and submits that the Sessions

Judge has already used discretion to reduce the

penalty to Rs.50,000/- and therefore there is no

ground for showing further remission.

7. In the case cited by the appellant's

counsel, the Hon'ble Supreme Court held that

having regard to the facts and circumstances, the

court can grant remission. Now if the impugned

order is read, it appears that the Sessions Judge

in his discretion granted remission by reducing the

penalty to Rs.50,000/-. It is clearly observed by

the Sessions Judge that the appellant being surety :: 5 ::

appears to have not made any efforts to secure

the presence of accused No.2.

8. Though impugned order is well founded,

it is to be stated that if the accused No.2 had

absconded, probably it was difficult for the

appellant to trace him. That apart, the appellant

is a poor and aged person and except a landed

property, he does not have any property and if he

is ordered to pay Rs.50,000/-, he may find it

difficult. Therefore I find that further remission

can be granted. Hence the following:

ORDER

Appeal is allowed .

The ord er d ated 11.04.2022 p assed in Crl.Misc.No.1626/2017 by the III Additional District and Sessions Judge, D.K., Mang aluru, is modified.

The app ellant is directed to pay penalty of Rs.25,000/-, instead of Rs.50,000/-. The payment must be mad e within one month from tod ay.

:: 6 ::

I.A.No.2/2022 does not survive for

consideration. It stands disposed of accordingly.

Sd/-

JUDGE

Kmv/-