Moideen vs Moideen
2021 Latest Caselaw 1054 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

             THE HONOURABLE MRS. JUSTICE MARY JOSEPH

    TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942

                      CRL.A.No.1326 OF 2006

    AGAINST THE ORDER DATED 31.10.2005 IN M.C.No.22 OF 2005 IN
       S.C.No.299 OF 2001 OF COURT OF SESSIONS, KASARAGOD


APPELLANTS/2ND AND 3RD RESPONDENTS/SURETIES:

      1      MOIDEEN,
             S/O.ABBAS MUSLIYAR(L) SOORAMBAIL HOUSE,
             EDNAD POST AND VILLAGE.

      2      KAMALA, W/O.BABU,
             SOORAMBAIL HOUSE, EDNAD POST AND VILLAGE.

             BY ADV. SRI.I.V.PRAMOD

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNKAULAM.

                BY SRI D.CHANDRASENAN, SR.PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.01.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1326 OF 2006

                                    2




                              JUDGMENT

Dated this the 12th day of January, 2021

The appeal on hand is directed against the order passed by

Court of Sessions, Kasaragod on 31.10.2005 in M.C.No.22 of 2005

in S.C.No.299 of 2001.

2. The appellants are the 2nd and 3rd respondents in

M.C.No.22 of 2005, who stood as sureties for the accused in

S.C.No.299 of 2001. S.C.No.299 of 2001 was posted for trial on

03.09.2005. The accused failed to appear before the court on that

day. In the above circumstances, proceedings under Section 446

Cr.P.C were initiated against the appellants herein. Notices were

issued to them to show cause why they shall not be ordered to

pay penalty as undertaken by them in the bond. Notices issued

were received by the appellants. The appellants neither appear

before the court nor they produce the accused before the court.

They did not also file any statement in explanation before the

court. In the said circumstances, the Court of Sessions has CRL.A.No.1326 OF 2006

forfeited their bonds and directed the appellants to pay penalty of

Rs.15,000/- each.

3. Actually the bond amount was Rs.85,000/-.

Eventhough the appellants did not appear before the court, the

court has shown leniency to them by imposing only Rs.15,000/- as

penalty, after remitting the balance sum. The prayer of the

learned counsel appearing for the appellants was that the

appellants being poor and aged people, they deserve more

leniency in the matter of payment of penalty.

4. The age of the appellants having not been shown in the

cause title of the appeal, this Court is not in a position to know

their age.

5. It is stated in the Appeal Memorandum that after

receiving the show cause notice from the court, the appellants had

gone to the house of the accused and they were given assurance

by the wife of the accused that she will make arrangements for

the appearance of the accused before the court on 31.10.2005.

Thereafter, they approached a counsel practising at Kasaragod and

he advised that they need not appear before the court on

31.10.2005 as the wife of the accused has undertaken to produce CRL.A.No.1326 OF 2006

him before the court. Since no information was obtained from the

court thereafter, the appellants were under the impression that the

accused might have appeared before the court on 31.10.2005 and

therefore the M.C was closed by the court. Therefore, it appears

that the appellants failed to attend the court for their bonafide

belief that the accused made himself available before the court.

In the said circumstances they deserve some leniency in the

matter of imposition of penalty.

In the result, Appeal is allowed in part. The quantum stands

ordered as penalty by the impugned order is modified and reduced

to Rs.10,000/-. The appellants shall see that the penalty at the

rate of Rs.10,000/- shall be paid by each of them within one

month from the date of receipt of a certified copy of this

judgment.

Sd/-

MARY JOSEPH JUDGE NAB