Moideen And Ors vs State Of Kerala

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.

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 forfeited their bonds and directed the appellants to pay penalty of Rs.15,000/- each.

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.

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.

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 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.