Ramakrishna vs State of Karnataka

K.N. Keshava Narayana J.

Though these appeals are listed for admission today, by the consent of both sides they are taken up for final disposal. The common appellant in both these appeals stood as surety for accused No. 7 in S.C. No. 706/2009 and 707/2009 on the file of Sessions Court at Bangalore (Fast Track Court No. XV), Bangalore City.

The appellant executed surety bonds in both these cases for a sum of Rs. 25,000/-, undertaking to keep accused No. 7 present before the Court on all hearing dates. However, on 8.12.2009 when the case had been posted for evidence of prosecution witnesses, accused No. 7 remained Absent and there was no representation on his behalf. On account of the absence of accused No. 7, the trial Court could not proceed with the trial of the case. Therefore, on that day the learned Sessions judge directed issue of NBW against accused No. 7 and show-cause notice to his surety namely the appellant herein. On account of the absence of accused No. 7, the surety bonds executed by the appellant stood automatically forfeited.

Upon service of show cause notice, the appellant appeared before the learned Sessions judge on 6.1.2010 in person. However, NBW''s issued against Accused No. 7 in both the cases returned unexecuted and he was not traced. The appellant as surety and who had undertaken to keep accused No. 7 present before the Court on all hearing dates was also not in and position to trace him and produce him before the Court. After the appearance of the appellant before the Court, the cases were being adjourned from time to time ultimately, on 9.3.2010, the appellant requested the Court to show leniency and for remission of major portion of the bond amount and to permit him to pay balance as fine.

The learned Sessions judge, considering the prayer made by the appellant and having regard to facts and circumstances of the case, in exercise of the power vested in him u/s 446(3) of Cr.P.C. remitted a sum of Rs. 5,000/- and directed the appellant to pay Rs. 20,000/- in each of these cases as fine. Being aggrieved by the said order of learned Sessions Judge, remitting only Rs. 5,000/- in each of these cases, the appellant has presented these appeals, inter alia contending that the appellant was Ex-Serviceman, who served Indian Military for about 20 years and thereafter he was employee in H.M.T., accused No. 7 is the son of co-employee and in that context he had known the accused No. 7. Therefore, he stood as surety and now he being a senior citizen is not in a position to pay the amount as ordered by the court below. Having regard the situation, in which the appellant is placed the learned Sessions judge ought to have remitted major portion of the bond amount.

I have heard the learned Counsel appearing for the appellant as well as learned Additional Government Pleader appearing for the respondent-State. Perused the certified copies of the order sheet produced and also statement made in the appeal memo. There is no dispute that the appellant stood as surety for accused No. 7 in both the cases and executed surety bonds for a sum of Rs. 25,000/- each. Accused No. 7 remained absent and in spite of issue of NBW, his presence could not be secured. Therefore, there was violation of the terms of the surety bonds executed by the appellant. The forfeiture of the surety bonds executed is an automatic process moment the accused for whom the surety bonds is executed remains absent before the Court on any date. Therefore, when accused No. 7 remained absent without any reasons and continued to remain absent subsequently also, the surety bonds executed by the appellant automatically stood forfeited. No doubt, Section 446(3) of Cr.P.C. vests discretion in the court to remit portion of the penalty and to enforce payment in part only. However, for doing so, the Court should record its reasons. The perusal of orders under appeal indicate that the learned Sessions Judge, has exercised the discretion in remitting a portion of the amount in sum of Rs. 5,000/-in each of these cases. However, the learned Sessions judge, has not taken in to consideration the situation in which the appellant has been placed. There is no dispute that he was an Ex-Serviceman, having served Indian military for 20 years. How he is a senior citizen. Being a retired person, he is depending on pension which he is getting from the Indian Army. No doubt in his affidavit filed before the Court at the time of offering himself as surety, ha has stated that he is the owner of the property, which is worth of Rs. 50,00,000/- and he is a solvent. The said statement cannot be a ground to hold that he is in a position to pay substantial amount Taking in to consideration the facts and circumstances as noted above, in my opinion, the learned Sessions judge is not be justified in remitting only a meager sum of Rs. 5,000/- and in directing the appellant to pay Rs. 20,000/- in each of these cases as fine.

Having regard to the facts and circumstances of the case, in my opinion, the interest of justice would be met if another sum of Rs. 5,000/- in each of the cases is remitted and the appellant is directed to pay Rs. 15,000/- in each of these cases as fine.

Accordingly, the appeals are allowed in part. In modification of the order passed by the learned Sessions judge, it is ordered that each of these cases, out of the bond amount of Rs. 25,000/- a sum of Rs. 10,000/- shall be remitted and the appellant is directed to pay balance of Rs. 15,000/- in each of these cases as fine within three weeks from today. Misc. Crl. 1747/2010 filed in Crl.A. No. 380/2010 and Misc. Crl. 1748/2010 filed in Crl.A. No. 381/2010, are accordingly disposed of.

Office to send a copy of this order to the court below.