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2005 DIGILAW 2787 (RAJ)

Shyam Sunder Sharma v. State

2005-10-22

N.K.JAIN

body2005
Honble JAIN, J.–Heard learned counsel for the parties. (2). The appellants have filed this criminal appeal under Section 449 Cr.P.C. against the order dated 21st Sept., 2004 as well as order dated 15th Feb., 2005 passed by the Additional District Judge, Neemkathana, District Sikar in Case No. 77/2003 whereby the Trial Court forfeited the bonds of the surety-appellants of the entire amount of Rs. 25,000/- each. (3). The appellants stood sureties for one accused namely Rajesh @ Raju, who did not make himself present in the Trial Court on 16.07.2003 and the learned Trial Court forfeited the personal bonds as well as surety bonds and passed an order for initiating the proceedings under Section 446 Cr.P.c. A notice to show cause was issued to the present appellants, who did not appear in Court on 21st Sept., 2004 in spite of service of notice and in these circumstances, the Trial Court passed an order forfeiting surety bonds of the appellants of the entire amount of Rs. 25,000/- each and passed an order to recover the said amount from the appellants. (4). Learned counsel for the appellants contended that on 21st Sept., 2004 the appellants remained busy in making search of the accused and only because of their efforts, the accused could be traced out and thereafter the accused surrendered before the Trial Court on 4th Oct., 2004 and since then he is in judicial custody. It is further contended that after surrender of the accused, the appellants filed an application dated 27th Oct., 2004 seeking permission to file reply to the proceedings under Section 446 Cr.P.C. and subsequently they filed a reply to the proceedings under Section 446 Cr.P.C. in the Trial Court on 29th Oct., 2004. (5). It is further contended that after surrender of the accused, the appellants filed an application dated 27th Oct., 2004 seeking permission to file reply to the proceedings under Section 446 Cr.P.C. and subsequently they filed a reply to the proceedings under Section 446 Cr.P.C. in the Trial Court on 29th Oct., 2004. (5). Learned counsel for the petitioner further contended that after filing reply by the appellants, learned Trial Court vide order dated 29th Oct., 2004 stayed the recovery of the amount in dispute till next date i.e. 3rd Nov., 2004 and case thereafter remained pending but again vide order dated 5th Feb., 2005, learned Trial Court passed an order for recovery of the amount of surety bonds from the appellants, therefore, submission of the learned counsel for the appellants is that looking to the reply of the appellants, it was not proper and justified in the facts and circumstances of the present case particularly when the accused surrendered because of efforts of the appellants, to forfeit the entire amount of surety bonds. (6). Learned Public Prosecutor opposes the appeal but he does not dispute that a lenient view may be taken in reducing the amount as accused has now surrendered in the present case. (7). I have considered the rival submissions and the impugned orders as well as reply filed by the appellants. (8). Learned Public Prosecutor does not dispute that the accused Rajesh @ Raju surrendered before the Trial Court on 4th Oct., 2004 and this fact was also mentioned by the present appellants in their application dated 27.10.2004 as well as in reply to the proceedings under section 446 Cr.P.C. filed on 29th Oct., 2004. The accused remained absent in the Trial Court only on one date i.e. 16.07.2003 and before this date, he was present in the Trial Court on all dates. Although it would have been more better for the appellants to appear after service of notice under Section 446 Cr.P.C. before the Trial Court on 21st Sept., 2004 and to seek time to make efforts for presence of accused and to file reply, but they did not remain present in spite of service of the notice upon them, therefore, there was no alternative for the Trial Court except to pass an order forfeiting the amount of surety bonds vide order dated 21st Sept., 2004. Learned counsel for the appellants has contended before this Court that they were searching the accused and they remained busy and as such they could not make themselves present before the Trial court on 21st Sept., 2004 but soon thereafter on 4th Oct., 2004, the accused surrendered before the Trial Court and they also filed their application and reply before the Trial Court on 27th Oct., 2004 and 29th Oct., 2004. From the file of the Trial Court itself, it appears that on 29th Oct., 2004 an interim stay order was passed by the Trial Court itself for the recovery of the amount from the appellants, but subsequently no order passed after considering the application or reply filed on 27th Oct., 2004 and 29th Oct., 2004. (9). The accused in the present case remained absconded during the period from 16.07.2003 to 4th Oct., 2004 and soon after issuance of the notice under Section 446 Cr.P.C., the accused surrendered before the Trial Court. In these circumstances, think it fit and proper to reduce the amount of forfeiture from Rs. 25,000/- to Rs. 2,000/- each. The impugned orders dated 21st Sept., 2004 as well as 15th Feb., 2005 are accordingly modified. The appellants undertake to deposit the amount of Rs. 2,000/- each in the Trial Court within a period of two months from today, if the same has not been deposited so far. (10). The appeal is partly allowed in the manner as indicated above.