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2020 DIGILAW 262 (KAR)

Vijayan C. m. And Others v. State Of Karnataka

2020-01-29

MOHAMMAD NAWAZ

body2020
JUDGMENT Mohammad Nawaz, J. - Heard the learned counsel appearing for the appellants and the learned HCGP appearing for the respondent -- State and perused the material on record. 2. The appellants are the surety holders to one Smt. Sujatha who was arraigned as Accused No. 2 in S.C. No. 1238/2019 for the offences punishable under Sections 311, 406, 417, 418, 419, 420, 423, 427, 465, 468, 471, 504 read with Section 34 of IPC. The appellants herein stood as sureties for a sum of Rs. 1,00,000/- each for securing the presence of the said accused. However, on 24.06.2019, the accused remained absent before the court as she had left the country and gone abroad, thereby violating the bail conditions. In the said circumstance, surety bonds were forfeited and proceedings were initiated to recover the bond amount from the appellants herein. 3. The appellants filed separate applications under Section 446(3) Cr.P.C., in Crl. Misc. Case No. 1238/2019, to waive the bond amount and to discharge the sureties. The said applications came to be dismissed by the learned Sessions Judge by an order dated 30.12.2019. Hence, this appeal. 4. The learned counsel for the appellants would submit that no show cause notice was issued by the trial court calling upon the appellants to show cause, before forfeiting the bond amount. He submits that with a good intention, the appellants stood as sureties to the accused. However, she left the country without the knowledge of the appellants. In spite of best efforts made, her presence could not be secured. He submits that appellant No. 1 is a taxi driver having a meager income and appellant no. 2 is an aged person having many age related ailments. The appellants are having family to look after. 5. The learned counsel by placing reliance on the decision of the Honble Apex Court in the case of Mohammed Kunju and anr. v. State of Karnataka reported in 2000 Crl.L.J. 165 and also an unreported decision of this court passed in Crl.A. No. 1741/2017 dated 25.07.2019, submits that maximum leniency may be shown to the appellants and seeks to allow the appeal. 6. Per contra, the learned HCGP submits that the appellants stood as sureties to the accused and therefore, it is their bounden duty to secure their presence before the court. 6. Per contra, the learned HCGP submits that the appellants stood as sureties to the accused and therefore, it is their bounden duty to secure their presence before the court. He submits that while filing surety affidavits, they have given the details of the properties possessed by them. Hence, now they cannot contend that they are in financial distress. He submits that the court after considering the facts and circumstances has rightly dismissed the applications which does not warrant any interference. Hence, he seeks to dismiss the appeal. 7. It is not in dispute that the appellants herein stood as sureties for the accused by name Smt. Sujatha who is arraigned as accused No. 2 in SC. No. 68/2019 on the file of the III Addl. District and Sessions Judge, Dakshina Kannada. Since she remained absent, the appellants herein were called upon to pay the penalty. Perusal of the impugned order goes to show that on 24.06.2019, the accused No. 1 appeared before the court and submitted that accused No. 2 has gone abroad. As such, NBW was issued against Accused No. 2. The said warrant was returned unexecuted with shara 'Accused No. 2 has absconded from the jurisdiction of the court'. It is observed by the learned Sessions Judge that, vide order dated 29.07.2019, the bond executed by Accused No. 2 and her sureties were forfeited and separate miscellaneous case was ordered to be registered for recovery of the bond amount. In the applications filed by the appellants/surety holders, it is not stated that no opportunity was given to them before forfeiting the bond amount. Admittedly, the bail bonds were forfeited and separate miscellaneous case was registered. Hence, it cannot be said that there is any illegality committed by the court below. 8. In the decisions referred by the learned counsel for the appellant, it is held that some remission can be granted to the surety holder to meet the ends of justice. Section 446(3) of Cr.P.C., empowers the court to grant such remission and it is within the discretion of the court to grant remission and to decide the extent of remission. However, such discretion must be exercised judicially and for good reasons. 9. In the present case, the submission of the learned counsel for the appellants that they stood as surety with a good intention and without their knowledge, Accused no. However, such discretion must be exercised judicially and for good reasons. 9. In the present case, the submission of the learned counsel for the appellants that they stood as surety with a good intention and without their knowledge, Accused no. 2 has gone abroad and in spite of the best efforts made by the appellants, they could not secure her presence. It is no doubt true that the appellants having offered surety to the accused are duty bound to secure her presence. However, considering the facts and circumstances of the case, though the entire bond amount cannot be waived, however, to meet the ends of justice, I deem it appropriate to reduce the bond amount to Rs. 25,000/- each. The learned counsel for the appellants submits that the appellants will deposit the said amount as ordered by this court. Hence, the following order: ORDER (i) The appeal is allowed in part. (ii) The impugned order dated 30.12.2019 in Crl. Misc. Case No. 1238/2019 on the file of the III Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru, filed under Section 446(3) of Cr.P.C., is hereby set aside. (iii) The appellants herein are directed to pay penalty of Rs. 25,000/- each. The said amount shall be deposited by the appellants herein before the court below within a period of four weeks from today and if the appellants fail to deposit the same, the same shall be recovered from them in accordance with law. In view of disposal of main appeal, I.A. No. 1/2020 do not survive for consideration and the same is disposed of.