The appellant is the 2nd counter petitioner in M.C.No.2/2013 in C.C.No. 25/2011 on the file of the Court of Special Judge (SPE/CBI), Thiruvananthapuram. Accused No.10 failed to appear before the court below and on 14.6.2013, the court below cancelled his bail bond. The appellant stood surety to accused No.10 along with the 2nd respondent, who is the son of accused No.10. Since accused No.10 failed to appear even after the issuance of non-bailable warrant, the court below ordered forfeiture of the bail bond and then registered these M.C. proceedings against the appellant and the 2nd respondent herein. The court issued show cause notice as to why the penalty should not be paid. It is thereafter that the impugned order has been passed by the court below on 20.8.2014 in M.C.No.2/2013 in C.C.No. 25/2011. The court below has ordered as per the impugned order that the counter petitioners therein shall pay penalty of Rs.25,000/- each. It is this order that is under challenge in this Criminal Appeal preferred under Section 449 of the Cr.P.C. 2. Heard Sri.V.Venugopalan Nair, the learned counsel for the petitioner and Sri.P.Chandrasekhara Pillai, the learned Standing Counsel for the 1st respondent-Central Bureau of Investigation. In the nature of the relief proposed to be granted in this Crl.Appeal, notice to R2 is dispensed with as he is counter petitioner No.1 before the court below.
3. Sri.V.Venugopalan Nair made submissions to contend that there are valid circumstances, which justify the plea of the appellant that no penalty should have been imposed on him by the court below. On going through the averments and materials on record, I am convinced that there are mitigating circumstances justifying this plea of the appellant, and the court below cannot be said to have gone wrong in taking the view that the penalty should be imposed on the appellant. Faced with this situation, Sri.V.Venugopalan Nair, the learned counsel for the appellant relied on the decision of this Court in the judgment dated 2.8.2014 in Crl.Appeal No.852/2014 impugning the order in the M.C. proceedings of the court below. In the said judgment this Court found that the order of the court below in imposing the penalty, which amounts to the same as the amount for the bail bond was not warranted in the facts of that case and accordingly, the penalty amount was modified and reduced to Rs.15,000/- instead of the originally imposed Rs.25,000/-. Section 446(3) of the Cr.P.C. specifically empowers the court to remit any provision of penalty mentioned and enforce payment in part only.
4. After hearing the submissions of the learned counsel for the appellant and the learned Standing Counsel for the 1st respondent, this Court is inclined to hold that a lesser penalty can be imposed in the facts and circumstances of the case. Accordingly, the impugned order is set aside to the limited extent that the penalty amount is modified and reduced to Rs.15,000/- (rupees fifteen thousand only). The appellant shall deposit the said sum of Rs.15,000/- on or before 20.12.2014 before the court below. However, it is made clear that if the appellant does not deposit the above said amount of Rs. 15,000/- before the court below on or before 20.12.2014, then this direction shall stand vacated automatically and the penalty order imposed as per the impugned order in the M.C. by the court below shall stand revived automatically and the court below will be at liberty to enforce payment of penalty by issuing the distress warrant against the appellant herein as referred to in the impugned order.
The Crl.Appeal stands allowed as ordered above.
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sdk+ ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge