IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.275 OF 2019 BETWEEN:
M. Venkatesha @ Venkateshappa, S/o Late Muniswamy @ Munithayappa, Aged about 53 years, R/at No.78,Solur Village, Kasaba Hobli, Manasinghanahalli, Anekal Taluk, BengaluruRural-562 106.
...Appellant (By Sri. Rattihalli Geetha Veeranna, Advocate for Sri. Nagaraju V, Advocate) AND:
The State of Karnataka Bidadi Police Station, Represented by State Public Prosecutor, High Court of Karnataka, Bengaluru-560 001.
...Respondent (By Sri. K. Nageshwarappa, HCGP) This Criminal appeal is filed under Section 397 of Criminal Procedure Code, praying to set aside the impugned order dated 10.07.2018 passed in Crl.Mis.No.1320/2012 by the 1st Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru and etc., This Criminal appeal coming on for Admission, this day, the Court made the following:
ORDER The present appeal has been preferred by the appellant who stood as a surety to the accused in S.C.No.311/2011 before the Court below challenging the order passed by the I Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru in Criminal Miscellaneous No.1320/2012 dated 10.07.2018.
2. I have heard the learned counsel for the appellant and the learned High Court Government Pleader for respondent-State.
3. The brief facts of the case are that the present appellant stood as a surety to the accused and subsequently accused No.2 remained absent and surety notice was also came to be issued. In spite of service of notice, the sureties have not appeared and as such a Criminal Miscellaneous No.1320/2012 was registered against the surety Nos.1 and 2 and Court below passed an order for forfeiting the surety bonds and directed to collect the money of Rs.50,000/- from the sureties.
4. In that light, an application was came to be filed under Section 446 (3) of Cr.P.C., by surety Nos.1 and 2 stating that they stood as a surety to accused No.2 in S.C.No.311/2011 for the offences punishable under Section 302 of Indian Penal Code by executing a bond for a sum of Rs.50, 000/- each on 19.10.2011 and they have also undertaken that they will produce accused No.2 before the Court. It is their contention that from the date of receiving the notice they were in search of accused No.2 to produce him before the Court and they have spent huge amount for the purpose of searching accused No.2, but their efforts have went in vain. It is further stated that they are the only bread earner and they are very poor and they are having only the said property. The Court below very harshly has passed the impugned order of depositing Rs.50,000/- which has been executed in a bond. The trial Court without considering the said aspect has passed the impugned order.
5. It is her further submission that the forfeiture of the bail bond and plea of remission of penalty by sureties has to be considered by looking to the facts of the case. It is her further submission that already sureties have made efforts to secure accused No.2 and it is her further submission that though under Section 446 (3) of Cr.P.C., the Code empowers the Court to grant such remission but the Court has to exercise its discretion and grant the remission lesser than what has been executed by the accused by giving good reasons. In order to substantiate her contention she relied upon the decision in the case of Mohammed Kunju and Another Vs. State of Karnataka reported in AIR 2000 SC 6. It is her further fair submission that reasonable penalty may be imposed to the petitioner surety for violating the condition by taking lenient view. On these grounds she prayed to allow the petition by modifying the order of the trial court.
6. Per contra, the learned High Court Government Pleader vehemently argued and submitted that surety Nos.1 and 2 have stood as a surety to accused No.2 and thereafter accused No.2 has remained absconding, till date he has not been secured. After taking into consideration the fact that the accused has not been produced and they have not even furnished the correct address and other material the application filed was came to be rejected. There are no good grounds to interfere with the order of the Trial Court. On these grounds he prayed to dismiss the petition.
7. As could be seen from the records as per the order dated 07.06.2014 the Court has passed an order. Already the said Court has forfeited the bail bond executed by the petitioner-surety on behalf of accused No.2 and FLW has been issued against the respondent for recovery of Rs.50,000/-, but it is not executed. Hence, the encumbrance order has been passed to keep the encumbrance and subsequently it is also directed to the Tahsildar of Anekal Taluk to recover the sum of Rs.50,000/- as fine as well as arrears of land revenue by taking any portion of the property bearing Survey No.108, Khatha 73 measuring 20 guntas of Solur Village, Kasaba Hobli, Anekal Taluk. Thereafter, the sureties appeared and filed an application under Section 446(3) of Cr.P.C to give the remission.
8. On close reading of the said order it reveals that present petition is by Surety No.1 and it is contended that he and the other surety are poor and are the only bread earners in their respective families and they are making efforts to search accused No.2. But the said facts have been denied by prosecution.
9. It is submitted by the learned HCGP that nothing has been produced to show that the sureties have made efforts to ascertain accused No.2 and even the surety proceedings have been issued and sureties have not appeared before the Court earlier, taking into consideration, the impugned order has been passed.
10. I am of the considered opinion that the bond executed by the accused is an undertaking to secure the attendance of the accused on everyday of hearing and he has to appear before the Court whenever called upon. The undertaking to be given by the surety was not that he would secure the attendance and appearance of the accused in accordance with the terms of the bond executed by the accused. The undertaking of the surety to secure the attendance and presence of the accused was quite independent of the undertaking given by the accused to appear before the Court whenever called upon even if both the undertakings happened to be executed in the same document for the sake of inconvenience. Each undertaking being distinct could be separately enforced. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Ram Lal Vs. State of UP reported in AIR 1979 SC 1498. It is subsequent contention of the learned counsel for the petitioner that they have made all the efforts to secure the presence of accused No.2 but all the efforts have become in vain. They have not produced any documents to substantiate their contention, but the facts remains that they are unable to produce accused No.2. But the only thing which they can do is, they can give the address where exactly he stays and to physically produce him before the Court. Till today, the said accused No.2 is absconding that is not a ground to impose the penalty on the surety who stood as a surety in this behalf. Accused slipped out of the custody of the Court and Court has to make efforts by issuance of NBW to secure the presence of the accused. It is well settled proposition of law by Hon’ble Apex Court that in the case of Mohammed Kunju quoted supra that the Court can exercise its discretion while giving remission to the sureties.
11. It is specific case of the petitioner that they are having only the said property and they are having many number of dependants and they have made all the efforts, in such circumstances, by exercising the discretion some remission if it is granted to the appellant then in such circumstances, it is going to meet the ends of justice. In order to meet the ends of justice, the remission is granted to the extent that the appellant need to pay Rs.10,000/- as penalty. If the appellant has already paid any amount in excess there of, the same may be refunded after deducting Rs.10,000/- as penalty on proper identification and acknowledgment.
With the above observations appeal is disposed.
Sd/- JUDGE ag