Delhi District Court
Bishan Kumar vs A P Aggarwal on 8 April, 2010
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
Criminal Appeal No. 144/2009
Bishan Kumar
S/o Sh. Gopal Parsad
R/o A-230, Village-Humayunpur,
Safdarjang Enclave, New Delhi-29 ...........Appellant
Vs
A P Aggarwal,
S/o Lt. Sh. Shyam Lal
R/o C-20, Green Park Extension,
New Delhi-110016 ...........Respondent
Date of Institution of the suit : 23/12/2009
Date on which the order was reserved : 08/04/2010
Date of decision : 08/04/2010
JUDGMENT
This appeal is filed under Section 449 CrPC is directed against the order dated 10/11/2009 passed by learned Metropolitan Magistrate whereby the penalty of Rs. 50,000/- has been imposed upon the appellant/surety under Section 446 CrPC on account of default on his part to produce the accused on the dates fixed in the court. The Notice of the appeal was sent to the respondent/complainant who appeared and contested the appeal. Along with appeal an application under Section 5 of Limitation Act, 1950 was also filed for condonation of delay in filing of the appeal which was allowed by the order dated 23/03/2010 and delay in filing CA No. 144/2009 Page1/8 the appeal was condoned subject to payment of cost of Rs. 350/- to the respondent.
The arguments of learned Counsel for the appellant/surety are that initially, penalty of Rs. 30,000/- was imposed upon the surety by learned trial court by order dated 28/02/2009 which was set aside by the appellate court on filing of the/appeal under Section 449 CrPC and the learned trial court was directed to issue Notice under Section 446 CrPC against the surety and then decide the matter in question after which Notice under Section 446 CrPC was issued and time upto 10/11/09 was given to the appellant. On that date the appellant/surety could not appear and learned trial court refused adjournment by imposing penalty in the sum of Rs. 50,000/- upon the appellant/surety. It is also argued that the impugned order dated 10/11/09 may be set aside and in the alternative two months time may be given to the appellant to produce accused failing which appropriate penalty may be imposed.
The arguments of respondent/complainant are that that complaint under Section 138 of Negotiable Instruments Act based on the bounced cheque issued by accused in the sum of Rs. 5 lacs is pending for the last 3 years and the accused has appeared only once before learned trial court and the appellant/surety is the brother-in-law (brother of the wife of the accused) and is only delaying the matter. He knows where the accused is but is not producing the accused in the trial court. It is also argued that on 25/09/09, the appellant/surety has stated before learned Metropolitan Magistrate that accused was trying to arrange money for complainant/respondent and this statement also shows that he knows CA No. 144/2009 Page2/8 where accused is but he is helping the accused in not appearing before the learned trial court. Therefore, the impugned order passed by learned trial court may be confirmed.
Reliance is placed upon Sham Sunder Vs. State of Delhi, 1990 CriLJ 2370, wherein following observations were made by Hon'ble High Court :
"7. In Ghulam Mehdi v. State of Rajasthan, AIR 1960 SC 1185 : 1960 Cri. LJ. 1527, it has been held that notice to show cause is liable to be issued to the surety only to explain as to why he should not be made to pay the amount of the bond already forfeited as penalty. In Fatehchand Wadhumal v. Emperor, AIR 1940 Sind 136 : 19-10-41 Cri. LJ 802, while interpreting the similar provisions of the old Criminal P.C. contained in Section 514, a Division Bench of the said High Court clearly held that a bond for appearance stands forfeited when accused does not appear and it does not require the court to issue notice to show cause why the bond should not be forfeited. Similar view has been laid down by a single Judge of Orissa High Court in Ramananda Choudhary v. State of Orissa, 1978 Cri LJ 597. I hold that it was not necessary for the magistrate to have passed any specific order in so many words that the bond stood forfeited before issuing notice to the surety under Section 446 of the Criminal P.C. to explain why the amount of bond which stood forfeited be not realised form him as fine. The surety bond of the petitioner stood forfeited as soon as breach of the terms of CA No. 144/2009 Page3/8 the bond was committed on failure of the accused to appear in court on the dates fixed by the court and failure of the surety to produce the accused and accused having been declared proclaimed offender. The contents of the notice under Section 446 of the Criminal P.C. served on the surety clearly indicate that the bond of the surety stood forfeited and the same can be treated as specific order of the Magistrate forfeiting the surety bond as no notice was required to be given to the surety before forfeiting the surety bond. So, I find no merit in their petition."
Reliance is also placed upon Abdul Aziz and another Vs. Emperor AIR (33) 1946 Allahabad 116, wherein following observations were made by Devision Bench of Allahabad High Court :
".......In our judgment, a certain amount of confusion is created by the use of the word 'surety' in the Code of Criminal Procedure because there is a tendency to regard this word as meaning a surety for the payment of a sum of money by another person. It is quite clear from the terms of S. 499, Criminal P.C., and the form of the bail and security bond given in the schedule of form that the surety does not guarantee the payment of any sum of money by the person accused who is released on bail but guarantees the attendance of that person. He is a surety for attendance and not a surety for payment of money. His contract and the contract of the person released on bail are independent of each other. The simple fact is that the surety promises to CA No. 144/2009 Page4/8 pay a certain sum of money if the person accused does not appear at some time and place as required by law. If that person does not appear the money is forfeited. There is no question of the surety making efforts to secure the attendance of the person accused or his being badly treated by that person or of his having made all the necessary efforts which he could make. His is a simple contract. All he undertakes is to pay a certain sum of money if a certain event does not occur and if that event does not occur, he must pay. Any relaxation of this rule has the effect of inducing people to execute surety bonds without properly considering their position and without a due sense of responsibility. "
I have heard the learned counsel for the appellant/surety, respondent/complainant in person and have gone through the appeal file and relevant provisions of law.
Undisputedly, the appellant/surety is brother-in-law of accused and accused is abstaining from the case filed by the respondent/complainant against him before the learned trial court. The other undisputed facts are that the learned trial court on account of non production of accused by the appellant/surety imposed a penalty of Rs. 30,000/- against the surety appellant/surety on 21/02/2009 without serving proper Notice under Section 446 CrPC and another learned Sessions Court in CA No. 31/09 decided the said appeal vide order dated 28/08/09 by remanding the matter to learned trial court with the direction to decide it afresh after serving proper Notice under Section 446 CrPC upon the appellant/surety. It was also directed by learned Sessions Court in the CA No. 144/2009 Page5/8 order dated 28/08/09 that surety to make efforts to produce accused but surety had failed to produce accused and notice under Section 446 CrPC was issued by learned trial court to the surety on 22/09/09 and he was given opportunity to give explanation on 25/09/09 but surety though has provided mobile number of the accused but has not produced the accused on 25/09/09, so NBWs were also issued against the accused on 09/10/09 and on the same day surety demanded time to produce the accused on 10/11/09 and also promised that on that day accused shall make payment of Rs. 75,000/- to the complainant.
On 10/11/09, neither applicant/accused was present to pay the amount in the sum of Rs. 75,000/- to the complainant nor the surety/appellant had appeared. Only an application for exemption from personal appearance was moved on behalf of the surety/appellant on the ground that he was unwell. Application was found to be frivolous by the learned trial court and in the absence of the surety/appellant, the promise made by him before the court for production of the accused and payment in the sum of Rs. 75,000/- to the complainant by the accused was not fulfilled. Therefore, penalty of Rs. 50,000/- was imposed as the notice under Section 446 CrPC has already been served upon the surety as referred before.
It is pertinent to note that earlier penalty of Rs. 30,000/- imposed earlier upon the appellant/surety is stated to have been got recovered by the learned trial court and for the remaining amount of Rs. 20,000/- warrant of attachment was issued against the movable property of the surety. Therefore, the facts and circumstances show that proper Notice CA No. 144/2009 Page6/8 under Section 446 CrPC stood served upon surety on 22/09/09, thereafter, surety despite taking time for this purpose could not produce accused on 10/11/2009.
Despite filing of complaint by respondent/complainant on 11/01/2007, learned Metropolitan Magistrate could not expedite the complaint due to non cooperation of accused and appellant/surety. The complainant in this case is a senior citizen and aged person and accused though appeared before learned trial court on 28/01/2008 and promised to make payment of the cheque amount in the sum of Rs. 75,000/- which promise was not kept by him and on 02/06/08 also, accused Ashok promised to deposit the quarterly installment of Rs. 75,000/- which promise was also not kept by him. The promise was made by the appellant/surety that accused shall make the payment of Rs.75,000/- on 10/11/09. This promise was also not adhered to. Under these circumstances, it appears that the surety who is brother in law of the accused and the accused are delaying the disposal of complaint filed before the learned trial court on one pretext or the other and case file could not move further due to the delaying tactics used by the accused and the appellant/surety for the last about 3 years. Therefore, in the light of the Sham Sunder's case (supra), the surety was failed to pay his charges for his surety bond and his surety bond was rightly forfeited and penalty imposed against him by learned trial court appropriately. Abdul Aziz's case (supra) helps the respondent/complainant.
In view of the above, I do not find any merit in the appeal. Appeal is dismissed. As the impugned order was passed by learned CA No. 144/2009 Page7/8 Metropolitan Magistrate, Dwarka Court and appeal is assigned in this court as it pertains to Police Station, R K Puram which falls in South Distrct, the parties shall appear before the court of Ms. Kiran Bansal, learned Additional Chief Metropolitan Magistrate on 15/04/2010 who shall either proceed with the matter herself or shall assign the matter to any of the learned Metropolitan Magistrate in South District. The trial court record be returned alongwith copy of this judgment to learned Additional Chief Metropolitan Magistrate (South). The judgment be sent to the server (www delhidistrictcourts.nic.in). The appeal file be consigned to the record room.
Announced in the open court on 08/04/2010 (S.K. Sarvaria) Addl.Sessions Judge- 01/South Patiala House Court/ New Delhi CA No. 144/2009 Page8/8