Karnataka High Court
Bhimappa S/O Balappa Demannavar vs The State Of Karnataka on 23 August, 2022
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CRL.A No. 2558 of 2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.2558 OF 2013 (A-)
BETWEEN:
BHIMAPPA S/O BALAPPA DEMANNAVAR
AGED 42 YEARS, OCC: AGRICULTURIST,
R/O.KONDASKOPA VILLAGE,
TQ AND DIST: BELGAUM
...SURETY/APPELLANT
(BY SRI. SANJAY S KATAGERI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH TILAKWADI POLICE STATION,
BELGAUM REPRESENTED BY ADDL.S.P.P.,
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD.
...STATE/RESPONDENT
(BY SRI.RAMESH CHIGARI, HCGP)
THIS CRIMINAL APPEAL IS FILED U/SEC. 449(ii) OF
CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED
20.12.2012 IN S.C.NO.17/2012 PASSED BY THE II ADDL.
DISTRICT AND SESSIONS JUDGE, BELGAUM AND ALL
CONSEQUENTIAL ORDERES THEREOF, BY ALLOWING THIS
APPEAL.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING.
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CRL.A No. 2558 of 2013
JUDGMENT
In this appeal filed under Section 449(ii) of Code of Criminal Procedure, (for short "Cr.P.C") appellant who has stood as surety to accused in S.C. No.17/2012, has challenged the order dated 20.12.2012 by which his bond for a sum of Rs.1,00,000/- is forfeited and he was directed to pay penalty of Rs.1,00,000/- and also the property bearing No.93A/1 is attached.
2. Brief facts leading to this appeal are that appellant stood as surety to the accused by name Vinod T. Naidu, who was charged with the offence punishable under Section 306 of IPC in S.C. No.17/2012 on the file of II Additional Sessions Judge, Belagavi. After framing charge and fixing the date of trial, from 08.11.2017 accused remained absent and as such the trial Court cancelled his bail and issued notice to the appellant calling upon him to show cause as to his surety bond shall not be forfeited to the State and he be directed to pay the penalty.
3. In pursuance to the service of notice, though appellant appeared before the trial Court and sought time to -3- CRL.A No. 2558 of 2013 produce the accused, he failed to do so. Therefore, vide order dated 20.12.2012 his surety bond came to be forfeited and he was directed to pay penalty. Further vide order dated 01.02.2013 the property No.93A/1 which was offered by way of security for compliance with the conditions of the surety bond executed by him came to be attached.
4. Appellant has challenged this order in the present appeal contending that instead of forfeiting the surety bond the trial Court ought to have secured the presence of accused through other means, keeping the option of forfeiting the surety bond as a last resort. He had offered land in Sy. No.28/3 as a security for executing the surety bond. Instead of attaching the said property, wrongly the trial Court has attached property No.93A/1 and thereby creating encumbrance. The trial Court ought to have given remission to the appellant by reducing the penalty.
5. During the course of arguments learned counsel appearing for the appellant submits that subsequently the presence of the accused is secured and after trial he has been -4- CRL.A No. 2558 of 2013 acquitted and therefore the appellant be absolved from the liability of paying the penalty.
6. Alternatively the learned counsel for the appellant submits that vide order dated 21.02.2013 while granting interim stay, this Court directed the appellant to deposit Rs.10,000/- before the trial Court and the penalty payable by the appellant may be reduced to Rs.10,000/- and the amount deposited by the accused be adjusted towards the said penalty.
7. On the other hand learned High Court Government Pleader submits that since the appellant failed to secure the presence of the accused, the trial Court has rightly forfeited the surety bond and directed him to pay penalty of Rs.1,00,000/- and the impugned order does not call for interference.
8. Heard the arguments and perused the record.
9. It is undisputed that appellant has stood as surety to the accused. When he was unable to secure the presence of the accused as offered through the surety bond executed by him, the trial Court has rightly forfeited the bond and directed him to pay the penalty and also created charge over the -5- CRL.A No. 2558 of 2013 property offered by the appellant as security for realization of the bond amount. While executing the surety bond the appellant has offered land in Sy. No.28/3 and house property No.93A/1. Looking to the bond amount, instead of attaching both properties, the trial Court has proceeded to attach house property No.93A/1. No faults could be found with the same.
10. However as an alternative argument, learned counsel for the appellant submits that subsequently the presence of accused was secured by the trial Court and after due trial he has been acquitted and taking into consideration of the same, the penalty amount may be reduced to Rs.10,000/- which is already deposited by the appellant before the trial Court. To evidence the fact that the accused was secured and trial was concluded resulting his acquittal, appellant has produced the certified copy of judgment in S.C. No.17/2012. Having regard to the fact that subsequently the trial Court has secured the presence of the accused and proceeded with the matter and ultimately the accused is acquitted, this Court is of the considered opinion that it would be appropriate to reduce the penalty to Rs.10,000/-, which the appellant has already deposited before the trial Court as per the order dated -6- CRL.A No. 2558 of 2013 21.02.2013 while granting the interim stay. This fact is evidence by copy of the receipt produced by learned counsel for appellant on 10.06.2013. To this extent the impugned order is required to be modified and accordingly the following;
ORDER Appeal is partly allowed.
The impugned order dated 20.12.2012 passed by the II Additional Sessions Judge., Belagavi, is modified reducing the penalty amount to Rs.10,000/-.
Consequently the order dated 01.02.2013
attaching property No.93A/1 of Kondaskoppa is
recalled.
Sd/-
JUDGE
YAN/PJ