CRL.A No. 1334 of 2012 · Kerala High Court

V.K.MOHANAN, J.-------------------------------Crl.A.No.1334 of 2012-------------------------------Dated this the 16th day of November, 2012.J U D G M E N T The appellants are the counter petitioners inM.C.No.9/2012 in S.C.No.493/09 of the court of AdditionalDistrict & Sessions court (Ad hoc)-II, Kollam, and thelearned Judge of the trial court as per the order dated19.1.2012 in the above proceedings imposed penalty of`15,000/- on each of the appellants/counter petitioners. Itis the above order that is challenged in this appeal.

Learned counsel for the appellants submitted that, the 1st appellant herein, who is the 1st counter petitioner inthe impugned order, went abroad during the pendency ofthe trial and therefore he could not appear before the courtand as such there is no negligence on his part andtherefore a lenient view may be taken. It is also thesubmission of the learned counsel that the 1st appellant/the 2Crl.A.No.1334 of 20121st accused is now available for trial.

I have carefully considered the submissions madeby the learned counsel for the appellants and I have alsoperused the order impugned in this appeal.

In the light of the submission of the learned counseland from the impugned order it appears that, the 1stappellant who is the 1st counter petitioner is one of theaccused in S.C.No.493 of 2009 which was instituted for theoffences punishable under Sections 143, 147, 148, 323, 324and 308 r/w Section 149 of IPC and as the 1st appellant wasnot available, the case against him was split up and the trialwas proceeded against the rest of the accused, whichterminated in the acquittal of all those accused. However, from the impugned order it appears that, though the trialcourt issued NBW against the accused, the same was notexecuted as he left for gulf and the appellants 2 and 3 hadfailed to produce the accused inspite of notice served onthem. It was under the above circumstances, the learned 3Crl.A.No.1334 of 2012 Judge of the trial court fixed the liability under section 446of Cr.P.C. against the appellant. Therefore, I find no reasonto interfere with the liability fixed upon the appellant undersection 446 of Cr.P.C.

The counsel for the appellant submitted that, as the1st appellant is now available for trial and he had alreadyappeared before the trial court and released on bail, alenient view may be taken with respect to the penalty. Having regard to the facts and circumstances involved inthe case, according to me, the above submission requirespositive consideration, especially when the 1st appellant isavailable for trial. Therefore, according to me, whileconfirming the liability of the appellant under section 446of Cr.P.C., the penalty amount fixed by the trial court canbe modified and reduced. Accordingly, while confirmingthe liability of the appellants under section 446 of Cr.P.C.,the 1st appellant is directed to pay a penalty of `10,000/-and the appellants 2 and 3 are directed to pay a penalty of 4Crl.A.No.1334 of 2012`8,000/- each, under section 446 of Cr.P.C.