Dismissed

Byralingappa v. Anvaruddin

Karnataka HC23 Aug 2021CRL.P/1499/2021

Case brief

AI extract

What is this about?

Crim. Petition challenging bail bond conditions. Court held petition premature as surety violated conditions without seeking prior remission. Directed Trial Court to decide remission application under Section 446(3) Cr.P.C. considering Supreme Court principles.

What did the court decide?

Criminal petition dismissed. Trial Court directed to pass order on application under Section 446(3) Cr.P.C. considering Supreme Court principles.

Byralingappa Vs Anvaruddin — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF AUGUST, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE K.NATARAJAN

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CRIMINAL PETITION No.1499 of 2021

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BETWEEN

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BYRALINGAPPA, S/O. LATE RAMAPPA, AGED ABOUT 59 YEARS, RESIDING AT HUNADINADU, HOSADURGA TALUK, CHITRADURGA DISTRICT.

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…PETITIONER

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(BY SRI B.M. HALASWAMY, ADVOCATE)

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AND

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ANVARUDDIN, S/O. KAMDRUDDIN, AGED ABOUT 69 YEARS, RESIDING AT HORAPETE, CHITRADURGA – 577 501.

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VINAY C.N., S/O. MANOHAR C.B., RESIDING AT No.655, S.K.P. ROAD, NEAR DURGAMMA TEMPLE, DAVANAGERE – 577 501.

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THE STATE OF KARNATAKA, CHITRADURGA TOWN POLICE STATION, REPRESENTED BY ITS SPP., HIGH COURT BUILDING, BENGALURU - 560 001.

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…RESPONDENTS (R-1 IS SERVED AND UNREPRESENTED R.2 SERVICE HELD SUFFICIENT SRI MAHESH SHEETY, HCGP for R.3)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE ORDER DATED 06.03.2018 PASSED BY THE 2^ND ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., CHITRADURGA, IN C.C.No.1905/2018 IMPOSING BAIL BOND AMOUNT OF Rs.3,30,000/- ON THE PETITIONER AND SET ASIDE THE INVITATION OF THE CRIMINAL MISC.No.71/2019 BEFORE THE 2^ND ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., CHITRADURGA.

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THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS DAY THE COURT MADE THE FOLLOWING:

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ORDER

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Notice served on the father of respondent No.2, but remained unrepresented.

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This petition is filed by the petitioner/surety under Section 482 of Cr.P.C. challenging the order of learned Magistrate imposing a bail condition to execute a personal bond and surety bond for a sum of Rs.3,30,000/-.

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Heard the arguments of learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State.

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The case of the petitioner is that respondent No.1 filed a private complaint under Section 200 of Cr.P.C.

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against respondent No.2, who is accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’). After service of summons, respondent No.2/accused appeared before the Trial Court seeking bail. The Trial Court granted bail to respondent No.2 by imposing conditions that he shall be released on bail on executing a personal bond for a sum of Rs.3,30,000/- with a surety for the likesum. Accordingly, this petitioner offered surety by executing surety affidavit on 06.03.2018 undertaking to produce the accused regularly before the Court without fail and he is the owner of the land situated in Sy.No.37/6p1 measuring 1 acre 30 guntas and if the accused remains absent, the bond may be forfeited in favour of the State. Subsequently, respondent No.2 remained absent and NBW was issued and notice to the surety was issued on 09.04.2018. Subsequently, the matter was transferred to some other Court. Later, bailable warrant was issued to the present petitioner/surety. The bailable warrant has been served on the petitioner, but he remained absent. Therefore,

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FLW came to be issued against respondent No.2 and subsequently Crl. Misc. No.71/2019 came to be registered against respondent No.2 and the petitioner appeared before learned Magistrate and filed an application under Section 446(3) of Cr.P.C. praying to grant remission of the bond amount. Hence, the petitioner is before this Court challenging the said order as well as the bail condition imposing bail bond.

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Upon hearing the arguments and on perusal of the records, ofcourse, the condition for granting bail itself shows that the bond amount as well as the cheque amount are one and the same. The Trial Court ought to have granted bail by imposing a condition specifying the bond of a smaller amount then the charge amount, but not equal to that of the cheque amount. However, the same cannot be challenged now as the surety had accepted the bail condition and offered the surety. For a surety bond, once the accused remains absent, the liability of the surety starts by producing the accused before the Court or he has

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to pay the bond amount. Admittedly, respondent No.2 remained absent and NBW was issued. Thereafter, notice was issued to the petitioner and in spite of bailable warrant, this petitioner remained absent. Hence, separate miscellaneous case came to be registered under Section 446 of Cr.P.C. and admittedly, the petitioner also moved an application under Section 446(3) of Cr.P.C for granting remission. On perusal of the order sheet, the Trial Court has not passed any such order under Section 446(3) of Cr.P.C. Neither the Court neither rejected the application nor allowed the same and granted remission. Such being the case, the petitioner has hurriedly approached this Court under Section 482 of Cr.P.C. challenging the very imposing of condition of bail, which cannot be entertained, since the same was not challenged at the earlier point before offering surety. The petitioner has already offered surety and the bail condition has already been violated. The recovery proceedings is pending by issuance of FLW. Such being the case, when the Magistrate has not passed any order under Section 446(3) of Cr.P.C., this Court

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cannot interfere as there is no executable order passed by the Trial Court on the application filed by the petitioner. Therefore, the petition is premature in nature. However, learned counsel submits that the Hon’ble Supreme Court in the case of Mohammed Kunju and another vs. State of Karnatakai reported in AIR 2000 SC 6, has given concession for remission of bond to 80% and ordered to deposit 20%. The same is placed on record. This Court cannot impose such a condition until and unless any order is passed by the Trial Court. Hence, the following:

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Order

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Criminal petition is dismissed. However, the Trial Court is directed to pass order on the application filed by the petitioner/surety under Section 446(3) of Cr.P.C. and dispose of the same keeping in view the principle laid down by the Hon’ble Supreme Court in the case of Mohammed Kunju stated supra.

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SD/JUDGE

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Byralingappa v. Anvaruddin

Case brief

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Byralingappa v. Anvaruddin

Case brief

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