Bangalore District CourtHarshavardhan vs Ghouse Peer on 1 April, 20221\n                                             Crl.A.No.33/2015\n\n\nKABC010007722015\n\n\n\n\n IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS\n           JUDGE, BENGALURU (CCH-56)\n                        :Present :\n            Sri. Krishnamurthy R. Padasalgi,\n                                      B.Sc., LL.M., HDSE\n          LV Addl. City Civil & Sessions Judge,\n                       Bengaluru.\n\n                    Crl.A.No.33/2015\n\n           DATE: THE 1st DAY OF APRIL 2022.\n\nAPPELLANT      ::         HARSHAVARDHAN\n                          S/o Pawankumar5\n                          Aged about 32 years,\n                          Residing at Kaval Byrasandra,\n                          R.T. Nagar Post,\n                          Bengaluru - 560 094.\n\n                          (Rep. by M/s V.Srinivasan & Co.,\n                                                     Adv.)\n\n                          -V/s-\nRESPONDENT/S         ::   GHOUSE PEER\n                          S/o Ibrahim Saheb\n                          Aged about 63 years,\n                          Residing at No.504/A, 3rd Cross,\n                          Kanakanagar\n                          Bengaluru - 560 032.\n\n                                   (Rep. by Sri.KAP, Adv.)\n                              2\n                                               Crl.A.No.33/2015\n\n\n\n\n                     JUDGMENTThis is an appeal underSection 449of Cr.P.C. by the\n\nappellant / accused being aggrieved by the Order passed\n\nby learned XII ACMM, Bengaluru in Crl.Misc.No.31953/2006\n\ndated 06.12.2014, forfeiting the bail bonds.1.   The parties will be referred as per the ranks they\n\nheld before the learned Magistrate.2.   The facts of the case of complainant are that, the\n\naccused and his brother entered into an agreement of sell\n\ndtd 31.08.2005 with the complainant      in respect of the\n\nproperty bearing NO. 1, Katha No. 194, situated at\n\nNagavara Village, Kasaba Hobli, Bengaluru North Taluk and\n\nreceived Rs.10 lakhs as advance consideration.        Due to\n\nsome circumstances, the transactions could not been\n\ntaken place and hence, the appellant issued a cheque No.\n\n731136 dated 15.06.2006 drawn on ING Vysya Bank, R.T.\n\nnagar, Branch, Bengaluru towards part payment of Rs.10\n\nlakhs.   The said cheque on presentation came to be3Crl.A.No.33/2015\n\n\ndishonoured, notice was issued and in view of non-\n\ncompliance of notice, complaint came to be filed and\n\nstatement underSection 313was recorded and in the\n\nmeanwhile the matter was referred to Lok-Adalat, but no\n\nsettlement arrived at due to the absence of the accused\n\nand the learned Magistrate on 06.12.2014 forfeited the\n\nbail bonds and issued NBW and thereafter the matter was\n\nposted    to   17.01.2015.    The    order   dated     06.12.2014\n\nforfeiting the bail bonds is impugned herein.3.   The appellant/ accused has following ground for the\n\nappeal."Grounds for Appeal."That      impugned      order   suffers   from       lack    of\n\nunderstanding and no case is made out to forfeit the bail\n\nbonds of the appellant /accused. The order of the learned\n\nMagistrate is not a speaking order and no reasonings are\n\nforthcoming as to why forfeiting of bail bond is passed.\n\nThe order of the learned Magistrate is without application\n\nof mind.       No prior show cause notice        issued to the4Crl.A.No.33/2015\n\n\naccused / appellant before forfeiting the bail bonds as\n\nenvisaged in the Code and hence prays to set aside the\n\nimpugned order.4.   After issuance of notice respondent appeared and\n\nnot filed statement of objections to memorandum of\n\nappeal and as the certified copy of the impugned order is\n\nmade available securing of trial Court records were\n\ndispensed with.5.   Despite giving sufficient opportunity the counsel for\n\nthe appellant not advanced arguments and arguments of\n\ncounsel for the appellant taken as nil with a liberty to file\n\nwritten arguments. No written arguments is filed. Heard\n\nthe counsel for the respondent.6.   Based on the above points are that arise for\n\nconsideration;1. Whether bail bond forfeited by the trial court\n          is legal and proper?2. What order ?7.   The above points are answered as under:5Crl.A.No.33/2015\n\n\n     Point No.1       :     In the Affirmative\n     Point No.2 :           As per final order for the following.REASONS8.   POINT No.1 :: Before adverting to the facts of the\n\ncase, it is necessary to reproduceSection 446of Cr.P.C.\n\nwhich reads thus.446. Procedure when bond has been forfeited.(1) Where a bond under this Code is for appearance, or for production of\n     property, before a Court and it is proved to the satisfaction of that Court,\n     or of any Court to which the case has subsequently been transferred, that\n     the bond has been forfeited, or where, in respect of any other bond under\n     this Code, it is proved to the satisfaction of the Court by which the bond\n     was taken, or of any Court to which the case has subsequently been\n     transferred, or of the Court of any Magistrate of the first class, that the\n     bond has been forfeited, the Court shall record the grounds of such\n     proof, and may call upon any person bound by such bond to pay the\n     penalty thereof or to show cause why it should not be paid.Explanation.- A condition in a bond for appearance, or for production of\n     property, before a Court shall be construed as including a condition for\n     appearance, or as the case may be, for production of property, before\n     any Court to which the case may subsequently be transferred.\n\n     (2) If sufficient cause is not shown and the penalty is not paid, the Court\n     may proceed to recover the same as if such penalty were a fine imposed\n     by it under this Code. 1 provided that where such penalty is not paid and\n     cannot be recovered in the manner aforesaid, the person so bound as\n     surety shall be liable, by order of the Court ordering the recovery of the\n     penalty, to imprisonment in civil jail for a term which may extend to six\n     months.]\n\n     (3) The Court may, at its discretion, remit any portion of the penalty\n     mentioned and enforce payment in part only.\n\n     (4) Where a surety to a bond dies before the bond is forfeited, his estate6Crl.A.No.33/2015\n\n\n      shall be discharged from all liability in respect of the bond.\n\n      (5) Where any person who has furnished security undersection 106orsection 117orsection 360is convicted of an offence the commission of\n      which constitutes a breach of the conditions of his bond, or of a bond\n      executed in lieu of his bond undersection 448, a certified copy of the\n      judgment of the Court by which he was convicted of such offence may\n      be used as evidence in proceedings under this section against his surety\n      or sureties, and,; if such certified copy is so used, the Court shall\n      presume that such offence was committed by him unless the contrary is\n      proved.9.    The main grievances of the appellant herein is that\n\nwithout giving an opportunity and without hearing and\n\nwithout recording the reasons the bail bond is forfeited.10.   By perusal of the order sheet of the trial court, it is\n\nclear that the appellant is continuously irregular in\n\nappearance; on various occasions, the exemption petitions\n\nare filed, NBW is issued and later it was recalled and on\n\n06.12.2014 on the date when the impugned order was\n\npassed exemption petition was filed and it was rejected\n\nand NBW issued and bail bond was forfeited. Earlier to\n\nthat it is worthwhile to mention that cash security of the\n\naccused was forfeited on 05.03.2014 and his bail bond\n\nwas forfeited. The learned Magistrate has not granted7Crl.A.No.33/2015\n\n\nexemption from appearance on the day. During the course\n\nof trial, the learned Magistrate can exempt appearance of\n\nthe appellant / accused.11.In a ruling reportedBhaskar Industries Ltd. v.\n\nBhiwani Denim & Apparels Ltd., (2001) 7 SCC 40119.The position, therefore, boils down to this: it is within the powers\nof a Magistrate and in his judicial discretion to dispense with the\npersonal appearance of an accused either throughout or at any\nparticular stage of such proceedings in a summons case, if the\nMagistrate finds that insistence of his personal presence would itself\ninflict enormous suffering or tribulations on him, and the comparative\nadvantage would be less. Such discretion need be exercised only in rare\ninstances where due to the far distance at which the accused resides or\ncarries on business or on account of any physical or other good reasons\nthe Magistrate feels that dispensing with the personal attendance of the\naccused would only be in the interests of justice. However, the\nMagistrate who grants such benefit to the accused must take the\nprecautions enumerated above, as a matter of course. We may reiterate\nthat when an accused makes an application to a Magistrate through his\nduly authorised counsel praying for affording the benefit of his personal\npresence being dispensed with the Magistrate can consider all aspects\nand pass appropriate orders thereon before proceeding further.12.    So in the wisdom and discretion of Magistrate has\n\nfound the requirement of accused for the proceedings and\n\nhence, rejected the exemption petition filed by the\n\ncounsel for the appellant / accused.13.    With respect to forfeiting of bail bond, the Hon'ble\n\nHigh Court of Karnataka in a ruling reported in ILR 19858Crl.A.No.33/2015\n\n\nKAR 2813 Sadananda vs State Of Karnataka5.Section 446of the Code does not provide for any notice to be\nissued to the surety before forfeiting the bond executed by him for\nfailure of the terms of the bond executed by him. The wordings ofSection 446(1)clearly show that if a term of a bond is violated or breach\nof a term of a bond is committed, the bond automatically stands\nforfeited. All that is required is that the Magistrate has to satisfy himself\nthat the bond has been forfeited. Therefore, the issue of the notice to\nthe surety before forfeiting the bond is not necessary (see Madhu v.\nState of Karnataka, ILR (1981) 2 Kant 1138: (1982 Cri LJ NOC 9)).6. However, it is clear from the last portion of sub-section (1) ofSection 446that once the bond has been forfeited, the Court shall call\nupon the surety, bound by such bond to pay the penalty thereof or to\nshow cause why it should not be paid and at that stage the Court shall\nrecord the grounds of the proof of the forfeiture of the bond. In other\nwords, at the stage of issuing the notice to the surety after forfeiting his\nbond, the Court shall record the grounds of the proof of the forfeiture of\nthe bond and call upon the surety to pay the penalty or to show cause\nwhy it should not be paid. Obviously law enjoins upon the Court to\nrecord the grounds of forfeiture of the bond at that time of issuing the\nnotice to the surety calling upon him to show cause why it should not be\npaid so as to enable the surety to show cause, if any against payment of\nthe bond amount by way of penalty. This is particularly to be so,\nbecause no notice is contemplated underSection 446to the surety\nbefore forfeiting his bond. This being the position in law, it seems to me\nthat strict compliance of the provision relating to the issue of the notice\nto the surety after forfeiting the bond should be insisted upon because\naction to be taken against the surety in this proceeding is of a penal\nnature.14.    with respect to grievances that the accused has to\n\nbe heard, reasons have to be recored, the Hon'ble High\n\nCourt of Karnataka in a ruling reported in ILR 1981 Kar\n\n1138 MUDHU ALIAS BELLA KUDTARKAR VERSUS\n\nSTATE OF KARNATAKA has held as under:-The wording ofSection 446(1)clearly shows that if a term of a\nbond is violated or breach of a term of a bond is committed, the bond\nautomatically stands forfeited. The Magistrate has to satisfy himself that9Crl.A.No.33/2015\n\n\nit has been forfeited. No formal order of forfeiting the bond is called for.\nTherefore, the issue of a notice to the surety before forfeiting the bond\nis not necessary.(Para 4)\n\n    It is not provided inSection 446of the Code that an opportunity\nshould be afforded to the surety to produce the accused because,\nforfeiture of the bond takes place as soon as the accused absents\nhimself on a particular date of hearing. If the surety is able to produce\nthe accused or produces the accused, the fact or circumstance may be\ntaken into consideration by the Magistrate who has taken action against\nthe surety in regard to levying of penalty on the surety. The Magistrate\ncan even waive levying of penalty.(Para 5)15.    Therefore, there is no requirement to hear the\n\naccused while forfeiting the bond.                More over, no order\n\nunderSection 446of Cr.P.C. is passed which gives raise to\n\nfile this appeal and only bond is forfeited.16.    It is worthwhile to note here that the concerned CC\n\nNo.31953/2006 is also disposed off on 15.12.2016.Hence,      the    point     No.1     is    answered       in   the\n\nAffirmative.17.    POINT NO.2:- Hence, for all the above discussions\n\nand answering the above point, accordingly the following.10Crl.A.No.33/2015\n\n\n                        ORDER\n\n     This    appeal filed under Section 449 ofCr.P.C. by the the appellant / accused by name\nHarshavardhan being aggrieved by the order\ndated 06.12.2014 in C.C.No.31953/2006 passed\nby learned XII ACMM, Bengaluru is hereby\ndismissed.The     order    dated      06.12.2014         in\nC.C.No.31953/2006    passed     by    learned      XII\nACMM, Bengaluru is confirmed.Office to send back the trial Court records\nwith copy of this judgment.[Dictated to the Judgment Writer, transcribed by him,\ntranscription corrected and then pronounced by me in\nopen court, dated this the 1st day of APRIL 2022]\n\n\n                          (Krishnamurthy R. Padasalgi)\n                     LV Addl. City Civil & Sessions Judge,\n                                    Bengaluru.11Crl.A.No.33/2015\n\n\n\n\n    Judgment passed and pronounced in\n    the open Court. The operative\n    portion reads thus.ORDER\n\n         This   appeal filed underSection 449of Cr.P.C. by the the\nappellant   /  accused   by  name\nHarshavardhan being aggrieved by\nthe order dated 06.12.2014 in\nC.C.No.31953/2006     passed    by\nlearned XII ACMM, Bengaluru is\nhereby dismissed.The order dated 06.12.2014\nin C.C.No.31953/2006 passed by\nlearned XII ACMM, Bengaluru is\nconfirmed.Office to send back the trial\nCourt records with copy of this\njudgment.(Krishnamurthy R. Padasalgi),\n     LV Addl. City Civil & Sessions Judge,\n                    Bangalore