Preetam Singh v. State Of U.P .

Anil Kumar Sharma, J.:— Heard learned Counsel for the appellant learned AGA for the State and perused the impugned order as also the papers filed along with the appeal.

2. The appellant challenges the order dated 2.9.2009, passed by learned Addl. Sessions Judge Court No. 2, Muzaffarnagar in Criminal Misc. Case No. 11 of 2008, State v. Preetam Singh, under section 446, Cr. P.C by which his application for refund of surety amount had been rejected.

3. It appears that the appellant stood surety for accused Maisar alias Rameshwar for a sum of Rs. 30,000/-. The accused absconded, the surety bond of the appellant was forfeited and recovery warrant for the aforesaid amount was issued against him. This amount was deposited by the appellant before the Trial Court on 19.4.2008, through an application for permission to deposit the amount Since the amount was paid by both the sureties under section 446 Cr. P.C the proceedings were closed and the file was consigned to the record room. On 25.8.2008, the appellant produced the accused in the Court in S.T No. 875 of 2008 and accordingly he was sent to jail. The same day the appellant filed an application stating that since he has produced the accused the amount of penalty deposited by him be refunded, but the same was rejected by the Trial Court through the impugned order dated 2.9.2009 Learned AGA has argued that the instant appeal is not maintainable as the impugned order is not an order passed by the Trial Court under section 446, Cr. P.C

4. Per contra, learned Counsel for the appellant has submitted that the application of the appellant is under section 446(3), Cr. P.C, so the appeal is maintainable.

5. Perusal of papers filed by the appellant shows that it is not disputed that the appellant stood surety for a sum of Rs. 30,000/- for accused Maisar alias Rameshwar pertaining to a case under sections 147,148, 452, 504, 323, 308, IPC and section 3(1)(x) of SC/ST Act It is also not disputed that accused absconded and the surety bonds of the appellant were forfeited by the Trial Court vide order dated 73.2008 The appellant has not filed complete order sheet of S.T 875 of 2007. Another accused Km. Pinki was in jail and co-accused Km. Pooja was also absent. The wife of accused Maisar complained to the Court on 7.8.1988 that her husband was kidnapped by his sureties and he is in their possession. The order dated 7.8.2008 further reveals that the sureties of accused Maisar had filed an application on 149.2007 for their discharge but the same was rejected by the Court on account of their absence. It means that accused Maisar was not appearing in the Court much before on 4.9.2007 The appellant has also not filed the application dated 19.8.2008, whereby he sought permission of the Court to deposit the amount of penalty amounting to Rs. 30,000/-. It appears that he has acquiesced with the order of imposing penalty against him and without protest he de-posited the same in the Court. After deposit of the penalty amount the proceedings under section 446, Cr. P.C were closed and the file was consigned to the record room.

6. No doubt section 446(3), Cr. P.C provides that “the Court may after recording its reasons for doing so, remit any portion of penalty mentioned and enforce payment in part only.” This specific provision stipulates that the prayer for remission can be made before depositing the amount of penalty. The word ‘remit’ means to transmit (money) in payment; to refrain from exacting (tax or penalty for example) counsel; to pardon, forgive to put off, postpone, to diminish, abate. The word remit can not be construed to mean refund. Had there been any intention of the Legislature that the amount of penalty deposited by the surety voluntarily without protest can be refunded under the provisions of section 446, Cr. P.C then the word ‘refund’ would have also found place along with word ‘remit’ in alternative. In these circumstances it can not be said that the impugned order falls within the purview of section 446(3), Cr. P.C

7. Learned Counsel for the appellant placed reliance on the case of Jagnnath v. State of U.P . 2008 63 ACC 265. In this case the sureties before forfeiture of their surety bonds filed application before the Court that they have got the accused arrested by the police, so they should be discharged. This application was rejected by the Trial Court. This Court in appeal by the appellants directed the Trial Court to reconsider the application of the appellant and pass suitable order thereon on merit in accordance with the requirements of section 446(1), Cr. P.C This case on account of distinguished facts does not help the case of the appellant at all.

8. It is pertinent to note here that the appellant did not challenge the order passed by the Trial Court on 7.3.2008, whereby their surety bonds were forfeited by the Trial Court. The appellant cannot challenge that order in this appeal, because they have voluntarily deposited the amount of penalty in the Court on 19.4.2008

9. Learned Counsel for the appellant could not inform the Court as to since when accused Maisar alias Rameshwar was absent from the Court on the date fixed in the case. In view of above discussion, in my opinion, the application of the appellant for refund of penalty amount has been rightly rejected by the Trial Court through the impugned order. The appeal sans merit and is accordingly dismissed.

10. Appeal Dismissed.