K SIVASWAMI SERVAI Vs. STATE

JUDGEMENT

(1.) THE Sub-Divisional Magistrate, Nagapattinam, by an order of his dated 25th June, i960, directed that each of the surety bonds executed by the petitioners should be forfeited. One Augustine was arrested in May 1959, and was eventually convicted of an offence under the provisions of the Sea Customs Act, and sentenced to undergo rigorous imprisonment for four months. The conviction was on 30th April, 1960. On the same day the petitioners as well as the convict executed a bail bond, the former as sureties. This bond was executed pending filing of an appeal against the conviction. An appeal was actually filed on 27-51960. Thereafter on the same day,, namely, 27th May, 1960, a fresh bail bond was executed by the petitioners in which the convict did not join. The bail bond that was executed with petitioners as sureties on 30th April. I960, specifically mentioned that the convict should be produced before the Sub-Divisional Magistrate on 9th May, 1960, or on any further date as he might direct. The petitioners failed to produce the convict either on the first day just mentioned on the adjourned date, 16th May 1960. It was in such circumstances the Sub-Divisional Magistrate ordered forfeiture of the bond, for failure on teet5artofjhe sureties to produce the convict as had been undertaken by them. Against the forfeiture the petitioners unsuccesfully appealed to the District Magistrate, who dismissed the appeal on 21st July, I960. The petitioners have therefore come up to this Court.

(2.) THREE points have been urged to avoid the petitioner's liability as sureties under the bond which they had executed. Firstly, it is contended for the petitioners that the surety bond which the petitioners executed on 27th May, 1960, on which date the appeal against the conviction was filed4 Superseded in effect the earlier bond executed on 30th April, 1960, and that, therefore, no question of forfeiting the earlier bond could arise. The fallacy in the argument is that it assumes that the default to produce the convict was under the terms of the later bond executed on 27th May, 1960. As a matter of fact the default on the part of the petitioners was in their failure to produce the convict on 9th May, I960, or on the further Sate 16th May, 1960. The bond clearly provided1 an undertaking on the part of the sureties to produce the convict on that day or on the adjourned date before the Sub-Divisional Magistrate and there can be no doubt that that undertaking was not complied with by the petitioners. The breach was therefore of the terms of the bond executed on 30tli April, 1960, and not those of the bond executed on' 27th May, 1960. It is true that the latter bond superseded the former. But that is only as from the date of the execution of the second bond, namely, 27th May, I960. The execution of the second bond does not and cannot have the effect of nullifying the effect of a breach which had already been committed of the undertaking under the bond executed on 30th April, I960. The first point is therefore without any substance.

(3.) SECONDLY, it is strenuously urged that the form of the bond executed on 30th April, 1960, was one pertaining to am appellate Court and was inappropriate to the occasion, namely, to cover the period between the date of the conviction and the date of filing the appeal. It is said that the bond was not in accordance with the prescribed form and could, therefore have no operation. It is no doubt true, as urged for the petitioners, that the form used is one applicable to an appellate Court. Even so, I fail to see any force tai the argument that because the form is applicable to an appellate Court, there is any-thing in it which enables the petitioners to avoid the liability arising thereunder. Whatever may be the form, it is the terms Of the bond which constitute the contract and in the light of them the existence or otherwise of a liability has to be judged- The bond executed on 30th April, I960, is applicable to the Court of the Sub Divisional Magistrate, Nagapattinam. That is the heading of the form. The both then cites the number of the case in which Augustine was convicted. The name of the convict and the particulars in, relation to the offence of which he had been convicted are thereafter set out. The operative part of the bond, which is in Tamil, in substance reads. Since Augustine has been convicted and sentenced to undergo four months' rigorous imprisonment, since he has filed the above appeal and since on 30th April, i960, he has been ordered to be released on bail, I hereby under' take to appear before the Sub-Divisional Magistrate either on 9th May, 1960, at 10 a. m. or till the appeal is disposed of. In default, I am liable to pay to the State a sum of Rs. 2,000. This bond is signed by Augustine. On the reverse of the bond the sureties have signed, each undertaking to pay a sum of Rs. 2000/- in default of compliance with the terms and conditions of the bond. The argument is that because there is mention in this bond that an appeal had been filed, the entire bond was unenforceable, as in point of fact the appeal had not been filed when the bond was executed. But it has to be seen that this was only, a mis-statement and had nothing to do with the actual terms of the bond that the convict would be released on condition that He would undertake to appear and that the undertaking would be supported by the two sureties. The bond clearly stipulated that the convict should appear on a particular date at the place and before the officer indicated. These terms are clear and they are in no way whittled down or affected by the wrong statement in the form that an appeal had been filed. The form is a printed one and without thought it has been used not paying regard to score out the particular printed clause that an appeal had been filed. I have not the slightest doubt as to what the parties meant by entering into this bond. As soon as August in was sentenced to undergo imprisonment, the occasion for getting him released on bail arose. It was in that context the bond was executed and the convict as sell as She sureties plainly knew that they were giving an undertaking to the Sub-Divisional Magistrate that the convict would appear or would be produced on the particular date or dates.