- (1.) Heard learned counsel for the appellant, learned AGA for the State and perused the impugned order as also the papers filed alongwith the appeal. The appellant challenges the order dated 2.9.2009, passed by learned Additional 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. 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.
(2.) 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.
(3.) 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. 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 7.3.2008. 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 14.9.2007 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 deposited 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.;