Solvency certificate
Mohammed Vaid
(Querist) 30 May 2020
This query is : Resolved
One of my relative has been arrested by CBI in Mumbai under forgery case and he is in jail since 8 months. And is under trial.
Now court is asking for 50000 solvency certificate where my relatives are asking me to give it.
is there any chance of getting arrested or called up by police or anything else, if he runs away or makes any other mistake or if his case gets more complicated.
Rajendra K Goyal
(Expert) 30 May 2020
In Maharashtra apart from financial matters, sometime court ask for solvency certificate of surety while granting bail to the accused. Identity proof, residence proof with proof of property, tax returns are documents to be submitted with application for issuance of solvency certificate. Naib Tehsildar is authorized officer for issuing certificate which is valid for one month.
If accused defaults / breaks any of the bail condition, surety is liable to the amount of surety.
Raj Kumar Makkad
(Expert) 30 May 2020
Yes. If your relative do not appear in the court on the prescribed/fixed date during the whole trial except on the specific reason, for which his lawyer shall obtain exemption to appear in person, his bail bonds shall stand forfeited and you shall be called by the court with the help of local police to appear in the court and to present the accused before it within a stipulated time or to face the default amount to be fixed by the said court.
Dr J C Vashista
(Expert) 31 May 2020
Being surity to the accused, you are to ensure his / her appreance before the Court on the date/ time fixed, failing which you will get notice u/s 446 Cr PC for its forfieture.
Rajendra K Goyal
(Expert) 31 May 2020
There is rare chances of the arrest of surety if the accused jumps the bail / do not appear before the court on date. Surety can be called to Court, police station but the liability is only restricted to surety amount. If it is proved surety has intentionally helped / instigated / planned accused to run away he can be in trouble.
Raj Kumar Makkad
(Expert) 31 May 2020
Section 446 of The Code Of Criminal Procedure, 1973, deals with the situation being discussed in the present case which is submitted as under:
446. Procedure when bond has been forfeited:
(1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. Explanation.- A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.
(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code. 1 provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.]
(3) The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only.
(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.
(5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and,; if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.
Rajendra K Goyal
(Expert) 02 June 2020
Legal provisions regarding surety well explained by the expert Raj Kumar Makkad, may proceed accordingly.
Sometime issue of solvency certificate takes time, discuss with concerned lawyer, whether other alternate asset can be accepted in the present case.
Raj Kumar Makkad
(Expert) 02 June 2020
It is not the desire or option of the surity to arrange alternative property rather this is the satisfaction of the court which prevails. If the magistrate has ordered to submit Solvency Certificate then the same is a mandatory requirement irrespective of the fact that the same may take some more time then to get copy of the property document.
Rajendra K Goyal
(Expert) 03 June 2020
Court can be prayed for alternate in case Solvency certificate is delayed issuing by competent officer (Naib Tehsildar in this case). If it is issued in routine / on priority it would be better otherwise pray can be advancced,
Raj Kumar Makkad
(Expert) 03 June 2020
If court has demanded Solvency Certificate then it is required to be submitted, though its issuing authority (different authorities in different states) can be prayed to issue the same at priority basis.
Rajendra K Goyal
(Expert) 03 June 2020
Bombay High Court
Bombay High Court in the case of Ganeshanan Lakshmanan And ... vs The State Of Maharashtra while deciding WP no. 848 observed as under on 9 June, 2009 :
11. I have given careful consideration to the submissions. It will be necessary to refer to the relevant provisions of the Criminal Manual. Paragraph 14 of Chapter-I of the Criminal Manual issued by this Court deals with verification of solvency of sureties. Sub paragraph 1 of paragraph 14 clearly records that the responsibility of accepting the surety as solvent for the required amount is primarily that of the Presiding Officer of the Court and in ordinary cases he should discharge it himself by making such summary enquiry as in the circumstances of the case he may think fit. Sub paragraph 2 of paragraph 14 provides that the production of solvency certificate from the revenue authorities is not always essential and may be insisted upon only in cases of doubt and cases involving large sums.
Sub paragraph 3 of paragraph 14 provides that for the purposes of determining whether the sureties are solvent, the Court may, if it thinks fit, accept affidavits in proof of the facts contained therein relating to the solvency of the sureties, or may make such further enquiry as it deems necessary. Sub paragraph 4 of paragraph 14 reads thus:-
"4. Insistence upon the possession of immovable property by sureties in bonds of small amounts not exceeding Rs.15,000/- would cause serious inconvenience to the accused in procuring a surety. The Judge or Magistrate may therefore, in suitable cases, where the amount of the bond does not exceed Rs.15,000/- assess the solvency of the surety even upon the basis of his movable property and assets. The intending surety should present his application for suretyship in the model form which is prescribed below for guidance. The Clerk of the Court in the Sessions Court or Nazir or Senior Clerk in the Magisterial Courts should check the proof accompanying the applications, and thereafter place the matter before the Judge or Magistrate with his remarks. The Judge or Magistrate should consider the application in the light of the proof, produced and, if necessary, examine the surety personally and may also call for further and better proof. The Judge or Magistrate after holding a summary enquiry may pass an order either accepting the surety or rejecting the application as he deems fit."
14. Hence, I pass following order :-
A) The impugned order dated 2nd April 2009 is confirmed with a clarification that it will be open for the petitioners to furnish one or two sureties in the like amount to make up the amount of Rs.50,000/-;
B) Time of six weeks from today is granted to furnish a surety or sureties;
Raj Kumar Makkad
(Expert) 03 June 2020
A good direction stands issued to the trial magistrates in the above-mentioned judgment putforth by expert Goyal/ Thanks Mr. Goyal for adding the value to the query.
Rajendra K Goyal
(Expert) 04 June 2020
You are welcome, thanks for your compliments.
