(1.) THIS appeal, under Section 449 of the Code of Criminal Procedure, is directed against the order dated 1st April, 1975, passed by IIIrd Additional District and Sessions Judge Moradabad, directing that process for recovery of a sum of Rs. 4000/- be issued against the appellant. Appellant Ram Chandar was being tried for an offence under Section 302 I. P. C. before the Session Judge. He was released on bail on his executing a personal bond for a sum of Rs. 4000/- and furnishing certain sureties. The appellant was served with a notice on 28th February, 1975 requiring him to appear before the Court on 6th March, 1975, the date fixed for hearing of the case. On that date he did not appear before the Court and the bond executed by him stood forfeited. The Session Judge, therefore, called upon the appellant to show cause why the amount mentioned in the bond be not recovered from him as penalty. The appellant neither showed cause for his non-appearance nor placed facts justifying reduction of the amount of penalty sought to be recovered from him. The Sessions Judge concluded that the appellant had deliberately absented from appearing in the Court on the date fixed and there was no reasonable cause for his not appearing before the Court on that date. He, therefore, directed that process for recovery of the amount of Rs. 4000/- should be issued against him. Aggrieved, the appellant has come up in appeal before this Court. Learned counsel appearing for him strenuously argued that as the trial, in which the appellant was required to execute the bond, has eventually resulted in acquittal under the orders of this Court, on penalty should be recovered from him for the reason that he had on one day failed to appear before the trial Court and, In any case, the amount of penalty should be reduced. In my opinion, there is no substance in this submission. Under Section 446 of the Code of Criminal Procedure, where the executant of a bond fails to fulfil any condition laid down therein, its forfeiture is automatic and the Court can exercise its discretion to remit whole or any portion of the penalty in the light of the explanation offered by the person executing the bond. Law does not contemplate such a discretion to be exercised whimsically or in an arbitrary manner. For this purpose, eventual result of the trial is not very material. It may be that in the circumstances of a particular case the fact that the case in which the bond was executed has later ended in acquittal may, in the light of the explanation offered by the defaulter, be taken into consideration for determining the amount of penalty to be remitted but then that fact, by itselfand in the absence of any explanation on the part of the defaulter cannot provide any justification for remitting any portion of the penalty stipulated by Section 446 of the Code of Criminal Procedure. Apart from contending that the trial has eventually ended in acquittal, learned counsel for the appellant did not place any material to show that in the circumstances of the case forfeiture of an amount of Rs. 4000/-appears to be excessive. I may also add that after hearing of the appeal was concluded and I had dictated the judgment but before the same could be transcribed and signed, Sri B. P. Gupta, learned counsel appearing for the appellant, again stood up to re-argue the case and contended that under Section 446 of the Code of Criminal Procedure it is obligatory upon the Court before proceeding to recover the amount mentioned in a bond it must- (i) record in writing the grounds for its satisfaction that the bond in question stands forfeitedand, (ii) issue a notice to the person concerned to show cause why the amount in respect of the bond be not paid. He urged that in this case neither of the two conditions exist and as such the order under appeal stands vitiated. So far as the first of the aforementioned two conditions is concerned, I find that in this case there is no dispute that the appellant did not, in accordance with the stipulation contained in the bond, appear before the Court on 6th of March, 1975 and that the bond stood forfeited. Even today the stand of the learned counsel for the appellant is not that the bond executed by the appellant did not in fact stand forfeited or that the Court was wrongly satisfied about forfeiture of the bond. In my opinion even if for the sake of argument it is accepted that in the instant case the Court below did not, as required by Section 446 of the Code, before calling upon the appellant to show cause why penalty be not paid, record the grounds for its satisfaction that the bond had been forfeited, the order under appeal does not stand vitiated. In this connection reference may be made to Section 465 of the Code of Criminal Procedure relevant portion of which reads thus:- " Subject to the provisions hereinbefore contained, no. . . . . . . . . order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal. . . . . . . . . on account of any. . . . . . . . . irregularity in. . . . . . . . . proceedings before or during trial or in any other proceedings under the Code. . . . . . . . . unless in the opinion of the Court failure, of justice has in fact been occasioned thereby. " In the instant case the error pointed out by the appellant in not specifically recording the grounds for holding that it has been proved that the bond in question stood forfeited, if at all, would be an error in a proceeding in a Court of competent jurisdiction taken under the Code and this Court, as an appellate Court, will be entitled to reverse or alter the order under appeal only if it comes to the conclusion that such defect has in fact occasioned a failure of justice. As has been stated above, there is, in this case, no dispute that the appellant did not appear before the Court on 6th March, 1975 and consequently the bond executed by him stood forfeited. I am, therefore, of opinion that in the special circumstances of this case no question of failure of justice by reason of Court's failure to record in writing the grounds for its satisfaction that it had been proved that the bond in question stood forfeited and the order under appeal cannot be interfered with on this ground. So far as the second condition is concerned, I find that the order sheet of the case indicates that on 6th of March, 1975 the Court made an order directing that a notice be issued to the appellant to show cause by 14th of March, 1975 why the amount mentioned in the bond be not recovered from. The case was again put up before the Court on 14th of March 1975 on which date the appellant presented himself before the Court and he was taken into custody. The order sheet mentions that the notice was given to the appellant to show cause by 21st of March, 1975 why the amount mentioned in the bond be not recovered from him. The case was again put up before the Court on 21st of March, 1974 on which date the appellant was brought before the Court but he did not show any cause. However, the Court instead of passing orders under Section 446 of the Code of Criminal Procedure on that very date directed that the case be put up on 1st of April 1975. The order sheet further indicates that as the appellant did not file any reply to show cause notice even up to that date an order directing that warrants be issued for recovering Rs. 4000/- from him by way of penalty. The proceedings noted in the order sheet and signed by the learned Judge show that the appellant was informed by the Court on more occasions than one that he was required to show cause why the penalty mentioned in the bond that stood forfeited be not recovered from him. Further the Court also adjourned the hearing of the case more than once so as to enable the appellant to show cause. There is a presumption that the Court has correctly prepared the records of a judicial proceeding. Learned counsel for the appellant did not invite my attention to any material on the record which may even cast a doubt about the correctness of the recital of facts contained in the order-sheet. A perusal of the order-sheet accordingly shows that more than ample opportunity had been given to the appellant to show cause why he should not be directed to pay that penalty as contemplated by Section 446 of the Code of Criminal Procedure. Learned counsel for the appellant next urged that a notice to show cause why penalty contemplated by Section 446 Cr. P. C. be not directed to be paid must be in writing and the provisions of that section can be said to be in complied with only when it is shown such a writing has been served upon the person concerned. I am unable to accept this submission. Relevant portion of Section 446 Cr. P. C. runs thus:- " 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. " The section merely requires the Court to call upon the concerned person to show cause why the penalty in respect of the bond forfeited be not paid by him. It merely contemplates that before the Court proceeds to make an order directing recovery of the penalty contemplated by sub-section (2) of Section 446 Cr. P. C. it should inform the person concerned that the bond executed by him stands forfeited and should afford him an opportunity to place material before it and to state the reason why in the circumstances of the case either no penalty is recoverable from him or that whole or any part of it should be remitted. The section no where says that such an opportunity must necessarily to be given by means of a written notice. In my opinion Section 446 Cr. P. C. would in this respect stand fully complied with if the record indicates that such an opportunity has in fact been given to the person concerned. I am in this view fully supported by a decision of Rajasthan High Court in the case of Ganga Ram v. State (1957 Cr. L. J. 235.), wherein the learned Judge while considering the paralell provision in Section 514 Cr. P. C. (old) observed thus;- " Section 514 Cr. P. C. does not provide that any particular kind of formal notice should be given to the person whose bond has been forfeited. Relevant part of the section runs as follows:- It is clear that when the bond is forfeited, it is the duty of the Court to record the grounds of the proof on which the forfeiture is based. After this, the Court may call upon the person bound by such bond to pay the penalty or to show cause why it should not be paid. What is meant to say is that the person bound by the bond cannot insist upon a particular form of notice. All that is necessary is that he should be called upon and given a chance to show cause why he should not pay the penalty. " As stated earlier, the recitals made in the order-sheet recorded by the Court clearly indicate that more than ample opportunity to show cause, contemplated by the section, had been given to the appellant and it was only when he failed to avail the opportunity that the order under appeal was made. In the result, I find no merit in this appeal which fails and is dismissed. .