Bangalore District Court
Vageesh R Katti vs Sapna V on 12 March, 2024
KABC010158052022
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI. KASHIM CHURIKHAN. B.A., LL.M.
LXVII Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 12th day of March 2024
Crl.Appeal No.692/2022
Appellant: Vageesh R. Katti,
S/o late Raghootama Teerthachar,
Aged about 47 years,
R/at No.819, 7th Cross,
1st A Main Road,
3rd Block, 3rd Phase,
Banashankari 3rd Stage,
Bengaluru - 85.
(By Sri. S.B., Adv.)
-Vs-
Respondent: Sapna V,
D/o Subbarao,
Aged about 43 years,
R/at No.582, 1st A Cross,
30th Main Road,
Banagirinagara,
Banashankari 3rd Stage,
Bengaluru - 85.
(By Sri. S.P, Adv.)
JUDGMENT
This appeal is preferred by the appellant to set aside the order passed by the learned 5th M.M.T.C, Bengaluru 2 Crl.A.No.692/2022 in Crl.Misc.No.1/2022 dated 10.06.2022 and to dismiss the said Crl.Misc.No.1/2022.
2. The appellant herein was the respondent and the respondent herein was the petitioner before the trial Court. For the sake of convenience, parties would be referred to by the ranks they were assigned before the trial Court.
3. Required facts of the case are as under:
The petitioner in Crl.Misc.No.1/2022 had filed petition before the trial Court on the basis of order obtained in Crl.Misc.135/2017 filed u/s.12 of the PWDV Act and had obtained order dated 20.11.2018 for maintenance. For recovery of maintenance amount, the petitioner had filed Crl.Misc.No.1/2022. The trial Court has passed order dated 10.04.2022 to issue FLW against respondent for payment of arrears of maintenance amount. FLW was reissued on 25.05.2022 through jurisdictional Police. On 27.05.2022, the case was advanced and the respondent has filed application u/s.70(2) of Cr.P.C, to recall FLW and the case was posted on 10.06.2022. On that day, as the respondent failed to pay the arrears of maintenance amount, the Court had passed order that FLW issued against respondent is in force.
4. The said order is under challenge before this Court on the grounds that trial Court has not followed the 3 Crl.A.No.692/2022 procedure laid down by Court of law and without complying the procedure of law for recovery of maintenance amount, the trial Court has issued FLW against appellant/ respondent, which is not sustainable in the eye of law. It is contended that the tenant of the appellant had vacated the premises and new tenant did not come in time. Therefore, the appellant would not able to pay the amount to the respondent. The procedure adopted by the trial Court directly issuing FLW against appellant is not valid and correct. Hence, prays to set aside the impugned order and dismiss the petition in Crl.Misc.No.1/2022.
5. The appellant/ respondent has also filed I.A.No.III praying to set aside the impugned order till disposal of the appeal.
6. The respondent has put her appearance through her counsel and she has filed objection to I.A.No.III.
7. Heard the arguments.
8. The points raised for consideration are as under:
1. Whether the appellant/ respondent has made out sufficient grounds to interfere with the impugned order passed by the trial Court in Crl.Misc. No.1/2022 dated 10.06.2022?
2. What Order?
9. My findings to the above points are:
4 Crl.A.No.692/2022Point No.1: Partly affirmative, Point No.2: As per final order, for the following:
REASONS
10. Point No.1: The counsel for the appellant/ respondent has submitted that his client has not intentionally avoided the payment of maintenance amount to the respondent/ petitioner. The appellant was paying the maintenance amount regularly to the appellant out of the rent amount of his building. Since the tenant has vacated the premises and the appellant has no source of amount to pay maintenance amount, he did not pay the maintenance amount. He has further submitted that the trial Court without following the procedure of law for recovery of arrears of maintenance amount, it has directly issued FLW against the respondent. The said order of the trial Court is not sustainable in the eye of law. He has further submitted that to recover the arrears of maintenance amount, the petitioner has to file miscellaneous petition. Thereafter the trial Court has to follow the procedure as contemplated under the provision of Sec.421 of Cr.P.C. Before issuance of FLW, the trial Court ought to have followed Sec.421(1)(a) & (b) of Cr.P.C. Without following the procedure of law, the impugned order is not sustainable in the eye of law. In support of his case, by relying on the decision of Hon'ble High Court of Karnataka in Crl.P.No.1610/2014 dated 07.11.2014 (M.S. Kalyan Kumar -Vs- B. Vanajakshi) , the learned 5 Crl.A.No.692/2022 counsel for appellant has prayed to set aside the impugned order of the trial Court.
11. The counsel for the respondent/ petitioner has submitted that his client has obtained maintenance order in Crl.Misc.No.135/2017 filed u/s.12 of PWDV Act, wherein the learned 5th MMTC has partly allowed the petition and directed the appellant/ respondent to pay maintenance to the respondent/ petitioner. As the appellant has failed to pay the maintenance amount, Crl.Misc.No.1/2022 has been filed for recovery of maintenance amount. He has submitted that in the decision rendered by Hon'ble High Court of Karnataka, Dharwad Bench dated 14.07.2021 in W.P.No. 102448/2021 (GM-RES) (Smt. Renuka -Vs- Yalguresh Shivanappa Chandragiri), wherein the Hon'ble High Court of Karnataka, Dharwad Bench has held that to recover the arrears of maintenance amount, criminal petition is to be filed. He has further submitted that the respondent/ petitioner has filed criminal petition before the trial Court in Crl.Misc.No.1/2022 u/s.125(3) of Cr.P.C r/w Sec.20(6) of PWDV Act. Therefore, the procedure to recover the arrears of maintenance amount is followed. As the appellant/ respondent has failed to pay the arrears of maintenance amount, the trial Court has issued FLW against him. There is no error apparent on the face of record in issuing FLW. Hence, the learned counsel prays to dismiss the appeal and application.
6 Crl.A.No.692/202212. I have carefully gone through the materials placed on record. There is maintenance order against the appellant/ respondent in Crl.Misc.No.135/2017 on the file of 5th MMCT, Bengaluru. It is brought to the notice of the Court that as the appellant/ respondent fails to pay the arrears of maintenance, the respondent/ petitioner has filed Crl.Misc.No.1/2022 for enforcement of order for maintenance amount passed under PWDV Act. It reveals that as per the observations made by the Hon'ble High Court of Karnataka in above said Writ Petition, the respondent/ petitioner has followed the procedure for recovery of arrears of maintenance amount. The question remains under consideration in this case is whether directly issuance of FLW against appellant/ respondent without exhausting remedy available under sub-clause (a) and (b) of clause (1) of Sec.421 of Cr.P.C is sustainable.
13. On perusal of order sheet of the trial Court in Crl.Misc.No.1/2022, it postulates that on 10.04.2022, the trial Court has issued FLW against the appellant/ respondent for recovery of arrears of maintenance amount. On 25.05.2022, the trial Court has reissued FLW against appellant/ respondent through jurisdictional Police. That on 27.05.2022, the case was advanced and application u/s.70(2) of Cr.P.C, filed by the appellant/ respondent was kept intact and the case is adjourned per se of the respondent/ petitioner and on 10.06.2022, 7 Crl.A.No.692/2022 the learned counsel for the respondent/ petitioner has submitted that the appellant/ respondent has failed to pay the arrears of maintenance amount. Thus, it was ordered by the trial Court that FLW issued against appellant is in force, which is under challenge.
14. In view of the decision of Hon'ble High Court of Karnataka in Crl.P.No.1610/2014 dated 07.11.2014 (M.S. Kalyan Kumar -Vs- B. Vanajakshi) , I would like to reproduce Sec.421 of Cr.P.C, which reads thus:
"421. Warrant for levey of fine.-(a) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-
(a) Issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) Issue a warrant to the Collector of the district, authorizing him to realize the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:
Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine u/s.357.
(2) The Stat Government may make rules regulating the manner in which warrants 8 Crl.A.No.692/2022 under clause (a) of sub-section 91) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (a), the Collector shall realize the amount in accordance with the law relating to recovery of arrears of land revenue, as such warrant were a certificate issued under such law:
Provided that no such warrant shall be executed by the arrest or detention in prison of the offender".
On perusal of above said provision and on the same set of facts and circumstances, the Hon'ble High Court of Karnataka has further held that the learned Magistrate has to exhaust the remedy provided under the above said provision. Without exhausting the remedy provided under the provision, directly issuance of FLW is not correct and issuance of order for FLW is set aside.
15. In the case on hand, it appears that the trial Court has not exhausted the remedy as provided under the provision of Sec.421(1)(a) & (b) of Cr.P.C. Therefore, directly issuing FLW against the appellant/ respondent is not warranted and it is deserve to be set aside. The learned Magistrate ought to have exhausted the remedy as contemplated u/s.421(1)(a) & (b) of Cr.P.C. Therefore, I answer the Point No.1 partly affirmative.
16. Point No.2: My finding on this point is as per following:
9 Crl.A.No.692/2022ORDER The Crl. Appeal filed u/s.29 of PWDV Act r/w Sec.378(1) of Cr.P.C, by the appellant/ respondent is hereby partly allowed.
Consequently, the impugned order passed by the learned 5th M.M.T.C, Bengaluru in Crl.Misc.No.1/2022 dated 10.04.2022, 25.05.2022 and 10.06.2022 issuing FLW against appellant/ respondent is hereby set aside.
The prayer for dismissal of Crl.Misc.No.1/2022 is hereby rejected.
The application pending in this appeal if any, shall be disposed accordingly.
Send the copy of this judgment and TCR to the trial Court.
(Dictated to the Stenographer Grade-I, transcript thereof is corrected, signed and then pronounced by me in the open court on this the 12th day of March 2024) (Kashim Churikhan) LXVII Addl. City Civil & Sessions Judge, Bengaluru.Digitally signed by KASHIM
KASHIM MOHADDINSAHEB
MOHADDINSAHEB CHURIKHAN
CHURIKHAN
Date: 2024.03.13
15:51:55 +0530