Bangalore District Court
) Srinivas Murthy @ Shekar Vardhan vs ) Ashwini W/O Srinivasa Murty @ on 4 April, 2019
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL
& SESSIONS JUDGE, BENGALURU
(CCH-61)
Dated this the 4th day of April, 2019
:Present:
Sri Vidyadhar Shirahatti, LL.M.
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. Appeal. No. 2397/2018
Appellant :- 1) Srinivas Murthy @ Shekar Vardhan,
S/o late Ramanna, Aged about 37
years, R/at No.4057, 18th Main, 2nd
Stage, Vittal Nagar Circle, 80 feet road,
Kumaraswamy Layout, J.P.Nagar,
Bengaluru.
2) Chenna Veeramma W/o Late
Ramanna, R/at No.601, 29th A Main
road, Corporation Colony, Jayanagar,
Bengaluru.
(Sri Shiva Prasad K.B, Adv)
Vs
Respondent:- 1) Ashwini W/o Srinivasa Murty @
Shekar Vardhan,
2) Thaksheel S/o Srinivas Murthy,
Aged bout 2 years.
(Since the respondent No1 is minor
reptd by his mother as Natural
Guardian)
2 Crl.A.No.2397/2018
Both are residing at No132, 4th Main,
Muneshwara Nagar, Kamakshipalya,
Bengaluru.
(Sri H.M Adv.)
JUDGMENT
This appeal is preferred by the appellant who is the respondent before court below under section 29 of the Protection of women from Domestic Violence Act 2005 questioning the legality and correctness of the orders passed by the Metropolitan Magistrate Traffic Court-V, Bangalore City dated: 27/11/2018 in Crl.Misc.No.146/2017.
2. The appellant is the respondent and respondent is the petitioner before court below. For sake of convenience they are referred herein as to their ranks before court below.
3. The brief facts of the case are as follows; The petitioner filed the petitioner under Sect.31 of Protection of Women from Domestic violence Act, 2005 3 Crl.A.No.2397/2018 r/w Sec.128 Cr.P.C. on the ground that in criminal Misc.No.146/2017 was allowed in her favour vide final order dt:2/3/2017 awarding compensation of Rs.2,00,000/- monthly maintenance Rs.5,000/- and accommodation of Rs.8,000/- per month in total Rs.3,56,000/- is due from the respondent herein and it is stated that the said amount is not deposited by the respondent and it is prayed before the court to issue FLW/NBW against the respondent for the recovery of above said maintenance amount, accommodation amount and compensation amount.
4. He further contended that, as per the order of trial court the JP Nagar police have attached the 3 chairs, 3 big mirror, 2 self trolley, one table fan, 3 cc camera, 8 LED bulb, 1 sofa and one LED TV which belongs to the respondent as per the mahazar drawn on 22/9/2018 and due to attachment the respondent shop was closed by the J.P.Nagar police Bengaluru and 4 Crl.A.No.2397/2018 respondent has not having any business or means with great efforts paid a sum of Rs.15,000/- and thereafter paid a sum of Rs.5,000/-. He further contended that as against the final order, he has filed criminal appeal, which is pending for adjudication before this court and during the pendency of the said appeal, the petitioner cannot enforce the final order. The execution of proceedings by the petitioner is not tenable in the eye of law that too without proceedings to get the movable attachment or warrant and petitioner is seeking NBW against the petitioner, which is against the settled principle of law. Instead of filing application before the trial court u/Sec.421(1), (3) (1) the plaintiff has proceeded to secure the FLW for recovery of said amount. He further contended that, as per the decision relied by the Hon'ble High Court of Karnataka in the matter between M.S.Kalyan Kumar and B.Vanajakshi in Crl.P.No.1610/2014 the impugned 5 Crl.A.No.2397/2018 order passed by the trial court is not maintainable. Hence, he prays to set aside the impugned order.
5. After service of summons the present appellant appeared before the trial court and objected the same and contended that, the order passed by the trial court is in accordance with law and prays to dismiss the appeal by confirming the impugned order.
6. Perusing the records placed by the appellant. LCR secured.
7. Heard arguments of the appellant and respondent.
8. In the light of submissions made by the learned counsels appearing for appellant and the respondent the following points arose for my consideration to determine this appeal.
1. Whether the orders passed by MMTC-
V, Bengaluru, in Crl.Misc.No.146/2017 dated; 27/11/2018, is perverse, illegal 6 Crl.A.No.2397/2018 and opposed to law, facts and calls for my interference?
2. What order?
9. I answer the above points are as follows.
Point No.1 : In the Negative
Point No.2 : As per final order
For the following:
REASONS
10. Point No.1: Therefore, the granting of
monetary relief under section 25 by MMTC-III, is not suffering from illegality.
11. Learned Counsel for the appellant contended that the trial Court cannot issue FLW directly to appellant without exhausting the remedies available under Section 421 of Code of Criminal Procedure. He also contended that in view of the order passed by the trial court the jurisdictional police have seized all the movable items which was kept in his shop by drawing the mahazar. He further contended that, the trial court has no power to issue FLW and NBW against 7 Crl.A.No.2397/2018 the appellant. In support of his contention he has relied upon the judgment passed by the Hon'ble High Court of Karnataka in M.S.Kalyan Kumar and B.Vanajakshi in Crl.P.Nof.1610/2014.
12. I have carefully perused the same, which discloses that after execution of the FLW, the appellant was appeared before the trial court and FLW issued against him was recalled as per the order of this court. Thereafter, the petitioner has filed application u/Sec.421 of Cr.P.C. He further argued that, the learned Magistrate without exhausting the remedy under Section 421 of Cr.P.C. has directly is sued FLW which is not proper under Section 421 of Cr.P.C.
13. In view of the contention raised by the learned counsel for the appellant, I would like to rely upon Sec.421 of Cr.P.C.
Section 421 of the Code of Criminal Procedure, which reads as follows :
8 Crl.A.No.2397/2018
421. Warrant for levy of fine.--
(1) 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 moveable property belonging to the offender;
(b) Issue a warrant to the Collector of the district, authorizing him to realise 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 under section 357.
14. On perusing of the impugned order, it discloses that, the appellant has filed application along with the judgment of Hon'ble High Court of Karnataka in M.S.Kalyan Kumar V/s Vanajakshi LAWS (KAR) 204 11 174 prays to set aside the order passed by this trial court. On perusing the impugned order it clearly discloses that, the learned Magistrate has not committed any error in rejecting the application filed by the appellant, because the case laws relied by the learned counsel for the appellant is not applicable to 9 Crl.A.No.2397/2018 the present case on hand, since the said case laws relates to the recovery of compensation amount u/Sec.138 of N.I.Act and in the present case, the petitioner is filed application for recovery of maintenance u/Sec.31 of PWDV Act. Section 31 of the Act of 2005 empowers the Magistrate to prosecute and punish a respondent in the event such respondent breaches the order passed under Section 18 of the Act. Section 31 is specifically in regard to breach of the protection order or an interim protection order. The term "monetary relief" is not included in this Section and thereby taking out of the operation of Section 31 of the Act of 2005 any breach of an order of monetary relief. An applicant, in whose favour the order of monetary relief has been passed, has to apply to the Magistrate for seeking execution of the order as per Section 20 of the Act of 2005. Then the Court, after the period provided for appeal is over, suo motu or on the application filed by the petitioner, shall issue warrant 10 Crl.A.No.2397/2018 of recovery for recovery of the monetary relief directed to be paid and in the event of warrant for recovery not being satisfied then the consequence of sending the respondent to civil jail, as per the procedure provided under Section 125(3) Cr.P.C., shall be resorted to.
15. Looking to the above facts and circumstances I do not find any error committed by the learned MMTC-V, Bengaluru in passing impugned order. Thus, impugned order do not suffers from any illegality and not perverse as contended by the appellant. Therefore, the impugned order do not calls for my interference. Thus, the appeal deserves to be dismissed. Hence, I answered above points accordingly and proceed to pass the following:
ORDER The appeal filed under section 29 of Protection of Women from Domestic Violence Act. 2005 is hereby dismissed.11 Crl.A.No.2397/2018
The orders passed by the learned MMTC-V, Bengaluru dated; 27/11/2018 in C.Mis.No.146/2017 is confirmed.
Send copy of the judgment to the trial Court forthwith.
*** [Directly dictated to the stenographer on computer, corrected and then pronounced by me in open court dated this day the 4th April, 2019] (Vidyadhar Shirahatti) LX Addl.City Civil & Sessions Judge, Bengaluru 12 Crl.A.No.2397/2018 Judgment pronounced in the open court. Vide separately ORDER The appeal filed under section 29 of Protection of Women from Domestic Violence Act. 2005 is hereby dismissed.
The orders passed by the learned MMTC-V, Bengaluru dated; 27/11/2018 in C.Mis.No.146/2017 is confirmed.
Send copy of the judgment to the trial Court forthwith.
(Vidyadhar Shirahatti) LX Addl.City Civil & Sessions Judge, Bengaluru 13 Crl.A.No.2397/2018