Bangalore District Court
C.R.Suresh vs S.Vijayalakshmi on 20 June, 2020
IN THE COURT OF THE LXI ADDL. CITY CIVIL,
SESSIONS JUDGE: BENGALURU CITY.
Dated this the 20 th day of June, 2020
PRESENT :- SRI S.R.MANIKYA., B.Sc., LL.B.,
LXI Addl. City Civil & Sessions Judge,
Bangalore, (CCH-62)
Criminal Appeal No. 1061/2017
Appellant/Accused: C.R.Suresh
S/o.C.N.Rangegowda
Aged about 57 years
R/a.No.45, 1st Floor
5th Cross
HMT Layout
Mathikere
Bengaluru-560 054.
(By Sri.P.M.M., Adv)
.Vs.
Respondent/Complainant : S.Vijayalakshmi
W/o.C.R.Suresh Aged about 47 years R/a.No.45, 5th Cross Mathikere, H.M.T. Layout Bengaluru-560 054.
(By Sri.M.V.J., Advocate) 2 Crl.A. No.1061/2017 J UD GM E N T This is an appeal preferred against the order passed by the learned MMTC V, Bengaluru in Crl. Misc. No.312/2011 to set aside the order dated 12.06.2017 and also to recall the FLW issued on 14.01.2015.
2. To avoid confusion, the parties are referred to as Petitioner and respondent as per their ranks in the Court below.
3. The brief facts of the petitioners case is that;
The petitioner and respondent are husband and wife and they got married on 16.08.1990. Out of the wed lock, two children were born. The respondent has filed a petition under Section 12 of D.V. Act and it was allowed. After passing of the order, an execution petition was filed wherein the order was passed to pay a sum of Rs.16,39,950/-. According to the petitioner this order is itself is very illegal and unjustifiable. Against this order an appeal was filed before the District Court which cane to be dismissed on the ground of delay. Against this order appeal is preferred before the Hon'ble High Court of Karnataka which is still pending. At that juncture, the trial court has passed an order to pay the interim maintenance and also issued FLW against the petitioner. This order is challenged before this court in this appeal and urges among the following grounds;
3 Crl.A. No.1061/2017The impugned order is without jurisdiction, illegal, arbitrary and perverse. It is clear violation of principles of natural justice. Though FLW was issued, petitioner was arrested and he was released on bail with condition that he should pay a sum of Rs.16,39,950/- which is a illegal order. With out considering the case of the petitioner an order of Rs.25,000/- was granted as maintenance. An application under Section 25 of DV Act for alteration of order is still pending before the trial court. Though the respondent is receiving the rent of Rs.17,550/- that is not considered by the Court. With great difficulty and hard working of the petitioner, petitioner has acquired the property bearing site No.132 and there was also a property gifted to the petitioner by virtue of gift deed dated 16.10.2008. Though she is having an income of Rs.30,000/- p.m., it is not considered by the trial court while passing the maintenance order and though the respondent is receiving rent directly from the tenants that is not considered for the maintenance amount which is an unjustifiable order. On all these grounds the petitioner has prayed for setting aside the order by allowing the appeal.
4. For this appeal application filed under Section 389(1) of Cr.P.C., the respondent has filed objection and contended that this appeal is not maintainable either in law or on facts. There was a due of Rs.31,00,000/- towards interim maintenance for which a execution was filed and except the amount of Rs.1,35,000/- paid by the petitioner, no amount has been paid. Hence, FLW was issued and property was 4 Crl.A. No.1061/2017 attached against which an application was filed for recall of warrant. That was recalled with a condition that he should pay the amount with in four months from 12.06.2017. Till this day, the payment has not been paid. On the contrary, this appeal is filed to drag on the proceedings. Though attachment was there, the property was sold and amount was not paid to the respondent. This petition was filed in the year 2011 and though there was an order to pay interim maintenance and also there was a order to deposit 50% of the maintenance amount within 30 days, all these orders were not complied by the petitioner and now, this appeal is preferred which lacks bonafides and also the ground urged in the appeal memorandum cannot be sustained in law. Hence, he prays for dismissal of the appeal as well as the application.
5. I have heard the arguments of both the counsels.
6. Now, the only point that arose for consideration before this court are as follows;
i. Whether the appellant has made out a ground to allow the appeal and whether there are grounds to set side the order dated 12.06.2017 and 14.01.2015 as contended in the appeal?
ii. What Order?
5 Crl.A. No.1061/20177. My findings on the above points are as under:
Point No.i : In the Negative Point No.ii : As per the final order for the following:
R E A SON S
8. Point No.i:- In this appeal, the appellant has challenged the order passed on 12.06.2017 where in the learned MMTC V, Bengaluru has passed an order to make the payment of Rs.14,39,950/- which the balance amount to be paid by the petitioner towards the maintenance awarded by the court in Crl. Misc. Earlier to this an order was passed by the V MMTC, Bengaluru in Crl. Misc. No.312/2011 wherein the respondent was directed to pay a sum of Rs.16,39,950/- and FLW was issued against him for recovery of that amount.
9. The learned counsel appearing for the petitioner has vehemently contended in his argument and submitted that though the respondent was getting an amount of Rs.30,000/- per month as income, that was not considered by the court while granting the maintenance. Further, at the time of granting the maintenance the property gifted to the respondent was also not taken into consideration. Further, he has also contended that one of the tenant agreed to pay the rent directly to the respondent which was also not considered by the court. If all these grounds are taken into 6 Crl.A. No.1061/2017 consideration while granting the maintenance, the question of awarding the maintenance of Rs.25,000/- per month would not have been arise at all.
10. Further, he has also argued that though the petitioner has paid amount towards the expenses of fees of their children that was also not considered by the court. Hence, the question of making payment to the extent of Rs.16,39,950/- as contended will not arise. Further, the FLW was recalled and per-requisit condition have been imposed by the court for making payment of the amount. The trail court has not properly considered the contention taken by the petitioner and passed an unreasonable order. Hence, the same is liable to be rejected by allowing the appeal according to the arguments of learned appellant counsel.
9. The learned counsel appearing for the respondent has also argued and vehemently contended that all these contentions which have been taken in the appeal were taken before the Crl. Misc. No.312/2011. But it was negatived by the trial judge and granted the maintenance of Rs.25,000/-, considering the needs of the respondent and expenses of the respondent . Against this order of maintenance and issue of FLW for recovery of that amount a revision petition was also filed before the District Court in Crl.R.P. No.510/2015 which came to be dismissed. When such being the case it is the bounden duty of the petitioner to make the payment of the 7 Crl.A. No.1061/2017 amount dues which is claimed by the respondent. Even though the FLW was recalled with certain conditions and order was made for making payment of the amount that is also not complied by the petitioner. On the other hand, this appeal has been preferred and stay has been obtained. Inview of the pendency of this petition no steps came to be taken and respondent has been deprived of her legitimate amount which is awarded by the trial court. Hence, the appeal is liable to be rejected and the order passed by the V MMTC Bengaluru has to be confirmed, according to the arguments of learned respondent counsel.
10. It is undisputed fact that Crl. Misc. was filed by the respondent against the petitioner which was disposed of by the trial court wherein it has granted maintenance of Rs.25,000/- per month. Against that order of maintenance, the revision petition was filed which was also dismissed. Later on, a memo of calculation was also filed and the learned trial judge has discussed in detail about the admitted amount received by the respondent in the petition and also certified payments made by the petitioner to the respondent according to Order 21 Rule 1 of CPC and came to a specific conclusion that the rent received from the tenant and other amounts received by respondent was the preexisting right by virtue of the agreement between the parties as per Ex.P.18. Further, it is also specifically held that the amount mentioned in Sl. No.1 to 8 and para No.10 this order, cannot be deducted from the arrears of maintenance. Further, it is 8 Crl.A. No.1061/2017 also specifically held that the petitioner has not made any payment after 30.06.2012.
11. On consideration of all these facts and analyzing the chronological events of payments made by the petitioner, the court has come to the conclusion that there was arrears of maintenance and for recovery of that amount, FLW was issued.
12. According to the DV Act, section 20 of the DV Act when an application has been submitted to the Magistrate under Section 12(1) of DV Act the maintenance for the aggrieved person can be awarded upon considering their respective case and the contentions taken by both the parties. Accordingly, as the petition was filed by the respondent claiming maintenance the same was awarded by the trial court. When the specific order has been passed by the trial court to make the payment of the amount as ordered it is the bounden duty of the person to make payment. On the other hand, the petitioner has not made any attempt to make payment to the respondent.
13. Further on 14.01.2015 once again FLW was issued for attachment of the property. Now on 12.06.2017 inveiw of FLW, the petitioner was produced before the court and he was released by an order with a condition that amount of 9 Crl.A. No.1061/2017 Rs.16,39,950/- has to be paid within four month as detailed in the order sheet.
"Application filed by the respondent under section 70(2) of Cr.P.C., to recall FLW is here by allowed subject to undertaking to pay the amount of sum of Rs.16,39,950/-of the balance amount i.e., 14,39,950/- on or before 11.09.2017 and rest of 50% amount out of the said balance amount i.e., Rs.14,39,950/- on or before 10.10.2017.
The respondent shall not make any breach of payment as scheduled above and shall appear before court regularly subject to above conditions. The FLW issued is recalled and respondent is released from custody. For payment of undertaken amount of sum of Rs.1,00,000/-. Call on 10.07.17."
14. With that undertaking taken to pay the amount of balance Rs.14,39,950/- on or before 11.09.2017 the FLW was recalled and it is specifically stated in the order sheet that he shall not make any breach of payment as scheduled 10 Crl.A. No.1061/2017 above. But inspite of FLW is recalled on condition and allowed the petitioner to be released from the custody, no payments have been made. Even in the appellate court also no amount is paid. Since, the order was stayed by this court.
15. The petitioner has contended that the order passed on 12.06.2017, is highly illegal because of the grounds mentioned in the appeal memorandum. But in my opinion the attempt of the appellate is an after thought and in no way help the appellant to consider his case. Because the grounds urged in the appeal memorandum are the grounds to be taken in the Crl. Misc. while passing the order when the maintenance was granted. But no material is placed on record by the appellant to establish the fact that such a contentions were raised in the Crl. Misc. and that was rejected by the court. When already an order is passed to pay maintenance of Rs.25,000/- p.m., unless that order is set aside by the appellate court or trial court the question of disallowing the claim of the respondent before the court would not have been arise at all.
16. It is to be specifically noted that since the amount was not paid the FLW was issued for recovery of that amount against which the revision petition was filed which was came to be dismissed. Such being the circumstances, the question of reconsidering the facts of granting maintenance or reconsidering the fact of non consideration of the amount to 11 Crl.A. No.1061/2017 be recovered from the respondent does not arise at all. When a specific order has been passed by the court, it is the right of that person to get that amount. Hence, for recovery of that amount the FLW was issued. Under such circumstances, there is no irregularity or illegality in issuing FLW by the learned trial judge.
17. Now, in the appeal when the appellant has took up a specific contention that the order passed by the trial court is highly erroneous, he has to establish the fact that the order passed by the trial court with respect to the issue of FlW and recovery of the amount. But no specific grounds are established by the appellant to consider the fact that the order was illegal. On the other hand as rightly contended by the respondent counsel, the order for payment of maintenance is already preexisting and no amount has been paid to fulfill that order and there is no compliance of the order passed by the learned trial judge, the question of non considering the issue of FLW as contended by the petitioner would not have been arise at all.
18. It is a well established principle of law that whenever an order is passed by the court the fruits of that order will have to realized by the party in whose favour the order is passed. But though the order was passed in the year 2014 till this day no amount is recovered. One or the other grounds the order has not been complied. Though the 12 Crl.A. No.1061/2017 petitioner has contended that issue of FLW is illegal, the learned Trial Judge after appearance of the petitioner before the court has recalled the FLW and attachment warrant by imposing certain conditions which in the circumstances of the case was a reasonable one and acceptable one. But even that condition is also not fulfilled by the petitioner. On the other hand, this appeal has been prepared and obtained the stay order. It is nothing but the abuse process of law. With such a circumstances when the learned trial judge is properly considered the grievance of the petitioner with respect to the issue of FLW and also for the non payment of the maintenance amount the question of considering that order is illegal, improper and not based on sound reasonings is of no consequence. When the learned trial judge has properly appreciated the facts and circumstances and also properly considered the grievance of the petitioner with respect to the issue of FLW while recalling FLW upon an application filed by the petitioner in my opinion the order passed by the learned trial judge is in accordance with law. It is well established principle of law that whenever the order passed by the learned trial judge is capricious and without any santity of law and if it causes the great miscarriage of justice, then only the appellate court can interfere with the order passed by the learned trial judge. But where as in this case, the learned trial judge has considered all the aspects of the petitioner and also given a proper reasons while recalling FLW and also provided sufficient opportunity for the petitioner to make payment of the amount due hence under 13 Crl.A. No.1061/2017 such circumstances in my opinion the question of interference by this court will not arise at all. Hence, I have no hesitation to answer point No.1 in the negative.
19. Point No.ii:- Having regard to my above observations and findings on point No.i, I proceed to pass the following:-
OR D E R The appeal preferred by the appellant under Sec.397 of Cr.P.C R/w. Section 29 of D.V. Act is hereby dismissed as no merits.
Consequently, the order passed by the learned trial judge on 12.06.2017 in Crl. Misc. 312/2011 and also the order passed by the V MMTC, Bengaluru on 14.01.2015 are here by confirmed.
(Dictated to the stenographer directly on computer, corrected and then pronounced by me in the open Court on this the 20 th day of June, 2020).
(S.R.MANIKYA) LXI Addl. City Civil & Sessions Judge, Bangalore City.
14 Crl.A. No.1061/2017Judgment pronounced in the Open Court (vide separate order) OR D E R The appeal preferred by the appellant under Sec.397 of Cr.P.C R/w. Section 29 of D.V. Act is hereby dismissed as no merits.
Consequently, the order
passed by the learned trial
judge on 12.06.2017 in Crl.
Misc. 312/2011 and also the
order passed by the V MMTC,
Bengaluru on 14.01.2015 are
here by confirmed.
LXI Addl. City Civil & Sessions Judge,
Bangalore City.
15 Crl.A. No.1061/2017