The High Court
Case Details
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25th DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL REVISION PETITION NO.18/2024 BETWEEN: 1 . SOAMI PRASAD S/O MR. DAYAL PRASAD AGED ABOUT 57 YEARS RESIDING AT NO.3054 2ND FLOOR, SECTOR-46 GURGAON – 122 001. … PETITIONER (BY SMT. P. ANU CHENGAPPA, ADVOCATE) AND: 1 . ASHITHA PRASAD D/O LATE SRI. R.D. GERA AGED ABOUT 52 YEARS NO.A-004, LAVENDER APARTMENT 5TH CROSS, 6TH MAIN, AKSHAY NAGAR YELLANAHALI MAIN ROAD BANGALORE – 560 068. … RESPONDENT (BY SRI. JAGADISH N., ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 407 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 15.11.2023 PASSED BY THE LEARNED LXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYO HALL, BENGALURU AND TO ALLOW THE MEMO OF CALCULATION FILED BY THE REVISION PETITIONER IN CRL.MISC.NO.184/2017, 2 PENDING ON THE FILE OF THE LEARNED METROPOLITAN (MMTC-1), MAYO HALL, MAGISTRATE TRAFFIC COURT BANGALORE AND FOR THE CRL.A.NO.25216/2023, ON THE FILES OF THE LXXIV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU. THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 21.01.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV ORDER 1. This revision petition is filed challenging the order passed by the Trial Court in Crl.Misc.184/2017 vide order dated 15.11.2023 rejecting the memo of calculation filed by the revision petitioner and allowing the memo of calculation filed by the respondent herein and also the order passed by the First Appellate Court in Crl.A.No.25216/2023 confirming the order of the Trial Court and dismissing the appeal with cost of Rs.25,000/-. 2. The factual matrix of case of the parties is that the respondent had filed Criminal Miscellaneous Petition before the learned Magistrate invoking Section 12, 19 and 3 20 of the Domestic Violence Act (hereinafter referred as D.V Act). The Trial Court passed a residential order restraining the petitioner herein not to disturb the possession of the respondent and directed to pay the rent without committing any default and also directed to pay monthly maintenance of Rs.15,000/- and so also passed an order Rs.15,000/- to meet food, cloth, medical expenses and household expenses and also directed to pay the school fee of Rs.60,000/- and declined to pass order on loss of earnings.
Facts
The said order was challenged before the First Appellate Court by both the petitioner and respondent in Crl.A.No.25104/2010 and Crl.A.No.25116/2010 on the file of FTC-III, P.O and Addl. Sessions Judge, Mayo Hall, Bangalore. The Fast Tract Court upheld the order passed by the learned Metropolitan Magistrate in a common order dated 30.11.2011 and the same was challenged by both the revision petitioner and respondent before this Court by filing a Crl.P.No.125/2012 and Crl.P.No.1016/2012 4 respectively. This Court passed common order vide order dated 23.03.2017 by allowing the criminal petition filed by the respondent herein in part, wherein, quantum of monthly maintenance was increased at Rs.40,000/- from the date of petition till the children attains the majority and thereafter, at Rs.15,000/- per month to the respondent alone. This order also challenged before the Apex Court in Special Leave to Appeal (Crl.) No.5022/2017 and the same was dismissed vide order dated 31.07.2017. The respondent also filed a private complaint before the learned Metropolitan Magistrate under Section 31 of Protection of Women from Domestic Violence Act R/w Section 200 of Criminal Procedure Code, in Crl.Misc.No.184/2017, for recovery of arrears of maintenance and also for rentals since the respondent moved out from the said premises to other rented premises. The revision petitioner was enlarged in the said case with conditions. An application was filed before the Trial Court for discharge contending that Section 5 31 of the D.V Act cannot be invoked as no protection order has been passed, the said application was also dismissed vide order dated 01.02.2023. It is contend that Crl.Misc.No.184/2017 is not maintainable and the revision petitioner wanted to settle all the outstanding arrears as per the judgment passed by the Court and accordingly he withdrew the appeal in Crl.A.No.25035/2023 as he was taking all steps to settle the matter in Crl.Misc.No.184/2017. 3. In the meanwhile the respondent filed a memo of calculation dated 12.01.2023 claiming arrears totaling to Rs.45,72,838/- and it is contend by the revision petitioner without deducting the payments already made, the said calculation was filed. The revision petitioner also filed a memo of calculation dated 21.04.2023 whereby he contended that he has already paid Rs.39,17,500/- and outstanding due is only Rs.7,25,847/-. The revision petitioner has deposited Rs.18,00,000/- by a way of D.D 6 dated 27.03.2023 and he is entitled for refund of excess amount of Rs.10,74,153/-. The learned Magistrate having taken note of material and memo of calculation filed by both of them, admitted the calculation made by the respondent and rejected the claim made by the revision petitioner and hence the revision petitioner filed an appeal in Crl.A.No.25216/2023. 4. It is also the case of the revision petitioner that he had no objection to withdraw the amount of Rs.7,00,000/- as that was the approximate outstanding amount by an order dated 07.10.2023, the learned Judge ordered the said amount to be given to the respondent but contend that the petitioner has cleared all the arrears and only amount payable every month is Rs.15,000/-. It is contended that both the Courts have committed error in
Legal Reasoning
brought to notice of this Court in terms of the order passed by the High Court as well as the Trial Court separate calculation is made i.e., monthly maintenance which amounts to Rs.47,97,500/- and also calculated the educational expenses upto the age of attaining the majority of the son and daughter and the same amounts to Rs.4,20,000/-, rentals also calculated from January-2011 it amounts to Rs.36,26,400/- and details of payment was also taken note of to the tune of Rs.54,97,500/- on different heads and maintenance as per High Court order, educational expenses rental towards accommodation till December-2024 and also the award and also the cost imposed in all, it comes to Rs.89,42,492/- and after deducting Rs.54,97,500/-, balance due is Rs.34,44,992/-. 14 11. In reply to this argument the counsel appearing for the revision petitioner also brought to notice of this Court memo of calculation filed by the revision petitioner on 06.12.2024 and monthly maintenance paid from 01.09.2009 to September -2014 since son attained majority on 16.09.2014 to the tune of Rs.7,50,000/- and also daughter attained majority on 04.02.2018 an amount of Rs.12,62,000/- and maintenance of Rs.15,000/- to the wife from 2018 to 2022 is Rs.22,20,000/-. In all grand total Rs.42,32,000/- and education expenses for 5 years and 3 years to son and daughter amounts to Rs.3,90,000/- and mental agony an amount of Rs.15,000/- was awarded. 12. It is contended that rent has to be paid at only as long as the petitioner was staying in the matrimonial home, she is stayed their till December-2010 and all rents have been paid till then and no further dues and grand total is Rs.46,37,000/- and details of payment are also given i.e., Rs.39,17,500/- was paid and difference amount only till 15 January-2022 is Rs.7,90,500/- and already Rs.18,00,000/- was deposited and excess amount was paid to respondent and entitled for refund of Rs.10,80,500/-. 13. The counsel also in the reply would contend that no document is placed that she was evicted from the premises. The counsel would contend that earlier petition filed by the revision petitioner was dismissed for non- prosecution and the same cannot be relied upon. 14. Having heard the learned counsel for revision petitioner and the learned counsel for the respondent and also the principles laid down in the judgments referred supra and also considering the challenge made before this Court, the point that would arise before this Court are: 1) Whether the Trial Court and First Appellate Court committed an error in rejecting the memo of calculation filed by the revision petitioner herein and committed any error in accepting the memo of calculation filed by the respondent and whether this Court can exercise the revisional jurisdiction on 16 the ground of legality and correctness of the order? 2) What Order? 15. Having heard the learned counsel for revision petitioner and the learned counsel for the respondent and Court has to take note of the challenge made before this Court. It has to be noted that there is no dispute with regard to the passing of an order by the Trial Court granting the relief of residential order and direct him to pay the rent and also direct him to pay monthly maintenance to the wife for an amount of Rs.15,000/- and also other expenses including household expenses cloth, food, medical expenses and also the educational expenses-. It has to be noted that both of them have challenged the said order before the First Appellate Court and both the petitions have dismissed and again both of them challenged the same in the revision. The fact that this Court modified the order directing him to pay 17 the monthly maintenance of Rs.40,000/- including wife and children till attaining majority is also not in dispute. The other order passed by the Trial Court remains with regard to the payment of fee for an amount of Rs.60,000/- to the children till attaining majority as education fee. No doubt the order passed by this Court was challenged before the Apex Court and the same was dismissed and ultimately order was confirmed. The interpretation regarding continued to pay the rent in respect of the premises presently residing and not to cause any obstruction while invoking Section 19 of D.V Act is not in dispute and that order has not been modified but contention was taken by the petitioner that she is liable to pay only rent till December-2010 and not afterwards cannot be accepted. The reason is that residential order has been passed and not to cause any obstruction. On the other hand, it is the contention that she was evicted, but no doubt no material is placed before the Court and also Court has to take note of 18 the fact that admitted rent was paid by the petitioner is Rs.19,000/- as contended by the counsel. But the contention that she moved out from the said house and the same was not intimated and hence not liable to pay cannot be accepted since there is an order of providing of residential accommodation and hence, continue to pay the rent in respect of the premises and whether intimated or not is not the question and once the Court has directed to meet the rent and the petitioner cannot surk his responsibility to pay and comply with the residential order and accordingly, the calculation was made. The contention that not liable to pay the rent after December-2010 cannot be accepted and the order of the Trial Court was not modified, continued to pay the rent even if she resides in the very same house or in different house and the said amount has to be met by the petitioner only. Though reference was made, the present house wherein she was residing that does not mean that only in respect of the said 19 premises as contended by the revision petitioner and the same already been considered by the Trial Court also when the objection was raised and even in the First Appellate Court also and hence the memo of calculation given by the revision petitioner was not accepted and rightly accepted the memo of calculation filed by the respondent before the Trial Court. The challenge is also before this Court with regard to the memo of calculation. 16. No doubt the counsel appearing for the petitioner in support of the argument relied upon 2 judgments of this Court and the same are with regard to invoking of Section 31 and no such application was filed before the Trial Court regarding maintainability of the petition is concerned and order is also not with regard to the maintainability of the petition invoking Section 31. The impugned order is only with regard to the accepting of memo of calculation filed by the respondent and rejecting of the memo of calculation filed by the petitioner. This Court 20 at this stage cannot express any opinion with regard to the maintainability of the petition is concerned since no such order was before this Court. The order is only with regard to the memo of calculation in terms of the order passed by the Trial Court as well as the order passed by this Court in the revision petition and the same has been upheld by the Apex Court and the contention of the petitioner’s counsel that both Courts have committed in calculating the same cannot be accepted. The Trial Court also while passing the impugned order dated 11.07.2023 taken note of in detail the contention of the parties and also the order passed by the Trial Court and also the order passed by this Court and confirming the order and attaining the finality and also taken note of order passed by this Court in Crl.P.No.1016/2012 which was partly allowed and modified the order of the Trial Court and the same was challenged in the Apex Court and the same was dismissed. The calculation is also made by the respondent till the date of 21 attaining majority of a son and also the daughter in respect of educational expenses is concerned and also subsequent to the attaining age by the children, the claim is made only with regard to the maintenance of Rs.15,000/- and the said aspect was also taken note of and also even taken note of the contention of the petitioner with regard to present house was used while passing an order and executing Court cannot interpret the same. The instant recovery petition has filed on the basis of D.V Act proceeding and not in suit and passed the impugned order and not committed any error and even First Appellate Court also while passing an order, in detail taken note of the said fact into consideration. The fact that she was resided in the said address along with children till December-2010 and taken note of the fact that she was moved out from the said house and there was an order of eviction and also with regard to the presently residing house interpretation was also taken note of in paragraph No.19 and so also in paragraph No.29 discussed 22 with regard to the fact that she moved out from the said house where she was residing. When there was an order to meet the rent and ought to have continued to pay the rent and also the Court cannot expect the same rent is payable. The rate of rent was fixed in the year 2009 when the premises was taken and living after taking the premises on rent basis and we are now in 2025. The very contention that without intimation moved out from the premises cannot be a ground to make the respondent for disentitle the same and order was passed to meet the rent also and the interpretation made by the petitioner’s counsel that not liable to pay rent after December-2010 cannot be accepted. 17. The counsel also brought to notice of this Court earlier order passed by this Court was only for non- appearance. The counsel appearing for the respondent brought to notice of this Court having noticed the conduct of the petitioner and dismissed the same. The counsel also 23 brought to notice of this Court each and every stage coming in the way of recovery of the amount and the same is also evident from the records and even an application was also filed before the Trial Court invoking Section 239 of Cr.P.C and the same was also dismissed. The present revision petition is also arising out of the memo of calculation and the same is based on the order passed by the Trial Court as well as this Court and also which was confirmed by the Apex Court. When such being case, the First Appellate Court rightly dismissed the petition with exemplary cost of Rs.25,000/- having taken note of the conduct and an attempt was made to interpret the order to his convenience and to avoid payment of amount to the aggrieved person and the same has been discussed in paragraph No.26 with regard to the residential order passed invoking Section 19 of D.V Act and also taken note of the fact that respondent was residing in a rented premises along with the husband when the difference was arisen between them. In 24 paragraph No.29 also discussion was made with regard to the payment of rent is concerned and when there was an order to pay the rent even taken note of the fact that rent has been calculated to the tune of Rs.31,66,400/- and taken note of the fact that rent has to be paid as long as the petitioner was staying in the matrimonial home, she stayed till December-2010 and all rents have been paid is also discussed in paragraph No.29 and discussed in paragraph No.30 regarding moving out from the said premises and in paragraph No.31 discussed with regard to the very object of Domestic Violence Act in respect of protection of women. Even the judgment of the Apex Court Prabha Tyagi V/s Kamlesh Devi was discussed by the First Appellate Court and comes to the conclusion that husband always been willing to pay and discharge his liability as per the Court order, but tried to avoid the payment of rent and in that regard also discussion was made in detail. The very contention that not liable to pay 25 rent after 2010 cannot be accepted and except the dispute with regard to the payment of rent is concerned, after 2010 no dispute is raised by the petitioner and hence, I do not find any error committed by the Trial Court in coming to the conclusion that payment of rent is also obligation on the part of the petitioner as directed by the Trial Court and the said order has not been varied by this Court as well as the Apex Court. Under these circumstances, I do not find any error committed in considering the material on record and order not suffers from its legality and correctness and question of invoking revisional jurisdiction does not arise. Hence, I answer the point as negative. 18. In view of the discussions made above, I pass the following:
Arguments
accepting the memo of calculation. It is contended that the order passed by the Trial Court as well as the First Appellate Court beyond the scope of decree. The decree is 7 upheld by this Court specifies that revision petitioner is bound to pay the rent of only the house in which the respondent was residing at the time of decree being passed. The order impugned passed by the First Appellate Court imposing cost of Rs.25,000/- is erroneous and calculation made by the Trial Court is also erroneous and accepting the case of the respondent by both the Trial Court as well as the First Appellate Court is also erroneous. 5. The main grounds urged in the revision petition is that the execution proceedings in Crl.Mis.No.184/2017 is not maintainable as Section 31 of the Domestic Violence Act, 2005 can be invoked only for execution of protection orders and respondent has not approached the Court with clean hands and suppressed the material and filed the petition. The learned Sessions proceeded to pass the impugned judgment just as the learned Magistrate, under the impression that the revision petitioner has to pay whatever amount is claimed by the respondent without 8 applying the mind and committed serious error. The learned Sessions Judge has committed the same error as the learned Magistrate and fail to bring about finality to the proceeding by applying judicial mind in calculating the same and fails to consider the question of law which has been raised by the petitioner. 6. The counsel also in support of her argument relies upon the judgment reported in 2016 Crl.L.1967 in case of Francis Cyril C. Cunha V/s Smt.Lydia Jane D’Cunha and counsel referring this judgment brought to notice of this Court discussion made in paragraph Nos.14 and 18 and contend that Protection of Women’s from Domestic Violence Act, Section 31 of the Act and also discussion was made with regard to Section 18, Section 20 and Section 2(o) order for payment of maintenance is not protection order. Husband cannot be proceeded against under Section 31 for non-payment of arrears of maintenance and order of granting of maintenance does a 9 not amount to protection order and violation of the same will not attract the provisions of the Section 31 of D.V Act. The breach of order of monetary relief will not pay way to prosecute the husband since Section 31 of Act does not include monetary relief. 7. The counsel also relied upon the judgment of this Court reported in Laws(KAR)-2023-12-40 in case of Mohammed Yaseen Naikwadi V/s Aneesa Moohammed Yaseen Naikwadi and brought to notice of this Court discussion made in the very same judgment that Section 31 penalty for breach of protection order by respondent. The counsel brought to notice of this Court paragraph No.12 wherein discussion was made with regard to Section 18 and also reference was made Section 2(o) protection order means an order made in terms of Section 18 of the D.V Act and also referred Section 31 of D.V. Act, penalty for breach of protection order by respondent a breach of protection order or of an interim protection order 10 by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for term which may extent to one year or fine which may extent to Rs.20,000/- or with both. In paragraph No.15 with providing two separate relieves, one under Section 18 of the D.V Act for protection and another for monetary relief under Section 20 of the D.V Act will have to taken note into consideration while analyzing the scope of Section 31 of the D.V Act. If the protection order was inclusive of monetary relief of granting maintenance, Section 20 of the D.V Act would not have been separately provided and Court comes to the conclusion that glaring legal error has been crept in and allowed the petition. 8. The counsel also relied upon the short notes 2010 Crl.L.J (NOC) 447 (KER) wherein also discussion was made with regard to the offence under Section 31 of the Act is only for breach of either a protection order or an interim protection order passed under section 18 and as 11 defined under Section 2(o) of the Act. All other orders passed either under Sections 19, 20, 21 or 22 could only be executed as provided in the Code of Criminal Procedure in view of the mandate under Section 28 of the Act as Section 28 provides that except as provided under the Act, the proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of Code of Criminal Procedure. Further held that if the order passed by the Magistrate is a protection order or an interim protection order, the Magistrate can direct registration of the case and investigate the case under Section 31 of the Act. 9. Per Contra, the counsel appearing for the respondent would vehemently contend that the petitioner is misleading the Court and memo of calculation of the revision petitioner herein excludes non-payment of rent and the order was very clear continued to pay the rent. The respondent was evicted and moved out to other rented 12 premises. The counsel also not disputes the fact that matter was taken to Apex Court. The order of this Court also confirmed by the Apex Court in addition to the order passed by the Trial Court and Apex Court dismissed the petition. The counsel also would contend that review petition was also filed and the same was also dismissed with cost. The petition was filed and FLW was also issued and he was secured from Haryana. The counsel would vehemently contend that the order impugned challenge before this Court is memo of calculation and not any other order and the same is only with regard to the calculation made by the petitioner and respondent and accepted the calculation made by the respondent and dismissed the memo of calculation made by the revision petitioner, the same was challenged and the same was dismissed with cost of Rs.25,000/- in a criminal appeal. 10. The counsel also would vehemently contend that he also filed the separate memo of calculation before this 13 Court calculating the same and the claim made by the revision petitioner herein having made the payment of Rs.39,00,000/- is also given adjustment. The counsel
Decision
ORDER The Revision Petition is dismissed. RHS Sd/- (H.P. SANDESH) JUDGE