Nagender Singh vs State (Nct Of Delhi) & Anr.
2011 Latest Caselaw 2501 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   Crl. M. C. No. 1069/2011

                                      Date of Decision : 10.05.2011

NAGENDER SINGH                                    ...... Petitioner
                                 Through:   Mr.V.N.Kha, Adv.


                                  Versus

STATE (NCT OF DELHI) & ANR.                       ...... Respondents

                       Through:             Mr. Navin Sharma, APP

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                          NO
2.     To be referred to the Reporter or not ?               NO

3.     Whether the judgment should be reported
       in the Digest ?                                       NO

V.K. SHALI, J. (oral)

1. This is a petition filed under Section 482 Cr.P.C. against

the order dated 24.02.2011 passed by the learned

Additional Sessions Judge, Karkardooma Courts, Delhi in

C. C. No. 02/2011 titled Sh. Nagender Singh Vs. State &

Ors. upholding the order dated 07.01.2010 passed by the

learned Metropolitan Magistrate in a petition under Section

125 Cr.P.C.

2. Briefly stated the facts leading to the filing of the present

petition are that the petitioner got married to the

respondent no. 2 on 09.02.2007 according to Hindu Rites

and Customs. It is alleged that the respondent no. 2

started living in a joint family with the present petitioner

and the marriage was consummated. The respondent no.

2 alleged that she has been subjected to cruelty and

demand of dowry which resulted in strained relationship

between the petitioner and the respondent no. 2. The

respondent no. 2 lodged a complaint in Crime against

Women Cell and also initiated a petition under Section 125

Cr.P.C. for the purpose of grant of maintenance as she was

not having sufficient source of income to maintain herself.

In addition to this, the proceedings under Section 24 of the

Hindu Marriage Act were also initiated whereupon the

learned ADJ is stated to have granted a maintenance @

Rs.1,500/- per month to the respondent no. 2 w.e.f.

04.11.2008. So far as the case under Section 125 Cr.P.C.

is concerned, the present petitioner did not appear despite

the summons being served. The petition was accordingly

decided ex-parte.

3. The petitioner filed a revision petition in the Sessions Court

where the ex-parte order of maintenance which was passed

against the petitioner, was set aside and the matter was

remanded back to the learned Metropolitan Magistrate.

The present petitioner did not file his written statement

despite being given repeated opportunities. The

respondent no. 2 filed her own affidavit by way of evidence

claiming maintenance @ Rs.7,000/- per month from the

date of filing of the application. It was alleged by her that

the present petitioner is working with Idea Cellular

Company and is earning Rs.35,000/- per month

approximately. Despite the sufficient opportunities having

been given, the petitioner did not cross-examine the

witness. Ultimately on merits, it culminated into an order

dated 07.01.2010 in favour of the respondent no. 2

directing the petitioner to pay a sum of Rs.7,000/- as

maintenance for the sustenance of the respondent no.2.

4. The petitioner feeling aggrieved by the said order filed a

revision petition before the learned Additional Sessions

Judge. The contention of the learned counsel for the

petitioner was that the respondent no. 2 was also getting a

maintenance @ Rs.1,500/- per month and the learned

Metropolitan Magistrate has not taken into consideration

the said amount. The learned Additional Sessions Judge

dismissed the revision petition on the ground that he had

been indulging in dilatory tactics and despite sufficient

opportunities having been given to him, he did not file his

written statement or statement by way of defence. On the

contrary, even the complainant was not cross-examined by

him, therefore, the aforesaid order directing the payment of

maintenance @ Rs.7,000/- per month passed by the

learned MM, was affirmed by the learned Sessions Court.

5. The present petition has been filed against the order dated

24.2.2011 passed by the learned ASJ confirming the order

dated 7.1.2010 passed by the learned Metropolitan

Magistrate, on the ground that the present petitioner is

earning a sum of Rs.4,000/- to 4,500/- approximately per

month and he has no other source of income to sustain

himself. He has stated that keeping in view his earnings,

in case he is burdened with a maintenance of Rs.7,000/-,

he will not be able to pay the same and hence the present

petition for quashing or setting aside the order dated

24.2.2011 passed by the learned Additional Sessions

Judge.

6. I have heard the learned counsel for the petitioner as well

as the learned APP.

7. The main contention of the learned counsel for the

petitioner is that he does not have an income of

Rs.35,000/- per month as alleged by the respondent no. 2.

On the contrary, it is stated that the petitioner is working

as a driver in Idea Cellular Company and not as an Area

Manager and his monthly income is approximately

Rs.4,000/- to Rs.4,500/- per month, and therefore, he is

unable to pay the maintenance to the respondent no.2 at

the rate at which the Court has fixed the same.

8. It was also contended by the learned counsel for the

petitioner that the respondent no. 2 was guilty of

concealment of material facts and since the respondent no.

2 has not come to the Court with clean hands, therefore,

the aforesaid order deserves to be set aside. It was also

stated that while passing the order dated 24.2.2011, the

learned Additional Sessions Judge has not taken into

account the factum of Rs.1,500/- being given by the

petitioner to the respondent no. 2. It was further alleged

that the learned Additional Sessions Judge without taking

into consideration the salary of the present petitioner had

directed the payment of Rs.7,000/- per month. The

learned counsel for the petitioner has placed reliance on

the following two judgments to canvass that the

respondent no. 2 is guilty of concealment of material facts,

and therefore, the order itself fixing the maintenance is

liable to be quashed.

(i) State of Rajasthan Vs. Ani @ Hanif & Ors. AIR 1997 SC 1023

(ii) S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. & Ors. AIR 1994 SC 853

9. The respondent no.2 vehemently opposed the prayer of the

petitioner. It is stated that the petitioner has not paid

even a single penny from the date of the passing of the

order of maintenance, in the present petition and he is

deliberately indulging in dilatory tactics.

10. I have carefully considered the respective submissions

made by the learned counsel for the petitioner, respondent

no. 2 in person as well as the learned APP.

11. The first submission of the learned counsel for the

petitioner that the respondent no.2 has committed fraud in

as much as she has given the income of the present

petitioner as Rs.35,000/- per month approximately but

actually he is employed as a driver and is getting a salary

of Rs.4,000/- to 4,500/- per month is an unsubstantiated

fact. It is in this regard, the learned counsel for the

petitioner has relied upon these two judgments titled

S.P.Changelvania Naidu (dead) by LRs Vs. Jaynath

(dead) by LRs AIR 1994 SC 853 and The State of

Rajasthan Vs. Ani @ Hanif & Ors. AIR 1997 1023.

12. I have gone through both the judgments. I do not think

that both these judgments help the petitioner in any

manner.So far as the Chengelvaria Naidu's judgment is

concerned, no doubt, it lays down that if fraud is detected

at any stage, it will vitiate the entire proceedings but the

question which arises is as to whether any fraud has been

committed or not, must be prima facie established on the

record.In the instant case, the reason for fraud that is

alleged by the petitioner, is that the petitioner is stated to

be engaged as a driver with a company and earning

`4,000/- to `4500/- or so while as, it is alleged that the

respondent no.2 has stated that the petitioner is earning

`35000/- and hence the allegation of fraud. One should

not lose sight of the fact that the petitioner despite having

been given an opportunity by the Court of Sessions, did not

file any reply to the petition contesting his financial

earning, but he did not even cross examine the respondent

no.2 in this regard. Therefore, the testimony of the

respondents in this regard has to be accepted to be correct.

In such a factual situation to urge that fraud is played on

Court is an argument of dispensation and without any iota

of evidence.

13. So far as the second judgment in Ani's case is concerned, it

is only dealing with the powers of the Court to ask

questions from a witness. I fail to understand as to how

the said judgments would be applicable to the facts of the

present case. The Supreme Court in Haryana Financial

Corporation Vs. Jagdamba Oil Mills AIR 2002 SC 834 has

clearly laid down that the law is not applied like theorems.

14. Coming back to the facts of the present case, I do not find

that the petition u/S 482 Cr.P.C. is even maintainable on

account of the fact that there is no abuse of the processes

of law or the facts do not require passing any order other

than the one which is passed by the Court of Sessions.

15. On the contrary, the petitioner having failed to get a

favourable order on Revision in the Court is literally filing

a second revision which is prohibited under Section 397(2)

Cr.P.C. Hence, the present petition is dismissed.

V.K. SHALI, J.

May 10, 2011 KP