Gauhati High Court
Gour Talukdar vs The State Of Assam And Anr on 20 February, 2023
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GAHC010215992022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./1083/2022
GOUR TALUKDAR
S/O SRI ASHUTOSH TALUKDAR
R/O WARD NO. 13, SANTINAGAR, DHUBRI P.O. AND P.S. DHUBRI,
DIST. DHUBRI, ASSAM
PIN-783301
VERSUS
THE STATE OF ASSAM AND ANR
TO BE REP. BY THE PP, ASSAM
2:SMTI. JHUMKI SEN
D/O KARTIK SEN
VILL- ARAIANI PART-II
P.O. AND P.S. BAGRIBARI
DIST. KOKRAJHAR BTR
ASSAM
PIN-78337
Advocate for the Petitioner : MR. L R MAZUMDER
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 20-02-2023
Heard Mr. A.Z. Ahmed, learned counsel for the petitioner as well as Mr. R.J.
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Baruah, learned APP for the State respondent no.1 and Md. H.R. Ahmed,
learned counsel for the respondent no.2.
2. By filing this criminal petition under section 482 Cr.P.C. the petitioner
has assailed the order dated 17.02.2021 passed by the learned Judicial
Magistrate First Class, Kokrajhar in Misc case no.38 M/2019 as well as order
dated 30.08.2022 passed by the learned Session Judge, Dhubri in Crl. Rev.
No.05/2021.
3. By the judgment dated 17.02.2021, the learned trial Court had
directed the petitioner who is the estranged husband of the respondent no.2 to
pay a maintenance amount of Rs.10,000/- per month from the date of filing of
the said petition under section 125 Cr.P.C. while under section 126(3) Cr.P.C., the
petitioner was directed to pay a cost of Rs.5,000/-towards expenses. By the
revisional judgment passed on 30.08.2022, the Revisional Court did not find any
merit in the impugned order or unreasonableness as regards the amount of
monthly maintenance awarded by the learned trial Court. Accordingly, the
revision was dismissed.
4. Assailing both the said orders, the learned counsel for the petitioner
has referred to the stand taken in paragraph-3 of this application to project that
the petitioner was receiving monthly salary of Rs.30,600/- per month and he
had taken a loan of Rs. 8.00 lakh from the Dhubri Branch of SBI and was paying
monthly installment of Rs.15,475/- plus he also pays house rent of Rs.2,500/-
per month and spends around Rs.2,100/- as medical expenses for his parents.
Therefore, the petitioner is left only with Rs.14,000/- for his survival. Hence, it is
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submitted that the maintenance of Rs.10,000/- per month was on higher side to
him.
5. The learned counsel for the respondent no.2 has referred to the loan
sanction letter dated 20.03.2021 and it is submitted that the said loan was
availed only after the impugned order was passed by the learned trial Court.
6. It appears that in the trial Court proceeding, the petitioner had taken
a defence of having availed a loan of Rs.4.50 lakh from the SBI Golakganj
Branch, which is considered when the maintenance amount was quantified. The
availing of a subsequent loan of Rs.8.00 lakh was not raised before the learned
trial Court and as because the said loan was never availed during the pendency
of the trial.
7. The order of the learned trial Court was passed on 17.02.2021 and the
loan was availed thereafter. It does not appear from the order of the learned
Revisional Court that the issue of taking loan of Rs.8.00 lakh was raised at the
revisional stage. Therefore, the learned Revisional Court in paragraph-3 and 8 of
the order had referred to the previous loan and not the subsequent loan of
Rs.8.00 lakh.
8. As the petitioner has consciously availed the loan after the order of
maintenance was passed by the learned trial Court, the petitioner has done so
at his own risk. Moreover, nothing has been brought on record to demonstrate
that the order passed by the learned trial Court as well as by the learned
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Revisional Court has passed order without any jurisdiction or did not take any
note of the evidence which was raised before the learned trial Court.
9. This is not a case where any evidence which was placed before the
learned trial Court was not taken note of or that the judgment is vitiated on the
ground that the learned Court below took into consideration any extraneous
materials which was not covered by the evidence led by the parties.
10. In light of above, the petitioner has not been able to make out a case
for interference of the final orders passed by both the learned Courts below by
invoking the inherent power of the Court under section 482 Cr.P.C. In view of
above, the Court does not find any merit in this application filed under section
482 Cr.P.C. Accordingly, the same stands dismissed.
11. The Registry shall not issue certified/ uncertified copy of scanned copy
of the case record.
JUDGE
Comparing Assistant
