Karnataka High Court
Mr. Ephrem Baptist Lobo vs Mrs. Cynthia Lobo on 5 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:14079
CRL.RP No. 1227 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.1227 OF 2023
BETWEEN:
1. MR. EPHREM BAPTIST LOBO
S/O AJEDIUS LOBO,
AGED ABOUT 58 YEARS,
EARLIER R/O. FLAT NO.A107,
1ST FLOOR, BUILDING NO.1450A,
NATIONAL BANK OF OMAN BUILDING,
NEAR GRAND MOSQUE GHALA,
SULTANATE OF OMAN.
...PETITIONER
(BY SMT. AKSHATHA SHETTY K., ADVOCATE)
AND:
1. MRS. CYNTHIA LOBO,
Digitally signed
by SHARANYA T W/O MR. EPHREM BAPTIST LOBO,
Location: HIGH AGED ABOUT 54 YEARS,
COURT OF CHRISTA JYOTHI ASHLY COMPOUND,
KARNATAKA
PALADKA POST AND VILLAGE,
VIA. MOODABIDRI - 574226.
PRESENTLY R/AT MRS.CYNTHIA LOBO,
FLAT NO.1304, RUSHTOMJEEATHEENA,
MAJJIWADA, THANE WEST, THANE,
MAHARASHTRA - 400601.
...RESPONDENT
(BY SRI. NISHIT KUMAR SHETTY A/W.
SRI VISHWAS, ADVOCATES)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
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NC: 2024:KHC:14079
CRL.RP No. 1227 of 2023
AND ORDER DATED 01.04.2023 PASSED IN CRL.A.NO.7/2023
BY THE III ADDL. DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU VIDE ANNEXURE-A AND TO SET ASIDE THE
INTERIM ORDER DATED 10.10.2022 PASSED BY THE J.M.F.C II
COURT MANGALURU D.K., IN CRL.M.C.NO.64/2018 VIDE
ANNEXURE-D.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the
learned counsel for the respondent.
2. This Court had heard this matter in part earlier and
had directed the learned counsel for the respondent to produce
the document with regard to withdrawal of the amount and
accordingly, the learned counsel for the respondent has filed the
memo with documents of copies of seven FDs of the respondent,
copy of the bank transaction details of the respondent and copy
of FIR and complaint in Crime No.268/2018 along with typed
copy of the complaint with regard to transferring the amount of
FD to the account of the petitioner.
3. The learned counsel for the petitioner would
vehemently contend that the respondent seeks the amount to
meet the educational expenses of the daughter and the Trial
Court also committed an error in awarding an amount of
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Rs.40,000/- per month to meet the educational expenses of the
daughter and this is only an interim order passed under Section
23(2) of the Domestic Violence Act and the Court has to take
note of the documents and affidavit while passing such an order.
The Trial Court in paragraph No.13 of its judgment, has
observed that on perusal of the documents and the affidavits of
assets and liabilities of both the parties, both of them submit
that they are not working. Though, the respondent therein has
submitted that the petitioner therein withdrew money from their
joint account and also that she has income from farm house and
rent from flat, no document is produced to show the same. On
the other hand, petitioner therein has submitted that the
respondent therein works in Oman earning handsome salary and
also has various properties and has a liquor licence. The
petitioner has produced property documents and also liquor
licence copy of the respondent. An observation is made that the
petitioner has not sought for maintenance at the time of filing of
the petition, subsequently due to multiple litigation between the
parties as her accounts are stayed from being operated by the
Moodabidre Court, the petitioner sought for interim maintenance
of her and her children. Having taken note of the documents
and affidavit filed by the respondent herein, the Trial Court
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ordered the petitioner herein to pay a sum of Rs.40,000/- per
month towards petitioner's daughter's education. The same is
challenged before the Appellate Court. The learned counsel for
the petitioner would contend that the Appellate Court also
committed an error in confirming the order of Trial Court. The
very approach of the Appellate Court is erroneous and not
considered the material on record. The learned counsel
contends that when crores of rupees are withdrawn by the
respondent, the question of awarding Rs.40,000/- per month
does not arise and hence it requires interference of this Court.
4. The learned counsel for the respondent would
contend that there were seven FDs in the individual name of the
respondent and out of that, four amounts are transferred to the
account of the petitioner and when the respondent came to
know about the same, she lodged the complaint and criminal
case is registered. Subsequent to the transfer of the amount,
re-transferred the amount to the account of the respondent
after compliant and thereafter withdrew the amount. The
learned counsel submits that though the properties were
standing in the name of the petitioner herein, the same were
transferred in favour of his sister and obtained power of
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attorney from his sister and later sold all the properties and the
Court has to take note of the said factors into consideration.
5. Having heard the learned counsel for the petitioner
and the learned counsel for the respondent, admittedly the
petition is pending before the Trial Court and all the grounds
which have been urged before this Court with regard to assets
and liability, FDs, forgery and transfer of the amounts, have to
be considered before the Trial Court while considering the
matter on merits. The scope for revision is very limited and
within the ambit of revision only this Court has to consider the
same and the scope is with regard to whether the amount of
Rs.40,000/- per month awarded by the Trial Court is proper or
not. The Trial Court while passing the order has taken note of
the averments made in the petition as well as affidavit filed by
the respondent herein and formulated the point as to whether
the petitioner/respondent herein is entitled for interim
maintenance as claimed. The daughter was in 12th standard at
the time of filing the application and intending to go for higher
studies in Japan. The respondent herein produced the school
receipts of her daughter for having paid Rs.2,25,000/- as tuition
fees for the first and second quarter and also paid Rs.46,400/-
for the examination fees. Now the daughter is pursuing second
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year Engineering at Waseda University in Japan. An amount of
Rs.40,000/- per month is awarded only towards the petitioner's
daughter's education. It is the allegation of the petitioner that
crores of rupees are withdrawn. The learned counsel for the
respondent submits with regard to transferring of the assets in
the name of the petitioner's sister and subsequently obtaining
the power of attorney to dispose of the property. All these
factors have to be considered only while considering the matter
on merits.
6. Having considered the financial capacity and taking
note of the assets of the respondent and also when the daughter
is pursuing her education abroad, the said fact is also taken note
of by the Trial Court. The Appellate Court also considering the
material available on record, taken note of transferring the
amount which was in her FD on the request of the petitioner
herein and the same has been set out in paragraph No.15 of the
Appellate Court's order. The Appellate Court in paragraph No.18
discussed about the policy purchased in the name of the
petitioner and the respondent for the benefit of minor daughter.
The Appellate Court taken note of that both the parties have
submitted that in terms of the Indian rupee, the minor daughter
will get Rs.5,00,000/- per year. Admittedly, the minor daughter
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is prosecuting her studies in foreign country and taking note of
the said fact into consideration, the Appellate Court has
considered the order passed by the Trial Court and confirmed
the order of the Trial Court. When such being the case, the fact
that the daughter is pursuing her education in abroad is not in
dispute. The learned counsel for the petitioner submits that all
details has to be furnished. In this revision petition, the Court
cannot direct the respondent to produce all the receipts and
when the matter is pending for consideration, all these
contention can be raised before the Trial Court and hence I do
not find any error committed by the Trial Court in granting
Rs.40,000/- per month towards educational expenses of the
daughter who is pursuing her education at abroad.
7. In view of the discussions made above, I pass the
following:
ORDER
The criminal revision petition is dismissed.
Sd/-
JUDGE
MD
