IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 241 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 3 2 To be referred to the Reporter or not ? NO Whether their Lordships wish to see the fair copy of the judgment ? NO Whether this case involves a substantial question 4 of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= HARSHADKUMAR KESHAVLAL PARMAR - Applicant(s) Versus NIRMALABEN HARSHADKUMAR PARMAR AND MINOR DAUGHTER YESHA & 1 - Respondent(s) =========================================================
Appearance :
MR NAGESH C SOOD for Applicant(s) : 1, MR EZAD QURESHI for Respondent(s) : 1, MR LB DABHI ADDL.PUBLIC PROSECUTOR for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 17/10/2012
ORAL JUDGMENT
1.00. Present Revision Application, under section 397 r/w section 401 of the Code of Criminal Procedure, has been preferred by the petitioner herein – original opponent – husband to quash and set aside the impugned order passed by the learned Judge, Family Court No.2, Ahmedabad below Ex.16 in Criminal Misc.Application No. 204 of 2010 dtd.27/4/2011 by which the learned Judge has rejected the said application preferred by the respondent No.1 herein - husband to issue Witness Summons upon the concerned officer of State Bank of India, Civil Hospital Branch, Ahmedabad as well as Bank of Baroda, Girdharnagar Branch, Ahmedabad with particulars as mentioned in the said application Ex.16.
2.00. That the respondent No.1 herein – wife has preferred Criminal Misc.Application No. 204 of 2010 against the petitioner herein – husband before the learned Family Court, Ahmedabad under section 127 of the Code of Criminal Procedure, claiming maintenance for herself and for minor daughter.
2.01. That in the aforesaid application it was the case on behalf of the respondent No.1 - husband that the respondent No.1 herein – wife is able to maintain herself and earn and in fact she is earning independently and is depositing the said amount in the Bank of Baroda, Girdharnagar Branch, which was disputed by the respondent No.1 herein – wife and therefore, the petitioner herein – husband submitted application Ex.16 to issue Witness Summons upon the concerned officer of the aforesaid two Banks, which has been rejected by the learned Family Court by the impugned order by observing that the petitioner herein – husband has not produced any evidence with respect to Bank Accounts of the respondent No.1 herein – wife and it can be presumed that the wife might be depositing the amount of maintenance of Rs.4000/- which she is getting under section 125 of the Code of Criminal Procedure.
2.02. Being aggrieved by and dissatisfied with the impugned order passed by the learned Judge, Family Court, Ahmedabad, petitioner herein – original opponent – husband has preferred present Revision Application.
3.00. Mr.Nagesh Sood, learned advocate appearing on behalf of the petitioner - husband has vehemently submitted that as such the respondent No.1 herein – wife is not disputing having Bank Accounts in the State Bank of India and Bank of Baroda. It is submitted that in her cross-examination, she has specifically stated that she is ready to examine the concerned officer of the Bank of Baroda and State Bank of India. It is submitted that, therefore, the learned Judge ought to have allowed the application Ex.16. It is submitted that, still, after those witnesses are examined and it is found that any amount is deposited in the aforesaid Accounts, more particularly in the Account of Bank of Baroda, Girdharnagar Branch, in that case, the respondent No.1 herein – wife can very well explain the same, however, it can not be presumed that the amount found to be deposited in her account is the amount which she has received by way of maintenance under section 125 of the Code of Criminal Procedure. Therefore, it is requested to allow present Revision Application.
4. Mr.Ezaz Qureshi, learned advocate appearing on behalf of the respondent No.1 herein – original applicant – wife has tried to oppose the present Revision Application, however, he is not in a position to dispute the fact that even the respondent No.1 – wife has stated in her cross-examination that she is ready to examine the officer of the Bank of Baroda and Bank of India. However, he has requested that if this Court is inclined to allow the present Revision Application and consequently allow application Ex.16, in that case, the learned Family Court may be directed to issue Warrant Summons as prayed for by the petitioner herein - husband at the earliest and examine the said witnesses within stipulated time, so that there is no further delay in disposal of the main application. He has also requested to permit the respondent No.1 - wife to withdraw Rs.5000/- deposited by the petitioner - husband pursuant to the earlier order passed by this Court.
5.00. Mr.L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of the respondent No.2 – State has requested to pass appropriate order in the facts and circumstances of the case.
6.00. Heard the learned advocates appearing on behalf of the respective parties at length.
6.01. At the outset, it is required to be noted that the petitioner - husband has submitted application Ex.16 requesting the learned Family Court to issue Witness Summons upon the concerned officers of the State Bank of India, Civil Hospital Branch, Ahmedabad as well as Bank of Baroda, Girdharnagar Branch, Ahmedabad along with the particulars as mentioned in the said application and the said application has been rejected by the learned Family Court by the impugned order on the ground that the petitioner herein – husband has not produced any evidence with respect to the Bank Accounts of the respondent No.1 – wife and that even if any amount is found to be deposited in the said Bank Accounts, the same might be received by the original applicant – wife towards her maintenance under section 125 of the Code of Criminal Procedure.
6.02. However, it is required to be noted that as such the respondent No.1 herein – wife has not disputed and/or has not denied that she is having accounts in the State Bank of India or Bank of Baroda. It is also required to be noted that the respondent No.1 – wife in her cross-examination has stated that she is ready to examine officers of the State Bank of India, Civil Hospital Branch as well as Bank of Baroda, Girdharnagar Branch. Under the circumstances, the learned Judge has materially erred in dismissing the application Ex.16 and has materially erred in not issuing Witness Summons upon the bank officers of the concerned banks, as prayed for in the said application.
7.00. In view of the above and for the reasons stated above, the impugned order passed by the learned Judge, Family Court No.2, Ahmedabad below Ex.16 in Criminal Misc.Application No. 204 of 2010 dtd.27/4/2011 is hereby quashed and set aside and consequently aforesaid application Ex.16 is hereby allowed and the learned Family Court is hereby directed to issue Witness Summons upon the concerned officer of the State Bank of India, Civil Hospital Branch, Ahmedabad as well as Bank of Baroda, Girdharnagar Branch, Ahmedabad, with particulars as mentioned in the said application Ex.16.
In the facts and circumstances of the case, the learned Family Court is hereby directed to issue Witness Summons as prayed for by the petitioner herein – husband in the application Ex.16, as aforesaid, within a period of two seeks from the date of receipt of the writ of the present order and thereafter see to it that the said witnesses are examined within a period of two months thereafter, and thereafter to decide and dispose of the main application under section 127 of the Code of Criminal Procedure as expeditiously as possible.
The respondent No.1 herein – wife is hereby permitted to withdraw Rs.5000/- deposited by the petitioner herein – husband with the registry of this Court pursuant to the earlier order passed by this Court, for which the learned advocate appearing on behalf of the petitioner herein – husband has no objection and the Registry is hereby directed to pay the said amount of Rs.5000/- to the respondent No.1 herein – wife by Account Payee Cheque, on proper verification and identification.
Rule is made absolute accordingly. Direct Service is permitted.
[M.R. SHAH, J.] rafik