Court No. - 49
Case :- APPLICATION U/S 482 No. - 19291 of 2018 Applicant :- Ibrar Ahmad Opposite Party :- State Of U.P. And 2 Ors Counsel for Applicant :- Ganesh Shanker Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present application has been filed to quash the entire proceeding as well as order dated 8.7.2015 passed by Principal Judge/Family Court Siddharthnagar in Misc. Criminal Case No. 1308 of 2013, under Section 125 Cr.P.C. and order dated 5.8.2017 passed by Additional District Session Judge/F.T.C. II, Siddharthnagar in Misc. Case No. 285 of 2016 and order dated 6.4.2018 passed by Additional District Session Judge/F.T.C. II, Siddharthnagar in Misc. Criminal Case No. 454 of 2015, under Section 128 Cr.P.C., Police Station Dhebarua, District Siddharthnagar.
Learned counsel for the applicant submits that the applicant could not appear in the proceeding and he could not file an application under Section 126(2) Cr.P.C. within time because of the fact that the applicant was working at a bakery in Mumbai and he could not appear in the proceeding for that reason. He could not file a recall application on any date earlier than when it was filed.
On merits, it is seen that the learned court below had awarded monthly maintenance allowance @ Rs. 2000/- per month to the opposite party no.2 and @ Rs. 1000/- per month to the opposite party no.3, from the date of the order being 8.7.2015.
In view of the admission made by the applicant, that he was working at bakery in Mumbai, it does not appear that the award of maintenance allowance @ Rs. 3000/- (in all) per month is either excessive or arbitrary, especially in view of the fact that such award has been made from the date of the order and not the date of the application.
However, the learned counsel for the applicant submits that due to the delay in intimation of the aforesaid order, the liability for the period of two years is being pressed against the applicant and he is not in a position to discharge that liability in a lumpsum. Accordingly, some time may be allowed to the applicant to make good the default.
Argument advanced by learned counsel for the applicant against exparte in nature of the order dated 8.7.2015 and the rejection of his application under Section 126(2) Cr.P.C. as time barred by the order dated 5.8.2017, does not appeal to reason inasmuch as there is no material to doubt the correctness of the finding recorded by the learned court below that the applicant was duly served in those proceedings but that it appears that he did not appear in the same.
Consequently, the order dated 8.7.2015 is upheld.
In so far as the recovery of maintenance allowance is concerned, it does appear that the applicant deserves some indulgence.
Accordingly, the application is disposed of with the following directions:
1. Subject to the applicant furnishing adequate security to the tune of Rs. 1,05,000/- to the satisfaction of the court below in the shape of other than cash or bank guarantee by 30.6.2018, further coercive measures adopted against the applicant shall remain stayed, subject to other conditions provided herein.
2. The applicant shall continue to pay monthly maintenance allowance @ Rs. 2000/- per month to the opposite party no. 2 and @ Rs.1000/- to opposite party no.3, for the period June 2018 onwards on or before the tenth day of each calendar month.
3. The applicant shall deposit a sum of Rs. 1,05,000/- being entire amount of arrears payable to the opposite party no. 2, in eleven bi-monthly instalments, such instalments being payable on or before 31.07.2018, 30.09.2018, 30.11.2018, 31.1.2019, 31.03.2019, 31.5.2019, 31.7.2019, 30.9.2019, 30.11.2019, 31.1.2020 and 31.3.2020 respectively. The first ten instalments would be of Rs. 10,000/- each while the eleven/last instalment would be for the balance amount.
Any amount already deposited by the applicant may be adjusted towards payment/s to be made by the applicant towards the last instalments.
All the amounts may either be paid to the opposite party or be deposited by the applicant in the Court below, within time as indicated. In the latter case, it be released to the opposite party no. 2 forthwith.
However, it is made clear that in the event of failure on part of the applicant to comply with any part of the order, coercive measures be revived from that stage without any further reference to this Court.
Order Date :- 29.5.2018 Mini