IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO. 7617 OF 2013 BETWEEN:
Sri. K. Gangadhara, S/o. late Kumbaiah, Aged about 45 years, Working as Safiwala, At Assistant Garission Engineer, A.G. B/R (G.E.) A/F, H.Q.T.C. Hebbal, Bengaluru – 560 024. …Petitioner (By Sri. A. Vijay Kumar Bhat, Advocate) AND:
Smt. Jayamma, W/o. K. Gangadhara, Aged about 40 years, R/at No.310/1, 1st Main Road, Thandavappa Compound, Hebbal, Bengaluru. …Respondent (By Sri. L. Harish Kumar, Advocate – absent) This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the order dated 22.08.2013 passed by the XXVII District & Sessions Judge C/c. FTC-VII, Bengaluru in Crl.R.P.No.229/2013 which is produced as Annexure – A and order dated 05.12.2012 passed by the MMTC – IV, Bengaluru in Crl.Misc.No.116/2012 which is produced as Annexure – B.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Petitioner is aggrieved by the order dated 22.08.2013 passed by the XXVII District & Sessions Judge/FTC-VII in Crl.R.P.No.229/2013 whereby the learned Sessions Judge has confirmed the order dated 05.12.2012 passed by the Metropolitan Magistrate Traffic Court–VI, Bengaluru City, in Crl.Misc.116/2012.
2. Crl.Misc.No.116/2012 was filed by the respondent herein under Section 12 of Protection of Women from Domestic Violence Act, 2005 praying for orders of relief under Sections 19, 20 and 22 of the same Act. In the said proceedings, notice was ordered to the petitioner herein. Petitioner herein having refused to take the said notice, he was placed ex-parte and after recording evidence of the respondent herein (PW1) and considering the documents produced by her, the learned Magistrate by the impugned order dated 05.12.2012 directed the petitioner herein to pay a monthly maintenance of Rs.6,000/- to the respondent herein.
3. As against the said order, the petitioner preferred a Revision Petition before the City Civil & Sessions Judge at Bengaluru, under Section 397 of Cr.P.C. Along with the said Revision Petition he filed an application under Section 5 of the Limitation Act seeking condonation of delay of 233 days in filing the petition. In the affidavit, he asserted that he was not served with the notice in Crl.Misc.116/2012. By the impugned order dated 22.08.2013, the learned Sessions Judge dismissed the application filed under Section 5 of the Limitation Act and refused to condone the delay of 233 days in filing the Revision Petition.
4. The learned counsel for the petitioner submits that the impugned order suffers from apparent error and fact and law. He submits that there is no proof for having refused the notice and hence the impugned orders passed by the Court below are liable to be rejected.
5. On perusal of the records, it is seen that the learned Magistrate has clearly recorded in the impugned order that notice was issued to the petitioner herein through the Protection Officer and he filed a report before the Court stating that the petitioner refused the notice. The said observation has not been challenged by the petitioner. That apart, the observations made by the learned Magistrate indicate that various other proceedings were pending before the parties. In para 4 of the impugned order, it is recorded as under:
“The notice of petition are issued to respondent through the Section Officer, Protection Officer filed report before Court stating that the respondent refused notice. Therefore, this Court has held that since the respondent refused notice. Same is deemed service. Respondent was called out. The respondent was absent. Hence respondent was placed exparte”.
6. In the light of the above observations, the contention of the petitioner herein that there was no proper notice to him cannot be accepted. Even otherwise, going through the material on record, it is seen that during the course of enquiry, the respondent has produced Salary Certificate of the petitioner, which discloses that petitioner herein was working as Safaiwala in Garrison Engineering (A.F.), Bengaluru and his gross salary for the month of June 2013 was Rs.26,559/- and take home salary was Rs.19,122/-. Out of the monthly deductions, the petitioner was contributing a sum of Rs.2,500/- towards GPF and was also paying a sum of Rs.6,153 towards Pune Society and Rs.6,068/- towards discharge of the bank loan. From his salary, if the statutory deduction and bank liability are deducted, even the take home salary of the petitioner i.e., the net salary drawn by the petitioner in the month of June 2013 comes more than Rs.25,000/-. Since then, there might have been increase in the salary of the petitioner over the years.
7. In the said circumstances, quantum of maintenance determined by the Court below, cannot be said to be unreasonable. Therefore, on both the grounds, I do not find any reason to interfere with the orders passed by the Court below. Consequently, the petition is dismissed.
SD/- JUDGE SV