HONOURABLE DR. JUSTICE B. SIVA SANKARA RAO CRIMINAL REVISION CASE Nos.1186 & 176 of 2018 & 3254 of 2017 COMMON ORDER:
Among the three revisions [CASE NUMBER] concerned is filed by [ENTITY] D/o [ENTITY] and wife of [ENTITY], [ENTITY] and [ENTITY] who are shown as proposed accused in the application filed by [ENTITY] no other than divorced husband of [ENTITY] vide [CASE NUMBER] order dated 16.09.2015 by the Judge Family Court, Hyderabad. The revision is arisen out of the appellate Court order in [CASE NUMBER] (learned I Additional Metropolitan Sessions Judge, Hyderabad) where the impugnment is against the order of the learned III Metropolitan Magistrate, Hyderabad, in [CASE NUMBER] dated 10.03.2016. Said application is filed by [ENTITY] supra against the present revision petitioners as respondent Nos.1 to 3 of whom [ENTITY] is the petitioner in [CASE NUMBER] against [ENTITY] and others. That application in [CASE NUMBER] filed referring to [SECTION] [ACT] in requesting the Court by [ENTITY] supra to prosecute [ENTITY], [ENTITY] and [ENTITY] respectively in alleging they forged Ex.D1 so called list of articles presented at the time of marriage and there was a dispute regarding the alleged list was a forged and fabricated in the proceedings covered by [CASE NUMBER] and an expert opinion was sought for found that it is not genuine and a fabricated document and the [CASE NUMBER] disposed of subsequently by granting relief of Rs.5,000/- costs against respondents with a 2 Dr.[ENTITY],J [CASE NUMBER] & batch direction not to interfere with her life and Rs.5,00,000/- towards compensation and Rs.1,00,000/- towards return of articles with joint and several liability and respondent No.1-husband of her was directed to pay a monthly maintenance of Rs.5,000/- from the date of order i.e., 21.01.2016 payable by 10th of every month. It is impugning the same [CASE NUMBER] was filed and the learned I Additional Metropolitan Sessions Judge disposed of the same on 31.10.2017 while not disturbing the monthly maintenance of Rs.5,000/- per month on R.1 of DVC by its confirmation, reduced Rs.5,00,000/- compensation to Rs.1,00,000/- for the so called domestic violence and also set aside the amount of Rs.1,00,000/- towards return of articles. Against that order of granting compensation and maintenance respectively modified by the appellate Court, both aggrieved filed 2 revisions viz., [CASE NUMBER]. Before going to those revisions, now coming back to [CASE NUMBER] in the factual background supra in seeking to prosecute by invoking [SECTION] [ACT] the order of the learned III Metropolitan Magistrate dated 10.03.2016 reads that "This Court has no jurisdiction to take cognizance of the offences mentioned in the petition and to conduct enquiry under [SECTION] [ACT], hence returned." The Appellate Court order against said return docket order dated 10.03.2016 is by setting aside the order of the learned Magistrate and by remanding the same for fresh consideration with observations particularly from Paras 5 to 10 that Ex.D1 opinion shows some signatures printed through some printing device and over written with a writing instrument from the expert opinion of Ex.P8 so called receipt which compared with S1 to S18 standard 3 Dr.[ENTITY],J [CASE NUMBER] & batch signatures, Q1 to Q3 disputed signatures thereby Ex.P8 cannot be relied to ascertain articles mentioned therein presented. The unnumbered petition filed under [SECTION] [ACT] seeking to conduct a preliminary enquiry regarding the so called forgery of Ex.P8 it referred the expression of the Apex Court in [PRECEDENT], from the wording of [SECTION] [ACT] it is open to the Court, before which the offence was committed to prefer a complaint for prosecution of the offender and [SECTION] [ACT] prescribes procedure as to how that complaint may be preferred and the application filed would not have been returned by the Court below but for disposal on merits. Having regard to the above, remanded the matter. Same is the present impugnment.
2. The contentions impugning said lower appellate Court remanded the matter setting aside trial Magistrate orders in the petition seeking the so called enquiry to file a complaint, invoking [SECTION] [ACT] by the Magistrate concerned, said order as unsustainable as per the revision petitioners [ENTITY], [ENTITY] and [ENTITY] respectively and that order is supported by the revision 1st respondent- petitioner therein [ENTITY] supra.
3. There is no force in the contention of said [ENTITY] that the revision is not maintainable, what the expression placed reliance of [PRECEDENT] is impugning once there is remedy of appeal direct filing of the revision won't lie. Here it is not the case. Appeal already maintained and against that appeal, revision filed is sustainable. AIR 1992 SC 1831 2009 (4) SCC 168 4 Dr.[ENTITY],J [CASE NUMBER] & batch
4. [SECTION] [ACT] prescribes the procedure by filing a private complaint. [SECTION] [ACT] for the offences affecting administration of justice where the Court felt necessary in the ends of justice can file a complaint by itself invoking the procedure contemplated by [SECTION] [ACT] The Constitution Bench expression of the Apex Court in [ENTITY] Marwah Vs. Meenakshi Marwah3 observed that Court is not bound merely because any party asked to invoke [SECTION] [ACT] and file private complaint through its Officer before concerned Magistrate unless found as expedient in the interest of justice so as to undertake the enquiry contemplated by the procedure to be followed under [SECTION] [ACT] subject to satisfying the compliance of [SECTION] [ACT] Same is even reiterated by another recent past expression of the Apex Court in [PRECEDENT]
5. Having regard to the above, there is nothing to interfere with the impugned order of the lower appellate Court in directing the Magistrate to pass an order rather than saying it has no jurisdiction. No doubt lower appellate Court in remanding the matter only observed to dispose of the application vide [CASE NUMBER] according to law. It did not even direct to take cognizance or to file complaint but for to consider whether it is expedient to do so or not. Leave it as it is a party cannot compel the Court. However even coming to the facts the so called document is not a document forged in the Court precincts in the Court proceedings but outside. Once such is the case, if at all aggrieved, said [ENTITY] got his own option to maintain private complaint (2005) 4 SCC 370 2016 [CASE NUMBER] Dr.[ENTITY],J [CASE NUMBER] & batch subject to limitation law and other limitations if any as observed in [ENTITY] supra.
6. With these observations rather than dismissal [CASE NUMBER] is disposed of.
7. Now coming to [CASE NUMBER] respectively, there is a concurrent finding of fact about the domestic violence caused against her by the Courts below but for any warrant the compensation for return of articles claimed by the lower appellate Court and reduced the compensation for domestic violence awarded of Rs.5,00,000/- by the learned Magistrate to Rs.1,00,000/- by the appellate Court. In this regard, there is nothing to interfere on the said appellate Court's finding.
8. Now coming to the maintenance amount impugnment, even admittedly she married one [ENTITY] on 09.02.2016. The order in [CASE NUMBER] was 11 months prior to that i.e., on 21.01.2016. To dispute the date of marriage 09.02.2016 and to say earlier to that she married one [ENTITY], said [ENTITY] or his mother and brother did not produce any document. Once such is the case, the so called marriage of her was raised only pending [CASE NUMBER] and not before. Even under [CASE NUMBER] additional evidence receive petition filed that was allowed only 3 documents filed and none of the documents viz., [CASE NUMBER] order or judgment in [CASE NUMBER] or the so called marriage photo any way establish date of so called marriage other than on 09.02.2016.
9. The contention that she suppressed the factum of second marriage, thereby dis-entitled to the maintenance or compensation amount even outcome of concurrent findings of fact is untenable 6 Dr.[ENTITY],J [CASE NUMBER] & batch including from the expression placed reliance on [PRECEDENT]. In fact there is suppression of fact therein before the trial Court. Here it is not the case, undisputedly her so called marriage was after disposal of the DVC case as also held supra there is no suppression at all thereby much less to disentitle the reliefs already granted with concurrent finding of facts.
10. Having regard to the above, whatever the observations in [CASE NUMBER] practically a consent outcome in not awarding interim maintenance under [SECTION] of [ACT] or permanent alimony under [SECTION] of [ACT] not a bar to the awarding of maintenance and that too at Rs.5,000/- per month awarded that is confirmed with concurrent finding of fact by the Courts below, for this Court while sitting there is nothing to interfere but for to confine liability of payment of maintenance from the order in [CASE NUMBER] dated 21.01.2016 at Rs.5,000/- per month to the date of her marriage with [ENTITY] on 09.12.2016 for only 11 months and not beyond.
11. With these observations, [CASE NUMBER] are disposed of.
Pending miscellaneous petitions, if any, shall stand closed.
JUSTICE Dr. [ENTITY] Date: 21.01.2019 ska 1994 1 SCC 1