NUTAN THAKUR Vs. SHIV NATH THAKUR

JUDGEMENT

(1.) The present revision petition under Ss. 397/401 of Code of Criminal Procedure, 1973 ("Cr.P.C.") has been filed by the petitioner challenging judgment dtd. 19/2/2018 passed by learned Additional Sessions Judge-Special Fast Track Court, Saket Courts, New Delhi ("Appellate Court") in appeal C.A. No. 253/17 filed under Sec. 29 of the Protection of Women from Domestic Violence Act, 2005 ("PWDVA") against judgment and order dtd. 13/4/2017 passed by learned Metropolitan Magistrate, Mahila Court-01, South District, Saket Courts, New Delhi("Trial Court") in Complaint Case No. 337/1/09.

(2.) The case of the petitioner is that in an application filed under Sec. 12 of PWDVA, 2005 by the petitioner, after the completion of pleadings, an interim order was passed by the learned Trial Court on 25/11/2009 vide which, the appellant was allowed to stay in her matrimonial home along with children. Thereafter, vide order dtd. 28/7/2010, the said court had further directed the respondent to pay Rs.5,000.00 to the petitioner per month. Thereafter, a settlement was arrived at in medication centre, however, the respondent did not comply with the same and stopped residing with her. The petitioner had deposited a Bank Guarantee in sum of Rs.60,000.00 in terms of orders of the High Court of Delhi. The petitioner was directed to lead her evidence by the learned Trial Court, and vide order dtd. 6/4/2015 passed by this Court, it was directed that the learned Trial Court shall make every endeavour to decide the maintenance application within four weeks of filing of income affidavit of respondent no. 1. Respondent no. 1 had filed the same, thereafter, the petitioner was granted two opportunities to conclude complainant's evidence. However, since she did not lead evidence, her evidence was closed vide order dtd. 15/7/2015 and the application to set aside the said order was also dismissed vide order dtd. 22/8/2015. Petitioner had filed an application under Sec. 311 Cr.P.C. for being granted opportunity to lead evidence. However, the same also dismissed by the learned Trial Court on 17/12/2016. Thereafter, the respondent had led his evidence and was cross-examined.Both the parties had advanced arguments and thereafter, the order dtd. 13/4/2017 was passed. The operative portion of the said order reads as under:

(3.) The petitioner had also filed an application under Sec. 25 of PWDVA, 2005 for release of Bank Guarantee and the same was also dismissed. The order dtd. 13/4/2017 was impugned before the learned Sessions Court/Appellate Court praying for setting aside order dtd. 13/4/2017, on the ground that despite evidence on record placed by the petitioner which had been taken cognizance of by the Court, just because the petitioner was unable to lead complainant evidence, the Court had passed the impugned order which was bad in law. It was argued that the evidence of the respondent containing the documents on record, per se established commission of offence of domestic violence and since Domestic Violence Act is a beneficial legislation, it had to be interpreted liberally. It was therefore, prayed before the learned Appellate Court that the impugned order dtd. 13/4/2017 be set aside and the learned Trial Court be directed to release the Bank Guarantee of Rs.60,000.00 in favour of the appellant.