BIRBAL Vs. BIMLA DEVI

JUDGEMENT

(1.) This petition under S. 482, Cr. P.C. read with Art. 227 of the Constitution of India has been filed by petitioner Birbal for quashing order dated 16-8-1991 passed by the Sessions Judge, Hamirpur whereby his criminal revision No. 29 of 1990 was dismissed and the judgment dated 22/10/1990 of the Judicial Magistrate Ist Class, Hamirpur was confirmed. By judgment dated 22/10/1990, the Judicial Magistrate had dismissed his application under S. 126(2) Cr. P.C. for setting aside ex parte order dated 21/12/1988, by which order the respondents, who are wife and minor daughter of the petitioner, were awarded maintenance allowance of Rs. 250.00 per month and Rs. 150.00 per month respectively.

(2.) In his application under S. 126(2), Cr. P.C. for setting aside ex parte order dated 21/12/1988 the petitioner has alleged that he was not served in the application under S. 125, Cr. P.C. filed by the respondents. According to him, the summons sent by registered post at Jaishree Textile Mills, Village Daun, Tehsil Kharar, District Ropar address and reported to be refused by him could not be considered as proper service on him as he had left the service of that Mill in September, 1988. The petitioner had further alleged that he had come to know about the ex parte order dated 21/12/1988 passed in application under S. 125, Cr. P.C. only on 31/03/1989 when he received notice of the execution petition filed by the respondents. This application was resisted by respondents, inter alia, on the ground that it was barred by limitation and the petitioner had knowledge of the application under S. 125, Cr. P.C. much before 31/03/1989. After framing the issues and taking evidence of the parties thereon, the Judicial Magistrate held that the petitioner was duly served with the notice of application under S. 125, Cr. P.C. and the application under S. 126(2) Cr. P.C. filed by him for setting aside ex parte order dated 21/12/1988 was barred by limitation.

(3.) These findings were further confirmed by the Sessions Judge in his judgment dated 16/08/1991 passed in Criminal Revision No. 29 of 1990. Hence, the present petition.