Ashok Visht vs Chander Kala

Present Criminal Revision Petition filed under Section 397/401 of the Code of Criminal Procedure, is directed against the judgment dated 30.6.2016, passed by learned Sessions Judge, Chamba, District Chamba, H.P, in Criminal Appeal No. 27 of 2014, partly modifying the order dated 30.10.2014, passed by the learned Judicial Magistrate, 1st Class, Dalhousie, District Chamba, H.P., in Criminal case No. 49-III of 2013, whereby complaint filed by the complainant under Section 12 of the Protection of Women from Domestic Violence Act, 2005 was dismissed.

Briefly stated facts, as emerged from the record are that the respondent (hereinafter referred to as complainant) filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the Act) against the petitioner( hereinafter referred to as the respondent) i.e. her brother-in-law stating therein that though she had obtained divorce from her husband in the month of November, 2004 but her children used to meet their grandfather in their ancestral house intermittently. Complainant further claimed that her husband died in suspicious circumstances.

In nutshell, the case of the complainant is that after the death of her husband on 5th July, 2012, respondent had taken into possession the Alto Car bearing registration No. HP- 57-2957 belonging to her husband. Complainant further averred in the complaint that despite repeated requests, respondent refused to hand over the keys of the accommodation of her husband as well as vehicle, as referred above. Apart from above, complainant also claimed before the court below that she is not being allowed by the respondent to enter in the house of her husband and she has been physically and mentally tortured by the respondent.

Respondent by way of written statement refuted the aforesaid claim of the complainant and termed the complaint to be false and frivolous. Respondent also alleged that the complainant never remained in domestic relationship with the respondent in shared household and as such she does not fall within the definition of aggrieved person and as such, petition deserves to be dismissed on this ground. Respondent further alleged that house in question is self acquired/self built property of the respondent and not ancestral one and as such, complainant has no right to claim anything qua the same being legally wedded wife of the deceased husband. Respondent also stated before the court below that there is a small piece of land to which all the legal heirs of the deceased husband are entitled and their share in the same is not denied by anybody in the house.

Learned trial Court on the basis of the evidence adduced on record by the respective parties, dismissed the complaint filed by the complainant. Learned trial court while dismissing the aforesaid complaint came to the conclusion that complainant does not fall within the definition of aggrieved person and as such present petition is not maintainable.

Feeling aggrieved and dissatisfied with the order dated 30.10.2014, passed by learned trial Court, complainant filed an appeal under Section 29 of the Protection of Women from Domestic Violence Act, in the Court of learned Sessions Judge, Chamba, which came to be registered as Cr. Appeal No.27 of 2014. Learned Sessions Judge vide judgment dated 30.6.2014 partly allowed the appeal and held the complainant entitled to Rs. 2,00,000/- from the respondent as use and occupation charges of vehicle (Alto Car) No.HP-57-2957 within the period of one month. In the aforesaid background, respondent has approached this Court by way of instant Criminal Revision Petition, praying therein for restoration of order dated 30.12.2014, passed by the learned trial Court after setting-aside the judgment dated 30.6.2016 passed by the learned first appellate Court.

Mr. Atul Mahajan, learned counsel representing the petitioner-respondent fairly stated that there is no dispute with regard to use of vehicle (Alto Car) No. HP-57-2957 by the respondent after the death of the husband of the complainant. Learned counsel for the petitioner-respondent, while inviting attention of this Court to para-10 of the impugned judgment passed by the learned first appellate Court, reiterated that respondent is ready and willing to handover the vehicle alongwith documents to the complainant. However, learned counsel for the petitioner-respondent stated that an amount of Rs. 2,00,000/-, on account of use and occupation charges of the vehicle as ordered by the learned Sessions Judge is on the higher side because no evidence, worth the name, is/ was led on record by the complainant suggestive of the fact that after the death of her husband, vehicle in question was being used by the respondent for some commercial purpose. Learned counsel for the petitionerrespondent further stated that what to talk about the evidence available on record with regard to commercial use, if any, of the vehicle by the respondent for the last four years, there is no evidence led on record by the complainant suggestive of the fact that vehicle in question was being used during this period by the respondent for his private use. While concluding his arguments, leaned counsel for the petitioner-respondent fairly stated that since it is admitted fact that the vehicle in question was in possession of the respondent for the last four years, some reasonable amount may be awarded on account of use and occupation charges.

Mr. Varun Rana, learned counsel representing the complainant supported the impugned judgment dated 30.6.2016, passed by the learned Sessions Judge. While referring to the impugned order dated 30.6.2016, Mr. Varun Rajan, learned counsel for the complainant vehemently argued that there is no illegality and infirmity in awarding of the amount of Rs. 2,00,000/- on account of use and occupation charges of the vehicle admittedly owned by the husband of the complainant and as such, present petition deserve to be dismissed.

I have heard learned counsel for the parties and have gone through the record of the case.

Perusal of impugned judgment dated 30.6.2016, clearly suggests that respondent himself admitted the factum of taking possession of vehicle (Alto Car) No. HP-57-2957 after the death of husband of the complainant. Respondent himself volunteered before the learned Sessions Judge during the pendency of appeal having been preferred by the complainant to hand over the vehicle alongwith documents to the complainant, meaning thereby, respondent had been using the vehicle in question for almost four years and as such, he is liable to pay the use and occupation charges for this period.

This Court, after seeing the amount awarded by the learned Sessions Judge, is in agreement with the submissions having been made by the learned counsel for the respondent that it is on higher side, especially in view of the fact that no evidence worth the name has been led on record by the complainant that during this period vehicle in question was being used by the respondent for some commercial purpose. Accordingly, this Court without going into the merits of the case, deems it fit to reduce the use and occupation charges of the vehicle to Rs. 1,50,000/- instead of Rs.2,00,000/-.

Consequently, in view of the aforesaid discussion as well as specific prayer having been made by the learned counsel for the respondent, wherein he prayed for awarding reasonable compensation on account of use and occupation charges of the vehicle in question, impugned judgment dated 30.6.2016 passed by the learned first appellate court is modified to the extent that respondent shall be liable to pay Rs. 1,50,000/- as use and occupation charges of the vehicle in question to the complainant within the period of eight weeks from the date of passing of this judgment. Aforesaid amount as awarded by this Court shall be deposited within the stipulated time before the learned trial Court, However, it is made clear that in case amount as agreed upon by the learned counsel for the respondent is not paid within the situated time, respondent shall rendered himself liable for the penal consequences for non-compliance of the order passed by this Court. Apart from above, respondent shall also hand over the vehicle alongwith its key and documents to the complainant within a period of one week from today. Needless to say, learned court below shall release the amount, if any, deposited by the respondent in compliance of the judgment passed by this Court in favour of the complainant forthwith on filing of application by the complainant. The petition is disposed of along with pending applications, if any.

Copy dasti.