BAIL APPLICATION 252 of 2015

$~1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + BAIL APPLN. 2441/2013 AKHIL CHOPRA & ORS

..... Petitioner Through Mr Kunal Tandon and Ms Snigdha Sharma, Advs. versus

STATE & ANOTHER

..... Respondent Through Mr Ashok Kumar Garg, Additional Public Prosecutor for the State Mr Tushar Theraja, Adv for R2/applicant CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA O R R% 04.05.2016

Crl. MA 15761/2015

This is an application under Section 439 (2) and 482 of Cr.PC moved by the applicant/complainant seeking cancellation of bail on the ground that the condition imposed upon the petitioners in terms of the order dated 31.07.2014 has not been complied with.

While disposing of the bail application filed by the petitioners following order was passed by this Court on 31.07.2015:

“Learned counsel for the petitioners points out that proceedings of divorce between the parties are pending before the Mumbai Court and petition under the Domestic Violence Act is also pending there. The parties had been called in chamber on an earlier occasion but they had been unable to settle their disputes. Learned counsel for the petitioners fairly states that as an interim measure the petitioner- husband will pay sum of Rs.10,000/- per month in favour of the complainant-wife which amount shall be paid on or before 7th day of each English calendar month. This order will be effective from the 1st January, 2014. Arrears be cleared within period of 2 months. This order will remain in force till the matter is taken up in an independent proceeding before the Mumbai Court.

Accordingly, in the event of arrest petitioners be admitted to bail on their furnishing personal bond in the sum of Rs.15,000/-each with one surety of like amount subject to the satisfaction of the

Investigating Officer with condition that the petitioners will appear the Investigating officer as and when summoned. Petition disposed of. Order dasti under signatures of the Court Master.”

The applicant /complainant seeks cancellation of bail on the ground that the petitioner failed to comply with the directions given by this Court as the petitioner no.1 gave cheque of Rs.90,000/- in the month of October, 2014 to the complainant towards clearance of arrears from January, 2014 till September, 2014 and further gave cheque of Rs.10,000/- in the month of November, 2014 towards maintenance amount for the month of October, 2014. Instead of issuing the cheque in the name of Ms. Anupama Chetal, the same was issued in the name of Ms Anupama Chopra. The petitioner was aware of the fact that the bank account is maintained by the complainant in the name of Anupma Chetal, however, the cheque was issued merely to comply with the orders of the Court and not to provide any financial assistance to the complainant. The applicant / complainant suffered grave hardship in opening the account in the name of Ms Anupama Chopra in order to get the said cheques honoured. sum of Rs.1,20,000/- is still due which has not been paid by the petitioner.The application is opposed by counsel for the petitioners who in the reply submitted that as an interim measures the parties agreed that the petitioner no.1 will pay Rs.10,000/- per month to the complainant. It was specifically mentioned in the order dated 31.07.2014 that “this order will remain in force till the matter is taken up in an independent proceeding before the Mumbai Court”. The HMA Petition No.252/2015 filed by the complainant against the petitioner before learned Civil Judge (SD), Thane has already been decided vide order dated 05.01.2016 whereby the marriage between the parties have been dissolved. The prayer of the applicant for grant of monthly allowance was rejected and, therefore, the present application filed by the applicant / complainant is liable to be rejected and the interim directions contained in the order dated 31.07.2014 with regard to payment of Rs.10,000/- per month deserves to be set aside. The complainant suppressed and concealed the factum of passing of the order dated 05.01.2016 from this Court during the hearing held on 12.02.2016. The petitioner is

undergoing financial crises on account of severe medical condition of his mother as such could not pay the interim payment to the complainant regularly. However, he has complied with the order dated 31.07.2014. cheque of Rs.90,000/- was given by the petitioner. Thereafter on 12.02.2016 when the application came up for hearing cheque of Rs.1,25,000/- (Rupees one lac twenty five thousand) towards arrears of interim measures was handed over to counsel for the complainant / applicant. Even thereafter, cheque of Rs.10,000/- was sent to the complainant on 08.03.2016 through courier. The same, however, has not been encashed by the complainant. For the month of April, 2016, cheque of Rs.10,000/- was sent at the address of the complainant but the same was returned undelivered due to „door locked‟. There is no wilful default on the part of the petitioners in compliance of the directions of the Court as such the application is liable to be dismissed.

perusal of the order dated 31.07.2014 goes to show that while disposing of the bail application moved by the petitioners, only as an interim measure, the petitioner husband was directed to pay Rs.10,000/- per month in favour of the complainant on or before 7[th] day of each English calendar month. The arrears were to be cleared within period of two months. It was clarified that the order was to remain in force till the matter is taken up in an independent proceedings before Mumbai Court. It is not in dispute that the arrears from January, 2014 till September, 2014 amounting to Rs.90,000/- was paid to the complainant by cheque. Thereafter when the instant application came up for hearing cheque of Rs.1,25,000/- towards arrears was handed over to counsel for the complainant. Moreover, now the situation has changed as the petitioner has placed on record copy of the judgment passed by the Civil Judge (SD), Thane dated 05.01.2016 which reflects that the marriage between the parties has been dissolved by decree of divorce. The prayer for monthly allowance was, however, rejected. Counsel for the complainant submits that complainant under legal advice withdrew the application under Section 24 of HMA before the Mumbai Court and, therefore, this prayer was declined. Learned counsel for the petitioners submits that without prejudice to the rights of the petitioners to take legal recourse to the grant of ex parte decree of divorce, the fact remains that the monthly allowance has not been awarded to the complainant and, therefore, now he is no more

under legal liability to pay.

There is force in these submissions. Irrespective of the fact whether the complainant withdrew the application under Section 24 of HMA from Mumbai Court where the divorce proceedings were pending, the fact remains that the matter was taken up before Mumbai Court in the divorce proceedings and the prayer for monthly allowance has been declined by the Court. Therefore, now the order regarding interim measures of paying sum of Rs.10,000/- per month to the complainant no longer survives.

Keeping in view the fact that although there is some delay in compliance of the order by the petitioner but the same stands complied with. Therefore, it cannot be said that there is any violation of directions of this Court which warrants cancellation of bail granted to the petitioners.

The application is accordingly dismissed.

MAY 04, 2016/rd

SUNITA GUPTA, J