# Subodh Kumar Nigam Revisionist v. State of U.P. & Ors

- **Citation:** (2024) 6 ILRA 83
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-06-04
- **Case number:** Criminal Revision No. 3738 of 2023
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subodh-kumar-nigam-revisionist-v-state-of-u-p-ors-52173
- **Pages:** 7

## Headnote

Law-
Code
of
Criminal
Procedure,
1973-Section
125
(3)
-
Revision against the order directing the
payment of arrears from the month of
March 2021 to September 2022 i.e
beyond the period of one year-Coercive
measure should not be adopted where
the wife or any claimant under Section
125
Cr.P.C
has
not
been
pursuing
recovery of arrears for over a year but
that does not mean that the right to
recover arrears is lost-Other modes of
recovery can be adopted to as may be
considered by the court concerned to be
justified-Petition disposed of with the
direction arrears be deducted from the
salary of Applicant from the month of
July 2024 till the entire arrears of
maintenance is satisfied.(Para 2, 9, 10,
14) (E-15)

List of Cases referred:

## Text

6 All. Subodh Kumar Nigam Vs. State of U.P. & Ors.
83

7. The applicant does not have
any criminal history apart from the instant
case.

8. The applicant is not a flight risk.
The applicant being a law abiding citizen has
always cooperated with the investigation and
undertakes to join the trial proceedings. There
is no possibility of her influencing witnesses,
tampering with the evidence or reoffending.

5. In the light of the preceding
discussion
and
without
making
any
observations on the merits of the case, the
bail application is allowed.

6. Let the applicant-Tetri Devi be
released on bail in the aforesaid case crime
number, on furnishing a personal bond and
two sureties each in the like amount to the
satisfaction of the court below. The following
conditions be imposed in the interest of
justice:-

(i) The applicant will not tamper
with the evidence or influence any witness
during the trial.

(ii) The applicant will appear
before the trial court on the date fixed, unless
personal presence is exempted.

7. The learned trial court is directed to
fix the sureties after due application of mind
in light of the judgement rendered by this
Court in Arvind Singh v. State of U.P.
Thru.
Prin.
Secy.
Home
Deptt.
(Application U/S 482 No.2613 of 2023).

8. The learned trial court shall ensure
that the right of bail of the applicant granted
by this Court is not frustrated by arbitrary
demands of sureties or onerous conditions
which are unrelated to the socioeconomic
status of the applicant.
----------
(2024) 6 ILRA 83
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.06.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Criminal Revision No. 3738 of 2023

Subodh Kumar Nigam ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Sudhakar Shukla

Counsel for the Opposite Parties:
Anant Ram Gupta,G.A., Ram Bahadur
Gupta

Criminal
Law-
Code
of
Criminal
Procedure,
1973-Section
125
(3)
-
Revision against the order directing the
payment of arrears from the month of
March 2021 to September 2022 i.e
beyond the period of one year-Coercive
measure should not be adopted where
the wife or any claimant under Section
125
Cr.P.C
has
not
been
pursuing
recovery of arrears for over a year but
that does not mean that the right to
recover arrears is lost-Other modes of
recovery can be adopted to as may be
considered by the court concerned to be
justified-Petition disposed of with the
direction arrears be deducted from the
salary of Applicant from the month of
July 2024 till the entire arrears of
maintenance is satisfied.(Para 2, 9, 10,
14) (E-15)

List of Cases referred:

1. Poongodi & anr. Vs Thangavel (2013) 10 SCC
618

2. Shahada Khatoon & ors. Vs Amjad Ali & ors.,
(1995) 5 SCC 672
84 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Shantha @ Ushadevi & anr. Vs B.G.
Shivananjappa, AIR SC 2410

4. Dr. Chandrashekhar Vs Sau. Jayshree, I
(1989) DMC 235

5. Ganga Prasad Vs Smt. Gomti, 2000 Cri.L.J.
3914

6. Lav Kumar Vs St. of U.P. & anr., Application
U/S 482 No. 20081 of 2021 (decided on
13.05.2022)

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Dhanesh Kumar
Verma, learned Advocate holding brief of
Sri Sudhakar Shukla, learned counsel for
the petitioner and Sri Anant Ram Gupta,
learned
counsel
for
the
contesting
respondents.

2. In this criminal revision filed
before this Court a question has been
raised as to the propriety of the court
concerned in passing an order for
payment of arrears towards maintenance
for a sum of Rs. 57,000/- by the
Additional Principal Judge, Court No. 3,
Kanpur Nagar.

3. Submission advanced is that the
arrears that have been directed to be paid
to the opposite party no. 2 relate to the
period starting from the month of March
2021 to September 2022 and since the
application for payment thereof came to
be filed only on 21.11.2022, it got hit by
sub section (3) of Section 125 of Cr.P.C.
It is contended that sub section (3) of
Section 125 Cr.P.C. puts a fetter upon the
right of opposite party to recover the
maintenance amount beyond period of
one year and accordingly, as has been
argued, the Additional Principal Judge,
Family Court has wrongly construed the
relevant provision in passing the order.

4. Learned counsel for the revision
applicant has also submitted that the very
judgment relied upon by the Judge, Family
Court helps him out in assailing the order
passed by the Judge which very much
interprets the provisions.

5. Per contra it is argued by Sri Gupta,
learned counsel for the contesting opposite
party that the first application for recovery
of an earlier amount came to be filed on
14.12.2020 and since the claim for
maintenance amount is a recurring cause of
action therefore, if the applicant husband
has
failed
to
pay
any
amount
of
maintenance on month to month basis then
such cause of action will continue to be
rendered as continuing cause of action
month by month as such and will not be hit
by Section 125(3) Cr.P.C.

6. Thus, it is argued that the judgment
which has been relied upon by the Judge,
Family Court correctly interprets the law as
it holds that the right to recover the amount
as far as regular maintenance is concerned,
is not hit by Section 125(3) Cr.P.C.

7. Besides the above, it is submitted
by Sri Gupta that taking the provisions as
have been incorporated by the legislature
the monthly maintenance claim does not
become a time barred claim. All that is to
be seen, according to Mr. Gupta, as to what
mode of the recovery of amount is to be
adopted. He submits that a coercive
measure by arresting a person may not be a
remedy available to the opposite party
beyond the prescribed period of one year
but a right to claim maintenance or arrears
of maintenance pursuant thereto in order to
claim maintenance month by month, does
not get adversely affected or prejudiced
merely for an application being filed
beyond prescribed period of one year.
6 All. Subodh Kumar Nigam Vs. State of U.P. & Ors.
85

8. Having heard learned counsel for
the respective parties and having perused
the records, I find that the order of
maintenance allowing the application under
Section 125 Cr.P.C. which was passed on
09.05.2018 very clearly provided that the
application under Section 125 Cr.P.C. was
being granted and Rs. 3,000/- shall be paid
towards the maintenance to the opposite
party-applicant as the opposite party was
held entitled to a maintenance from her
husband. This thus goes unequally that
monthly maintenance was to be paid by the
present applicant to the opposite party for
rearing up the minor children. However, it
transpires further from the record that
earlier also some arrears had became due to
be paid to the opposite party at the end of
the applicant and accordingly she had
moved an application on 14.12.2020 to
recover the amount of Rs. 24,000/- which
was subsequently paid by the applicant to
the opposite party. However, later on he
again did not pay the amount as far as
arrears
are
concerned
and
therefore,
amount accrued to Rs. 27,000/- between
March 2021 and September 2022. It is for
the recovery of this amount that the
application came to be moved by the
opposite party in October 2022 which was
claimed to be beyond prescribed period of
time.

9. Section 125 Cr.P.C. is an enabling
provision in so far as a deserted/ neglected
wife claims maintenance from her husband,
more so along with her children and this
right vests with parents as well. It is kind of
summary proceedings to be instituted at the
end of application made by wife or the
children or by the parents from a person
who is the earning member of the family
and is under an obligation to maintain
them. After inviting objections and meeting
the points of contentions a Magistrate has
been empowered to pass orders on merit for
maintenance.
Off-late
this
power
is
transferred/ vested with the Judge, Family
Court on the constitution of Family Court
under the Family Courts Act, 1984. A court
when passes a decree or order which is
continuing in the nature, it is to be seen as
to in what manner a fetter of limitation can
be imposed for recovery of such amount of
maintenance. For ready reference sub
section (3) of Section 125 is reproduced
hereunder:

"(3) If any person so ordered fails
without sufficient cause to comply with the
order, any such Magistrate may, for every
breach of the order, issue a warrant for
levying the amount due in the manner
provided for levying fines, and may
sentence such person, for the whole, or any
port of each month's allowance allowance
for the maintenance or the interim
maintenance and expenses of proceeding,
as the case may be remaining unpaid after
the
execution
of
the
warrant,
to
imprisonment for a term which may extend
to one month or until payment if sooner
made;

Provided that no warrant shall be
issued for the recovery of any amount due
under this section unless application be
made to the Court to levy such amount
within a period of one year from the date
on which it became due;

Provided further that if such
person offers to maintain his wife on
condition of her living with him, and she
refuses to live with him, such Magistrate
may consider any grounds of refusal stated
by her, and may make an order under this
section notwithstanding such offer, if he is
satisfied that there is just ground for so
doing."
86 INDIAN LAW REPORTS ALLAHABAD SERIES
(Emphasis added)

10. From a bare reading of the main
provision as contained under sub section
(3) of Section 125 Cr.P.C. it is explicit that
the Magistrate has been vested with the
power to issue warrant for remaining of the
amount due in the manner provided for
levying fines and may sentence such person
for whole or part of each month's allowance
for
maintenance
or
if
for
interim
maintenance and expenses of proceedings,
as the case may be. This is a coercive
measure contemplated under sub section
(3) of Section 125 Cr.P.C. The legislature
has been conscious enough to provide for a
proviso, where a wife may be not vigilant
to her rights in recovering the amount in
time and therefore, no such coercive
measure for issuing warrant of arrest etc. will
be issued. This is what is contemplated in the
first proviso to sub section (3) of Section 125
Cr.P.C. The Courts have been interpreting the
provision to mean that such coercive measure
should not be adopted where the wife or any
claimant under Section 125 Cr.P.C. has not
been pursuing for recovery of arrears for over
a year but that does not mean that the right to
recover arrears is lost. This could not be the
intendment of the legislature in incorporating
the first proviso, otherwise the language of
the first proviso could have been conched in a
manner that no recovery would be made in
respect of the arrears beyond the period of
one year. All that is provided is that no
warrant will be issued. Thus, it is very much
clear that fetter has been placed upon the
mode of recovery in a sense that a person
who is liable to pay such dues will not be
arrested. However, other modes of recovery
can be adopted to as may be considered by
the court concerned to be justified.

11. In my above view, I find support
from the judgment of Supreme Court in the
case
of
Poongodi
&
Another
v.
Thangavel (2013) 10 SCC 618 in which
vide paragraph nos. 4 & 5 the Court has
held thus:

"4. A reading of the order dated
21.4.2004 passed by the High Court would
go to show that the proviso to Section
125(3) CrPC has been construed by the
High Court to be a fetter on the entitlement
of the claimants to receive arrears of
maintenance beyond a period of one year
preceding the date of filing of the
application under Section 125(3) CrPC.
Having considered the said provision of the
Code we do not find that the same creates a
bar or in any way effects the entitlement of
a claimant to arrears of maintenance. What
the proviso contemplates is that the
procedure for recovery of maintenance
under Section 125(3) CrPC, namely, by
construing the same to be a levy of a fine
and the detention of the defaulter in
custody would not be available to a
claimant who had slept over his/her rights
and has not approached the Court within
a period of one year commencing from the
date on which the entitlement to receive
maintenance has accrued. However, in
such a situation the ordinary remedy to
recover the amount of maintenance,
namely, a civil action would still be
available.

5. The decision of this Court in
Kuldip Kaur v. Surinder Singh and Anr.[1]
may be usefully recalled wherein this Court
has held the provision of sentencing under
Section 125 (3) to be a "mode of
enforcement" as distinguished from the
"mode of satisfaction" of the liability which
can only be by means of actual payment.
Paragraph 6 of the report to the above
effect,
namely,
that
the
mode
of
enforcement i.e. sentencing to custody does
6 All. Subodh Kumar Nigam Vs. State of U.P. & Ors.
87
not extinguish the liability may be extracted
below:

"6. A distinction has to be
drawn between a mode of enforcing
recovery on the one hand and effecting
actual recovery of the amount of monthly
allowance which has fallen in arrears on
the other. Sentencing a person to jail is a
"mode of enforcement". It is not a "mode of
satisfaction" of the liability. The liability
can be satisfied only by making actual
payment of the arrears. The whole purpose
of sending to jail is to oblige a person
liable to pay the monthly allowance who
refuses to comply with the order without
sufficient cause, to obey the order and to
make the payment. The purpose of sending
him to jail is not to wipe out the liability
which he has refused to discharge. Be it
also realised that a person ordered to pay
monthly allowance can be sent to jail only
if he fails to pay monthly allowance
"without sufficient cause" to comply with
the order. It would indeed be strange to
hold that a person who "without reasonable
cause" refuses to comply with the order of
the court to maintain his neglected wife or
child would be absolved of his liability
merely because he prefers to go to jail. A
sentence of jail is no substitute for the
recovery of the amount of monthly
allowance which has fallen in arrears.
Monthly allowance is paid in order to
enable the wife and child to live by
providing with the essential economic
wherewithal. Neither the neglected wife nor
the neglected child can live without funds
for purchasing food and the essential
articles to enable them to live. Instead of
providing them with the funds, no useful
purpose would be served by sending the
husband to jail. Sentencing to jail is the
means for achieving the end of enforcing
the order by recovering the amount of
arrears. It is not a mode of discharging
liability. The section does not say so.
Parliament in its wisdom has not said so.
Commonsense does not support such a
construction. From where does the court
draw inspiration for persuading itself that
the liability arising under the order for
maintenance would stand discharged upon
an effort being made to recover it? The
order for monthly allowance can be
discharged
only
upon
the
monthly
allowance being recovered. The liability
cannot be taken to have been discharged by
sending the person liable to pay the
monthly allowance, to jail. At the cost of
repetition it may be stated that it is only a
mode or method of recovery and not a
substitute for recovery. No other view is
possible. That is the reason why we set
aside the order under appeal and passed an
order in the following terms:

???. ?."

(Emphasis added)

12. The Court has also gone on to
hold that the maintenance is in the nature of
continuing liability. The nature of the right
to receive maintenance and concomitant
liability to pay was also noticed earlier by
the Supreme Court in the case of Shahada
Khatoon & others v. Amjad Ali and
others, (1995) 5 SCC 672 vide paras 6 & 7
but the Court held that husband cannot be
kept in jail till payment is made. The court
in its operative part of order has observed
thus:

"The language of sub-section (3)
of Section 125 is quite clear and it
circumscribes the power of the Magistrate
to impose imprisonment for a term which
may extend to one month or until the
payment, if sooner made. This power of the
88 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate
cannot
be
enlarged
and
therefore the only remedy would be after
expiry of one month. For breach or noncompliance
with
the
order
of
the
Magistrate the wife can approach the
Magistrate again for similar relief."

13. The Supreme Court, therefore, in
the said case set aside the order of High
Court where the High court had declined
arrears of maintenance to the wife from the
husband as it was claimed beyond the
period of one year and Supreme Court
directed the husband to make payment of
arrears.

14. In such above view of the matter,
therefore, I do not see that the Judge,
Family
Court
in
any
manner
has
wrongfully
exercised
jurisdiction
in
granting the application for recovery of the
maintenance holding the opposite party to
be entitled to the same. Similar view was
taken by Supreme Court in another
judgment of Shantha @ Ushadevi and
another v. B.G. Shivananjappa, AIR SC
2410 the Court has observed thus:

"It must be borne in mind that
Section 125 CrPC is a measure of social
legislation and it has to be construed
liberally for the welfare and benefit of the
wife and daughter. It is unreasonable to
insist on filing successive applications
when the liability to pay the maintenance
as
per
the
order
passed
under
Section125(1) is a continuing liability."

15. In so far as the judgment relied
upon by the learned counsel for the
respondents of the Bombay High Court in
the case of Dr. Chandrashekhar v. Sau.
Jayshree, I (1989) DMC 235 and the
judgment of coordinate bench of this Court
in Ganga Prasad v. Smt. Gomti, 2000
Cri.L.J. 3914, are concerned they are no
more a good law in the light of judgments
of Supreme Court (supra). In these two
judgments cited before me, the High Court
declines the claim of wife to recover the
maintenance beyond a period of one year or
if there was a complete bar to recover the
amount. These judgments including the
judgment in the case of Lav Kumar v.
State of U.P. & Another, Application U/S
482 No. 20081 of 2021 (decided on
13.05.2022) being contrary to the view
taken are no more binding precedent for
this Court.

16. At this stage, before the court
proceeds to decide the matter on merits,
learned counsel for the petitioner submits
that given a respite in terms of payment of
the arrears of amount, he would have no
objection if Rs. 3,000/- is additionally
directed to be deducted from the salary of
the petitioner till the arrears of Rs. 57,000/-
is satisfied.

17. Now, since learned counsel for the
revision applicant is ready to pay the
amount of Rs. 3,000/- per month and
submits that, that may also be directed to be
deducted from the salary of the applicant, it
is hereby provided that Rs. 3,000/- in
addition to already Rs. 3,000/- being
deducted from the salary of the applicant,
shall be deducted from the salary from the
month of July 2024 till the entire arrears of
maintenance of Rs. 57,000/- is satisfied.
Learned counsel for the applicant shall
place this order before his employer as well
as the Judge, Family Court and so also the
opposite party shall place this order before
the Family court for appropriate orders.

18. With these observations and
directions, this petition stands disposed of.
----------
6 All. Smt. Archana Singh Gautam Vs. State of U.P. & Anr.
89
(2024) 6 ILRA 89
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.06.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application u/s 482 No. 9536 of 2024

Smt. Archana Singh Gautam ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Diwakar Tiwari, Gyanendra Singh

Counsel for the Opp. Parties:
Ashish Pandey,G.A., Vivek Kumar Singh

A. Criminal Law - Negotiable Instrument
Act, 1881 - Section 138, Proviso (a) -
Dishonour
of
cheque
-
Merger
of
Allahabad
Bank
into
Indian
Bank
-
Issuance of cheque after merger - How
far bear valid cheque - Circular was issued
mentioning the fact that all the cheques
issued
by
Allahabad
Bank
can
be
exchanged with the cheques of Indian
Bank by 30.09.2021 - Effect - Cheque
dated 02.06.2023 of erstwhile Allahabad
Bank presented to the Indian Bank on
21.08.2023 was returned on 25.08.2023
with the endorsement "wrongly delivered
not drawn on us" - Liability u/s 138 NI
Act was alleged - Held, the cheque in
question, which was issued from the
account maintained in erstwhile Allahabad
Bank after its merger with Indian Bank,
was not the valid cheque on the date of
presentation - If any invalid cheque is
presented before the Bank and the same
was dishonoured, then no liability under
Section 138 N.I. Act would be attracted -
Dishonouring the invalid cheques after
30.09.2021 will not attract liability u/s
138 N.I. Act - High Court quashed the
proceeding of complaint. (Para 6, 7, 9, 11
and 13)

Application allowed. (E-1)

List of Cases cited:

1. NEPC Micon Ltd. Vs Magma Leasing Ltd; (
1999) 4 SCC 253

2. Crl. M.C. No. 1566 of 2023; Sri Premanand
Prusty Vs Smt. Sita Devi (Delhi High Court)

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard learned counsel for the
applicant, learned counsel for the opposite
party no. 2 and Sri Brijesh Kumar Dwivedi,
learned AGA for the State.

2. The present application has been
filed for quashing the entire criminal
proceeding,
including
the
impugned
summoning order dated 15.02.2024 passed
by the learned Special Judicial MagistrateII, Banda in Complaint Case No. 712 of
2023 (Brajesh Kumar Singh Vs. Smt.
Archana Singh Gautam and others), under
Section 138 N.I. Act, 1881, P.S. Kotwali
Nagar, District Banda, pending in the Court
of learned Special Judicial Magistrate-II,
Banda.

3. The counsel for the applicant
contends that the Bank returned the cheque
in question because the cheque was invalid
as the cheque in question was issued from
the account maintained in Allahabad Bank
on 02.06.2023, though the Allahabad Bank
had already merged into the Indian Bank on
01.04.2020,
and
the
cheque
of
the
Allahabad Bank was valid till 30.09.2021;
therefore, on the date of issuance as well as
presentation of the cheque, it was invalid.
Therefore, bouncing, of such the invalid
cheque will not attract the liability u/s 138
N.I. Act.