Bimla Devi vs State & Anr on 23 November, 2017

$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: November 23, 2017

+ CRL.A. 338/2011
BIMLA DEVI ….. Appellant
Through: Mr.Neeraj Bhardwaj, Advocate
with appellant in person.
versus
STATE ANR ….. Respondents
Through: Mr.Sanjeev Sabharwal, APP for
the State/R-1 with ASI
Bhagmal Singh, PS DBG Road.
Mr.N.K.Bansal, Advocate for
R-2.

PRATIBHA RANI, J. (Oral)

CRL.A. 338/2011

1. The appellant is aggrieved by the order on sentence dated 10 th
January, 2011 passed by learned Additional Sessions Judge in
Crl.A.No.37/2008, pertaining to FIR No.53/90, under Sections
498A/
406/34 IPC, PS D.B.G. Road, Delhi whereby while partly
allowing the appeal, the conviction of the respondent No.2/husband
for committing offence punishable under
Section 498A IPC was
maintained while his conviction for committing offence punishable
under
Section 406 IPC was set-aside and he was ordered to be released
on probation.

2. The order on sentence reads as under:

“29. Broadly speaking I find that there was sufficient
evidence to convict the husband U/S 498A
I.P.C. alone.

CRL.A. No.338/2011 Page 1 of 5

His conviction under said section is maintained.
Conviction U/S 406
I.P.C. is set-aside. Criminal Appeal
No.37/08 is partly allowed to that extent.

30. Coming to the sentence part it may be observed
that production of salary certificate by husband in case
U/S 125
Cr.P.C. is subject matter of separate F.I.R. for
which he is being tried, the same has no relevance in
present case. The husband has already faced litigation
for 23 years which is enough punishment. The marriage
has already been dissolved by decree of divorce, the
husband has re-married and has two children out of the
second marriage. In case he is sent to jail, the life of
second wife and those two children would be spoiled. So
the husband is directed to furnish probation in the sum of
`10,000/- with one surety in the like amount to be of good
behaviour for a period of two years. The same would be
coupled with payment of `5,000/- already paid by him
would be treated as amount of compensation. The
sentence is modified to that extent.

The convict is sentenced to 2 year RI for the offence U/s
498A
IPC and also liable to pay fine of `5,000/- and for 2
years RI for the offence U/s 406
IPC. Both these
sentences would run concurrently. In default of payment
of fine further SI for one month and fine if realized be
paid to the complainant.”

3. Learned counsel for the appellant has submitted that the learned
ASJ had committed an error while releasing respondent No.2 on
probation. The prayer of the appellant is that the order of the learned
MM awarding two years substantive sentence under
Section 498A IPC
be restored.

CRL.A. No.338/2011 Page 2 of 5

4. Learned APP for the State and the learned counsel for the
respondent No.2 have submitted that the matter was settled between
the parties but the appellant did not approach the Court for quashing of
the FIR. The circumstances in which the probation has been given to
the appellant in this matrimonial dispute, for committing offence
punishable under
Section 498A IPC, have been duly recorded by the
learned ASJ. For the reasons recorded by the learned ASJ, the
substantive sentence has rightly been substituted by directing
respondent No.2 to be released on probation.

5. The order regarding amicable settlement between the parties
before Principle Judge, Central District, Family Court, Tis Hazari,
New Delhi reads as under:

“Matter was amicably settled between the
parties. Thereafter, the petitioner/DH did not go for
quashing and matter on record was not in her name
and that caused a suspicion in her mind and for that
reason, she had not gone for quashing of the FIR.
These submissions are refuted by the counsel for the
JD/respondent.

Be that as it may, without going into the merit of
the respective submissions, it is jointly agreed now by
and between the parties during extensive conciliation
carried out by this Court that respondent/JD will get
FDR/DD in the name of Smt.Bimla for a sum of
`10.90 lacs (the exact amount will be calculatable as
per FDR placed on record). Another FDR/DD of
same amount i.e. of `10.90 lacs along with interest
will also be got made meaning thereby that both the
FDRs/DDs will be totalling to around `12.80 lacs.

CRL.A. No.338/2011 Page 3 of 5

These FDRs/DDs in the name of DH/petitioner shall
be kept on the records of the Court and will be handed
over the DH/petitioner only in the eventuality of
complete cooperation by the petitioner/DH in
quashing of the FIR bearing no.248/08 PS Subzi
Mandi and No.53/90 PS Desbandhu Gupta Road,
Karol Bagh as well as withdrawal of appeal/revision
pending in the Hon’ble High Court as well as all other
proceedings pending before any other Court/forum
including proceedings before this Court U/s 125
Cr.P.C. / executions petitions/127 Cr.P.C. etc. etc. Ld.
Counsel for JD/respondent have also undertaken on
behalf of JD/respondent that JD shall also withdraw
all the litigation of every nature concerning the
marital alliance.

Both the sides have submitted that they have
entered into amicable settlement out of their sweet will
and wish and without any threat, pressure, coercion
etc. Both the parties undertake not to resile from the
present settlement.

It is stated by both the Advocates for the DJ that
they have sought instructions from JD/respondent and
have agreed to the amicable settlement only after
receiving the instructions. Advocates have submitted
that JD will come from Kalka, Haryana and will sign
in token of giving of his instructions by hi to his
advocates o n 17.02.2016 and they are taking their
personal liability regarding the appearance of JD.

Case shall come up for the purpose on
17.02.2016. Parties are directed to abide by the terms
and conditions of the settlement. Copy of the order be
given dasti.”

CRL.A. No.338/2011 Page 4 of 5

6. During the course of hearing today, learned counsel for the
appellant does not dispute that the amount of `21.80 lakhs is lying
deposited with the Court below. The petitioner submits that she wants
the respondent to purchase a house for her. The appellant cannot be
made to change her stand and go on increasing her demand after
entering into an amicable settlement, terms of which have been duly
complied by the respondent No.2/husband.

7. The finding or sentence passed by a Court of competent
jurisdiction can be reversed or altered by a Court of appeal only where
failure of justice has been occasioned; this is not so in this case.

8. Since the parties have settled their dispute, the respondent No.2
is remarried and settled in his family, the order passed by learned ASJ
extending the benefit of probation to him for the offence punishable
under
Section 498-A IPC does not warrant any interference by this
Court as the appellant has failed to prove that it has occasioned failure
of justice.

9. The appeal is dismissed.

CRL.M.A.1657/2017
Dismissed as infructuous.

PRATIBHA RANI
(JUDGE)
NOVEMBER 23, 2017
‘hkaur’

CRL.A. No.338/2011 Page 5 of 5

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