Varinder Kumar vs Parsini Devi and anr.

J.M. Tandon, J.

Parsini Devi respondent is the wife of Raghbar Dayal respondent. Parsini Devi initiated proceedings under section 125, Criminal Procedure Code against Raghbar Dayal and the Judicial Magistrate Ist Class, Barnala, fixed her maintenance at Rs. 150/ per month vide order dated June 9, 1981. Raghbar Dayal did rot pay the maintenance allowed by the Court with the result that Parsini Devi started proceedings for the recovery or Rs. 11600/ by way of arrears. In the recovery proceedings, Raghbar Dayal was arrested and produced before Judicial Magistrate Ist Class, Barnala, on April 30, 1983, on which date the following order was passed:

"The respondent has made the payment of Rs. 150/ as arrears of maintenance allowance from April 19, 1975 to May 18, 1975. The Presiding Officer is on leave. The respondent is ordered to furnish surety bond for the payment of arrears of maintenance allowance failing which the respondent shall go to judicial lock up. The respondent is directed to furnish the surety bond in the sum of Rs. 13000/ for the payment of arrears of maintenance allowance; in default of refusal of the respondent to make the payment the Court can take appropriateproceedings against the surety and also against the respondent. To come up on May 24, 1983, for further proceedings."

The petitioner stood surety and executed the following surety bond;

"I Varinder Kumar, son of Shri Hans Raj Aggarwal, resident of Kacha College Road, Professor Colony, Barnala, Surety, aged 27 years.

Whereas in the abovementioned case in the aforesaid Court Surety bond, in the sum of Rs. 13000/ for appearance has been ordered from Raghbar Dayal, respondent, I, have become the Surety "undertake that it upto 2451983 Raghbar Dayal fails to deposit Rs. 13000/ (Thirteen thousand), the amount of maintenance, I, as Surety, will deposit Rs. 13000/ after 24.5.1983 provided Raghbar Dayal fails to put in appearance in Court on 24 5.1983. My responsibility as surety is limited only for appearance of Raghbar Dayal respondent on 24.5.1983 and the future dates In the event of default, the Surety amount of Rs. 13000/ will be recoverable from my under mentioned property covered under the surety, which is free from all encumbrances and regarding which I will have no objection Thus this surety bond of Rs. 13000/ for appearance has been executed. Dated 30.4.1983."

Raghbar Dayal did not deposit Rs. 13000/ in Court on May 24, 1983, though it appears that he had put in appearance in the Court on that date. The learned Magistrate vide order dated December 20, 1983, directed that the amount be recovered from Varinder Kumar by attachment of his property. The petitioner filed revision against the order of the learned Magistrate which was dismissed by the learned Additional District Judge, Barnala, vide order dated January 7, 1984 The petitioner has assailed the orders dated December 20, 1983 and January 7, 1984, in the present petition under section 482 Criminal Procedure Code.

The learned counsel for the petitioner has argued that the surety bond given by the petitioner is to be construed strictly. It is evident therefrom that the petitioner had rendered himself liable for the payment of Rs. 13000/ in case Raghbar Dayal did not put in appearance on May 24, 1983, or on subsequent dates. Raghbar Dayal put in appearance in the Court on May 24 1983. It is true that be did not deposit Rs. 13000/ in Court on or before that date. This lapse on the part of Raghbar Dayal did not render the petitioner liable for the payment of the amount under the term of the surety bond.

The learned counsel for Parsini Devi has argued that the Judicial Magistrate, Barnala, vide order dated April 30, 1983, had directed the release of Raghbar Dayal if he produced surety. who would be responsible for the payment of the amount in case the same was not deposited by him (Raghbar Dayal. The petitioner hoodwinked the Court by not giving surety in terms of the order He should, therefore, be made liable for the payment of Rs. 13000/ The contention of the learned counsel is without merit.

The surety bond given by the petitioner is to be construed strictly. He had undertaken to produce Raghbar Dayal in Court on May 24, 1983, and on the subsequent dates and it was in the event of his (Raghbar Dayal) failure to appear that he was to render himself liable for the payment of the amount. It is not the case of Parsini Devi that Raghbar Dayal did not appear in Court on May 24, 1983. The petitioner, therefore, could not be made liable for the payment of Rs. 13000/ because Raghbar Dayal failed to deposit Rs. 13000/ in Court on May 24, 1983.

Under these circumstances, the impugned orders of the learned Magistrate and the learned Additional Sessions Judge cannot be sustained.

In view of discussion above, the petition is allowed and the impugned order of the learned Magistrate dated December 20, 1983, and that of the learned Additional Sessions Judge, dated January 7, 1984 set aside.

Raghbar Dayal, who is present in Court, is directed to appear in person before the trial Court on October 15,1984. The other parties through their counsel are also directed to appear before the trial Court on that date.