Decided on April 18,1983

Tarak Shaw Appellant
Minto Shaw Respondents


PADMA KHASTGIR, J. - (1.) THIS is an application by the insolvent Tarak Chandra Shaw for an order for protection. The petitioner on his own petition was adjudicated an insolvent by an order of the Court dt. 30th August, 1982. According to the petitioner his only creditor is one Smt. Mintu Shaw, who has obtained a payment order against the petitioner from the Court of the 3rd Judicial Magistrate, Barrackpore, 24 -Parganas whereunder the petitioner had been directed by the learned Court to pay maintenance of Rs. 75/ - per month to his creditor. For non -compliance of the said order an warrant of arrest had already been issued against the petitioner for nonpayment of the maintenance. The petitioner had filed already a case against the said Mintu Shaw at Sealdah Court disputing the marriage with the said Smt. Mintu Shaw. Inasmuch as the petitioner is apprehensive of arrest in view of the warrant issued by the Court of the 3rd Judicial Magistrate, Barrackpore, the petitioner has taken out this application for protection.
(2.) MR . Pronab K. Chatterjee appeared in support of this application. The creditor in her affidavit affirmed on 25th of January, 1983 stated that she is the wife of the debtor applicant and she opposed this application on the ground that the debtor had made false averments in the petition inasmuch as the husband neglected and refused to maintain the wife and the minor child born out of the wedlock with the applicant. The said Smt. Mintu Shaw filed an application under Section 125 of the Criminal P. C. before the 3rd Court of Judicial Magistrate at Barrackpore and obtained an order for maintenance for a sum of Rs. 75/ - per month. Against the said order the debtor preferred a revisional application before this Court. Mr. Justice Amitava Dutta by an order dt. 1st September, 1981 was pleased to issue a rule and stay of proceedings provided the debtor paid the entire arrears of maintenance in three monthly equal instalments, and it was further ordered that in the event of failure to pay instalments the rule would be discharged and the stay order would be vacated. Not only the petitioner had given wrong address to obtain the jurisdiction of this Court but also he suppressed material facts in the petition for winding up. According to the deponent the petitioner had been residing outside the jurisdiction of this Court at 126, B. K. Mitra Road, Barranagar, Dist. 24 -Parganas. Under the circumstances this Court had no jurisdiction to entertain such application, It had been further contended that the application for protection under Section 25 of the presidency Towns Insolvency Act was not maintainable to defeat the proceedings taken by the wife under Section 125 of the Cr. P. C. The deponent further stated in para 5 of her affidavit that not only the debtor applicant has been permanently residing at Barranagar but he also carries on business. He is the owner of a house situated at Kalinath Road, Tantipara, Barranagar as also he had a joint interest in the premises situate at premises No. 164, B. K. Mitra Road, Barranagar. Over and above that he is the owner of a wholesale and retail shop at Barranagar. This application is mala fide and had been filed by the debtor to frustrate the order passed by the learned Judicial Magistrate at Barrackpore as also by the learned Judge Mr. Justice Amitava Dutta. Under the circumstances the deponent prayed that no order should be passed on this application. In the case reported in (1940) 41 Cri LJ 785 : AIR 1940 Mad 697 Penubala Muni Krishnayya v. Penubala Akkulamma it was held: - Wording of Section 488(3), Criminal P. C. shows that in every case it is the duty of the Magistrate to find out whether the person ordered to pay maintenance under Section 488 has or has not failed without sufficient cause to comply with the order. Neither the protection order under Section 23(1), Prov. Insol. Act nor the adjudication order passed by the Insolvency Court subsequent to the sentence by the Magistrate could be conclusive on this point. The question is one of fact which the Magistrate has to decide for himself. Prima facie, of course, it would appear to a Magistrate that an order of protection or an order of adjudication would be sufficient to show that failure to comply with an order to pay maintenance had not been without sufficient cause, but it cannot be said that the Magistrate's hands would be tied by the order of the Insolvency Court. It is not possible for a Magistrate who has passed a sentence of imprisonment under Section 488(3) to cancel the sentence merely because the Insolvency Court has issued an order of protection. The sentence of imprisonment is a punishment inflicted for breach of the order. It cannot be considered in the terms of Section 23 of the Prov. Insol. Act, that a person who has been sentenced under Section 488(3) is under imprisonment in execution of the decree of any Court for the payment of money.
(3.) IN the instant case it is the definde case of the respondent that the petitioner had declared himself as an insolvent on his own application. It is also the positive case of the respondent that with an ulterior motive the petitioner has invoked the jurisdiction of this Court which he is not entitled to. He not only resides in Barranagar but also he possesses properties and business at Barranagar. He has sufficient means to comply with the order of the learned Magistrate at Barrackpore passed under Section 125 of the Cri. P. C. He has wilfully neglected to maintain his wife in spite of having means to provide for her maintenance, This application has been taken out also with the intention of defeating the claim of the respondent for maintenance. The mere fact that the applicant had been adjudicated as insolvent is not sufficient to indicate that he is unable to maintain his wife inasmuch as under Section 125 of the Cri. P. C. it is not only the visible means which would be taken into consideration but also his capacity to work and earn a salary to maintain and support his wife and child. It is for the learned Magistrate to take into consideration whether the applicant had sufficient means to maintain his wife. The order of insolvency or the order of protection is not conclusive while making an enquiry under Section 125 of the Cri. P. C.;

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