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2024 Supreme(Online)(Bom) 7255
HIGH COURT OF BOMBAY
HON'BLE SHRI JUSTICE Y. G. KHOBRAGADE
SURESH KALURAM THORAT – Appellant
Versus
THE STATE OF MAHARASHTRA AND OTHERS – Respondent
WP/879/2023
For the Appellants/Petitioners: N.S. Pawar
For the Respondents: D.B. Bhange, P.B. Shirshat, P.B. Vikhe Patil
Service of notice under Section 125 CrPC by registered post with endorsement 'Refused' raises presumption of valid service under Section 27 General Clauses Act; burden on addressee to rebut. Parents' maintenance claim not defeated by mere land ownership or other children's partial support.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 125 - Maintenance - Service of notice - Presumption under Section 27 of General Clauses Act, 1897 - Postal endorsement 'Refused' - Presumption of valid service unless rebutted - Principle of deemed service in absence of contrary proof - Notice sent by registered post to correct address, returned with refusal, raises presumption that addressee was served and refused - Onus on addressee to rebut. (Paras 18, 22, 23)\n
(B) Code of Criminal Procedure, 1973 - Section 125 - Maintenance - Parents - Burden of proof - Objector must prove that parents have sufficient means to maintain themselves - Mere production of 7/12 extract of land does not automatically prove sufficient income - Parents' inability to work due to old age is relevant. (Para 24)\n
(C) Maintenance - Liability of children - Claim against one child permissible if other children are already providing some maintenance - No requirement to direct all children to pay maintenance - Parents can claim from one child who is better placed. (Para 25)\n
(D) Maintenance - Retired government servant - Pension and retiral benefits constitute income - Retirement does not automatically mean no source of income - Petitioner receiving pension and having drawn salary under 7th Pay Commission. (Para 25)\n(E) Criminal Writ Petition - Scope of interference under Article 227 and Section 482 Cr.P.C. - Not to interfere unless findings are perverse or illegal - Both courts below considered evidence and findings are not perverse. (Para 25)\n\n
Facts of the case:
\nThe petitioner, a retired Veterinary Officer, challenged the orders of the Judicial Magistrate and Additional Sessions Judge directing him to pay monthly maintenance of Rs.6,000/- to his old aged parents (respondent nos.2 & 3) under Section 125 Cr.P.C. The parents claimed that they were unable to maintain themselves despite having some ancestral land, and that the petitioner, being a government doctor, had the means. The petitioner did not appear before the Magistrate; ex parte order was passed. He later filed revision, which was dismissed. The High Court considered the grounds of improper service, parents' sufficient income, non-joinder of other sons, and petitioner's lack of income after retirement.\n\n
Findings of Court:
\nThe court held that the notice sent by registered post to the petitioner's official address with postal endorsement 'Refused' raises a presumption of valid service under Section 27 of the General Clauses Act, which the petitioner failed to rebut. The petitioner's claim that his parents have sufficient income from land was not substantiated; mere 7/12 extract is insufficient. The fact that other sons are maintaining parents partially does not absolve the petitioner, as parents are entitled to claim maintenance from the child who is better placed. The petitioner, being a retired government servant, receives pension and retiral benefits, hence cannot claim no source of income. The concurrent findings of the lower courts were not perverse or illegal.\n\n
Issues:\nThe main issues were whether the postal endorsement 'Refused' constitutes valid service of notice; whether the parents have sufficient means to maintain themselves; whether maintenance could be ordered only against the petitioner ignoring other sons; and whether the petitioner's retirement absolves him of liability.\n\n
Ratio Decidendi:\nThe presumption of service under Section 27 of the General Clauses Act applies when a notice sent by registered post to the correct address is returned with an endorsement of refusal, and the onus is on the addressee to rebut that presumption. In maintenance proceedings, the burden is on the objector to prove that the claimant has sufficient means; mere ownership of land does not automatically establish income. A child liable to maintain parents cannot evade liability on the ground of retirement if he receives pension.\n\nResult : Criminal Writ Petition dismissed with costs of Rs.50,000/- payable to respondent nos.2 & 3.
2024:BHC-AUG:8944 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 879 OF 2023 Suresh Kaluram Thorat Age: 59 Years, Occ. Nil, At Present, Retired from service, Per R/o. Bori, Taluka Shrigonda, Dist. Ahmednagar. ... PETITIONER V/s.
1. The State of Maharashtra
2. Shri Kaluram Shripati Thorat, Age : 88 Yrs., Occ. Agriculture, R/o Bori, Tal. Shrigonda, Dist. Ahmednagar.
3. Sou. Shalan Kaluram Thorat, Age: 78 Yrs. Occ. Household, R/o Bori, Tal. Shrigonda, Dist. Ahmednagar.
4. Shri Chandrakant Kaluram Thorat, Age: 51 Yrs. Occ. Agriculture, R/o Bori, Tal. Shrigonda, Dist. Ahmednagar.
5. Shri Shantaram Kaluram Thorat, Age: 49 Yrs. Occ. Agriculure, R/o Chinchani, Tal. Shirur, Dist. Pune. ... RESPONDENTS …...
Mr. N.S. Pawar, Advocate for the Petitioner Mr. D.B. Bhange, APP for Respondent-State Mr. P.B. Shirshat, Advocate for Respondent Nos.2 & 3 Mr. P.B. Vikhe Patil, Advocate for Respondent Nos.4 & 5 …...
CORAM : Y. G. KHOBRAGADE, J.
RESERVED ON : 12.04.2024 PRONOUNCED ON : 26.04.2024 JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.
2. The Petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India read with Sec. 482 of Code of Criminal Procedure and thereby questioned the legality and validity of the Judgment and Order dated 3rd June, 2023 passed by the learned Additional Sessions Judge, Shrigonda, Dist. Ahmednagar in Cri. Rev. Appln. No. 25 of 2022, thereby confirming the Judgment and order dated 23rd October, 2021 passed by the learned Judicial Magistrate F. C., Shrigonda in Cri. Misc. Appln. 23 of 2017, whereby the present Petitioner/original Non-Applicant No.1 was directed to pay Rs. 6,000/- per month to the Respondent Nos. 2 & 3 towards maintenance from the date of filing of application u/s 125 of Cri. P. C.
3. The present Petitioner, Respondents Nos. 2 and 3 are original Non- applicants 1 to 3. The Respondents No. 2 & 3 are original Applicants 1 & 2 in Cri. Misc. Appln. 23 of 2017. For the sake of brevity, hereinafter parties to the present petition will be referred in their original capacity as Applicants and Non-Applicants.
4. Heard at length, Adv. N. S. Pawar, learned counsel appearing for the Petitioner, Mr. D. B. Bhange, learned A.P.P.. for the Respondent No. 1, Adv. P. B. Shirsath, learned counsel appearing for the Respondents Nos. 2 & 3/ori Applicants 1 & 2 and Adv. P. B. Vikhe Patil, learned counsel appearing for the Respondents 4 & 5 - Ori. Non-Applicants Nos. 2 & 3.
5. Adv. N. S. Pawar, the learned counsel appearing for the Petitioner canvassed that the Petitioner’s permanent residential address is village Bori Tq. Shrigonda Dist. Ahmednagar. Petitioner being a Veterinary Officer was serving at Nimgaon Dawadi Tq. Khed Dist. Pune. Therefore, notice could have been issued at the residential address of the Petitioner, however, notice was never served upon the Petitioner’s on the residential address. The Petitioner had also not received any postal envelope containing notice on his official address. The Postman never visited the Petitioner’s office for service of notice. However, the learned Revisional Court and the Magistrate wrongly presumed that the Petitioner was served with the notice by relying on the endorsement made by the postal authority as “Refused To Accept Notice”. Therefore, the impugned orders are passed without providing opportunity to defend the cause, hence, it is illegal and bad in law.
6. It is further canvassed that the notice was allegedly issued by Registered Post Acknowledgment Due at the official address of the Petitioner and the postal authority made an endorsement on envelope as “Refused” cannot be termed as valid and legal service. Since, Petitioner was never served with the notice, therefore, the Petitioner was not having any knowledge about pendency of the proceeding. Therefore, the Petitioner did not participate before the learned Judicial Magistrate F. C. The Petitioner first
