ORAL ORDER

1. By preferring this application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, the applicant has prayed to quash and set aside the impugned order dated 04.04.2022 passed by the learned Additional Sessions Judge, City Civil and Sessions Judge, Ahmedabad in Criminal Appeal No.277 of 2021 as well as the order dated 20.12.2021 passed by the learned Additional Chief Metropolitan Magistrate, Court No.17, Ahmedabad, below Exhs.23 and 27 in Criminal Misc. Application No.5128 of

2018.

2. Brief facts of the present case are as under:

2.1 That the marriage of the applicant and respondent No.2 was solemnized according to the Hindu rites and rituals at Ahmedabad, and thereafter, on 20.05.2017 a female child namley Saanvi was born. It is the case of the respondent No.2 that both were deserted from the matrimonial house on 31.12.2017. Thereafter, the respondent No.2 and 3 have filed Criminal Misc. Application No.2240/2018 before the Court of learned Family Court, Ahmedabad under Section 125 of the Code of Criminal Procedure for maintenance on 18.07.2018. It is stated that, on 16.04.2019, on the application filed for interim maintenance by respondent Nos.2 and 3, the learned Family Court was pleased to partly allow the application for interim maintenance preferred by respondent Nos.2 and 3 under Section 125 of the Cr.PC and thereby, the respondent No.2 was granted maintenance of Rs.5,000/and respondent No.3 being minor daughter was granted maintenance of Rs.2500/-. Thus, in all, maintenance of Rs.7,500/was granted by way of interim maintenance to respondent Nos.2 and 3 by learned Family Court, Ahmedabad on 16.04.2019. The respondent Nos .2 and 3 have also filed an application under the provisions of Domestic Violence Act (D.V Act For short) and in the said application, respondent Nos .2 has submitted an application for interim maintenance under Section 23 of D.V.Act on 03.11.2018. The said application was partly allowed by learned Metropolitan Magistrate om 30.11.2019.

2.2 According to the order passed by the Family Court, the applicant has paid regularly Rs.7,500/-through cheque upto 31.12.2021 and all cheques were cleared and the respondent Nos.2 and 3 have received the amount. The applicant was regularly paying the maintenance before the Family Court under the impression that this amount to be set off in the D.V order also, but the respondent with malafide intention filed recovery application before the learned Metropolitan Magistrate and thereby, prayed the learned Magistrate for recovery of the Maintenance amount. The applicant, by appearing before the learned Magistrate, submitted objection application and also prayed to give set off in the maintenance amount of Rs.7,500/-, which is already paid to respondent Nos.2 and 3 before the learned Family Court, Ahmedabad, regularly. The learned Metropolitan Magistrate was pleased to reject the application preferred below Exh:27 filed by the applicant and thereby, partly allowed the application filed by respondent Nos.2 and 3 and recovery warrant was issued. The applicant being aggrieved by the said order, preferred Criminal Appeal No.277/2021 before the learned City Civil Judge, Court No.21, Ahmedabad and the learned City Civil and Sessions Judge was pleased to dismiss the said appeal vide order dated 04.04.2022. Thus, the applicant has approached this court.

3. Heard learned advocate for the applicant, learned advocate for the respondent nos. 2 and 3 as well as learned APP for the respondent no.1-State.

4. It was submitted by learned advocate for the applicant that it is settled law that one should come before the court with clean hands and the applicant with honest and bonafide intention give his fair consent before the Metropolitan Magistrate Court in the application under Section 23 of the D.V.Act and that was wrongly observed by the learned Metropolitan Magistrate and passed the interim order. Even the learned Metropolitan Magistrate has instead of