Oral Judgment:
Heard Mr. Rao, learned Counsel for the petitioner and Mr. Usgaonkar, learned Counsel for the respondent.
2. By this petition, the petitioner takes exception to the judgment and order dated 04/01/2010 passed by learned Sessions Judge, North Goa, Panaji dismissing Criminal Appeal No.113/2009 and partly allowing Criminal Appeal No.124/2009 against the judgment and order dated 04/08/2009 passed by learned Judicial Magistrate, First Class, Mapusa in Criminal Miscellaneous Application No.159/2009/A.
3. Criminal Appeal No.113/2009 was filed by the petitioner herein whereas Criminal Appeal No.124/2009 was filed by the respondent herein. The respondent had also filed Criminal Writ Petition No.27/2010 challenging the order passed by the Sessions Court, but the respondent had withdrawn the same.
4. The respondent herein filed Criminal Miscellaneous Application No.159/2009/A before the Judicial Magistrate, First Class, Mapusa under Section 12 read with Sections 18, 19, 20 and 21 of the Protection of Women from Domestic Violence Act, 2005 ('the Act' for short). The respondent also claimed maintenance at the rate of Rs.67,500/- per month from the date of filing of the application i.e. 14/05/2009. The application was contested by the petitioner herein who was the respondent in Criminal Miscellaneous Application filed before learned Judicial Magistrate, First Class. Learned Magistrate, upon appreciation of the materials placed by both the sides, by order dated 04/08/2009 granted an amount of Rs.50,000/- per month in favour of the petitioner and two minor daughters.
5. As stated above, the said order was challenged by both the parties by filing the above Criminal Appeals. Learned Sessions Judge, North Goa, Panaji dismissed the appeal filed by the petitioner herein, but partly allowed the appeal preferred by the respondent and held that she would be entitled to the amount from the date of the application till the decision of the proceedings on merits.
6. Bare perusal of the impugned judgment passed by learned Sessions Judge discloses that while disposing of the appeal, learned Judge has not at all marshalled the evidence produced in support of the claim made by the respondent.
7. It is well settled that the appellate Court, be it civil or criminal, is final Court insofar as the facts are concerned and, therefore, it is obligatory for the appellate Court to find out whether the trial Court has marshalled the evidence led before it and scrutinise the reasons given in support of the findings. From a bare perusal of the impugned judgment, it is obvious that the lower appellate Court has failed to exercise jurisdiction in accordance with settled law. It is also well settled that a writ Court should not reappreciate the evidence led by the parties and jurisdiction to interfere is restricted to find out if there are patent errors of law apparent on the face of record or whether the exercise of jurisdiction is illegal or contrary to law. Mr. Usgaonkar was unable to point out that the lower appellate Court has exercised jurisdiction on well settled principles. Therefore, in my view, the only course open to this Court is to remand the matter with a direction to the lower appellate Court to reappreciate the evidence led by both the parties in relation to claim made by the respondent/ complainant and decide whether interference is warranted with the order passed by learned Magistrate.
8. In view of the above, the impugned judgment dated 04/01/2010 passed in Criminal Appeal No.113/2009 and Criminal Appeal No.124/2009 is quashed and set aside. Insofar as enhancement of the amount payable is concerned, the appellate Court shall only deal with the appeal preferred by the petitioner herein and dispose of the same in accordance with law in the light of the directions given above. The parties either personally or through their advocates, shall appear before learned Sessions Judge, North Goa, Panaji on 23/10/2012 at 10 a.m. Considering that the matter pertains to grant of monetary relief in favour of the complainant under the Act, learned Sessions Judge shall dispose of the appeal expeditiously. The appellate Court shall decide as to the date from which the order shall come into effect inasmuch as learned Magistrate had not stated as to the date from which the order shall come into effect.
9. Rule is made absolute in aforesaid terms. The parties to bear their own costs.