Aruna Kar Vs. Dr. Sarat Kumar Dash @ Sachhi - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 4. much opportunity was given to the parties by this court for reconciliation but it failed. the court having dealt with her document, it has failed to conside the same.k.l. issrani, j.1. present revision petition has been filed by the petitioner-wife against the rejection of her application under section 125 of the code of criminal procedure by the family court, cuttack, in criminal proceeding no. 40 of 1991.2. submission of the learned counsel for the petitioner is that the opp. party-husband has sufficient means to maintain the petitioner but he has neglected and refused to maintain her. the family court has rejected her petition on the ground that the petitioner was unable to substantiate her allegations against the opp. party. it has been submitted by the learned counsel for the petitioner before this court that the petitioner has filed a copy of the complaint in o.s. no. 18 of 1972 filed by the opp. party in which allegations against her chastity were made by the opp. party. though the court referred to this document in its judgment, it has ignored to take note of its effect and that the revision petition be allowed or the matter be referred to the lower court for fresh decision.3. the learned counsel for the opp. party-husband vehemently opposes the submission of the learned counsel for the petitioner and submits that since the petitioner fails to substantiate her allegation and there is no justification for her to desert the opp. party, she is not entitled to any maintenance. he further submits that the opp. party is still ready and willing to keep her, but the petitioner has always refused to do so. therefore, she is not entitled to any maintenance.4. much opportunity was given to the parties by this court for reconciliation but it failed. before this court, submission of the petitioner was that there being apprehension of danger to her life and cruelty on her, she is not willing to go to her husband and live with him. though a number of chances were given to the parties to come to a compromise, no fruitful result came out.5. while deciding a petition under section 125, cr.p.c, it is to be seen as to whether the husband having sufficient means neglects and refuses to maintain his wife. so far as the findings are concerned, the family court has held that the husband-opp. party has sufficient means to maintain but has not decided the other factor, whether the husband-opp. party neglects or has sufficient refuse to maintain the wife-petitioner.6. submission of the learned counsel for the opp. party is that the petitioner has not stated in her application under section 125, cr.p.c. about the suit (o.s. no. 18 of 1973). so, the lower court was right in not considering the same. unless there is pleading to that effect, the court is not bound to determine that fact. i do not agree with this submission of the learned counsel for the opp. party. the family court while dealing with the facts, in paragraph 2 of its order, has mentioned about o.s. no. 18 of 1973 filed by the opp. party in the court of the second subordinate judge, cuttack, for judicial separation but has not dealt with the effect of that suit and the pleadings made therein. the submission of the learned counsel for the petitioner is that in that petition unchastity of the petitioner was alleged by the opp. party and she wanted to rely on that document. the court having dealt with her document, it has failed to conside the same.7. in 1987 cri.l.j. 1815, girishchandra v. sushilabai), it has been held that section 125 is designed to prevent vagrancy and destitution and provides a summary and speedy remedy to get maintenance. thus it has a social purpose to fulfil and in arriving at any finding in relation to an application thereunder, the courts must look to the substance rather than to the form, must avoid strict technicalities of pleading and proof and must make a realistic approach to the material on record so that the purpose aforesaid is not frustrated.8. i find that in paragraph 3 of the petitioner the opp. party has relied on the facts of unchastity of wife and in paragraph 6, thereof, he has reiterated the fact that she is living separately and leading an adulterous life. the effect of this is that if this fact is not proved then the wife gets justification for living separate from the husband and also gets grounds for claiming maintenance in that case. they have not been considered and decided by the family court.9. in view of discussions in the foregoing paragraphs, the impugned order dated 6.5.1993 passed by the family court, cuttack, in criminal proceeding no. 40 of 1991 is set aside and the matter is remanded to the family court, cuttack, for giving a decision afresh after considering the pleadings of the parities in o.s. no. 18 of 1973 and giving opportunity to the parties to substantiate their respective allegations made therein. the parties are directed to appear before the family court, cuttack, on the 5th of october, 1994. no further notice need be given to them. since the matter is a very old one, it is directed that the proceeding be taken up from day to day and be decided within three months from today.