Madras High Court
K.Gopalram vs A.Muthumari on 28 June, 2018
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.06.2018 Reserved on : 09.04.2018 Pronounced on : 28.06.2018 CORAM THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN CMP(MD)(SR)No.47978 of 2017 in C.R.P.(MD)(SR)No.7083 of 2016 K.Gopalram ... Petitioner -vs- 1.A.Muthumari 2.K.Gokul 3.M.Fernand ... Respondents PRAYER: Civil Miscellaneous Petition filed under Section 340 of Cr.P.C., to take action against the 1st, 2nd and 3rd respondents under Section 120B IPC and this Court exercise its powers against 1st, 2nd and 3rd respondents under Section 209 IPC and 340 Cr.P.C. and kindly direct the Madurai Bench Registry to file a Criminal Complaint against 1st, 2nd and 3d respondents in the concerned Magistrate Court and this Court direct the respondents to pay heavy cost to the petitioner as the order in CMP(MD)No.2171 of 2016 in CRP(MD)(SR)No.7083 of 2016 was obtained by playing fraud on the Court. !For Petitioner : Mr.K.Gopalram (Party-in-person) ^For Respondent : :ORDER
The instant petition under the nomenclature of Civil Miscellaneous Petition with a different title as ?Perjury Application? is been triggered by the petitioner, who is a party-in-person, is posted for maintainability and the same is decided as follows:
The petitioner herein has filed the instant petition along with affidavit under section 340 of Cr.P.C. stating that his application is to be treated as the same is filed under section 120(B) of IPC read with sections 191, 193, 199, 200 and 209 of IPC.
2.The grievance of the petitioner is that when he filed a miscellaneous petition in C.M.P.(MD)No.2171 of 2016 in C.R.P.(MD)SR.No.7083 of 2016 before this Court, a counter affidavit was filed by respondent and the respondent mentioned in the 2nd Paragraph of her counter affidavit as follows:
?the petitioner received the order copy of C.M.A.No.12 of 2013 only on 12.12.2014 which is nothing, but false statement and thereby the 1st Respondent misguided the Court.?
3.This is the contention raised by the petitioner in his so called Perjury Application stated that the said statement would constitute prima- facie offence which are punishable under sections 191, 193, 209 of IPC. According to the petitioner, because of the false statement, the Court was misled and misguided by 1st Respondent and thereby the 1st respondent got order in her favour in C.M.P.(MD)No.2171 of 2016. In addition to the affidavit filed, the petitioner has also filed written argument on the point of maintainability, on 09.04.2018.
4.I heard Mr.K.Gopalram, party-in-person and the materials available on records are perused.
5.The instant petition is filed by styling the same as perjury application. The grievance of petitioner is that the 1st respondent intentionally and deliberately concealed some information before the learned Subordinate Judge, Karur, when she filed a maintenance petition in I.A.No.96 of 2010 in H.M.O.P.No.131 of 2009 regarding the fact that she was working in a Multinational Company and also suppressed the fact that she was an income tax assessee. Admittedly, the petitioner has not taken any legal action against the said alleged suppression of facts before the concerned Subordinate Judge, Karur. So, that is not the issue before this Court.
6.However, the petitioner has brought the attention of the Court to the counter affidavit filed by the respondent in C.M.P.(MD)No.2171 of 2016 before this Court. For the sake of convenience, the contention of the said affidavit as pointed out by the petitioner in Para No.4 is extracted here under:
?I submit that as far as the condone delay petition is concerned the order in C.M.A.12 of 2013 on the file of District Court, Karur was passed on 11.12.2013, against that the petitioner filed present Civil Revision Petition with the delay of 703 days without any proper reasons. Because the petitioner has stated in his affidavit in paragraph 18 that he filed copy application before the lower Court getting certified copy of the C.M.A.No.12 of 2013 but the same was rejected without any reasons for several time and regarding there is no piece of evidence for the same and there is no detail explanation and he further alleged that finally he got the certified copy of the judgment in C.M.A.No.12 of 2013 on 12.12.2014. But that is not true fact because certified copy of the said C.M.A.No.12 of 2013 annexed in typed set papers filed by the petitioner there is copy decree and judgment and in the same in the last page of Court seal is available in which it is mentioned that the copy application was made 09.01.2014 and on the very same day itself the order copy was made ready and the same also been received on the same as a party in person. The petitioner has suppressed the real fact that he received the order copy on 09.01.2014 itself and the same has been wantonly suppressed the real facts and deliberately avoided the same. Further the petitioner alleged in his affidavit in Para18 that the petitioner to get certificate copy of the order made a complaint before the Chief Judicial Magistrate, Karur on 11.12.2014. It is thereafter on the basis of his complaint he got certified copy of the order on 12.12.2014, which is false statement as the evidence is available in his own typed set of papers. I further submit that the petitioner didn?t give any explanation after 12.12.2014 to 23.02.2016 (ie) on the day the said C.R.P. has been filed before this Hon?ble Court?.
7.The relevant portion of the Para No.18 of the affidavit filed by petitioner is also extracted here under:
?I respectfully submit that petitioner applied CA for the second ex- parte judgment copy dated 13.06.2012, it was rejected multiple times without valid reasons and after given a complaint to Chief Judicial Magistrate, Karur on 11.12.2014, the petitioner received the certified judgment copy on 12.12.2014?.
8.The perusal of the pleadings put forth in the affidavits on either side relating to the facts regarding the date of receipt of the certified copy of judgment passed in C.M.A.No.12 of 2013 by the Principal District Judge, Karur would show that it is stated in both the affidavits that on which date the copy of judgment passed in C.M.A. No.12 of 2013 was received by the petitioner herein:
?Whether, given different or contradictory pleadings in affidavit would constitute the offence of perjury is the question before this Court?.
9.As far as perjury is concerned, the prosecution for perjury should be sanctioned by Courts, only in those cases, where the perjury appears to be deliberate and conscious. No doubt that giving of false evidence is an evil which must be effectively curbed with a strong hand. But to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be immaterial.
10.There must be prima-facie case of deliberate falsehood on a matter, of substance and the Court should be satisfied that there is reasonable foundation for the charge. In the present case, I do not think that the material brought to my notice is sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint based on the petition filed by the petitioner. There cannot be any mechanical and superficial approach in the matter like this. When I give requisite weight to the contents of the affidavit filed by the petitioner, I am not able to find out any point for consideration to initiate prosecution on the charge of alleged false affidavit.
11.It is relevant to quote here that in the Webster?s Dictionary, Perjury is defined that ?the crime of telling lies in Court when one has promised to tell the truth?. It is only in case that the Court is of the opinion that it is expedient in the interest of justice that an enquiry should be made for any offence under Section 195, which appears to have been committed in relation to a proceeding in that Court and after preliminary enquiry, a finding can be recorded and complaint made. On consideration, I find no merit in the contentions raised by the petitioner. Further, as far as Perjury is concerned that recourse to falsehood must be played with motive, then it could be stated that the same may hamper and impede the flow of justice and would prevent the Courts from performing their legal duties. False affidavit must be with oblique motive with an intention to deceive the Court and would amount to interfere with administration of justice. At the same time the perusal of the counter affidavit filed by the respondent does not show any thing as agitated by the petitioner.
12.I am having an occasion to rely on the judgment of the Hon?ble Supreme Court in the case of M/s.A.M. Sajida vs Sh. Sanjay Kumar Pandey on 3 June, 2013, wherein it is referred that filing of false affidavit, no doubt is a kind of interference in the administration of justice. Further in another judgment reported in 2001 (5) SCC 289 that filing of false affidavit with pleadings amounts to giving false evidence as defined under section 191 of IPC.
13.I have no doubt that false averments and pleadings is an attempt to invite the Court into the passing a wrong judgment and it must be treated as an offence under section 191 of IPC, but the case on hand, no such occasion is arisen even after the careful scrutiny of the counter affidavit filed by the respondent.
14.Further, in my considered opinion that unless the averments were tested on the touch stone of its truthfulness, petitioner's contention that there were false allegations in the counter affidavit for perjury would amount to breach of basic principle of natural justice. So, the petition filed by the petitioner seeking prosecution for offences under the Indian Penal Code as mentioned in the petition was misconceived. Even otherwise it would not be expedient in the interest of justice to initiate prosecution by resorting to proceeding under Section 340 of Cr.P.C.
15.The perusal of the counter affidavit filed by the respondent would show that the petitioner has not given proper explanation for the delay but he has suppressed the real facts. The application to get the certified copy in C.M.A.No.12 of 2013 on 09.11.2014 and on the same day the copy was received by the petitioner. However he has deliberately suppressed the fact that it was received by the petitioner on 12.12.2014. Moreover, the petitioner did not give any explanation from 12.12.2014 till the date on which the appeal was filed that is on 23.02.2016. Further after considering the revival submission made on either side, my learned predecessor passed his order in C.M.P.No.2171 of 2016 dated 11.08.2016. The operative portion of the order is extracted hereunder:
?As stated above, the affidavit and the written submission of the petitioner, devolves upon the facts on the previous proceedings between the parties and in Para Nos.17 and 18 of the affidavit, the petitioner has specifically stated that he received the order copy on 12.12.2014. A perusal of the typed set would reveal that the petitioner applied for certified copy of the order on 21.07.2015 and received it on 24.07.2015. Based on the order, he filed the present revision. However, page Nos.138 and 144 of the typed set of papers show that he received the certified copy of the fair and decreetal order in C.M.A.No.12 of 2013 on 09.01.2014, but ironically in the affidavit, nothing has been stated in this regard. Further, there is absolutely no explanation offered for the delay in filing the copy application and till filing this revision, after receipt of the certified copy of the order. In view of the above facts, this Court is of the opinion that the petitioner has not approached the Court with clean hands, nor shown sufficient cause for condonation of delay. In fine, this application is dismissed?.
16.So, the order passed by this Court is based on the averments and materials by way of proper appreciation. Admittedly against the order of dismissal passed in C.M.P.(MD)No.2171 of 2016 dated 11.08.2016 no appeal is preferred before the Hon?ble Supreme Court. As far as the filing of the petition under section 340 of Cr.P.C., the conduct on either party is very relevant. Here, the petitioner has made allegations against not only the respondent, but the learned Counsels appearing for the respondent too. That apart he has gone further to make allegations as against the Registrar (Judicial) of this Hon?ble Bench. These allegations are made by the petitioner without having any valid and legally acceptable materials to show that the learned counsels for the respondents? and the Registrar (Judicial) of this Court have conspired with the respondent and made foul play and thereby the respondent got order in her favour. In my considered opinion such application is nothing but vexatious. So, I have no option but constrained to heavily come down upon the petitioner for his unwarranted imputations as against the officers of the Court.
17.Moreover, as far as the merit of the matter is concerned that it is for the petitioner to prove that he has received the certified copy of the order passed in C.M.A.No.12 of 2013 not on 09.01.2014 as stated in the counter affidavit by the respondent, but on 12.12.2014. No proof is filed to substantiate the plea taken by the petitioner. Then it would show that the affidavit filed by the petitioner and the contentions made therein are false. Then it would suffice to hold that the petitioner only has filed false affidavit before this Court. Further though the petitioner has filed the affidavit with a prayer to initiate prosecution for perjury, he has failed to substantiate the contentions made therein. As far the offence of perjury is concerned the petitioner has relied on the judgment passed by me in Crl.O.P.No.6358 of 2010 dated 05.10.2017, but the ratio laid down there is not applicable to the facts and circumstances of the present case. The ratio laid down in Crl.O.P.No.6358 of 2010 is relating to the procedures to be adopted in dealing with the application field under section 340 of Cr.P.C. Here the question before this Court is that whether improper application without relevant ingredients to make out an offence of perjury is maintainable or not. The petitioner is duty bound to satisfy the Court with regard that the ingredients of the offence of perjury is made out in the counter affidavit filed in the respondent. But the petitioner herein has not made out any case to maintain the application to initiate prosecution for the offence of perjury.
18.At the same time the perusal of the affidavit filed by the petitioner would show that he has filed the petition with an intention to drag on the respondent unnecessarily to the Court proceedings by wasting the precious time of this Court. His conduct in making unwarranted imputations on the learned counsels for the respondent and also as against the Registrar (Judicial) of this Court is to be viewed seriously, and I am unable to show any leniency upon the conduct of the petitioner in filing such vexatious petition. So, I am constrained to dismiss the petition in C.M.P.(SR)(MD).No.47978 of 2017 with a cost of Rs.5,000/- upon the petitioner and the petitioner is directed to remit the cost to the Hon'ble Chief Justice Relief Fund, Madras High Court, within a period of two weeks from the date of receipt of a copy of this order, failing which the Registrar (Judicial) of this Court is directed to take appropriate legal steps in this regard.
19.In view of the discussions made above, the petition filed by the petitioner is in my considered opinion is not only entertainable and the same is not maintainable as the same is lacking of any material to make out the offence punishable for the offence of Perjury, accordingly the petition is dismissed with a cost of Rs.5,000/- as indicated above.
To
1.The Principal District Judge, Karur.
2.The Subordinate Judge, Karur.
3.Thiru.K.Gopalram, No.1/27, Vallalar Street, Padur, Padur Residency, Kelambakkam, Kancheepuram District.
Tamil Nadu ? 603 103..