Delhi District Court
Smt. Madhu Bagga vs The State on 17 March, 2009
1
IN THE COURT OF MS. REENA SINGH NAG
ADDL.SESSIONS JUDGE-2 (East), KKD, DELHI
CR(A) No. 235/07
Case No. 53/05
PS. Dilshad Garden
U/s. 340 Cr.P.C
1. Smt. Madhu Bagga
W/o.Dr. Ashok Bagga
D/o. Sh. O.P.Kurich,
R/o. D-53, Dilshad Colony/Garden,
Delhi-110092. -------Revisionist
Versus
1.THE STATE
(Govt. of National Capital Territory of Delhi.)
2. Dr. Ashok Bagga
S/o. Sh. L.C.Bagga
R/o. 8202/1, Gali No.6,
Multani Danda, Pahar Ganj,
New Delhi. ------- Respondents
Date of Institution: 01.03.07
Date of final arguments: 17.03.09
Date of decision: 17.03.09
ORDER
1. It is alleged by the appellant that she was married with respondent on 05.02.95 and a daughter named Mini was born on 28.12.95 from the wedlock; that on being turned out from matrimonial home alongwith Baby 2 Mini on 07.09.96 on account of dowry demand, FIR No. 140/97 was got registered on her complaint at CAW Cell, U/s. 498-A/406/34 IPC; that petition U/s. 125 Cr.P.C was filed on 17.12.97 and respondent was served; that respondent filed petition under HMA No. 340/98, wherein he admitted the paternity of Baby child Mini to the effect that she was born from his loin and also filed affidavit dt. 25.04.98 in support of his petition there; that he withdrew the petition on 01/10/99; that in reply (WS) to maintenance petition, respondent levelled malicious allegations by disputing the paternity of child Mini; that during cross-examination of PW-1 (appellant) in maintenance petition, respondent suggested to appellant that Mini was not born out of his wedlock with appellant and that illegitimate child was born out of first marriage of the appellant with Naresh Kumar Sharma; that in WS respondent claimed that he did not consummate the marriage with appellant and was therefore, not liable to maintain the child Mini, who as per respondent belonged to first husband of the appellant; that in order to deprive the child of her legitimate rights and maintenance in reply to the maintenance petition, respondent stated that at the time of the marriage of the appellant with respondent the first husband of appellant was alive and was still alive and he used to visit the appellant without the consent or knowledge of the respondent and as such Mini being the daughter of the first husband of appellant, he was under no obligation to maintain her.
2. It has also been alleged by the appellant that counsel for respondent namely Sh. Francis Paul during examination of appellant on 3 05.07.01 asserted the same points and alleged that the child was not born out of marriage of respondent Ashok Bagga and that child was outcome of her illicit relations and that name of father of child in school record was Naresh Sharma. Appellant submits that all these assertions were made despite having fully known that those were malicious and false. In her present appeal appellant has also referred to the order of Ld. MM Sh. M.K.Nagpal dt. 16.04.02 vide which baby child Mini was granted maintenance of Rs. 1,000/- pm,in which order it was held by Ld. MM that baby child Mini is legitimate daughter born out of wedlock of appellant and respondent.
3. Appellant filed first petition but there being no order thereon at the time of final judgment, appellant filed another petition on 03.12.02, which was decided on 22.0107 in case no.53/05 by Ld. MM Ms. Anuradha Shukla Bhardwaj and aggrieved against that order of Ld. MM, Ms. Anuradha Shukla Bhardwaj, appellant has filed the present appeal U/s. 341 Cr.P.C on the ground that Ld. Trial Court failed to appreciate that the respondent knowingly and deliberately filed a false affidavit in reply in judicial proceedings in order to deprive the child of her legal rights and to injure the reputation of the appellant and also tried to frustrate the administration of justice. The appeal is also annexed with the affidavit by appellant Madhu Bagga and application for condonation of delay for filing the appeal.
4. The grounds taken in the application for condonation of delay are 4 that the impugned order is dt. 22.01.07 and she applied for certified copy of order on 07.02.07 and it was delivered to her on 09.02.07; that due to serious illness of her mother, she could not contact her counsel till 24.02.07, however on 25.0207, she contacted him and asked for drafting the appeal, which was accordingly prepared and signed by her on 28.02.07.
5. Notice of appeal and application was given to respondent, who appeared and filed reply to the appeal and the application. He took the objection that appeal is time barred; that appeal is not maintainable but revision U/s. 482 Cr.P.C lies in the matter; that the present move is an attempt to take revenge from the respondent; that no cognizance was taken on the application dt. 26.03.99 filed by the appellant U/s. 340 Cr.P.C, at the time of disposing of the maintenance petition; that complaint filed by the appellant U/s. 500 IPC was dismissed by Ld. ACMM Sh. Vinod Kumar, vide order dt. 18.12.03; that the present appeal is not maintainable. The sum and substance of his reply was that he withdrew the HMA petition on 01/10/99, as earlier appellant had not shown the copy of divorce decree from her first husband and when the same was shown he withdrew his petition; that no prejudice has been caused to the child, who has been ordered to be paid maintenance, which he is regularly paying @ Rs. 1,000/- pm; that the cross-examination of the witness is normally done by the counsel of the parties, who have every right to ask any question to the witness and witness should not take such questions as personal; that in maintenance proceedings counsel for husband could take 5 any defence available to him to protect the interest of his client, therefore, the appellant wife should not take the things personally; that the order of Ld. MM Ms. Anuradha Shukla Bhardwaj does not suffer from any illegality or infirmity and she has taken the right view that no mis-carriage of justice has taken place and she has passed the order after taking into consideration all aspects of the case. In his reply to the application for condonation of delay, condonation was strongly opposed on the ground that delay has not been properly explained as despite receiving the certified copy on 19.02.07 she kept sitting over it and filed the appeal on 28.02.08; that her plea that she could not contact her lawyer till 25.02.07 is not believable since as per her medical certificate she was under medical treatment from 19.02.07 till 24.02.07 meaning thereby that prior to 19.02.07 appeal could have been filed, which opportunity was not availed of; that appellant appeared with her counsel on 20.02.07 in the court of Sh. Rajneesh Bhatnagar in divorce proceedings.
6. Respondent has also placed on record his written arguments in rebuttal to the prayer for condonation of delay by the appellant, wherein he has mentioned that as per documentary evidence appellant had met her advocate on 17.02.07 and filed criminal miscellaneous no. 1958/07 before Hon'ble High Court of Delhi containing her signatures alongwith an affidavit, so her contention that she could not meet her advocate between 09.02.07 to 24.02.07 is totally false. In support of his contention he has relied upon the authorities reported in AIR 1981 Delhi 215 M/s. Prem Nath Motors (P) Ltd. New Delhi Vs. Bhadur Ors. & Chand Dhawan 6 and appeal decided by Hon'ble Allahabad High Court from order no. 3207/04 dt. 05/07/06 in case titled Sita Ram Vs. Shridhar & Ors.
7. Respondent has also relied on the authorities reported in JT 1998 (7) SC 21 titled P.K.Ramchandran Vs. State of Kerala and Anr., in which case there was a delay of 565 days; 2000 (8) SC 166 titled M/s. Wine Agencies Vs. The Financial Commissioner Revenue and Others, wherein there was delay of more than one year; 145 (2007) DLT 275 (DB) titled Love Kumar Sethi Vs. M/s. Delux Stores and Ors.., wherein there was delay of 146 days; 2001 (9) SCC 717 titled Ragho Singh Vs. Mohan Singh and Ors., in which case appeal was filed beyond time by 10 days that too without any application U/s. 5 of the limitation Act and hence same was dismissed; DLT 19 (1981) 178 page 180 titled Dr. Gurjit Singh Bajaj Vs. Ramesh Chander requiring for explaining the delay of each days; 1999 (113) E.L.T 379 (SC ) Collector of C.Ex. Ahamdabad Vs. Corner Stones Brands Ltd., wherein there was delay of 650 days without any explanation and 2005 (84) DRJ 146 titled V.K.Thukral and Ors. Vs. Lalit and Ors., wherein there was delay of 416 days. In all the above cases delay was not condoned by Hon'ble Superior Courts.
8. Counsel for the appellant Sh. S.A.Khan has on the other hand submitted that as per Limitation Act the date of order i.e 22.01.07 is to be excluded; that section 10 of the General Clauses Act is to be invoked 7 which provides for filing of the petition on the next working day if court is closed on the last date of limitation and by that computation appeal was required to be filed by 26.02.07; that the time taken in getting the certified copies is to be excluded; that 25.02.07 was Sunday; that there is delay of only two days and he has relied on the authorities reported in AIR 1987 SC 1353 in case titled Collector Land Acquisition Anantnag Vs. Katiji, wherein Hon'ble Apex Court interalia observed that ' everyday's delay must be explained, does not mean that a pedantic approach should be made, why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. He has also relied on authority reported in AIR 2003 SC 2084 titled M/s. India House Vs. Kishan.N.Lalwani.
9. I have given thoughtful consideration on the limitation aspect in the light of the rival submissions and documents adduced on record. As per law, petitioner is not required to furnish any reason for not filing the petition within the specified period of limitation. He has to furnish the explanation for the delay beyond the stipulated period of limitation and in this case the same has been well explained and authority relied upon by the appellant is applicable whereas the authority relied on by the respondent are distinguishable on facts and are not applicable to the case underhand. As such, delay is condoned.
10. To bring home the point that for invoking section 341 Cr.P.C and other relevant provisions of Cr.P.C, it has to be appreciated by the court 8 that such enquiry should be expedient and in the interest of justice and that the material produced before the court makes out a prima facie, case for a complaint and whether there had been any interference with the administration of justice or not due to the acts alleged.
11. As regards, the merits of the appeal, respondent has relied on various authorities in support of the plea taken in his reply to the appeal.
(a) AIR 1981 Delhi 215 M/s. Prem Nath Motors (P) Ltd., New Delhi Vs. Bhader Chand Dhawan
(b) Sita Ram Vs. Sri Dhar & Ors. by Hon'ble Allahabad High Court.
12. Appellant has on the other hand relied on the authorities reported in 41 (1990) DLT 179 titled Ranvir Singh Vs. State, on perjury, wherein in the second revision filed by the advocate he gave a certificate the no similar petition has been filed by him in the High Court and he obtained reduction in sentence by tempering judicial record by changing page of the certificate. He was found to be guilty of professional misconduct, perjury and forgery. Another authority reported is titled as Re. suo moto proceedings against R. Karuppan by Hon'ble Supreme Court as reported in AIR 2001 SC 2204, wherein Hon'ble Apex Court interalia observed that sanctity of the affidavit has to be preserved and protected discouraging the filing of irresponsible statements without any regard to accuracy. In para 14, it was also observed that " it is not disputed that an affidavit is evidence within the meaning of section 191 of the Indian Penal Code and a person swearing to a false affidavit is guilty of perjury punishable U/s.
9193 IPC. In the given facts and circumstances Hon'ble Apex Court held that respondent advocate made a false statement although he was legally bound by oath to state the truth and this false statement constituted an offence of giving false evidence U/s. 191 IPC punishable U/s. 193 IPC. Another authority relied on is AIR 1999 SC 482 titled Mohan Singh Vs. Late Amar Singh, wherein it was observed that the tenant filed false affidavit, forged documents and tempered with judicial record as per prima facie circumstances of the case and Hon'ble Apex Court directed to file a criminal complaint against the accused.
13. In the light of the above let us see, if the order of Ld. MM deserves to be set aside. The relevant order of Ld. MM dt. 22.01.07 is reproduced below .
"Admittedly, the respondent has taken two contrary pleas in his respective petition and reply. However, this is also admitted that in none of the proceedings, he gave evidence before court in support of his stand. Though affidavits were filed in support of the pleadings, the respondent did not choose to stand by his affidavits in either of the case. His petition U/s. 11 of Hindu Marriage Act was withdrawn and for the case U/s. 125 Cr.P.C he did not lead evidence. Enquiry U/s. 340 Cr.P.C, in my opinion, would be required if there appears an attitude on the part of the accused of willfully misleading the court in arriving at a wrong conclusion. In my 10 opinion, though the respondent took a particular stand and on his pleadings cross examination was also conducted by the counsel, the respondent did not insist his claim before the court by leading a evidence in support of his averments. Thus, aware of the contradiction in his plea, he did not give an evidence which could have led the court in forming a wrong opinion."
14. The observation of Ld. MM that respondent did not lead evidence is erroneous as a fact can be proved in the court of law by documentary or oral evidence and in this case while filing the affidavit in support of its pleadings respondent intended to lead evidence that Mini was not born from his loin to Madhu Bagga, although it is a different thing that he withdrew his petition U/s. 11 of HMA and he also did not lead his own evidence U/s. 125 Cr.P.C as has been observed by Ld. MM. If seen in entirety by putting a suggestion to a witness through which respondent wanted to project that the Mini was not born to Madhu Bagga from his loin, there is no doubt as to the intention of the respondent in putting such suggestion to witness Madhu Bagga and the obvious inference is that he wanted to lead evidence through these oral suggestion that Mini was not his biological daughter. Thus, to that extent observation of Ld. MM is incorrect and it needs to be set aside and is accordingly set aside and in this context I also draw support from the authorities relied on by the appellant wherein it has been held that an affidavit is evidence within the meaning of section 191 of the Indian Penal Code.
1115. Now the next prong of the point for determination is whether in the given facts and circumstances, it was expedient and in the interest of justice to initiate proceedings against the respondent U/s. 340 Cr.P.C r/w section 193/199/200 & 209 IPC. In this context, respondent has relied on various authorities as referred above and there can be no dispute with regard to the proposition of law enunciated therein. But every case needs to be appreciated in the background of its own peculiar facts and circumstances and there cannot be any straight jacket formula to meet all situations. It has since been brought in the notice of the court that decree of divorce has since been given by the court of Ms. Shail Jain, Ld. ADJ, North on 31.01.09 and certified copy of order has been placed on record, which reflects that Ld. ADJ held that respondent (appellant herein) had treated the petitioner (respondent herein) with cruelty. The couple were married on 05.02.95 and for both of them it was their second marriage. It has also been mentioned in the judgment that the couple resided separately since 07.09.96.
16. Thus, it can be seen that much time has elapsed between the duo during which period they have been litigating against each other due to the bitterness brewed up between them. Respondent states that appellant is bent upon to send him behind the bar which she also declared during her examination in other judicial proceedings and that he had been regularly paying Rs. 1,000/- pm to Mini as ordered by Ld. MM Sh. M.K.Nagpal vide order dt. 16/04/02 as maintenance and that it would not be expedient 12 and in the interest of justice to allow the appeal.
17. Appellant has on the other hand submitted that for realising the maintenance she has to rush to the court in execution proceedings since respondent is not otherwise making the payment to daughter Mini and that she being a Bank Manager finds it troublesome and inconvenient to rush to the court every time for getting the legitimate dues for Mini. She has also verbally submitted that respondent has not made the payment of the monthly maintenance since September 2007. In these circumstances, it can be inferred that whatever respondent intended at the time of filing WS to 125 Cr.P.C maintenance petition, meaning thereby to evade giving maintenance on the ground of Mini being not his biological daughter, is being fructified. If, no relief is given to the appellant, it would mean vindicating the stand of respondent, which would not be in the interest of justice and expedient.
18. In the obtaining facts and circumstances, the case being of complex spouse relationship, wherein after a long drawn out battle legal break up of nuptial tie has been secured by the husband, it would be apt that an opportunity is given to the respondent to straighten the record and it is expected that he would pay Rs. 50,000/- by 25.06.09 to the appellant towards litigation expenses incurred by her in the Trial Court and this court, besides to assuage her feeling and feelings of Mini since deliberately respondent took a false plea in the affidavit that Mini was not born out of his wedlock with appellant Madhu. In the interest of justice it 13 is also expedient that the arrears of maintenance, if any and the per month maintenance of Rs. 1000/- be credited to the account of the minor child Mini under the guardianship of her mother Madhu Bagga, which monthly amount should go by 10th of each month, directly from the salary/pension as the case may be of respondent as he is a research officer in Safdarjung Hospital . Respondent should clear the arrears in above manner by 25.06.09 and respondent shall take necessary steps in this regard giving permission to his employer for the same and this exercise should also be done by 25.06.09. Appellant shall furnish particulars of bank account of Mini to respondent to facilitate giving of maintenance by above mode. Particulars be given in Trial Court within 15 days from first date there.
19. If, respondent fails to avail the above opportunity i.e giving Rs. 50,000/- and taking steps for crediting maintenance from his salary account, by 25.06.09 then it can be safely said that respondent does not deserve any leniency and it would be in the interest of justice to proceed on the petition of appellant and in that eventuality Ld. MM shall proceed with the case by drawing up a complaint against the respondent as per law since he had furnished the evidence in the judicial proceedings, which was false to his knowledge as discussed above. However, if the respondent meets out the above conditions then it would not be expedient to proceed further against him.
20. With these observations appeal is disposed of. Trial Court Record be sent back alongwith copy of this order. Parties are directed to 14 appear before Ld. Trial Court/Successor Court on 06.04.09. Copy of order be sent to counsel for both the parties for information and necessary action. Appeal file be consigned to record room.
Announced in the open (REENA SINGH NAG)
court on 17.03.09 ASJ-2/(EAST)KKD/DELHI
17.03.09
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