Karnataka High Court
A M J Dayalraj vs Parish Priest on 21 December, 2023
CRL.A NO. 1248/2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE G. BASAVARAJA
CRIMINAL APPEAL NO.1248 OF 2012
BETWEEN:
A.M.J. DAYALRAJ
S/O ANANDRAJ
AGED ABOUT 54 YEARS
R/O CHURCK VIEW COTTAGE
B.NO.24, C ROAD CROSS
BEHIND ST. MARY'S BASILICA
SHIVAJINAGAR
BANGALORE - 560 051
...APPELLANT
(BY SRI SHASHANK KUMAR, ADVOCATE)
AND:
PARISH PRIEST
REPRESENTED BY
REV. FR. A.S. ANTHONYSWAMY
ST. MARY'S BASILICA
SHIVAJINAGAR
BANGALORE - 560 046
REP BY THEIR GAP HOLDER
REF. FR. D. DEVA DASS
...RESPONDENT
(BY SRI MANJUNATHA S, ADVOCATE)
This Criminal Appeal is filed under Section 341 of
Cr.P.C. praying to set aside the order dated 24.08.2012
passed by the XVII Additional Judge, Court of Small Causes,
Mayohall Unit, Bangalore in SC No.15681 of 2011.
In this appeal, arguments being heard, judgment
reserved on 23.11.2023, coming on "Pronouncement of
Orders", this day, the Court delivered the following:
-2-
CRL.A NO.1248/2012
JUDGMENT
The appellant/defendant in SC.No.15681/2011 on the file of the XVII Additional Judge, Court of Small Causes, Mayohall Court, Bangalore is before this Court challenging the order dated 24.08.2012 by which Order the trial Court has dismissed the application filed by the defendant under Section 340 of Code of Criminal Procedure.
2. The substance of the application filed under Section 340 of Code of Criminal Procedure which is supported by the affidavit of A.M.J. Dayalraj is that he is the tenant of the suit schedule property on monthly rent of Rs.65/-. He had been regularly paying the rent every month up to October 2010. Thereafter, plaintiff refused to receive the rent from November 2010. But the plaintiff issued a notice dated 06.07.2011, falsely alleging arrears of rent. Therefore, he sent a reply notice on 13.07.2011 through his lawyer along with the cheque for Rs.585/- towards the rent from November 2005 to July 2011. The plaintiff encashed the cheque and also issued a rent receipt for the said payment of rent for the stipulated period. In spite of having received the entire rent, plaintiff, knowingly, made a dishonest and false claim of -3- CRL.A NO.1248/2012 arrears of rent due in a sum of Rs.5,135/- for 79 months. Further, it is stated that on 30.07.2011 he has sent a cheque bearing No.686575 for a sum of Rs.585/- towards the rent from November 2010 to July 2011. The plaintiff encashed the said cheque and issued rent receipt for the same on 12.09.2011. Thereafter, during the pendency of the suit on 02.02.2012 he has paid rent for the month of Augusts 2011 to February 2012 by cheque bearing No.686577 for a sum of Rs.455/- before this Court. Plaintiff has issued rent receipt for the same but, he is falsely claiming that the rent is not paid. Hence, the plaintiff is dishonestly making false claim of arrears of rent. Further, on 06.07.2012 he has paid rent for the months of March 2012 to July 2012 by cheque bearing No.489323 for a sum of Rs.390/- drawn on Canara Bank, Cunningham Road Branch, before this Court. There is no arrears of rent whatsoever and the claim is false. The entire rent is paid up-to-date. Plaintiff is guilty of making false claim in his plaint and is giving false evidence in his affidavit that, in spite of receiving the rent up to 20.02.2012, deliberately made false and dishonest claim in the suit. Plaintiff is guilty of perjury and is liable for prosecution under Sections 193 and -4- CRL.A NO.1248/2012 209 of Indian Penal Code. On all these grounds sought to allow the application.
3. The plaintiff has filed his written objections contending that the application filed by the defendant under Section 340 of Code of Criminal Procedure is liable to be dismissed as it is not maintainable either in law or on facts. In civil proceedings and in summary proceedings, there is no provision to file application under the provisions of Code of Criminal Procedure. On this ground also the application is liable to be dismissed with exemplary costs. Further, it is submitted that defendant has made a false statement in the affidavit attached to the application under Section 340 of Cr.P.C. Hence, the application is liable to be dismissed on said count also. Though it is contended that the defendant is due of rents from November 2005 to July 2012 amounting of Rs.5,265/- for a period of 81 months, whereas, it is admitted that following are the payments made by the defendant:
Sl.No. Details Amount (Rs.)
1. On 30.07.2011 through reply notice 585.00
2. On 02.02.2012 through Memo 455.00
through cheque No.686577
3. On 06.07.2012 through Memo 390.00
through cheque No.489323
Total 1430.00
-5-
CRL.A NO.1248/2012
4. On 23.08.2012 through cheque 65.00
No.489325
4. Therefore, till today, i.e. 23.08.2012, the arrears of rent to be paid by the defendant is only Rs.1,495/- and balance arrears of rent payable by defendant at Rs.65/- per month is Rs.3,770/-. The documents furnished along with the application are also not relevant documents. Hence, the application is liable to be dismissed. It is further contended that the defendant is only dragging the proceedings by filing cases which have no relevancy. On all these grounds sought for dismissal of the application with costs.
5. On hearing the arguments on both sides, the trial Court on 24.08.2012 has dismissed the application filed by the appellant under Section 340 of Cr.P.C. Being aggrieved by the impugned order, the appellant/defendant has preferred this appeal.
7. Sri Shashank Kumar, learned counsel appearing for the appellant/defendant submitted that the impugned order is not maintainable under law for the reason that the trial Court has expressed its opinion that the provisions under Section 340 of Cr.P.C is not applicable to this case, which, apparently, -6- CRL.A NO.1248/2012 is wrong. Due to typographical mistake in paragraph No.3 of the affidavit it is mentioned as rents from November 2012 to July 2011 instead of from November 2010 to July 2011. In reply notice, the defendant has clearly stated that the payment of rent is due from November 2010 to July 2011 for 09 months and he has paid an amount of Rs.585/- through cheque. In reply notice, the defendant has categorically stated that though he has paid the rent from November 2010 to July 2011, the plaintiff has made a false claim in the plaint stating that there was arrears of rent from November 2010 to July 2011. Even after filing the application under Section 340 of Code of Criminal Procedure, the defendant has clearly admitted in his written objection that he has received rents from November 2010 to July 2011 for nine months to the tune of Rs.585/-. Though he has clearly admitted to this effect in his statement of objections, the trial Court has not initiated the proceedings against the plaintiff for making false claim before the Court. Apart from this, the plaintiff has filed an affidavit instead of his examination-in-chief, in which, he has also claimed an amount of Rs.585/- which is already paid from November 2010 to July 2011. On all these grounds -7- CRL.A NO.1248/2012 sought to allow this appeal. To substantiate his arguments he relied upon the following Judgments, which are as follows:
a) PRITISH Vs. STATE OF MAHARASHTRA reported in AIR 2002 SCC 236. b) K.KARUNAKARAN Vs. T.V.EACHARA WARRIER AND ANOTHER reported in (1979) 1 SCC 18. c) GANDHI Vs. KRISHNARAJA reported in 2000 CRI. L.J.1590. d) OM PRAKASH Vs. STATE OF HIMACHAL PRADESH reported in 2000 CRI. L.J.1591.
8. As against this, Sri Manjunatha S, learned counsel appearing on behalf of the respondent-plaintiff, submitted that this appeal is not maintainable. To substantiate his arguments he relied upon the decision of the Co-ordinate Bench of this Court rendered in the case of K. AMARESH v. K. VITTOBHA AND ANOTHER passed in Crl.P.No.200232 of 2019 decided on 23.03.2021 and further submitted that the plaintiff has no intention to give false evidence before the Court and that is why he has clearly admitted in his written statement that the defendant has paid an amount of Rs.585/- through cheque which is due from November 2010 to July 2011. Further, he has submitted that the plaintiff will undertake to adduce additional evidence for receiving of amount of -8- CRL.A NO.1248/2012 Rs.585/- through the cheque from the defendant and this application is premature. When the case was posted for cross-examination, instead of cross-examination the defendant has filed the present application which is not maintainable under law. The trial Court has not given any finding as to the payment of Rs.585/-. However, the plaintiff has fairly and honestly submitted before this Court by filing written objections that he has received the amount of Rs.585/- from the plaintiff. Therefore, even on merits also the appellant has no case. On these grounds sought for dismissal of the appeal.
9. Having heard the arguments on both sides and perusal of records the following points would arise for my consideration:
1. Whether the appellant has made out a ground to interfere with the impugned order passed by the XVII Additional Judge, Court of Small Causes, Mayo Hall, Bangalore in SC No.15681 of 2011?
2. What Order?-9-
CRL.A NO.1248/2012
10. My answer to the above points are as under:
Point No.1: in the negative Point No.2: as per final order Regarding Point No.1:
11. I have carefully examined the material placed before this Court. The defendant had filed an application under Section 340 of Code of Criminal Procedure to prosecute PW1 under Sections 193 and 209 of the Indian Penal Code on the ground that though defendant had paid rent regularly to the plaintiff, but the plaintiff has falsely claimed that the rent is not paid and is dishonestly making false claim of arrears of rent. Thus the plaintiff is guilty of perjury and is liable to be punished as sought in the application.
12. Section 340 of Chapter XXVI of the Code of Criminal Procedure, 1973 contemplates as to the provisions of the offences affecting the administration of justice. But the trial Court has observed in the impugned order that the provision under Section 340 of Code of Criminal Procedure is not applicable to this case, which is not correct and this opinion expressed by the trial Court is apparently wrong and
- 10 -
CRL.A NO.1248/2012contrary to the provisions of Section 340 of Code of Criminal Procedure.
13. With regard to the merits of the application filed under Section 340 of Code of Criminal Procedure is concerned, it is the case of the appellant/defendant that the defendant is the tenant of the suit schedule property on monthly rent of Rs.65/-. He had been regularly paying the rent every month up to October, 2010. Thereafter, plaintiff refused to receive the rent from November, 2010. But plaintiff issued a notice dated 06.07.2011, falsely alleging arrears of rent. Therefore, defendant sent reply notice on 13.07.2011 along with the cheque of Rs.585/- towards rents from 2005 to 2011. The plaintiff got realised the cheque and also issued rent receipts for payment of rent for the stipulated period. However, in spite of having received the entire rent, plaintiff, knowingly made a dishonest and false claim of arrears of rent of Rs.5,135/- for 79 months in the plaint. It is further stated that on 30.07.2011, he has sent a cheque bearing No.686575 for a sum of Rs.585/- towards the rent from November 2010 to July 2011. The plaintiff realised the said cheque and issued a rent receipt for the same on
- 11 -
CRL.A NO.1248/201212.09.2011. Thereafter, during the pendency of the suit on 02.02.2012, he has paid the rent for the months of August 2011 to February 2012 through cheque bearing No.686577 for a sum of Rs.455/- before this Court. Though plaintiff has issued rent receipt for the same, but, is falsely claiming that the rent is not paid. Hence, the plaintiff is dishonestly making a false claim of arrears of rent. Further, on 06.07.2012 the defendant has paid rent for the months of March 2012 to July 2012 by cheque bearing No.489323 for a sum of Rs.390/- drawn on Canara Bank, Cunningham Road Branch, before this Court. There is no arrears of rent whatsoever and the claim is false. The entire rent is paid up-to-date. Plaintiff is guilty of making false claim and is giving false evidence in his affidavit that, in spite of receiving the rent up to 20.02.2012, has deliberately made a false and dishonest claim in the suit and in his evidence that rent of Rs.5,135/- is due and no rent has been paid by him. Plaintiff is guilty of perjury and is liable for prosecution under Sections 193 and 209 of Indian Penal Code.
14. Defendant has stated in his objection that he is due of rent from November, 2005 to July 2012 amounting to
- 12 -
CRL.A NO.1248/2012Rs.5,265/- for a period of 81 months. It is admitted that following are the payments are made by the defendants:
Sl.No. Details Amount (Rs.)
1. On 30.07.2011 through reply notice 585.00
2. On 02.02.2012 through Memo 455.00
through cheque No.686577
3. On 06.07.2012 through Memo 390.00
through cheque No.489323
Total 1428.00
4. On 23.08.2012 through cheque 65.00
No.489325
15. Hence, as on 23.08.2012, the arrears of rent paid by the defendant is Rs.1,495/- and the balance arrears of rent is Rs.3,770/- at Rs.65/- per month. The documents furnished along with the application are not relevant documents. It is further stated that the defendant is only dragging the proceedings by filing cases which have no relevancy. The plaintiff has clearly admitted in his statement of objections as to the payments made by the defendant.
16. Sub-Rule (2) of Rule 3 of Chapter-I of the Karnataka Civil Rules of Practice, 1967, contemplates that, "Pleadings" shall include plaints, written statements, memoranda of appeals, cross objections, original petitions, applications, counter statement, replies, rejoinders and every
- 13 -
CRL.A NO.1248/2012statement setting out the case of a party in the matter to which the pleadings relate. Since the plaintiff has admitted as to the amount paid by the defendant in his statement of objections which comes under the definition of pleadings as stated above, the question of committing offence under Section 193 and 209 of Indian Penal Code does not arise. The learned counsel for the respondent also undertakes to adduce additional evidence before the trial court in this regard, as the examination-in-chief of PW1 has not been completed. There are no essential ingredients to attract the offence punishable under Sections 193 and 209 of Indian Penal Code. Hence, there are no grounds to interfere with the impugned order passed by the trial Court. Accordingly, I answer the point No.1 in the negative.
Regarding Point No.2:
17. For the aforesaid reasons and discussions, I proceed to pass the following:
ORDER
1. Appeal is dismissed;
- 14 -
CRL.A NO.1248/2012
2. Send the copy of this order along with trial Court records to the trial Court forthwith as the matter is pending since 2012.
Sd/-
JUDGE PK