BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 20/12/2012

CORAM : THE HONOURABLE MR.JUSTICE M.VENUGOPAL

CRL.R.C.(MD)No.920 of 2011 and M.P.(MD) No. 1 of 2011

M.Sudalaimani ..Revision Petitioner
Vs.
S.Umaiyal .. Respondent/Respondent

Prayer

Criminal Revision Petition is filed under Section 397 of of Cr.P.C. r/w 401 Cr.P.C. to call for the records relating to the order dated 05.09.2011 in Crl.M.P.NO.1187 of 2011 on the file of the Learned Principal District Munsif cum Judicial Magistrate, Karaikudi and set aside the same and pass such other or further orders as this Court may deem fit and proper in the facts and circumstances of the case.

For Petitioner … Mr. V.R.Shanmuganathan
For Respondent … Mr. S.Murugan

ORDER

The Petitioner has focused the instant Criminal Revision Petition before this Court as against the order dated 05.09.2011 in Criminal M.P.No.1187 of 2011 passed by the Learned Principal District Munsif – cum – Judicial Magistrate, Karaikudi.

2. The Learned Principal District Munsif-cum-Judicial Magistrate, Karaikudi, while passing the order dated 05.09.2011 in Crl.M.P.No.1187 of 2011 has, among other things, observed that “… As per Section 340 of Cr.P.C., the court must satisfy that it is expedient in interest of justice the enquiry should be made into the offence under Section 195 of Indian Penal Code. On plain reading of the above Section clearly shows that satisfaction of the court is necessary that the respondent intentionally and knowingly gave false evidence. Moreover, the evidence cannot be looked into piecemeal. The whole evidence has to be considered. Moreover, it must be shown that the evidence of the respondent before this Court knowingly gave false evidence. In this case, it is already discussed in the foregoing paragraphs that there is no finding in C.C.No.197 of 2002 that this respondent gave false evidence etc” and resultantly, dismissed the petition.

3.Assailing the correctness of the dismissal order passed by the trial court in Cr.M.P.No.1187 of 2011 dated 05.09.2011, the Revision Petitioner/Petitioner has filed the instant Revision before this Court as an Aggrieved Person.

4.According to the Learned counsel for the Petitioner/ Husband, the trial court has committed an error in dismissing Crl.M.P.No.1187 fo 2011 without appreciating the facts in issue in a proper and real perspective.

5. The Learned counsel for the Petitioner urges before this Court that the trial court should have seen that the Respondent/ Wife has given false evidence and the same has been established as per categorical finding rendered in the judgment in M.C.No.05 of 2003 dated 07.12.2010.

6. Advancing his argument, it is the contention of the Learned counsel for the Petitioner that the Respondent/Wife as P.W.1 in M.C.No.05 of 2003 has given a false evidence that the Petitioner/Husband married one Premalatha. However, the said statement has been found to be a false one by the Judgment in C.C.No.179 of 2002 dated 06.05.2010 passed by the Learned Principal District Munsif – cum – Judicial Magistrate,Karaikudi.

7. Yet another plea taken on behalf of the Petitioner is that the Respondent/Wife as P.W.1 has suppressed the fact that her daughters viz, (the Second and Third Petitioners) in M.C.No.05 of 2003 are majors. However, a claim for maintenance for them also has been made in that proceeding.

8. That apart, the Learned counsel for the Petitioner submits that the Learned Principal District Munsif-cum-Judicial Magistrate, Karaikudi, without ordering notice to the Respondent/Wife in Crl.M.P.No.1187 of 2011 and without holding any enquiry as contemplated under Section 340 of Cr.P.C. has dismissed the petition erroneously.

9. Lastly, it is the contention of the Learned counsel for the Petitioner/Husband that the Principal District Munsif-cum-Judicial Magistrate, Karaikudi is bound to receive the document in evidence and to conduct a Preliminary Enquiry and then record a finding before proceeding further to lodge a complaint under law.

10. The Learned counsel for the Petitioner/Husband draws the attention of this Court that the Respondent/Wife along with her two daughters as Petitioner Nos. 2 and 3 filed M.C.N. 05 of 2003 on the file of the Learned Principal District Munsif – cum – Judicial Magistrate, Karaikudi (under Section 125 of Cr.P.C. claiming maintenance from the Revision Petitioner/Husband who was figured as Respondent therein). As a matter of fact the Respondent/Wife in M.C.No.05 of 2003 has claimed monthly maintenance of Rs.1,000/-(Rupees one thousand only) for herself and for her daughters she claimed a sum of Rs.2,000/- (Rupees two thousand only) per month towards maintenance.

11. The Learned counsel for the Petitioner contends that in M.C.No.05 of 2003, the Respondent/Wife has been examined as P.W.1 and that she has deposed that she is employed in a private school getting a salary of Rs.2,000/-(Rupees two thousand only) and from her salary income she is not able to fulfill her essential needs/requirements.

12. Also, the Learned counsel for the Petitioner invites the attention of this Court to the evidence of Respondent/Wife as P.W.1 in M.C.No.05 of 2003 to the fact that where she has stated that she can produce her salary certificate before the court and also, to a suggestion she has stated that it is not correct to state that she is getting an income of Rs.7,000/-(Rupees seven thousand only). Furthermore, the Learned counsel for the Petitioner submits that the Respondent/Wife gets a salary of Rs.7,000/-(Rupees seven thousand only) as per Exs.R.9 to R.10 respectively.

13. The Learned counsel for the Petitioner contends that in the order dated 07.12.2010 in M.C.No.05 of 2003 in paragraph No.11, it is clearly mentioned that ‘Admittedly, the first Petitioner is working as a Teacher in Alagappan Matriculation School and according to P.W.1, she is getting Rs.2,000/- (Rupees two thousand only) per month as salary. On the side of the respondent R.W.2 Kumarappan who is the Head Master of above school was examined. Ex.R.11 is the salary certificate of the First Petitioner. It can be seen from Ex.R.11 that the First Petitioner was getting a salary of Rs.6840/-(Rupees six thousand eight hundred and forty only) in the month of December 2007. R.W.2 in his evidence has clearly stated in the year 2003 the salary of the First Petitioner was Rs.3384/- (Rupees three thousand three hundred and eighty four only) and she was getting a take home salary of Rs.2978/-(Rupees two thousand nine hundred and seventy eight only) in the year 2003. This would clearly falsify the evidence of P.W.1 that she is getting Rs.2,000/-(Rupees two thousand only) at the time of filing of this petition etc. and therefore, it is clear that the Respondent (First Petitioner in M.C.No.5 of 2003) has clearly given false evidence and rendered herself for perjury.

14. Apart from the above, the Learned counsel for the Petitioner refers to paragraph No.7 of the order dated 05.09.2011 in Cr.M.P.No.1187 of 2011 wherein it is inter alia observed that ”In this case, this Court has perused all the documents etc” and further it is also observed that there is no finding in C.C.No.179 of 2002 that this Respondent/Wife gave false evidence and as also opined that the facts not proved and the facts disproved are different and in this case the facts stated by the respondent in the evidence were not disproved and so this Court cannot come to a conclusion that prima facie there is a case for perjury’. According to the Learned counsel for the Petitioner, these observations of the Learned Principal District Munsif – cum – Judicial Magistrate, Karaikudi are not per se correct in the eye of law.

15. Expatiating his submissions, the Learned counsel for the Petitioner puts forward an argument that before alleging the complaint under Section 340 of Cr.P.C. the following two conditions are to be followed namely
1) a person must have given false evidence
2) In the opinion of Court it is expedient in the interest of justice to make an enquiry.
Added further, it is the stand of the Petitioner that the Principal District Munsif – cum – Judicial Magistrate, Karaikudi has failed to take note of the fact that there is a prima facie evidence to show that the Respondent/Wife has given false evidence.

16. The Learned counsel for the Petitioner submits that the Principal District Munsif – cum – Judicial Magistrate, Karaikudi, has not issued notice to the Respondent/Wife in Crl.M.P.No.1187 of 2011 and straight away he has heard the matter and dismissed the petition without conducting a Preliminary Enquiry and indeed, the Petitioner/Husband’s counsel alone has been heard in Criminal Miscellaneous petition.

17. The categorical stand of the Petitioner is that the Petitioner has not been given an opportunity to let in evidence in Crl.M.P.No.1187 of 2011 before the Principal District Munsif – cum – Judicial Magistrate, Karaikudi. The Learned counsel for the Petitioner refers to Section 191 of Indian Penal Code which runs as under:
“Giving false evidence: – Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence”.
Also, he has made a reference to Section 193 of Indian Penal Code which speaks of “Punishment for false evidence” which enjoins thus: Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine”

18. Repelling the contentions of the Learned counsel for the Petitioner, the Learned counsel for the Respondent/Wife contends that the Criminal Revision Petition in Crl.RC.No. 920 of 2011 filed by the Petitioner/Husband as against the impugned order dated 05.09.2011 in CrlM.P.No.1187 of 2011 is not in limini maintainable in law because of the fact that as against the order dated 05.09.2011 in Crl.M.P.No.1187 of 2011 the Petitioner is to file an Appeal as per Section 341 of Cr.P.C.

19. Coming to the merits of the matter, the Learned counsel for the Respondent/Wife submits that there is no clear finding in M.C.No.05 of 2003 that the Respondent/Wife has given false evidence and in fact, the whole evidence tendered by the Respondent/Wife before appropriate proceedings belonging to be taken note of and her evidence cannot be viewed in isolation or in piecemeal manner.

20.Further, the Learned counsel for the Respondent/Wife brings it to the notice of this Court that the Respondent/Wife filed a salary certificate in the year 2007 in 2002 what has been the salary received by the Respondent/Wife is to be seen and for the year 2002 salary in respect of the Respondent/Wife no certificate has been given.

21.According to the Learned counsel for the Respondent/Wife in C.C.No.179 of 2002 on the file of the Principal District Munsif cum-Judicial Magistrate, Karaikudi the Revision Petitioner/Husband has been arrayed as the first accused along with the two accused namely A2 and A3 and the Revision Petitioner finally has been convicted for an offence under Sections 498(A) of IPC and Section 4 of Dowry Prohibition Act and sentenced to undergo one year Rigorous Imprisonment and also has been directed to pay fine of Rs.500/- in default to undergo Rigorous Imprisonment for three months for offences under Section 498(A) of IPC and to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.500/- in default. But in fact, Rigorous Imprisonment for three months in respect of an offence under Section 4 of Dowry Prohibition Act and for the sentences were ordered to run concurrently. However, A2 and A3 were found not guilty under Sections 498(A) and 494 of IPC and Section 4 of Dowry Prohibition Act and were acquitted under Section 248(1) of Cr.P.C.

22. The Learned counsel for the Respondent/Wife submits that the Revision Petitioner/Husband has been compulsorily retired from service and he was employed as the Sub Inspector of Police (On Technical Side). Further, it is the contention of the Learned counsel for the Respondent that examination of a Party/Litigant is not necessary and also notice to other side is not necessary and it is open to the Learned Principal District Munsif – cum – Judicial Magistrate, Karaikudi to deal with Crl.M.P.No.1187 of 2011 in accordance with law.

23. By way of reply, the Learned counsel for the Petitioner/Husband submits that an Appeal can be filed if the order passed by the Learned Principal District Munsif – cum – Judicial Magistrate, Karaikudi in Crl.M.P.No.1187 of 2011 dated 05.09.2011 is a Full Fledged One and since the impugned order in Crl.M.P.No.1187 of 2011 is not a Full Fledged one viz, without hearing the other side then it will not take away a party’s right to file Revision, wherein the propriety, legality or correctness of the order passed by the Learned Principal District Munsif – cum – Judicial Magistrate, Karaikudi can be challenged in the eye of law.

24. The Learned counsel for the Petitioner/Husband contends that the Respondent/Wife is necessarily to speak the truth and in fact, she has given false evidence in the proceedings in M.C.No. 05 of 2003 mentioning that she gets only Rs.2,000/- as salary in her avocation as Teacher in a private school, when in fact she has been earning more than Rs.2,000/-.

25.It is to be noted that the ingredients of Section 340 of Cr.P.C. apply to all proceedings in all courts de hors whether the matter in a civil court in which the purported offence mentioned in Section 195 of Indian Penal Code was committed, was a criminal case or a civil case. The purpose of Section 340 of Cr.P.C is to provide a safeguard against vexatious or frivolous prosecution. In fact Section 34 of Cr.P.C. and Section 195 of IPC are closely inter linked and have healthy construction. They should be read together as opined by this Court.

26. It cannot be gain said that before initiating an action under Section 340 of Cr.P.C., a Court of Law satisfied that the litigation sought to be proceeded against deliberately, intentionally committed offence. No wonder, Section 340 of Cr.P.C. is intended to be complimentary to Section 195 of IPC in the considered opinion of this Court. The power as per Section 340 of Cr.P.C. is to be exercised with care and caution that too, where it is considered necessary in the ‘interests of justice’. Every false statement averred in a plaint filed or in a written statement may not invite a prosecution as per decision in Vimla Vs. Ranjini Murugan reported in 1988 (2) Crimes 124, 131(Mad).

27. One cannot ignore an important fact that the ingredients of Section 340 of Cr.P.C. are not permitted to be employed as hand maid of private persons to achieve their revengeful attitude against another person. If a party seeking to invoke the benefit of Section 340 of Cr.P.C. is desirous of achieving its oblique motive indirectly, then a care must be taken to see that a court of law is not employed for that as a tool for achieving their own ends.

28. First and foremost, it is to be seen that whether a person has deliberately/intentionally has given false evidence. Secondly, it is to be looked into whether it will be a expedient in the interest of justice to initiate action against him or her in the manner known to law. In short, a court of law should first see whether a person has tendered evidence before the court has contradicted his earlier statement which is a false one.

29. There is no legal mandatory duty cast upon a court of law to provide an opportunity of hearing to the Opposite Party/ Accused against whom the Learned Judicial Magistrate might commence prosecution proceedings, as per decision of Hon’ble Supreme Court in Pritesh Vs. State of Maharashtra reported in AIR 2002 SC 236.

30. Really speaking, a Respondent in a proceeding under Section 340 of Cr.P.C. is not an accused. It is to be remembered that in a Preliminary Enquiry under Section 340 of Cr.P.C. the other side is not entitled to cross examine the Petitioner’s witnesses, as per decision in Hridayanshy Bhattarcharjee Vs. State of Jharkhand reported in 2003 CrlJ 624(626) (Jhar).

31. At this stage, this Court pertinently points out that an order passed under Section 340 of Cr.P.C. is an Appealable one. Furthermore, that appeal is right of a Party/Litigant as per decision reported in AIR 1935 Madras at page.673. Also, an Appeal against the order passed under Section 340 of Cr.P.C. is to be filed before the Competent Forum as specified under Code of Criminal Procedure. Moreover, the Appellate Court can take evidence and also additional evidence as per decision reported in 38 CrlJ at page 561. On consideration of all facts, the Appellate court should see whether there is merit. Otherwise, it will not proceed as per decision reported in AIR 1925 All at page 544.

32. As far as the present case on hand, this Court is of the considered view that as against the order dated 05.09.2011 in Crl.M.P.No.1187 of 2011 passed by the Learned Principal District Munsif cum Judicial Magistrate, Karaikudi, the Petitioner/Husband is to prefer only an Appeal before the Appropriate/Competent Forum (not withstanding the fact whether it is a Full Fledge One or otherwise). As such, the instant Revision Petition filed by the Revision Petitioner/Husband as against the impugned order dated 05.09.2011 in Crl.M.P.No.1187 of 2011 passed by the Learned Principal District Munsif-cum- Judicial Magistrate, Karaikudi is not per se maintainable in law. Viewed in that perspective, the Criminal Revision Petition fails.

33. In the result, the Criminal Revision Petition is dismissed as not maintainable. Liberty is granted to the Petitioner/Husband to prefer an Appeal before the Competent Forum as per Section 341 of Cr.P.C. and to seek appropriate remedy in accordance with law, if so advised. As and when the Appeal is filed by the Petitioner/Husband, then it is open to the respective parties to raise all Factual and Legal Pleas before the Appropriate Forum and to seek remedy in the manner known to law.