Delhi High Court
Dated:- 11th Jan 2005
Cri. M. 928/2004
Mrs. Geeta Monga
Ram Chand S. Kimat Rai And Ors.
R.C. Jain, J.
1. This is an application under Section 5 of the Limitation Act, 1963 for condensation of delay in filing the appeal. The appellant has filed an appeal under Section 341 Cr.P.C. against an order dated 19.9.2003 passed by the learned Additional District Judge on an application under Section 340 Cr.P.C. moved by the plaintiff (appellant herein) in a civil suit bearing S.No.106/99; titled as Mrs. Geeta Monga v. Kimatrai and Co. and Ors.. The said suit was disposed of and decreed by the learned Additional Disrict Judge vide a judgment and decree dated 29.9.2000. After the disposal of the said suit, the plaintiff/appellant moved an application under Section 340 Cr.P.C. alleging commission of the offence of perjury by Ramchand S.Kimatrai by making false statement in the Court. The said application was dismissed by the learned Additional District Judge vide the impugned order dated 19.9.2003.
2. Learned counsel for the appellant states that no specific time-frame has been prescribed for filing an appeal against an order passed by a Court on an application under Section 340 Cr.P.C. and in absence of such a prescription, 90 days limitation should be presumed for filing an appeal against such an order and in the case in hand after setting off this period and the time for obtaining certified copies, there is delay of only a few days. On the other hand, counsel for the respondent disputes this peposition and states that in absence of any prescription of limitation by the statute, the Court should presume 60 days period as the limitation for filing an appeal against such an order.
3. Having regard to the facts and circumstances of the case and more particularly the aspect that what is sought to be agitated by the appellant is an aspect touching the administration of justice, this Court considers it expedient in the interest of justice to condone the delay, if any, in filing the appeal. The application is, accordingly, allowed and the delay in filing the appeal is condoned.Crl.A.76/20041. This appeal is directed against the order of the learned Additional District Judge, Delhi dated 19.9.2003 whereby dismissing an application of the appellant under Section 340 Cr.P.C. praying for initiating proceedings against a certain Ramchand S.Kimatrai, who appeared as a witness in the Court and is stated to have made a false statement amounting to the commission of the offence of perjury. The said application was contested by the respondent/defendant. The learned Additional District Judge despiteecording an unequivocal/patent finding that respondent No. 2 had made a false statement during the course of the trial of the civil suit, has still declined to initiate the requisite proceedings under Section 340 Cr.P.C. and has dismissed the complaint. The following findings/observations as contained in para 4 and 5 of the said order are material and noted herein below:
“4. Respondent No. 2 while making the statement on oath has deposed that he is the partner of M/s J.Kimat Rai and Co. along with defendant nos. 4 and 5 (in the suit). But in the cross-examination he has stated that he is not the partner of M/s J.Kimat Rai and Co. though the HUF Ram Chand Sobh Rai Kimat Rai is the partner in M/s J.Kimat Rai and Co. and that he was its karta up to 1996.
5. After comparing both the statements, this Court has finally decreed the suit giving its observations regarding the contradictions in the statement of respondent No. 2. Now the matter is pending in appeal before the Hon’ble High Court of Delhi. Whatever observations were made in the judgment are also before Hon’ble High court of Delhi. I do not find that the defendant/respondent No. 2 has committed any perjury or the fraud on the court. The gravity of the false statement is not such which attract the provisions of Section 340 Cr.P.C. The Court cannot notice every falsehood sworn in the Court. The Court has to weigh and give credence to the statement of the parties which has already been done by this Court while passing the final judgment. Therefore, iis not proper to proceed against the respondent Under Section 340 Cr.P.C. No case for referring the matter Under Section 340 Cr.P.C. is made out. The petition is dismissed with no order as to costs. File be consigned to R/R”.2. The above findings and observations of the learned Trial Court are not only mutually inconsistent but self-destructive because on one hand the learned trial court noted that the respondent has made a false/inconsistent statement and on the other hand,it has noted that the Court cannot take a notice of ”every falsehood sworn in the Court” and the gravity of the false statement is not such which attracts the provisions of Section 340 Cr.P.C.”
This Court is at a loss to appreciate such kind of approach by the learned trial court. The mere fact that the respondent/defendant/judgment debtor has filed an appeal against the judgment and decree passed by the learned Additional District Judge should not have dissuaded him from answering the application under section 340 Cr.P.C. on its merits. The whole approach of the learned Additional District Judge to such kind of issue cannot be approved. In the opinion of this Court, the impugned order cannot be legally sustained, as it has resulted into miscarriage of justice.
3.The result of the above discussion is that the appeal is allowed and the impugned order is hereby set aside and the matter is remanded back to the board of the learned Trial Court for deciding the application under Section 340 Cr.P.C. afresh in accordance with law.
The parties are directed to appear before the learned Additional District Judge, Delhi on 7th February, 2005.