HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
S.B. Criminal Appeal No. 664 / 2017
Sudarshan Bareth S/o Col Bhuwaneshwar Bareth., Aged About 31
Years, By Caste- Charan, R/o 117, Kanishka Resorts, Pal by Pass
Road, Near DPS School, Jodhpur (Raj.)
State of Rajasthan Through Public Prosecutor.
For Appellant(s) : Mr. Jog Singh.
For Respondent(s) : Mr. L.R. Upadhyaya, PP.
HON’BLE MR. JUSTICE SANDEEP MEHTA
Date of judgment:- 05/02/2018
The instant appeal preferred by the complainant Sudarshan
Bareth under Section 341 Cr.P.C. is pending on the defect side and
is delayed by 19 days. Learned counsel Shri Jog Singh has moved
an application under Section 5 of the Limitation At on behalf of the
appellant for condonation of delay occasioned in filing the appeal.
It is stated in such application that the appellant is serving in the
Jet Airways and was posted at Chennai and thus, initially he could
not apply for certified copy of the impugned order and also that he
was not sanctioned leave by his employer and hence he was
genuinely and bonafidely prevented from approaching his counsel
at Jodhpur for filing the appeal against the order dated
12.01.2017 whereby, the application preferred by the appellant
under Section 340 Cr.P.C. seeking prosecution of the respondent
for the offence under Section 191 IPC was rejected.
(2 of 6)
I have heard the arguments advanced by learned counsel Mr.
Jog Singh on the application for condonation of delay as well as on
merits of the appeal at this stage itself.
Upon having considered the grounds set out in the
application filed under Section 5 of the Limitation Act and upon
appreciating the arguments advanced at bar, this Court feels that
the reasons seeking condonation of delay as set out in the
application are totally flimsy and far fetched. The order under
challenge was passed by the Judge, Family Court, Udaipur on
12.01.2017. The appellant had previously as well, filed an almost
identical application under Section 340 Cr.P.C. which was rejected
by the trial court vide order dated 24.08.2016 and the appeal
preferred against such rejection order being S.B. Criminal Appeal
No.914/2016 was also rejected by this Court vide order dated
25.03.2017 which has a significant bearing on the present matter
and would be referred to later on. Thus apparently, the appellant
has been diligently and persistently pursuing the matter against
the respondent in the Family Court, Udaipur as well as in this
Court. He has been filing repeated applications against the
respondent and thus manifestly, the ground set out in the delay
condonation application that the appellant was prevented from
timely challenging the impugned judgment owing to the
constraints of his job is patently unacceptable and untenable.
Certified copy of the impugned judgment dated 12.01.2017 was
procured by the appellant on 21.01.2017. The appellant had a
window of almost two months thereafter to file the instant appeal
which came to be presented in this court as late as on
(3 of 6)
10.04.2017. The application for condonation of delay is totally
bereft of particulars as to when the appellant applied for leave or
whether he was denied leave by his employer to approach his
counsel at Jodhpur for filing the instant appeal. That apart, the
appeal is not required to be supported by any affidavit and the
appellant was not required to come down to Jodhpur in person for
presenting the same. He already had availed the services of the
same counsel in the previous round of litigation and could have
orally instructed him to file the appeal. The requisite documents
and the Vakalatnama could be transmitted by post. Legal fees can
be remitted by bank transfers. Thus, I am not convinced in the
least by the grounds set out in the application filed under Section
5 of the Limitation Act so as to condone the delay of 19 days in
filing of the present appeal.
Despite that, I have heard the arguments advanced by
learned counsel Shri Jog Singh on merits as well. The appellant
and his wife Smt. Vandana are entangled in bitter matrimonial
litigation before the Family Court, Udaipur. Smt. Vandana filed an
application before the Family Court under Section 125 Cr.P.C.
claiming maintenance from the appellant and gave her statement
in support of such application.
Citing ground of mis-statement and discrepancies and falsely
in the pleadings of the application filed by Smt. Vandana under
Section 125 Cr.P.C., the appellant herein filed an earlier complaint
before the learned Judge, Family Court, Udaipur under Section
340 Cr.P.C. seeking her prosecution under Section 193 Cr.P.C.
which was rejected by order dated 24.08.2016. The learned
(4 of 6)
Family Court, observed that the trival mistakes in pleadings of the
application cannot make the party concerned responsible to face
prosecution for giving false evidence because such pleadings are
generally drafted by the counsel and no malafides can be
attributed to the party for discrepancy if any. The appellant did not
rest satisfied with rejection of his application by the trial court vide
order dated 24.08.2016 and carried the matter to this Court by
way of an appeal, which was registered as S.B. Criminal Appeal
No.914/2016 and was rejected vide judgment dated 25.03.2017.
In the meanwhile, evidence of the parties was recorded by the
Family Court and the application under Section 125 Cr.P.C. was
allowed by the order dated 25.03.2017 and Smt. Vandana was
awarded maintenance to the tune of Rs.9,000/- per month to be
paid by the appellant.
The appellant picked up stray bits and pieces from the
pleadings of the application under Section 125 Cr.P.C. filed by
Smt. Vandana and her statement recorded during the inquiry
proceedings and filed yet another application under Section 340
Cr.P.C. craving her prosecution for the offence under Section 191
Cr.P.C. The Judge, Family Court rejected the said application by a
detailed order dated 12.01.2017 which is assailed in the instant
appeal filed under Section 341 Cr.P.C.
I have appreciated the arguments advanced by the learned
counsel Jog Singh and have gone through the impugned order and
the material placed on record. It is my firm opinion that the
appellant is acting in a totally vindictive manner while seeking
prosecution of the respondent by picking up stray bits and pieces
(5 of 6)
from her pleadings and evidence. By no stretch of imagination,
these discrepancies/ contradictions referred to by the appellant in
his application can be treated as amounting to false deposition in
court so as to justify prosecution of the respondent under Section
191 IPC. Before prosecuting any person for giving false evidence
in the Court, it has to be established beyond all manner of doubt
that such person intentionally and deliberately tried to mislead the
court by making a false deposition on oath.
After going through the impugned order, the pleadings and
the statement of the respondent which is placed on record, I am
of the firm opinion that the so-called infractions pointed out by the
respondent in the application under Section 340 Cr.P.C. cannot be
termed as amounting to giving false evidence on oath. These kind
of discrepancies are bound to occur in the evidence of a truthful
witness and no adverse inference can be drawn there from. The
learned Judge, Family Court duly and thoroughly appreciated the
entire material available on record in the correct perspective while
holding that the respondent being the appellant’s wife did not give
any false evidence in the court. Whatever discrepancies were
pointed out occurred owing to difficulty in comprehending the
commercial documents/transactions and on account of forgetting
the dates of some specific events. The fact remains that the
Judge, Family Court, accepted the application under Section 125
CrPC and the appellant appears to be peeved and frustrated by
demand of maintenance made by his estranged wife i.e. the
respondent herein. He has evidently tried to wreak vengeance
upon the lady by repeatedly filing totally frivolous applications so
(6 of 6)
as to deter her.
In view of the discussion made hereinabvoe, I am of the
view that the Judge, Family Court rightly rejected the application
filed by the appellant under Section 340 Cr.P.C. finding it to be
meritless. This Court expresses total agreement with the findings
recorded by the learned Family Court in the impugned order and it
is the firm opinion of this Court that the application was frivolous
and merited only rejection and nothing else. The impugned order
dated 12.01.2017 ex-facie does not suffer from any shortcoming,
either factual or legal, so as to require interference therein.
Consequently, I find no reason to entertain the instant
appeal which is dismissed as being delayed and so also as being
frivolous while imposing cost of Rs.5000/- upon the appellant.
Upon the cost being realised, the same shall be appropriated
in the funds of the District Legal Services Authority.