HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
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.)

—-Appellant
Versus
State of Rajasthan Through Public Prosecutor.

—-Respondent
__
For Appellant(s) : Mr. Jog Singh.

For Respondent(s) : Mr. L.R. Upadhyaya, PP.
__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Judgment
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.

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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
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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
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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
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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
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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.

(SANDEEP MEHTA)J.

tikam daiya/