Perjury Dismissd by Trial Court Upheld by Session Court

Court: Barrackpore Court

Bench: Justice Aryan Kumar Banerjee

xxxxxx vs xxxxxx on 14 November, 2024

Law Point: Perjury Dismissd by Trial Court Upheld by Session Court

JUDGEMENT

This is an appeal under section 341 of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., filed by the appellant named above against the order dated 18.05.2022 by which the application under section 340 Cr. P.C. filed by the appellant (O.P. in M. Case No. 1024/2019) was neither allowed nor rejected by Ld. Judicial Magistrate, 3rd Court, Barrackpore on the ground that the application u/s 340 of Cr.P.C. be kept with the record and would be considered at the time of trial on account of no evidence on record.

It appears from the Trial Court record that the appellant of this case had filed an application u/s 91 of Cr.P.C. before the Ld. Trial Court wherein he was the opposite party and had referred to several account numbers of the respondent (petitioner of M. Case No. 1024/2019) as well as the details of investments in the name of his wife where from she has huge amount of income and had also categorically stated that his wife is a member of Hindu undivided family (HUF) and she willfully concealed her income in her application u/s 125 Cr.P.C., the application for interim maintenance as well as in her affidavit of assets and liabilities and falsely stated before the Ld. Trial Court that she has no income of her own despite the fact that he has considerable income and is a practicing Chartered Accountant and employed with several concerns drawing huge amount of salary and this conduct of his wife is an offence of making false declaration on affidavit which brings the case well within the purview of section 340 of Cr.P.C. in respect of an offence-u/s 193 of IPC and the same having not been done, the instant appeal has been preferred.

POINTS TO BE DETERMINED

1. Whether the Ld. Trial Court was correct in passing the impugned order or whether the same requires interference in this appeal?

Argument from the side of the appellant: The appellant argued his case himself and filed a series of document as well as a catena of decisions justifying his appeal and vehemently argued that the Ld. Trial Court committed error by not entertaining his application u/s 340 of Cr.P.C. and adopted a mechanical approach in not deciding the application filed by him u/s 340 of Cr.P.C. and did not even bother to pass necessary order in respect of his application u/s 91 of Cr.P.C. and in view of the ratio led down by the Hon’ble Apex Court in Rajnesh Vs. xxxxxx where affidavit of assets and liabilities is a mandatory requirement on account of the fact that the Courts dealing with maintenance applications have to adhere to some amount of guess work while disposing the application for maintenance under various statutes which sometimes are overlapping and willful filing of false statement in affidavit of assets and liabilities reasonably attracts the peril of giving/ fabricating false evidence and the Ld. Trial Court whimsically did not appreciate his prayer and committed a grave error which is required to be redressed in this appeal.

Ld. Advocate of the respondent however strongly objected the appeal and defended the impugned order as reasonable, correct and proper.

have perused the Trial Court record minutely.

Decision with Reasons

The affidavit of assets and liabilities was introduced by the decision in xxxxxx Vs. xxxxxx so as to enable the Court in coming to a decision relating to maintenance as deciding the quantum of maintenance is to some extent a guess work keeping in mind the tendency of the wife to exaggerate her needs and the tendency of the husband to conceal his real income and hence the filing of affidavit of assets and liabilities was introduced to enable the Courts to come to a correct finding.

So far as the impugned order is concerned, I find that the respondent/wife (petitioner in M. 1024/2019) had filed supplementary affidavit wherein she admitted having been employed during the year 2019 to 2021 and she disclosed in her Income Tax Return that she had some income from other sources (by way of gifts from her relatives) and she has an account with Indian Overseas Bank where her salary used to credited as stated by the appellant. It further appears that in his application. u/s 91 Cr.P.C. the appellant has mentioned the details of the investments in the name of the respondent and in my view while considering the application u/s 340 Cr.P.C. the Ld. Trial Court ought to have made necessary inquiry as envisaged u/s 340 Cr.P.C. which mandates that the Court has to come to an opinion and ought to have considered whether the respondent had income from investments, share

trading, salary or not and without adhering to such inquiry which under the Code of Criminal Procedure 973 means every inquiry other than a trial, conducted under the Code by a Magistrate or Court, he proceeded to pass the impugned order which is perverse to the materials on record and rather no order in respect of the application u/s 340 Cr.P.C. was passed leaving this appellant Court with no option to scrutinize the correctness of the findings but section 341 of Cr.P.C. as well as section 340 (2) Cr.P.C. enjoins a duty upon the superior Court to either direct the withdrawal of the complaint or as the case may be making of the complaint which such former Court might have made u/s 340 Cr.P.C. and if it makes such complaint, the provisions of section 340 Cr.P.C. shall apply and needless to say this Court is a superior Court to the Court by which the impugned order was passed.

The appellant in annexures A/6, A/13, A/14, A/15, A/16, A/17, A/18, A/28, A/30 has categorically stated and demonstrated that the respondent/wife has considerable income and while the matter was heard by the Appellate Court there was no endeavour on the part o the respondent/wife to negate the contentions of the appellant and to nullify the documents produced by him in respect of the contentions of the appellant that the respondent has considerable income.

The Trial Court record further reveals that the M. Case No. 1024 /2019 was filed on 10.12.2019 wherein the petitioner of such M. Case clearly stated that she has no income and in her affidavit of assets and liabilities that was initially filed as well as in her supplementary affidavit of assets and liabilities there was no whisper about the investments of the respondent as pointed out in the annexures mentioned above and considering all these aspects I am of the view that there was concealment of the income by the respondent in her affidavit of assets and liabilities as well as in her supplementary affidavit of assets and liabilities and in the decision of xxxxxx Vs. xxxxxx it has been categorically mentioned that filing of false affidavit of assets and liabilities attracts the provisions of section 340 Cr.P.C. and in view of the above discussion it is crystal clear that there was concealment of the income of the respondent in the affidavits of assets and liabilities as mentioned above and an offence u/s 193 of IPC is made out against the respondent justifying making of a complaint in terms of section 341 (2) Cr.P.C. and a finding to that effect is recorded and accordingly the appeal is liable to be allowed and a complaint is required to be made by this appellate Court which in view of the provisions laid down u/s 341(2) Cr.P.C. leaves this Appellate Court with no other option.

Hence, it is,

ORDERED

that the instant appeal is hereby allowed on contest keeping on record that the application u/s 340 Cr.P.C. was neither allowed nor rejected by the Ld. Trial Court by the impugned order and this Court therefore proceed u/s 341 (2) Cr.P.C. and makes a complaint in writing as envisaged u/s 341(2) Cr.P.C. and directs the Ld. Judicial Magistrate, 3rd prime d Court, Barrackpore to proceed with the complaint in accordance with law.

The respondent is directed to file bond of Rs. 2,000/- as a security for her appearance before Ld. Judicial Magistrate, 3rd Court at Barrackpore.

Let a copy of this judgment along with the complaint made in writing along with the Trial Court record be sent to the Ld. Judicial Magistrate, 3rd Court at Barrackpore for information and necessary action.

Το 15.02.2025 for appearance of the parties before the Ld. Judicial Magistrate, 3rd Court at Barrackpore in connection with the Complaint made by this Court in writing.

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