Delhi High Court
Gauhar Hussain vs Ms.Mumtaz Ara on 23 March, 2011
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: March 23, 2011
+ CRL. REV. P. 319/2010
GAUHAR HUSSAIN ....PETITIONER
Through: Mr.Kanchan Singh, Advocate with Mr.
Pradeep Jha, Advocate.
Versus
MS.MUMTAZ ARA .....RESPONDENT
Through: Mr.D.L.Dhingra, Advocate.
CORAM:
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be
reported in Digest ?
AJIT BHARIHOKE, J.(ORAL)
1. This is a revision petition against the order dated 02 nd January,
2010 of learned Additional Sessions Judge whereby she dismissed
the Criminal Appeal No. 17/2009 filed by the petitioner against the
order of learned M.M. dated 22 nd July, 2009 dismissing the
application under Section 340 CrPC.
2. Briefly put, facts relevant for the disposal of this petition are
that the respondent Mumtaz Ara filed a maintenance petition under
Section 125 Cr.P.C. against the petitioner, wherein she filed an
affidavit that she had no source of income. That the petitioner came
to know that the respondent has authored a book "Balwant Singh:
Fun Aur Shakshiyat" and got it published in 2003. Petitioner claims
that this bok has global circulation and from this, she has regular
income. Thus he filed an application under Section 340 Cr.P.C.
seeking prosecution of the respondent for perjury.
3. The defence of the respondent before the Magistrate was that
she has actually written that book and as per the agreement with
the publisher, only 400 copies of the book were to be published, out
of which, 100 copies were to be given to the respondent without
cost and the publisher had a right to sell remaining 300 copies.
4. Aforementioned application was dismissed by the learned M.M.
vide order dated 22nd July, 2009. Feeling aggrieved by dismissal of
the application under Section 340 CrPC, the petitioner filed an
appeal, which appeal was dismissed by the learned Additional
Sessions Judge vide order dated 02.01.2010. Aggrieved by the
aforesaid order, the petitioner has filed the instant revision petition.
5. Learned counsel for the petitioner submits that admittedly,
respondent is the author of the book titled "Balwant Singh: Fun Aur
Shakshiyat". It is argued that no author would allow publishing of
the book without asking for royalty or some consideration. Learned
counsel has contended that the respondent is trying to take shelter
of a fake agreement purported to have been executed on 15 th
September, 2003, wherein it is recorded that only 400 copies of the
book shall be published, out of which, 300 shall be kept by the
publisher for sale and remaining 100 copies shall be given to the
respondent and the respondent shall not get any royalty. According
to the learned counsel for the petitioner, aforesaid stand of the
respondent is belied by the fact that the book is still available for
sale in market and in support of this contention, he has drawn my
attention to a cash memo dated 02nd December, 2008 vide which,
he purchased one copy of the aforesaid book for ` 200/-. Learned
counsel has argued that if the contents of the agreement dated
15.09.2003 were true, there was no occasion for the book, which
was published in the year 2003 to be on a sale counter in December,
2008.
6. Learned counsel for the respondent, on the other hand, has
referred to the affidavit of the respondent dated 26 th February, 2011
filed pursuant to the direction of this court dated 16 th December,
2010, wherein she has categorically averred that she never
permitted the publisher to bring out second prints of the book after
15th September, 2003 nor the earlier agreement dated 15 th
September, 2003 has ever been revived with the publisher. It is
submitted by learned counsel for the respondent that perusal of the
copy of the agreement between respondent and the publisher
placed on record would show that in the Clause III of the Agreement,
it is specifically mentioned that the respondent was getting some
financial assistance from Fakhruddin Ali Ahmad Memorial
Committee, Lucknow (UP) for publication of said book and she had
agreed to give entire financial assistance so received to the first
party as consideration for the publication of the said book. Learned
counsel submitted that from this, it is evident that even the
publication of book was part financed by the respondent. Learned
counsel has further argued that respondent has not concealed any
fact from the court and she has not committed the offence of
perjury. Thus, he has urged for dismissal of the petition.
7. I have considered the rival contentions and perused the
material on record. The foundation of the application of the
petitioner under Section 340 CrPC is availability of the book titled
"Balwant Singh: Fun Aur Shakshiyat" for sale even on 02nd
December, 2008 for ` 200/-. Learned counsel for the petitioner has
produced the copy of the book purchased by him in December 2008,
which is taken on record. Perusal of the book would show this copy
of book was reprint of published in the year 2003. Thus, it cannot
be said the book was published subsequent to the year 2003. There
is a possibility that this title was not popular with public and some
copies of the book might have remained unsold, one of which, has
been purchased by the petitioner in December, 2008. Therefore, on
this preliminary ground alone, there is no justification in proceedings
against the respondent under Section 340 CrPC. Further, learned
counsel for the petitioner has failed to show me any other evidence
such as an affidavit of the publisher or some document, showing
that some royalty was paid to the respondent after the first print of
year 2003.
8. Thus, in my opinion, there is no infirmity in the impugned order
dated 02nd January, 2010 of the learned Additional Sessions Judge
which may call for interference in revisional jurisdiction.
9. Petition is accordingly dismissed.
(AJIT BHARIHOKE)
JUDGE
MARCH 23, 2011
akb
