Mr M M Bhemaiah vs Col M M Aiyanna
2021 Latest Caselaw 5144 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 01 S T DAY OF DECEMBER, 2021

                        BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

       CRIMINAL PETITION NO. 7257 OF 2019


BETWEEN:

Mr. M.M.Bhemaiah,
Son of Late M.M.Muthanna,
Aged about 72 years,
Resid ent of Kolathodu Bygodu Villag e,
Hathur Post, Virajpet Taluk,
Kod agu District-571218.

Also at
No.63, Wheeler Road Extension,
G.K.Gard en,
St.Thomas Town Post Office,
Beng aluru-560084.
                                             ...Petitioner
(By Smt. Bharti Paril, Advocate)

AND:

Col.M.M.Aiyanna
Son of late M.M.Muthanna,
Aged about 72 Years,
Residing of Kolathodu,
Virajpet Taluk,
Kod agu District-571218.
                                            ...Respondent
(By Sri Col.M.M.Aiyanna, Party in Person)


     This Criminal Petition is filed under Section 482
of Cr.P.C., p raying to quash the order dated
12.07.2019 p assed by the Additional Civil Judge and
                             :: 2 ::


JMFC,    Virajpet,   in   C.C.No.679/2019      in   taking
cognizance of the comp laint d ated 21.01.2019 and
registering Criminal Case ag ainst the p etitioner for the
offence p unishab le und er Section 191 of IPC and etc.

      This Criminal Petition coming on for admission
this d ay, the Court made the following:


                          ORDER

This is a petition filed under section 482

Cr.P.C. for quashing the order dated 12.7.2019

passed by Addl. Civil Judge and JMFC, Virajpet in

C.C.No.679/2019 arising out of PCR.No.39/2019.

The petitioner is the accused and respondent is

the complainant.

2. The facts are that the respondent instituted

a suit for partition, O.S.No.50/2006 in the court of

Sr. Civil Judge, Virajpet against the petitioner who

is none other than his brother. In the suit, the

petitioner filed written statement contending about

the oral partition between him and the respondent

and in this regard an issue was framed. While

giving evidence, the respondent filed his affidavit :: 3 ::

reiterating the oral partition. The trial court

answered issue no.3 relating to oral partition in

negative and partly decreed the suit for partition.

Aggrieved by the judgment, the respondent

preferred an appeal to the District Court where the

judgment of the Sr. Civil Judge was modified and

the suit came to be decreed in entirety as prayed

for by the respondent. In this background the

respondent, thereafter initiated a proceeding

against the petitioner under section 200 Cr.P.C.

alleging that the respondent committed an offence

punishable under section 193 IPC by a filing false

written statement and affidavit contending about

the oral partition. The learned Magistrate took

cognizance of the offence and aggrieved by this

order the petitioner is before this court.

3. The learned counsel for the petitioner

argues that the complaint filed by the respondent

under section 200 Cr.P.C. is not at all :: 4 ::

maintainable. In a suit for partition, if the

petitioner being the defendant took up a

contention with regard to oral partition, it's quite

surprising that the respondent has made an

allegation of giving false evidence. It is the right

of a party to a suit to take any defence and in this

view the petitioner cannot be prosecuted at all. It

may be a fact that the trial court partly decreed

the suit and thereafter the appellate court

modified the judgment decreeing the suit in its

entirety. But the petitioner has now preferred a

second appeal to the High Court and it is still

pending. In this view the petitioner cannot be

prosecuted at all and the learned Magistrate ought

not to have taken cognizance of the offence. No

offence under section 191 read with 193 IPC is

constituted. Therefore petition is to be allowed.

4. The respondent who appeared in person

argued that the petitioner knew very well that the :: 5 ::

oral partition had not at all taken place and yet he

falsely contended in the suit that after the

partition of the joint family properties was effected

in the year 1981, the 'D' schedule property was

orally divided between him and the respondent.

He verified the contents of the written statement

to be true. He further filed an affidavit to that

effect while giving evidence. The courts rejected

his contention and ordered for division of

properties. That means, the petitioner gave false

evidence in the court. This amounts to an offence

punishable under section 193 IPC. He placed

reliance on two judgments of the Supreme Court in

the case of Iqbal Singh Marwah and Another

Vs. Meenakshi Marwah and Another [(2005) 4

SCC 370] and In-Re: Suo Motu proceedings

against R.Karuppan, Advocate (2001) 5 SCC

289. He further argued that the procedure

contemplated under section 195(1) Cr.P.C. is not

applicable to the instant case because the :: 6 ::

petitioner got his written statement prepared much

before it was filed into court. In this view, it is

not necessary that the complaint must be filed by

the court which decided the suit.

5. I have considered the arguments. The

question that arises is whether the respondent is

entitled to prosecute the respondent on his own

for the offence under section 193 of IPC or not.

6. The petitioner and the respondent are

brothers. It is not in dispute that on 12.1.1981, a

registered partition deed effecting partition of the

joint family properties among all the brothers of

the petitioner including himself took place and in

that partition, 'D' schedule property was kept joint

between the petitioner and the respondent. The

respondent has contended that the partition was

effected in the year 1981 very hurriedly and he

was made to put his signature on the partition

deed. Whatever may be his stand, but it is a fact :: 7 ::

that the joint family properties were divided in the

year 1981. After the respondent retired from

service, he demanded the petitioner to effect

partition of 'D' schedule property and since the

latter refused, the respondent got issued a notice

to the petitioner and filed a suit for partition

thereafter. It is a fact that the respondent being

the defendant in the suit took up a defence that

there was an oral partition of 'D' schedule

properties and therefore question of effecting

division once again would not arise. To that effect

he adduced evidence also. The trial court

answered the issue regarding oral partition in

negative and partly decreed the suit. The

respondent preferred an appeal and the appellate

court modified the decree of the trial court by

granting partition in all the properties.

7. Therefore according to the respondent the

petitioner filed a false written statement and gave :: 8 ::

false evidence in the court. If this is his case, the

allegations made by the respondent in his

complaint filed under section 200 Cr.P.C. would

constitute an offence punishable under section 193

of IPC. Section 193 IPC the penal section and

section 191 IPC defines the meaning of giving

false evidence. For clarity both the sections are

extracted below:

"191. Giving false evidence.--

Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.

Explanation 1.--A statement is within the meaning of this section, whether it is made verbally or otherwise.

Explanation 2.--A false statement as to the belief of the person attesting is :: 9 ::

within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.

      193.        Punishment                  for     false
evidence.--Whoever               intentionally             gives

false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Explanation 1.--A trial before a Court - martial; is a judicial proceeding.

      Explanation           2.--An         investigation
directed     by       law      preliminary            to     a

proceeding before a Court of Justice, is a :: 10 ::

stage of a judicial proceeding, though that investigation may not take place before a Court of Justice".

8. Now, if section 195(1)(b)(i) Cr.P.C. is

read, it becomes very clear that in respect of

offences punishable under sections 193 to 196

Cr.P.C., 199, 200, 205 to 211 and 228, no court

shall take cognizance, except upon the complaint

in writing of that court or such officer of the court

as that court may authorize in writing or some

other court to which that court is subordinate.

Another requirement is that the offences

mentioned in clause (b)(i) of Section 195(1)

should be alleged to have been committed in, or in

relation to, any proceeding in any court. That

means the offence should have been committed in

the course of proceeding in a court.

9. The judgment of the Supreme Court in

Iqbal Singh Marwah deals with scope of Section

195(1)(b)(ii). It takes note of creation of two :: 11 ::

types of forged documents. First is of the type

where a document is created before the

commencement of a proceeding and the second

one being forging or creating a document during

pendency of a proceeding. What is held is that in

respect of first category, bar contained under

section 195(1) is not applicable, but it applies for

second category. Neither of the above two is the

case of the respondent.

10. The second judgment of the Supreme

Court in R. Kuruppan, is not helpful to the

respondent, for as the facts therein disclose, R.

Kuruppan made some statements in his affidavit

inspite of knowing them to be false, and therefore

it was held that he committed an offence under

Section 193 IPC and therefore Registrar General of

the Supreme Court was directed to depute an

officer of Deputy Registrar to file a complaint

against Kuruppan in a court of Magistrate in Delhi.

:: 12 ::

That means the Supreme Court directed for filing

of complaint in accordance with section

195(1)(b)(i) IPC.

11. In the case on hand, the respondent's

case does not fall within the ambit of section

195(1)(b)(ii) IPC. Written statement is a pleading

filed into court and so also an affidavit filed by a

party as evidence during trial of a suit. If the

contents of the written statement and the affidavit

are false, the court trying the suit must give

finding as to falsehood in the pleading and the

evidence and the direct initiation of action against

such party who gives false evidence. This is an

offence which has to be prosecuted according to

section 195(1)(b)(i) of Cr.P.C. Thus viewed, the

respondent could not have initiated independent

action for the offence under section 191 and 193

IPC. It was the trial court alone which could have

initiated criminal action against the petitioner, if it :: 13 ::

were to come to conclusion that false evidence had

been given by the petitioner being the defendant

in the suit. Therefore the petitioner is justified in

invoking the jurisdiction of this court under section

482 Cr.P.C. Hence the following:

ORDER

Petition is allowed. The order dated 12.7.2019

passed by Addl. Civil Judge and JMFC, Virajpet in

C.C.No.679/2019 arising out of PCR.No.39/2019 is

set aside. Consequently private complaint is

dismissed.

Sd/-

JUDGE

sd