Karnataka High Court

A M J Dayalraj vs Parish Priest on 21 December, 2023

                                     CRL.A NO. 1248/2012


    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF DECEMBER, 2023

                         BEFORE

         THE HON'BLE MR. JUSTICE G. BASAVARAJA

           CRIMINAL APPEAL NO.1248 OF 2012


BETWEEN:

A.M.J. DAYALRAJ
S/O ANANDRAJ
AGED ABOUT 54 YEARS
R/O CHURCK VIEW COTTAGE
B.NO.24, C ROAD CROSS
BEHIND ST. MARY'S BASILICA
SHIVAJINAGAR
BANGALORE - 560 051
                                              ...APPELLANT
(BY SRI SHASHANK KUMAR, ADVOCATE)

AND:

PARISH PRIEST
REPRESENTED BY
REV. FR. A.S. ANTHONYSWAMY
ST. MARY'S BASILICA
SHIVAJINAGAR
BANGALORE - 560 046
REP BY THEIR GAP HOLDER
REF. FR. D. DEVA DASS
                                            ...RESPONDENT
(BY SRI MANJUNATHA S, ADVOCATE)

      This Criminal Appeal is filed under Section 341 of
Cr.P.C. praying to set aside the order dated 24.08.2012
passed by the XVII Additional Judge, Court of Small Causes,
Mayohall Unit, Bangalore in SC No.15681 of 2011.

      In this appeal, arguments being heard, judgment
reserved on 23.11.2023, coming on "Pronouncement of
Orders", this day, the Court delivered the following:
                               -2-
                                        CRL.A NO.1248/2012




                      JUDGMENT

The appellant/defendant in SC.No.15681/2011 on the

file of the XVII Additional Judge, Court of Small Causes,

Mayohall Court, Bangalore is before this Court challenging the

order dated 24.08.2012 by which Order the trial Court has

dismissed the application filed by the defendant under Section

340 of Code of Criminal Procedure.

2. The substance of the application filed under

Section 340 of Code of Criminal Procedure which is supported

by the affidavit of A.M.J. Dayalraj is that he is the tenant of

the suit schedule property on monthly rent of Rs.65/-. He had

been regularly paying the rent every month up to October

2010. Thereafter, plaintiff refused to receive the rent from

November 2010. But the plaintiff issued a notice dated

06.07.2011, falsely alleging arrears of rent. Therefore, he

sent a reply notice on 13.07.2011 through his lawyer along

with the cheque for Rs.585/- towards the rent from November

2005 to July 2011. The plaintiff encashed the cheque and also

issued a rent receipt for the said payment of rent for the

stipulated period. In spite of having received the entire rent,

plaintiff, knowingly, made a dishonest and false claim of

arrears of rent due in a sum of Rs.5,135/- for 79 months.

Further, it is stated that on 30.07.2011 he has sent a cheque

bearing No.686575 for a sum of Rs.585/- towards the rent

from November 2010 to July 2011. The plaintiff encashed the

said cheque and issued rent receipt for the same on

12.09.2011. Thereafter, during the pendency of the suit on

02.02.2012 he has paid rent for the month of Augusts 2011 to

February 2012 by cheque bearing No.686577 for a sum of

Rs.455/- before this Court. Plaintiff has issued rent receipt for

the same but, he is falsely claiming that the rent is not paid.

Hence, the plaintiff is dishonestly making false claim of

arrears of rent. Further, on 06.07.2012 he has paid rent for

the months of March 2012 to July 2012 by cheque bearing

No.489323 for a sum of Rs.390/- drawn on Canara Bank,

Cunningham Road Branch, before this Court. There is no

arrears of rent whatsoever and the claim is false. The entire

rent is paid up-to-date. Plaintiff is guilty of making false claim

in his plaint and is giving false evidence in his affidavit that, in

spite of receiving the rent up to 20.02.2012, deliberately

made false and dishonest claim in the suit. Plaintiff is guilty

of perjury and is liable for prosecution under Sections 193 and

209 of Indian Penal Code. On all these grounds sought to

allow the application.

3. The plaintiff has filed his written objections

contending that the application filed by the defendant under

Section 340 of Code of Criminal Procedure is liable to be

dismissed as it is not maintainable either in law or on facts. In

civil proceedings and in summary proceedings, there is no

provision to file application under the provisions of Code of

Criminal Procedure. On this ground also the application is

liable to be dismissed with exemplary costs. Further, it is

submitted that defendant has made a false statement in the

affidavit attached to the application under Section 340 of

Cr.P.C. Hence, the application is liable to be dismissed on

said count also. Though it is contended that the defendant is

due of rents from November 2005 to July 2012 amounting of

Rs.5,265/- for a period of 81 months, whereas, it is admitted

that following are the payments made by the defendant:

Sl.No.                   Details                         Amount (Rs.)
  1.        On 30.07.2011 through reply notice                 585.00
  2.        On 02.02.2012 through Memo                         455.00
            through cheque No.686577
  3.        On 06.07.2012 through Memo                            390.00
            through cheque No.489323
                                         Total                  1430.00






  4.        On 23.08.2012 through cheque                    65.00
            No.489325

4. Therefore, till today, i.e. 23.08.2012, the arrears

of rent to be paid by the defendant is only Rs.1,495/- and

balance arrears of rent payable by defendant at Rs.65/- per

month is Rs.3,770/-. The documents furnished along with the

application are also not relevant documents. Hence, the

application is liable to be dismissed. It is further contended

that the defendant is only dragging the proceedings by filing

cases which have no relevancy. On all these grounds sought

for dismissal of the application with costs.

5. On hearing the arguments on both sides, the trial

Court on 24.08.2012 has dismissed the application filed by

the appellant under Section 340 of Cr.P.C. Being aggrieved

by the impugned order, the appellant/defendant has preferred

this appeal.

7. Sri Shashank Kumar, learned counsel appearing for

the appellant/defendant submitted that the impugned order is

not maintainable under law for the reason that the trial Court

has expressed its opinion that the provisions under Section

340 of Cr.P.C is not applicable to this case, which, apparently,

is wrong. Due to typographical mistake in paragraph No.3 of

the affidavit it is mentioned as rents from November 2012 to

July 2011 instead of from November 2010 to July 2011. In

reply notice, the defendant has clearly stated that the

payment of rent is due from November 2010 to July 2011 for

09 months and he has paid an amount of Rs.585/- through

cheque. In reply notice, the defendant has categorically

stated that though he has paid the rent from November 2010

to July 2011, the plaintiff has made a false claim in the plaint

stating that there was arrears of rent from November 2010 to

July 2011. Even after filing the application under Section 340

of Code of Criminal Procedure, the defendant has clearly

admitted in his written objection that he has received rents

from November 2010 to July 2011 for nine months to the tune

of Rs.585/-. Though he has clearly admitted to this effect in

his statement of objections, the trial Court has not initiated

the proceedings against the plaintiff for making false claim

before the Court. Apart from this, the plaintiff has filed an

affidavit instead of his examination-in-chief, in which, he has

also claimed an amount of Rs.585/- which is already paid

from November 2010 to July 2011. On all these grounds

sought to allow this appeal. To substantiate his arguments he

relied upon the following Judgments, which are as follows:

     a)     PRITISH Vs. STATE OF MAHARASHTRA
            reported in AIR 2002 SCC 236.

     b)     K.KARUNAKARAN Vs. T.V.EACHARA WARRIER
            AND ANOTHER reported in (1979) 1 SCC 18.

     c)     GANDHI Vs. KRISHNARAJA reported in 2000
            CRI. L.J.1590.

     d)     OM PRAKASH Vs. STATE OF HIMACHAL
            PRADESH reported in 2000 CRI. L.J.1591.

8. As against this, Sri Manjunatha S, learned counsel

appearing on behalf of the respondent-plaintiff, submitted

that this appeal is not maintainable. To substantiate his

arguments he relied upon the decision of the Co-ordinate

Bench of this Court rendered in the case of K. AMARESH v. K.

VITTOBHA AND ANOTHER passed in Crl.P.No.200232 of 2019

decided on 23.03.2021 and further submitted that the plaintiff

has no intention to give false evidence before the Court and

that is why he has clearly admitted in his written statement

that the defendant has paid an amount of Rs.585/- through

cheque which is due from November 2010 to July 2011.

Further, he has submitted that the plaintiff will undertake to

adduce additional evidence for receiving of amount of

Rs.585/- through the cheque from the defendant and this

application is premature. When the case was posted for

cross-examination, instead of cross-examination the

defendant has filed the present application which is not

maintainable under law. The trial Court has not given any

finding as to the payment of Rs.585/-. However, the plaintiff

has fairly and honestly submitted before this Court by filing

written objections that he has received the amount of

Rs.585/- from the plaintiff. Therefore, even on merits also the

appellant has no case. On these grounds sought for dismissal

of the appeal.

9. Having heard the arguments on both sides and

perusal of records the following points would arise for my

consideration:

1. Whether the appellant has made out a ground

to interfere with the impugned order passed

by the XVII Additional Judge, Court of Small

Causes, Mayo Hall, Bangalore in SC No.15681

of 2011?

2. What Order?

10. My answer to the above points are as under:

Point No.1: in the negative

Point No.2: as per final order

Regarding Point No.1:

11. I have carefully examined the material placed

before this Court. The defendant had filed an application

under Section 340 of Code of Criminal Procedure to prosecute

PW1 under Sections 193 and 209 of the Indian Penal Code on

the ground that though defendant had paid rent regularly to

the plaintiff, but the plaintiff has falsely claimed that the rent

is not paid and is dishonestly making false claim of arrears of

rent. Thus the plaintiff is guilty of perjury and is liable to be

punished as sought in the application.

12. Section 340 of Chapter XXVI of the Code of

Criminal Procedure, 1973 contemplates as to the provisions of

the offences affecting the administration of justice. But the

trial Court has observed in the impugned order that the

provision under Section 340 of Code of Criminal Procedure is

not applicable to this case, which is not correct and this

opinion expressed by the trial Court is apparently wrong and

- 10 -

contrary to the provisions of Section 340 of Code of Criminal

Procedure.

13. With regard to the merits of the application filed

under Section 340 of Code of Criminal Procedure is

concerned, it is the case of the appellant/defendant that the

defendant is the tenant of the suit schedule property on

monthly rent of Rs.65/-. He had been regularly paying the

rent every month up to October, 2010. Thereafter, plaintiff

refused to receive the rent from November, 2010. But

plaintiff issued a notice dated 06.07.2011, falsely alleging

arrears of rent. Therefore, defendant sent reply notice on

13.07.2011 along with the cheque of Rs.585/- towards rents

from 2005 to 2011. The plaintiff got realised the cheque and

also issued rent receipts for payment of rent for the stipulated

period. However, in spite of having received the entire rent,

plaintiff, knowingly made a dishonest and false claim of

arrears of rent of Rs.5,135/- for 79 months in the plaint. It is

further stated that on 30.07.2011, he has sent a cheque

bearing No.686575 for a sum of Rs.585/- towards the rent

from November 2010 to July 2011. The plaintiff realised the

said cheque and issued a rent receipt for the same on

- 11 -

12.09.2011. Thereafter, during the pendency of the suit on

02.02.2012, he has paid the rent for the months of August

2011 to February 2012 through cheque bearing No.686577

for a sum of Rs.455/- before this Court. Though plaintiff has

issued rent receipt for the same, but, is falsely claiming that

the rent is not paid. Hence, the plaintiff is dishonestly making

a false claim of arrears of rent. Further, on 06.07.2012 the

defendant has paid rent for the months of March 2012 to July

2012 by cheque bearing No.489323 for a sum of Rs.390/-

drawn on Canara Bank, Cunningham Road Branch, before this

Court. There is no arrears of rent whatsoever and the claim is

false. The entire rent is paid up-to-date. Plaintiff is guilty of

making false claim and is giving false evidence in his affidavit

that, in spite of receiving the rent up to 20.02.2012, has

deliberately made a false and dishonest claim in the suit and

in his evidence that rent of Rs.5,135/- is due and no rent has

been paid by him. Plaintiff is guilty of perjury and is liable for

prosecution under Sections 193 and 209 of Indian Penal Code.

14. Defendant has stated in his objection that he is due

of rent from November, 2005 to July 2012 amounting to

- 12 -

Rs.5,265/- for a period of 81 months. It is admitted that

following are the payments are made by the defendants:

Sl.No.                Details                       Amount (Rs.)
  1.     On 30.07.2011 through reply notice               585.00
  2.     On 02.02.2012 through Memo                       455.00
         through cheque No.686577
  3.     On 06.07.2012 through Memo                         390.00
         through cheque No.489323
                                      Total                1428.00
  4.     On 23.08.2012 through cheque                        65.00
         No.489325

15. Hence, as on 23.08.2012, the arrears of rent paid

by the defendant is Rs.1,495/- and the balance arrears of rent

is Rs.3,770/- at Rs.65/- per month. The documents furnished

along with the application are not relevant documents. It is

further stated that the defendant is only dragging the

proceedings by filing cases which have no relevancy. The

plaintiff has clearly admitted in his statement of objections as

to the payments made by the defendant.

16. Sub-Rule (2) of Rule 3 of Chapter-I of the

Karnataka Civil Rules of Practice, 1967, contemplates that,

"Pleadings" shall include plaints, written statements,

memoranda of appeals, cross objections, original petitions,