Kerala High Court
Noushad Flourish vs Akhila on 4 February, 2025
Criminal Appeal No.1537 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 4TH DAY OF FEBRUARY 2025 / 15TH MAGHA, 1946
CRL.A NO. 1537 OF 2023
AGAINST THE ORDER DATED 29.09.2023 IN OP NO.367/2019 AND
O.P.NO.389/2019 OF FAMILY COURT, THALASSERY.
APPELLANT(S)/PETITIONER/PETITIONER IN CMP:
NOUSHAD FLOURISH,
AGED 47 YEARS,
S/O MOHIYUDDIN FLOURISH HOUSE,
NEAR MEPPAYUR HIGHER SECONDARY SCHOOL MEPPAYUR POST,
KOZHIKODE DIST, PIN - 673 524.
BY ADVS.
SHAIJAN JOSEPH
VARGHESE MUNDACKAL
SURUMI SHAKEEL
RESPONDENT(S)/RESPONDENTS/ACCUSED IN CMP:
1 AKHILA,
AGED 37 YEARS, D/O RAZIK E.V,
KALIMA HOUSE, PERINGADI POST,
NEWMAHE, KANNUR DIST, PIN - 673 312.
2 ADVOCATE BIJU V. JOSEPH,
ADVOCATE AND NOTARY, NEAR DISTRICT COURT,
THALASSERY P.O, KANNUR, PIN - 670 101.
BY ADVS.
Asaf Ali T
ZUBAIR PULIKKOOL
LALIZA.T.Y.(K/1427/2002)
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
27.01.2025, THE COURT ON 04.02.2025 DELIVERED THE FOLLOWING:
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C.S.SUDHA, J.
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Criminal Appeal No.1537 of 2023
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Dated this the 04th day of February 2025
JUDGMENT
This appeal under Section 341 Cr.P.C., has been filed by the
petitioner/husband in CMP No.215/2023 in O.P.No.367/2019 and
O.P.No.389/2019 on the file of the Family Court, Thalassery, aggrieved
by the order dated 29/09/2023, by which his petition alleging
commission of perjury by the first respondent/wife and her counsel, the
second respondent, has been dismissed.
2. CMP No.215/2023 was filed by the first
respondent/husband in O.P.No.367/2019, which petition was filed by
the petitioner/wife for return of her gold ornaments. The husband had
moved O.P.No.389/2019 to get custody of the minor child. Pursuant to
the marriage of the petitioner to the respondent on 02/11/2008 as per the
rites and customs of the community to which they belong, a boy child
was born to them, who is presently 12 years old. After the marriage, the
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parties lived in Qatar till 2018. The marital relationship broke up due to
the respondent/wife's extra marital relationship with a person named
Kamarudheen. Though the petitioner/husband attempted to have
reconciliation talks with the respondent/wife, it was of no avail. The
respondent/wife filed several cases against the petitioner/husband and
his family members in the Family Court as well as the JFCM Court,
Thalassery. O.P.No.367/2019 and O.P.No.389/2019 were tried jointly.
In O.P.No.389/2019 the petitioner/husband filed I.A.No.21/2022 for
accepting a scan report pertaining to the pregnancy of the
respondent/wife in addition to two other applications, namely,
I.A.No.22/2022 for reopening the evidence and I.A.No.23/2022 to
recall the respondent/wife for further examination. The trial court as per
common order dated 14/06/2022 allowed I.A.No.21/2022 and
I.A.No.22/2022. I.A.No.23/2022 was dismissed giving liberty to the
petitioner/husband to prove the scan report by examining his witnesses
for which the examination of the respondent/wife was found
unnecessary. According to the petitioner/husband the scan report would
show the illegitimate pregnancy of the respondent/wife, which report
was obtained by him from the Malabar Hospital, Kozhikode. The scan
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report would clearly substantiate his case that the respondent/wife has
an adulterous relationship with one Kamarudheen @ Faisal. In the proof
affidavit filed by the respondent/wife she claimed that from 2015
onwards, she never had sex with the petitioner/husband. However, the
scan report will show that she became pregnant during the month of
August 2018. As the trial court did not allow the request of the
petitioner/husband to recall the respondent/wife and to examine her
further, he filed I.A.No.14/2022 to accept the witness list and summon
officials from the Malabar Hospital, Kozhikode to prove the scan
report. He also filed I.A.No.15/2022 to call for the medical records
from the said hospital. The respondent/wife filed counter to both the
applications denying the statements made therein by the
petitioner/husband. The counter filed by the respondent/wife will show
that she and her counsel has played fraud on the Court by not revealing
the fact of her pregnancy, which amounts to perjury.
2.1. The petitioner/husband filed I.A.No.28/2022 before
the trial court to direct the respondent/wife to instruct the authorities
concerned of Mount Guide International School, where their minor
child is studying, to permit him to visit the child. The respondent/wife
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filed counter to the said application contending that she was unaware of
the fact that the petitioner/husband had not been permitted to enter the
child's school. However, the respondent/wife in M.C.No.38/2019 on the
file of the JFCM Court, Thalassery, prayed that the petitioner/husband
should not be allowed to meet the child in school. The said statements
made by the respondent/wife are contradictory, which also amounts to
perjury. Further, the respondent/wife in her testimony deposed that her
father gave an amount of ₹5,00,000/- to the petitioner/husband in
August 2014. However, her version in M.C.No.38/2019 is that the
amount was paid in 2016. In C.C.No.706/2019 on the file of the JFCM,
Thalassery, the respondent/wife has yet another case that the amount
was paid in December 2015. All these statements are contradictory in
nature, which would show that she had colluded with the second
respondent/her counsel, to mislead the court to gain material benefits
from the petitioner, which is an abuse of the process of court. Hence,
she has committed fraud which would also amounts to perjury. The first
respondent/wife and her counsel/the second respondent concealed the
illegitimate pregnancy of the former before the court which amounts to
deceit. The acts of misrepresentation and concealment of true facts by
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the respondents are perjury as well as contempt of court. The second
respondent was well aware of the illegitimate pregnancy of the first
respondent, but knowingly, willfully and deliberately proceeded with
the litigations with a mala fide intention to defraud the court.
Therefore, the second respondent has also been arrayed as an accused in
the petition. The damage caused to the petitioner/husband due to
defamation is beyond repair. Hence, the petitioner/husband has every
right to claim damages to the tune of ₹50,00,000/- for loss of reputation.
The second respondent, an officer of the court, is strictly prohibited
from filing false affidavits and petitions for and on behalf of the first
respondent/wife. Hence, the Court is to take cognizance against the
second respondent for the offence punishable under Section 209 IPC
and forward the complaint to the jurisdictional magistrate to register a
crime against the second respondent and to report the same to the Bar
Council of India. The respondents have committed the offences
punishable under Sections 191 to 199; Sections 200, 204, 207, 209, 210,
220, 211, 386, 416, 419, 420, 450, 452, 463, 464, 467, 471, 499 and 500
read with Section 120B, 107 and 149 IPC. Hence, the petition under
Section 340 Cr.P.C.
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3. The first respondent/wife filed counter denying the
allegations in the petition. The false allegations have been made only to
harass her. The first respondent/wife has not undergone any scan at the
Malabar Hospital, Kozhikode, on 24/08/2018 as alleged by the
petitioner/husband. The scan report that is relied on by the
petitioner/husband stands in the name of another person and the same
has been produced only to harass the respondent/wife and to protract
the proceedings. The said scan report has not been admitted or marked
in evidence or proved in any of the proceedings that are pending
consideration before the trial court. The petitioner/husband, when
examined before the trial court admitted that he was having physical
relationship with the fist respondent/wife till they separated. The
petitioner/husband went to the school of the child and created problems
and hence the reason why the school authorities are not permitting him
to enter the school. No fraud, deceit, conspiracy or extortion is there on
the part of the first respondent/wife. The petition filed containing false
and baseless allegations is liable to be dismissed.
4. The second respondent also filed a counter denying
the allegations. The scan report relied on by the petitioner/husband has
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not been admitted or proved in evidence. The second respondent has not
colluded with the first respondent. The second respondent has not
misled the court in any manner. There has been no fraud, deceit,
conspiracy or extortion on the part of the second respondent. The
petitioner/husband had earlier made a complaint against the second
respondent to the Bar Association which was dismissed in limine. The
intention of the petitioner is only to harass the second respondent. The
petitioner/husband had also raised allegations of perjury against the
counsel who was appearing for the first respondent/wife before this
Court. The said application has also been dismissed. He had also raised
several allegations against the former Judge of Family Court,
Thalassery. The petition filed for transfer of the case has been dismissed
by this Court. The second respondent has not defamed the
petitioner/husband in any manner. The present petition raising false and
frivolous allegations is liable to be dismissed with compensatory costs
of ₹20,000/-.
5. Exts.A1 to A15 were marked on the side of the
petitioner/husband. No documents were marked on the side of the
respondents. The trial court on an elaborate consideration of the
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materials on record and the arguments advanced, dismissed the
application with compensatory costs of ₹20,000/- to be paid to the
second respondent. Aggrieved, the petitioner/husband has come up in
appeal.
6. Heard both sides.
7. I have referred to the allegations of the
petitioner/husband in detail. The learned counsel for the
petitioner/husband, that is, the appellant herein, was specifically asked
as to how the acts alleged would come within the purview of any of the
offences alleged in the petition to initiate proceedings under Section
340 Cr.P.C., Adv. Surumi Shakeel quite strenuously submitted that it is
high time that courts step in to prevent the practice/habit of parties
giving false evidence in support of their case and if courts at least in one
case take a strong stand and passes an order against such persons, the
same would deter such instances in future. When it was pointed out that
there are no materials to make out a case under Section 195 to initiate
proceedings under Section 340 Cr.P.C., the counsel submitted thus:-
'this Court is also parroting the same version of the trial court'.
8. If the first respondent/wife has committed adultery or
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is leading an adulterous life, it is for the petitioner/husband to prove the
same in appropriate proceedings. Admittedly, the same has not been
done. Ext. A1 is stated to be the scan report relied on by the
petitioner/husband to substantiate the case of his wife's adulterous
relationship with one Kamarudheen. The first respondent/wife denies
the same and contends that Ext.A1 is not her scan report. Admittedly,
Ext.A1 scan report has not been admitted in evidence or proved in
either of the proceedings pending before the trial court. It is beyond my
comprehension as to how proceedings for perjury can be initiated under
Section 340 Cr.P.C. based on a document which has not been admitted
in evidence or proved/disproved or on the basis of some statements
given by the first respondent/wife which are alleged to be contradicting.
9. Here I refer to the dictum of the Apex court in
Chandrapal Singh v. Maharaj Singh, 1982(1) SCC 466. In the said
case certain averments in the affidavits filed in rent control proceedings
were pointed out to be false, on the basis of which proceedings under
Section 340 had been initiated. It has been held that when it is alleged
that a false statement has been made in a declaration which is receivable
as evidence in any court of justice or before any public servant or other
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person, the statement alleged to be false has to be set out and its alleged
falsity with reference to the truth found in some document has to be
referred to pointing out that the two situations cannot co-exist, both
being attributable to the same person and, therefore, one to his
knowledge must be false. Rival contentions set out in affidavits
accepted or rejected by courts with reference to onus probandi do not
furnish foundation for a charge under Section 199 IPC. Acceptance or
rejection of evidence by itself is not a sufficient yardstick to dub the one
rejected as false. Falsity can be alleged when truth stands out glaringly
and to the knowledge of the person who is making the false statement.
Day in and day out in courts averments made by one set of witnesses
are accepted and the counter-averments are rejected. If in all such cases
complaints under Section 199 IPC are to be filed, not only there will
open up floodgates of litigation but, it would unquestionably be an
abuse of the process of the Court. When it was pointed out that a
tendency to perjure is very much on the increase and unless by firm
action, courts do not put their foot down heavily upon such persons, the
whole judicial process would come to ridicule, the Apex court held that
though there was force in the said argument, it was held that it is
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equally true that chagrined and frustrated litigants should not be
permitted to give vent to their frustration by cheaply invoking
jurisdiction of the criminal court.
10. In Chandrapal Singh (Supra), the complainant, an
Advocate, had lost in both courts in the rent control proceedings and
thereafter he had rushed to the criminal court with a complaint under
Section 340. This conduct of the complainant itself, according to the
Apex Court, spoke volumes. Added to this, it was also noticed that
there were also other litigations pending between the parties for quite
long. In the said background it was held that invoking the jurisdiction
of criminal court was an abuse of the process of law.
11. The present petition also seems to be nothing but an
abuse of the process of the Court. In my opinion, the trial court ought to
have dismissed the petition with exemplary costs. I find no infirmity in
the findings of the trial court calling for an interference by this Court.
In the result, the appeal is dismissed with costs.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
ak
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APPENDIX OF CRIMINAL APPEAL NO.1537/2023
APPELLANT'S ANNEXURES:-
Annexure A1 TRUE COPY OF OP 367/2019 FILED BY THE 1ST
RESPONDENT BEFORE THE FAMILY COURT,
THALASSERI DATED 14.4.2019
Annexure A2 TRUE COPY OF OP 389/2019 FILED BY THE
APPELLANT BEFORE THE FAMILY COURT,
THALASSERI DATED 20.5.2019
Annexure A3 TRUE COPY OF THE COMMON ORDER DATED
14.6.2022 IN IA 21/2022, IA 22/2022 AND IA
23/2022 IN O.P. 389/2019 OF THE FAMILY
COURT, THALASSERY
Annexure A4 TRUE COPY OF COMMON ORDER DATED 14-12-2022
IN IA 14/2022 AND IA 15/2022 IN O.P.
367/2019 OF THE FAMILY COURT, THALASSERY
Annexure A5 TRUE COPY OF THE SCAN REPORT DATED 24-08-
2018 ISSUED BY MALABAR HOSPITALS, KOZHIKODE
Annexure A6 TRUE COPY OF THE PERJURY PETITION (CMP
215/2023 IN OP 367/2019 AND OP 389/2019)
Annexure A7 TRUE COPY OF PETITION IN CRL.M.P. NO.
215/2023 DATED 5.8.2023 FILED BEFORE FAMILY
COURT, THALASSERI
Annexure A8 TRUE COPY OF THE JUDGMENT DATED 18.8.2023
IN WPC 26856/2023 OF THIS HON'BLE COURT
Annexure A9 TRUE COPY OF THE JUDGMENT DATED 3.8.2023 IN
TR.APPEAL (C) 9/2023 OF THIS HON'BLE COURT
Annexure A10 TRUE COPY OF THE ORDER DATED 29.9.2023 IN
CMP 215/2023 IN O.P. NO. 367/2019 AND O.P.
NO. 389/2019 OF THE FAMILY COURT,
THALASSERY
Annexure A11 TRUE COPY OF PASSPORT COPY OF THE APPELLANT
INCORPORATING ALL THE PAGES
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Annexure A12 TRUE COPY OF IA NO. 14/2022 IN O.P. NO.
367/2019 AND O.P. NO. 389/2019 FILED BY THE
APPELLANT BEFORE THE FAMILY COURT,
THALASSERY DATED 25.11.202
Annexure A13 TRUE COPY OF IA 15/2022 IN O.P. NO.
367/2019 AND O.P. NO. 389/2019 FILED BY THE
APPELLANT BEFORE THE FAMILY COURT,
THALASSERY DATED 25.11.2022
Annexure A14 TRUE COPY OF JUDGMENT DATED 15.6.2023 IN
OP(FC) 322/2023 OF THIS HON'BLE COURT
Annexure A15 TRUE COPY OF THE PROOF AFFIDAVIT FILED BY
THE 1ST RESPONDENT IN O.P. NO. 368/2019,
O.P. NO. 367/2019 AND O.P. NO. 389/2019
BEFORE THE FAMILY COURT, THALASSERY DATED
28.1.2020
Annexure A16 TRUE COPY OF THE PASSPORT OF 1ST RESPONDENT
Annexure A17 TRUE COPY OF OP NO. 349/2019 (WHICH WAS
LATER ON TRANSFERRED TO FAMILY COURT,
THALASSERI AS OP 941/2019)
Annexure A18 TRUE COPY OF MC 38/2019 FILED BY THE 1ST
RESPONDENT BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE COURT, THALASSERY DATED
28.6.2019
Annexure A19 TRUE COPY OF COUNTER STATEMENT DATED
4.11.2022 FILED BY THE 1ST RESPONDENT IN IA
28/2022 IN O.P. 389/2019 BEFORE THE FAMILY
COURT, THALASSERY
Annexure A20 TRUE COPY OF THE EMAIL COMMUNICATION
BETWEEN THE APPELLANT AND SCHOOL
AUTHORITIES
Annexure A21 TRUE COPY OF THE COMPLAINT DATED 9.6.2023
FILED BY THE COUNSEL FOR THE APPELLANT
BEFORE THE PRESIDING OFFICER, FAMILY COURT,
THALASSERY
Annexure A22 TRUE COPY OF THE REPLY NOTICE DATED
16.6.2023 ON ANNEXURE A21 COMPLAINT ISSUED
BY THE FAMILY COURT, THALASSERY
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Annexure A23 TRUE COPY OF COMPLAINT DATED 23.6.2023
SUBMITTED BY THE COUNSEL FOR THE APPELLANT
BEFORE THE INSPECTOR OF POLICE, THALASSERY
Annexure A24 TRUE COPY OF THE REPLY ISSUED FROM POLICE
STATION, THALASSERI
