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2018 DIGILAW 4159 (MAD)

. v. .

2018-11-09

M.V.MURALIDARAN

body2018
JUDGMENT : 1. The petitioner has filed this miscellaneous petition under Section 5 of the Limitation Act to condone the delay of 223 days in filing the appeal against dismissal of CFR SR.No.6340 of 2016 in H.M.O.P.No.506 of 2015 on the file of the learned Additional Family Court, Coimbatore. 2. The facts in a nutshell are as under: The petitioner is husband and the respondent is wife. The respondent wife had filed H.M.O.P.No.506 of 2015 seeking dissolution of marriage by a decree of divorce and to direct the petitioner husband to pay monthly maintenance of Rs.54,000/-. 3. In the said original petition, the petitioner husband filed a petition, being CFR.No.6340 of 2016, under Section 195 read with Section 340 of the Criminal Procedure Code to conduct a preliminary enquiry, if necessary, and/or otherwise form an opinion whether the respondent wife has committed an act of perjury amounting to a fraud on the Court along with concomitant offence of falsification of evidence and defamation and cause her prosecution by following the procedure contemplated under the above said provisions. 4. The learned Additional Principal Judge, Additional Family Court, Coimbatore, by order dated 9.2.2017, held as under: “18. .... when the trial has not yet commenced and when there is no affidavit filed in proof of the allegations in the petitioner in HMOP 506/2015 and when there is no evidence so as to form an opinion that the averments in the petition are false and when there is no finding of this Court or any other Court to the effect that the respondent/wife has given false evidence as to any fact or circumstances, then, this complaint u/s.195 r/w 340 of Cr.P.C cannot be entertained at this stage. It is true that normally any complaint u/s.195 or 200 will not be rejected. But, here the petitioner/husband has preferred this complaint even before the commission of an offence that is giving false evidence, in short, prematurely. Hence, the complaint deserves rejection at this stage.” 5. Challenging the above said order, the petitioner husband, through his power agent, had filed the criminal appeal along with the present miscellaneous petition seeking condonation of delay of 223 days in filing the appeal. 6. Hence, the complaint deserves rejection at this stage.” 5. Challenging the above said order, the petitioner husband, through his power agent, had filed the criminal appeal along with the present miscellaneous petition seeking condonation of delay of 223 days in filing the appeal. 6. It is the contention of the learned counsel appearing on behalf of the petitioner that despite repeated requests made for issuance of a free copy of the order passed by the Court below, the same was not furnished to the petitioner and after waiting for the same, on an application filed by the petitioner, at last, an order copy was issued and hence there was a delay of 223 days. 7. Per contra, the learned counsel appearing on behalf of the respondent wife contended that the H.M.O.P.No.506 of 2015 filed by her seeking divorce has been disposed of on merits on 30.11.2017 and divorce has been granted and the petition filed by the petitioner husband seeking restitution of conjugal rights, being H.M.O.P.No.232 of 2016, has been dismissed and inasmuch as the petitioner has not chosen to proceed with the said application after commencement of trial, the order of the Court below rejecting the application filed under Section 195 read with Section 340 of the Criminal Procedure Code does not warrant interference. 8. I heard Mr. N. Seshadri, learned counsel appearing for the petitioner and M/s.V.S.Usha Rani, learned counsel for the respondent and perused the documents available on record. 9. In Kenneth Desa v. Gopal, reported in 2007 Supreme (Mah) 934, the Bombay High Court considered the scope of an application under Section 340 of the Criminal Procedure Code and held as under: “7. Whenever an application under Section 340 of Code of Criminal Procedure is filed, the Civil Manual Chapter XIX para 337 requires that it should be registered as Miscellaneous Judicial Case i.e. a case where a Judicial Enquiry is contemplated. The learned Civil Judge should have, therefore, directed the application to be registered as Miscellaneous Judicial Case. Section 340 of Code of Criminal Procedure reads thus - '340. The learned Civil Judge should have, therefore, directed the application to be registered as Miscellaneous Judicial Case. Section 340 of Code of Criminal Procedure reads thus - '340. Procedure in cases mentioned in Section 195 (1) When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, - (a) record a finding to that effect ; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do send the accused in custody to such Magistrate ; and (e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a Court by subsection (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195. (3) A complaint made under this section shall be signed,- (a) Where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorize in writing in this behalf. (4) In this section, Court has the same meaning as in Section 195'. 8. The section thus says that the court should be of opinion that an enquiry should be held. Even for forming an opinion, there should be some evidence and not mere surmises. (4) In this section, Court has the same meaning as in Section 195'. 8. The section thus says that the court should be of opinion that an enquiry should be held. Even for forming an opinion, there should be some evidence and not mere surmises. If there is a prima facie evidence, the court must enter into an enquiry and record a finding as to whether an offence referred to in Section 195 of Code of Criminal Procedure is committed. It was, therefore, not proper on part of Judges of the lower courts to have rejected the application. The learned Civil Judge should have, in fact, upon consideration of the application, decided whether it was necessary to hold the enquiry and if found necessary should have held an enquiry. Merely because civil suit was pending, that did not prevent and could not prevent the Civil Judge from entering into an enquiry. I would, therefore, set aside both the orders and direct the civil judge to register Exh.52 as Miscellaneous Judicial Case and then proceed to decide the application according to the provisions contained in Section 340 of Code of Criminal Procedure. Pendency of this application shall not be and cannot be a constraint on the Civil Judge in deciding the Civil suit on merits. The civil judge may proceed to decide the suit and may also proceed to decide the application under Section 340 of Code of Criminal Procedure separately. The application under Section 482 of Code of Criminal procedure is thus disposed of in the above terms.” (emphasis supplied) 10. In the case on hand, it is the case of the petitioner husband that the averments in the petition seeking divorce filed by the respondent wife are false and a far cry from the ground reality and, therefore, the same should have been considered instead of dismissing the application only on the ground that trial has not commenced. 11. In the above said decision, the Bombay High Court had directed the Civil Judge to proceed to decide the suit, which is admittedly pending, and also to proceed to decide the application under Section 340 of the Criminal Procedure Code separately. Therefore, in my considered opinion, the issue needs further deliberation in the appeal, inasmuch as the complaint under Section 340 of the Criminal Procedure Code and the suit had been directed to be proceeded separately. Therefore, in my considered opinion, the issue needs further deliberation in the appeal, inasmuch as the complaint under Section 340 of the Criminal Procedure Code and the suit had been directed to be proceeded separately. However, this Court does not intend to go into the merits at this stage. 12. Coming to the delay of 223 days in filing the appeal, it is the case of the petitioner that he was not furnished with a free copy of the order and by the time he had applied for an order copy and got it, delay occurred. It is his specific case that he had approached the Registry of the Court below seeking issuance of free copy, but despite such request he had not been issued the order copy. 13. It is not possible to lay down as to what cause or matters would constitute sufficient cause under Section 5 of the Limitation Act. Those words should be liberally construed so as to advance substantial justice, when no negligence or inaction or want of bona fide is imputable to a party. No presumption could be made in an application filed under Section 5 of the Limitation Act that the delay was occasioned deliberately, or on account of culpable negligence, or on account of malafides. 14. It is settled law that length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. When the Court finds that the party who failed to approach the Court within the time stipulated comes forward with an explanation for condoning the delay, if the Court is satisfied that the delay occasioned not due to the deliberate conduct of the party, but due to any other reason, then by sufficiently compensating the prejudice caused to the other side monetarily, the condonation of delay can be favourably ordered. 15. In the case on hand, it is not the case of the respondent wife that the delay was deliberate, due to negligence or inaction on the part of the petitioner husband. 15. In the case on hand, it is not the case of the respondent wife that the delay was deliberate, due to negligence or inaction on the part of the petitioner husband. In fact, the petitioner husband had specifically averred that he had been waiting for the free order copy and had also periodically followed up the issue with the Registry of the Court below and as there was delay in issuance, he finally applied for issuance of an order copy and got it. To render substantial justice, in my considered opinion, the delay needs to be condoned. 16. For the foregoing reasons, the Criminal Miscellaneous Petition is allowed and the delay of 223 days is condoned, on condition that the petitioner pays a sum of Rs.5,000/- to the respondent wife or her counsel within a period of two weeks from the date of receipt of a copy of this order. On compliance of the said condition, the appeal may be numbered and post before the Court concerned.