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2018 DIGILAW 426 (RAJ)

Sudarshan Bareth v. State of Rajasthan

2018-02-05

SANDEEP MEHTA

body2018
JUDGMENT : Sandeep Mehta, J. 1. The instant appeal preferred by the complainant Sudarshan Bareth under Section 341 Cr.P.C., 1973 is pending on the defect side and is delayed by 19 days. Learned counsel Shri Jog Singh has moved an application under Section 5 of the Limitation. At on behalf of the appellant for condonation of delay occasioned in filing the appeal. It is stated in such application that the appellant is serving in the Jet Airways and was posted at Chennai and thus, initially he could not apply for certified copy of the impugned order and also that he was not sanctioned leave by his employer and hence he was genuinely and bonafidely prevented from approaching his counsel at Jodhpur for filing the appeal against the order dated 12.01.2017 whereby, the application preferred by the appellant under Section 340 Cr.P.C., 1973 seeking prosecution of the respondent for the offence under Section 191 IPC was rejected. 2. I have heard the arguments advanced by learned counsel Mr. Jog Singh on the application for condonation of delay as well as on merits of the appeal at this stage itself. 3. Upon having considered the grounds set out in the application filed under Section 5 of the Limitation Act and upon appreciating the arguments advanced at bar, this Court feels that the reasons seeking condonation of delay as set out in the application are totally flimsy and far fetched. The order under challenge was passed by the Judge, Family Court, Udaipur on 12.01.2017. The appellant had previously as well, filed an almost identical application under Section 340 Cr.P.C., 1973 which was rejected by the trial court vide order dated 24.08.2016 and the appeal preferred against such rejection order being S.B. Criminal Appeal No.914/2016 was also rejected by this Court vide order dated 25.03.2017 which has a significant bearing on the present matter and would be referred to later on. Thus apparently, the appellant has been diligently and persistently pursuing the matter against the respondent in the Family Court, Udaipur as well as in this Court. He has been filing repeated applications against the respondent and thus manifestly, the ground set out in the delay condonation application that the appellant was prevented from timely challenging the impugned judgment owing to the constraints of his job is patently unacceptable and untenable. He has been filing repeated applications against the respondent and thus manifestly, the ground set out in the delay condonation application that the appellant was prevented from timely challenging the impugned judgment owing to the constraints of his job is patently unacceptable and untenable. Certified copy of the impugned judgment dated 12.01.2017 was procured by the appellant on 21.01.2017. The appellant had a window of almost two months thereafter to file the instant appeal which came to be presented in this court as late as on 10.04.2017. The application for condonation of delay is totally bereft of particulars as to when the appellant applied for leave or whether he was denied leave by his employer to approach his counsel at Jodhpur for filing the instant appeal. That apart, the appeal is not required to be supported by any affidavit and the appellant was not required to come down to Jodhpur in person for presenting the same. He already had availed the services of the same counsel in the previous round of litigation and could have orally instructed him to file the appeal. The requisite documents and the Vakalatnama could be transmitted by post. Legal fees can be remitted by bank transfers. Thus, I am not convinced in the least by the grounds set out in the application filed under Section 5 of the Limitation Act so as to condone the delay of 19 days in filing of the present appeal. 4. Despite that, I have heard the arguments advanced by learned counsel Shri Jog Singh on merits as well. The appellant and his wife Smt. Vandana are entangled in bitter matrimonial litigation before the Family Court, Udaipur. Smt. Vandana filed an application before the Family Court under Section 125 Cr.P.C., 1973 claiming maintenance from the appellant and gave her statement in support of such application. 5. Citing ground of mis-statement and discrepancies and falsely in the pleadings of the application filed by Smt. Vandana under Section 125 Cr.P.C., 1973 the appellant herein filed an earlier complaint before the learned Judge, Family Court, Udaipur under Section 340 Cr.P.C., 1973 seeking her prosecution under Section 193 Cr.P.C., 1973 which was rejected by order dated 24.08.2016. 5. Citing ground of mis-statement and discrepancies and falsely in the pleadings of the application filed by Smt. Vandana under Section 125 Cr.P.C., 1973 the appellant herein filed an earlier complaint before the learned Judge, Family Court, Udaipur under Section 340 Cr.P.C., 1973 seeking her prosecution under Section 193 Cr.P.C., 1973 which was rejected by order dated 24.08.2016. The learned Family Court, observed that the trival mistakes in pleadings of the application cannot make the party concerned responsible to face prosecution for giving false evidence because such pleadings are generally drafted by the counsel and no malafides can be attributed to the party for discrepancy if any. The appellant did rest satisfied with rejection of his application by the trial court vide order dated 24.08.2016 and carried the matter to this Court by way of an appeal, which was registered as S.B. Criminal Appeal No.914/2016 and was rejected vide judgment dated 25.03.2017. In the meanwhile, evidence of the parties was recorded by the Family Court and the application under Section 125 Cr.P.C., 1973 was allowed by the order dated 25.03.2017 and Smt. Vandana was awarded maintenance to the tune of Rs. 9,000/- per month to be paid by the appellant. 6. The appellant picked up stray bits and pieces from the pleadings of the application under Section 125 Cr.P.C., 1973 filed by Smt. Vandana and her statement recorded during the inquiry proceedings and filed yet another application under Section 340 Cr.P.C., 1973 craving her prosecution for the offence under Section 191 Cr.P.C., 1973 The Judge, Family Court rejected the said application by a detailed order dated 12.01.2017 which is assailed in the instant appeal filed under Section 341 Cr.P.C., 1973 I have appreciated the arguments advanced by the learned counsel Jog Singh and have gone through the impugned order and the material placed on record. It is my firm opinion that the appellant is acting in a totally vindictive manner while seeking prosecution of the respondent by picking up stray bits and pieces from her pleadings and evidence. By no stretch of imagination, these discrepancies/contradictions referred to by the appellant in his application can be treated as amounting to false deposition in court so as to justify prosecution of the respondent under Section 191 IPC. By no stretch of imagination, these discrepancies/contradictions referred to by the appellant in his application can be treated as amounting to false deposition in court so as to justify prosecution of the respondent under Section 191 IPC. Before prosecuting any person for giving false evidence in the Court, it has to be established beyond all manner of doubt that such person intentionally and deliberately tried to mislead the court by making a false deposition on oath. 7. After going through the impugned order, the pleadings and the statement of the respondent which is placed on record, I am of the firm opinion that the so-called infractions pointed out by the respondent in the application under Section 340 Cr.P.C., 1973 cannot be termed as amounting to giving false evidence on oath. These kind of discrepancies are bound to occur in the evidence of a truthful witness and no adverse inference can be drawn there from. The learned Judge, Family Court duly and thoroughly appreciated the entire material available on record in the correct perspective while holding that the respondent being the appellant's wife did give any false evidence in the court. Whatever discrepancies were pointed out occurred owing to difficulty in comprehending the commercial documents/transactions and on account of forgetting the dates of some specific events. The fact remains that the Judge, Family Court, accepted the application under section 125 Cr.PC, 1973 and the appellant appears to be peeved and frustrated by demand of maintenance made by his estranged wife i.e. the respondent herein. He has evidently tried to wreak vengeance upon the lady by repeatedly filing totally frivolous applications so as to deter her. 8. In view of the discussion made hereinabove, I am of the view that the Judge, Family Court rightly rejected the application filed by the appellant under Section 340 Cr.P.C., 1973 finding it to be merit-less. This Court expresses total agreement with the findings recorded by the learned Family Court in the impugned order and it is the firm opinion of this Court that the application was frivolous and merited only rejection and nothing else. The impugned order dated 12.01.2017 ex-facie does suffer from any shortcoming, either factual or legal, so as to require interference therein. 9. Consequently, I find no reason to entertain the instant appeal which is dismissed as being delayed and so also as being frivolous while imposing cost of Rs. The impugned order dated 12.01.2017 ex-facie does suffer from any shortcoming, either factual or legal, so as to require interference therein. 9. Consequently, I find no reason to entertain the instant appeal which is dismissed as being delayed and so also as being frivolous while imposing cost of Rs. 5000/- upon the appellant. 10. Upon the cost being realised, the same shall be appropriated in the funds of the District Legal Services Authority.