M.M.BHEMAIAH Vs. M.M.AIYANNA

JUDGEMENT

(1.) This is a petition filed under sec. 482 Cr.P.C. for quashing the order dtd. 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 , Vira jpet 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 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 sec. 200 Cr .P.C. alleging that the respondent committed an offence punishable under sec. 193 IPC by a filing false written statement and affidavit contending about the oral partition. The learned Magistrate took cognizance o f 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 sec. 200 Cr.P.C. is not at all maintainable. In a suit for partition, if the petitioner being the de fendant 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 sec. 191 read with 193 IPC is constituted. Therefore petition is to be allowed.