SAT NARAIN Vs. SARDA DEVI

JUDGEMENT

(1.) BY this petition under Article 227 of the Constitution of India, the petitioner has assailed the order dated 18th November 2005 passed by learned civil Judge and the order dated 29th March 2007 passed by the first appellate court in appeal preferred by the petitioner against the order dated 18th november 2005.

(2.) THE petitioner had made an application under Section 340 Cr. P. C with a prayer to the Civil Judge that a complaint be made against the respondent under section 340 Cr. P. C read with Section 195 Cr. P. C for filing false affidavit before the Court and for making a false statement by Ms. Suman Kapoor, Advocate for the decree holder.

(3.) THE learned Civil Judge, who had dealt with the matter, observed that the respondent Smt. Sharda Devi did file an affidavit stating therein that there was a stay in the proceedings granted by the High Court but it was Ms. Suman kapoor, Advocate who stated on that day that there was a stay granted by the high Court in the execution proceedings. Smt. Sharda Devi explained that she was not present in the High Court and she under advise of her counsel Ms. Suman kapoor filed an affidavit in the Court believing her counsel who told her that there was a stay of proceedings. The Court below observed that in view of this explanation and in view of the fact that she was a widow aged about 60 years, it was not necessary to refer the matter against her for criminal trial. She was ill-advised by her advocate and she has also admitted her mistake and told the court that she would be cautious in future. Since there was no statement on record of Ms. Suman Kapoor, Advocate, the Court expressed its helplessness to proceed against her under Section 340 Cr. P. C. The first appellate Court concurred with the decision of the trial court and also observed that the petitioner herein did not appear before the Court on the date fixed so that he could have apprised the trial court of the order passed by the High Court in his petition before the High Court. It was also observed that thereafter the petitioner appeared and apprised the executing court of the correct order passed and also placed on record a copy of the order. Considering these facts and circumstances, the appeal was dismissed by the first appellate court.