S R RAMALINGAM Vs. STATE

JUDGEMENT

(1.) THE petitioner, against whom a complaint under Section 193 I. P. C. has been filed by the First Assistant Registrar (Original Side) of this Court, seeks to revise the preliminary order passed by the learned Fifth Presidency Magistrate overruling the two objections taken against the trial of the case. To properly deal With the objections, it is necessary to set out the facts that led to the filing of the complaint.

(2.) THE petitioner is one among three partners of a firm called Swami Oil Mills doing business at Erode. Early in the year 1957, the firm got into financial difficulties. Two of its creditors filed I. P. Nos. 76 and 85 of 1957 on the Insolvency Side of this Court to adjudicate as insolvents the firm and its partners. There were a number of creditors who had advanced moneys to the firm and whose claims had not been discharged. There was also a large amount due by the firm towards arrears of sales-tax as well as by way of advance tax in respect of sales effected by them since the year 1952-53. That liability amounted to nearly Rs. 55000. The debtors, who were anxious to avoid insolvency, tried to enter into an arrangement with the petitioning creditors. But the withdrawal of the petitions could not be secured by merely satisfying those creditors. It was essential that other creditors the should be satisfied. Such an arrangement was entered into with all the creditors except the Sales-tax department, the dues to whom were not disclosed by the debtors, either by design or by inadvertence, to the court. An application was then filed by the debtors for permitting the withdrawal of the insolvency petitions. In support of it, the petitioner flied an affidavit purporting to disclose the entire assets and liabilities of the firm and of its partners. The affidavit also contained a statement as to the nature of the arrangement entered into with the creditors. The liability for sales-tax was not shown amongst the other liabilities; not was any reference made to the State Government as a creditor. Ganpatia Pillai J, before whom the application came, acting on the affidavit, the truth of the statements contained in which he had no reason to suspect having regard to absence of any information as to the existence of the liability to the State Government,-permitted on 29. 2. 1960 the withdrawal of the insolvency petitions. The Sales-tax department eventually came to know of the proceedings in this Court. It appears that the Official Assignee, who was functioning as the interim receiver and who had been informed about this claim did not oppose the withdrawal. Neither the debtors nor the official Assignee apprised the court that the scheme of arrangement did not provide for payment of the amount due to the State Government.

(3.) NEARLY a year after the withdrawal of the Insolvency petitions, the Sales-tax department, coming to know of the manner in which such withdrawal was secured, applied to this Court in its insolvency side to set aside the dismissal of the insolvency petitions and reopen the same. They also filed an application for preferring a complaint against the petitioner for the offence of perjury. Kailasam J, before whom the applications came up, set aside the dismissal of the insolvency petitions and thus reopened the proceedings for disposal in the usual course. The learned Judge then issued a notice to the petitioner why he should not be prosecuted for suppressing information regarding the debtor's liability to the Government The explanation tendered by the petitioner not having satisfied the learned Judge, an order was passed under Section 479a Cri. P. C. on 4. 3. 1963, directing the First Assistant Registrar (Original Side) of this Court to file a complaint against the petitioner before the Chief Presidency Magistrate, Madras. No objection was then taken before the learned Judge to the procedure adopted. But shortly thereafter, an application?appn. No. 353 of 1963 was filed on his behalf for reviewing the aforesaid order on the ground that Section 479a could not apply to false evidence given-before court in the form of an affidavit. Kailasam J. did not accept the application and passed an Order on 2. 8. 1963 dismissing the same and expressing the view that the provisions of Section 479a would cover not merely a case of perjured evidence given by means witness before the court, but also one where such evidence was given by means of an affidavit An appeal was filed against that order under Clause 15 at the Letters Patent but the same was dismissed in limine on the ground that no appeal could lie against an order refusing to grant review of a judgment.