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PETITIONER: JOTISH CHANDRA CHAUDHARY

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT: 26/04/1968

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. BACHAWAT, R.S.

CITATION:  1969 AIR    7            1969 SCR  (1) 130

ACT: Indian  Penal  Code,  1860, ss. 199, 200-If  person  can  be prosecuted  for false statement not shown to be touching  on any material point or corruptly.

HEADNOTE: After  a  partition  in  his  joint  family  in  1952,   the appellant, together with his three minor sons, took over and carried on the family business.  He Thereafter filed a  suit in  the  business name against a firm claiming  damages  for certain  infringements of trade marks.  The trial Court  re- jected a contention of the defendants that the suit was  not maintainable because the appellant three minor sons had  not been  impleaded and decreed the suit.  In the course  of  an appeal  before  a  Single  Beach  of  the  High  Court,  the appellant filed an application for the addition of his three sons  as parties and also :filed an, affidavit, as  required by  the Court, giving the respective dates of births of  his three  sons.  As the appellant,who had a large  family,  did not remember the exact dates, he sought information from the school authorities and on the basis of this information,  he stated  the  date of birth of one his sons as June  9,  1954 instead of December 12, 1951.  While dismissing the  appeal, the Court directed the appellant to show cause why he should not  be prosecuted for committing an offence under  sections 199 and 200 I.P.C. The appellant’s plea that he had  wrongly mentioned the date of birth due to a bona fide -mistake  was rejected  and  a  Division  Bench,  in  appeal,  refused  to interfere   with   the  order  directing   the   appellant’s prosecution. On appeal to this Court. HELD : The -appeal must be allowed and the complaint against the appellant quashed. Before  a person can be punished under s. 199, it has to  be proved,  inter alia, that the false statement  is  ’touching any point material to the ,object for which the  declaration is  made’.  One of the ingredients of an ,Offence  under  s. 200  I.P.C.  is  that  the declaration  should  be  used  or attempted   to   be  used  corruptly.   Neither   of   these requirements were shown to have been satisfied.  Considering that the date of birth was obtained from the school records, and that the appellant stood to gain ,no advantage by giving

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a  wrong  date,  the learned Single Judge  should  not  have directed  the lodging of a complaint under s. 199 or s.  200 I.P.C. [133 A-D]

JUDGMENT: CRIMINAL  APPELLATE  JURISDICTION Criminal Appeal No.  1  of 1968. Appeal  by special leave from the judgment and  order  dated November  1  0,  1967 of the Patna High  Court  in  Criminal Appeal ’No. 4 of 1967. Sarjoo Prasad and S. N. Prasad, for the appellant. U. P. Singh, for the respondent. 131 The Judgment of the Court was delivered by Sikri,  J.-In  this appeal by special leave  Jotish  Chandra Chaudhary,   hereinafter  referred  to  as  the   appellant, challenges  the order of a Division Bench of the Patna  High Court  in  Criminal  Appeal  No.  4  of  1967,  refusing  to interfere  with  the  order of  the,  learned  Single  Judge directing the prosecution of the appellant under s. 199  and s.  200 of the Indian Penal Code or such other  sections  as may be found to be applicable. In  order  to  appreciate the  contentions  of  the  learned counsel  for  the appellant it is necessary to set  out  the relevant   facts.    The  appellant  with  his   five   sons constituted  a Joint Hindu Family.  In 1952  partition  took place.  At that time three sons were minors, while two  were majors.   As  a  result of the partition  the  joint  family business, which was then being carried on under the name and style  ’Ramnath Sarjug Prasads’ was allotted exclusively  to the appellant and his three minor sons.  The appellant filed a suit (suit No. 5 of 1958) for damages against M/s  Lakshmi Bombay  Thread  Factory and others on the  ground  that  the defendants  had  infringed certain  trade  marks  registered under  the Trade Marks Act, 1940.  This suit was decreed  by the  District  Judge,,  Patna,  on  March  31,  1962.    The defendants  filed an appeal against the said  decree.   This appeal  was numbered First Appeal No. 227 of 1962.   In  the suit one contention of the defendants was that the suit  was not   maintainable  because  although  the  suit  had   been instituted by the appellant in his capacity as proprietor of the  firm Ramnath Sarjug Prasad, his three minor  sons,  who were also proprietors of the firm according to the partition deed  dated November 2, 1952, had not been  impleaded.   The learned  District Judge held on this point that it was  open to  the  plaintiff  to sue on behalf of  the  entire  family comprising himself and his minor sons as karta of his family without impleading the minors.  In the course of the hearing of the appeal before the learned Single Judge, the appellant filed  a petition under O. I r. 10, C.P.C., on May 1,  1967, for addition of parties.  On the same day the learned Single Judge directed the appellant to file an affidavit by May  2, 1967,  giving  the respective dates of birth  of  his  three minor  sons  who  were to be added as parties  to  the  said appeal.   The  appellant, who has a large  family,  did  hot remember  the  exact dates of birth of his sons  and  sought information  from  the school  authorities.   The  appellant received  information  from the PrinciPal.   Ram  Mohan  Roy Seminary,  Patna, on May 2, 1967, that the date of birth  of Subhas alias Ashok Kumar Jayaswal was June 9, 1954.  On  the same date the appellant swore and filed an affidavit stating therein the above date of birth of Subhas alias Ashok  Kumar Jayaswal.    The  learned  Single  Judge  in  the   judgment

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disposing of Appeal No. 227 of 1962 observed 132 .lm15 "In  conclusion, I would like to mention that the  statement made by plaintiff-respondent Jotish Chandra Chaudhary in the affidavit  sworn and filed by him in this Court on  2-5-1967 about the date of birth of his youngest son Subhas being 9th June, 1954 appears to be false to his knowledge, as shown by the  fact that this plaintiff-respondent himself was one  of the executants in the Partition Deed (Ext.B) which is  dated 2-11-1952  and he executed the same for himself as  well  as guardian  of  his three minor sons including  the  aforesaid Subhas.  He is therefore directed to show cause by 21-7-1967 as to why he shall not be prosecuted for committing offences under sections 199 and 200 of the Indian Penal Code or  such other sections as may be found to be applicable." The  learned Single Judge, on cause being shown, was  unable to  accept the plea of the appellant that the date of  birth of  Subhas  had been wrongly mentioned due to  a  bona  fide mistake.   We may mention that Subhas was actually  born  on December  12,  1951, and not on June 9, 1954.   The  learned Single Judge observed               "This  plea about bona fide mistake  does  not               appear to be all convincing or acceptable.  As               is  well known that the entries in the  School                             Registers  regarding  the dates- of  b irth  are               often wrong being based upon wrong information               given at the time of admission of the students               and Jotish Chandra Chaudhary being himself the               father  of  the boy and being a party  to  the               aforesaid  deed  of partition,  could  not  be               unaware of the fact that the date of birth  as               entered   in  the  School  Register  was   not               correct.   In  this  connection,  it  may   be               mentioned   that  he  is  not  an   illiterate               villager  but a business man living  in  Patna               City and running a business since a long time.               On a consideration of all the above aspects, I               am  quite unable to accept the plea about  the               date of birth having been wrongly mentioned in               the affidavit due to bona fide mistake and  it               is  evident that this date,  was  deliberately               given as it was thought at that time that this               version could ’be supported by the certificate               obtained  from the school, and the  fact  that               could   be  detected  by  reference   to   the               registered  deed of partition which  has  been               executed in 1952, had been overlooked at  that               time." With  respect  to the learned Judge, he has  not  considered whether any advantage was likely to accrue to the  appellant for  giving the date of birth of his son Subhas as  June  9, 1954, 133 instead of December 12, 1951.  As far as the appeal  pending before  the  learned Single Judge was concerned, it  is  not disputed that this change did not make any difference to the decision  of the question of impleading the minor son  as  a party  or the decision on the question whether the suit  was maintainable or not.  Before a person can be punished  under s.  199, I.P.C., it has to be proved, inter alia,  that  the false  statement  is  ’touching any point  material  to  the object  for  which the declaration is made’.   There  is  no suggestion  that  the change of the birth date  touched  any

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material  point  in  F.A.  No. 227  of  1962.   One  of  the ingredients of an offence under s. 200, I.P.C., is that  the declaration   should  be  used  or  attempted  to  be   used corruptly.   It  has  not  been  explained  to  us  how  the declaration was used ’corruptly.  Considering that the  date of birth was obtained from the school records, and that the- appellant stood to gain no advantage by giving a wrong date, the  learned  Single  Judge should not, in  our  view,  have directed  the lodging of complaint under s.’199 or  s.  200, I.P.C.  It is not clear what other section of  Indian  Penal Code the learned Single Judge had in view. In  view  of  the above conclusion it is  not  necessary  to consider  whether  the  judgment  directing  the  filing  of complaint was in contravention of s. 479A(6), Cr.  P.C. In  the result the appeal is allowed and the orders  of  the Division  Bench and the learned Single Judge set aside,  and the  complaint, which is stated to have already been  filed, quashed. R.K.P.S.         Appeal allowed. 134