ORDER
G.P. Agarwal, Member (J)
1. Through the application in hand the Respondent has prayed for suitable legal action in terms of various provisions of Sections 177, 181, 182, 191 and 192 read with Sections 193, 196, 199, 200 and 201 of the Indian Penal Code for making the alleged false averment in the affidavit dated 10-2-1986, filed by the appellants in support of their application for restoration of the appeal earlier dismissed by this Tribunal on 4-12-1985. According to the respondent the following averment in para 3(ii) of the said affidavit was a false averment:-
“As they have averred in para 3(ii) of the said affidavit that Shri J.N. Roy, Advocate was not engaged by them for causing appearance in the matter on 4-12-1985 whereas the appellants have filed a vakalatnama in favour of the said Shri J.N. Roy, which is on the records of the Hon’ble Tribunal.”
It is also stated by the respondent in their application in hand that this Tribunal in its restoration Order No. Misc./128/1986-A dated 17-6-1986 has also stated that there was a false averment with respect to the authority of Shri J.N. Roy, Advocate, to appear.
2. We have heard Shri V.M. Doiphode, learned SDR, for the respondent/ applicant and Shri S.K. Bagaria, learned Advocate duly assisted by Shri C.M. Ghorawat.
3. It is true that an affidavit is “evidence” within the meaning of Section 191 of the Indian Penal Code and a person swearing to a false affidavit is guilty or perjury. But the matter does not rest here. Before initiating the proceedings for perjury, the Court concerned has to consider whether it would be expedient in the interest of justice to sanction such prosecution. It is further true that what the Courts have to see at this stage is whether there is evidence in support of the allegation made by the complainant (respondent herein) to justify the initiation of proceedings against the appellant, that is to say, Shri Bhojraj who had filed the aforesaid affidavit on behalf of the appellants and not whether the evidence is sufficient to warrant his conviction, but this does not mean that the Court should not prima facie be of the opinion that there are sufficient and reasonable grounds for setting the machinery of criminal law in motion against the accused. The Court has further to see that the false statement was deliberate and conscious and the conviction is reasonably probable or likely. In other words, before sanctioning the prosecution there must be a prima facie case of a falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge the guidelines laid down by the Hon’ble Supreme Court in the case of S.P. Kohli v. High Court of Punjab & Haryana, AIR 1978 SC 1753. Bearing in mind these principles, we find that the respondent has not stated in his application in hand that the said statement in the affidavit was a deliberate falsehood or it was made consciously. From the records we observe that the said statement was made on account of confusion as explained by the appellants in their subsequent submissions. Moreover, we find that at the time of restoration of the appeal this very fact was brought to the notice of the Tribunal and after stating that it was a fact that Shri J.N. Roy, Advocate, had indeed been duly authorised to appear on behalf of the applicant, the Tribunal did not consider it expedient at that stage to initiate any criminal proceedings for making such a false statement. On the other hand the respondent prayed for some indulgence and requested for the restoration of the appeal. At this stage it would be appropriate to extract the relevant para of the said restoration order dated 17-6-1986, which reads as follows:
“In the course of the hearing of this application, it was found, for a fact, that Shri J.N. Roy, Advocate, had indeed been duly authorised to appear on behalf of the applicant. He had filed his Vakalat duly executed for and on behalf of the applicant and accepted by him on 9-9-1985. The averment to the effect that no advocate was authorised and least of all Shri J.N. Roy to appear on 10-9-1985 was obviously incorrect. When this was pointed out to Shri Bagaria, now appearing for the applicant, he admitted that there were laches and negligence on the part of the applicant in attending to the case on the succeeding date when the appeal was posted for hearing. He also admitted that the allegation in the affidavit regarding the engagement of Shri J.N. Roy was apparently incorrect. He, however, prayed for the indulgence of the Tribunal and submitted that heavy stakes are involved in the appeal and it was not as if any payment due to the Revenue is held up. He accordingly prayed for the exercise of our discretion in favour of restoration of the appeal on payment of such costs as may be awarded by the Tribunal.”
(Emphasis supplied)
xx xx xx
The said submission was opposed by the learned SDR, but this Tribunal restored the appeal by imposing a cost of Rs. 1,000/- to be deposited into the account of the Central Revenues in the Treasury. The relevant paragraph reads as follows:
“However, large stakes (refund claimed in a sum of Rs. 1,35,330.31) are involved. The applicant would suffer an irreparable injury if the appeal is not restored for the acts or omissions of its officers. It is not as if the respondent could not be adequately compensated b(sic) payment of heavy costs. We, accordingly direct that the applicant should within one month of the date of communication of this order pay a sum of Rs. 1,000/- by way of COSTS, by depositing the same into the account of the Central Revenues in the Treasury and report compliance with our order by 23rd July, 1986.”
xx xx xx
4. From the above narration of the facts it is clear that while restoring the appeal to its original number this Tribunal took into consideration the fact that there was a false averment in the affidavit, and therefore, at the request of the appellants some indulgence was shown by the Tribunal and the appeal was restored by imposing a cost of Rs. 1,000/-, apparently to compensate the respondent. Under these circumstances, we are of the considered opinion that it won’t be expedient in the interest of justice to sanction the prosecution orto initiate any criminal proceedings against the deponent. Accordingly, the application in hand is rejected.