1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 2092 OF 1999 Mukund Balwant Athawale .. Petitioners V/s 1. Prakash Pandurang Damle 2. The State of Maharashtra .. Respondents Mr. V.Y. Sanglikar for the petitioner. Mr. Prasad Kulkarni i/b Mr. P.S. Dani for respondent no.1. Mr. K.V. Saste, A.P.P. for the State. CORAM : D.G. KARNIK, JJ. DATE : 3RD NOVEMBER 2009 ORAL JUDGMENT: 1. This petition is directed against the order dated 12th March 1997 passed by a learned Judge of the Small Causes Court directing initiation of a proceeding against the petitioner for making a false statement on oath, misguiding and misrepresenting the court The proceedings appear to have been initiated for an offence punishable under section 193 of the I.P.C. The order of the Appellate Bench dated 21st September 1999 confirming the order of the learned Judge of the Small Causes Court is also impugned by this petition. 2 2. The facts stated in brief are that an application bearing R.A.N. Application No.352 of 1988 for fixation of standard rent was filed in the name of 37 persons who claim to be the tenants of the respondent no.2 herein. The present petitioner was shown as applicant no.19 in the said standard rent application. However, admittedly the petitioner – who was shown as applicant no.19 in the standard rent application – had not signed the said standard rent application and consequently was not legally a party to the standard rent application. The standard rent application was dismissed for default on 16th November 1995. A motion, bearing Interim Notice No.810 of 1995, was taken out again in the name of the original 37 applicants for restoration of the said standard rent application. The motion was signed by the present petitioner who arrayed himself as applicant no.19 in the motion. The respondent no.2 opposed the motion inter alia on the grounds that some of the applicants were dead and that the present petitioner, who was arrayed as applicant no.19, was not a party to the standard rent application itself and, therefore, he had no right to file the application for restoration which was filed by him on behalf of himself as well as other applicants. 3. The learned Judge of the Small Causes Court on examination of the record found that the present petitioner, who had arrayed himself as the 3 applicant no.19 in the motion for restoration of the standard rent application, was not a party to the original standard rent application inasmuch as he had not signed the original standard rent application and as such his name was struck off (scored out) in the standard rent application itself. Consequently, he had no authority to file the motion for restoration. The learned Judge also noticed that in the motion for restoration the present petitioner had made a categorical statement that he was one of the applicants in the standard rent application which was factually incorrect inasmuch he had not signed the standard rent application and his name was also physically struck out. On discovery of these facts, the present petitioner tendered an apology to the Court for making an incorrect statement in the motion for restoration that he was an applicant in the standard rent application. That apology was not accepted and while dismissing the standard rent application the Court directed the Registrar of the Court to initiate proceedings for making false statement before it. The order was impugned before the Appellate Bench of the Small Causes Court which dismissed the appeal. That order is impugned in this writ petition. 4. Before me, Mr. Sanglikar, learned counsel for the petitioner, fairly conceded that the statement made in the motion that the present petitioner was one of the petitioners in Standard Rent Application No.352 of 1988 was factually incorrect. He however submitted that the said statement was made 4 under a bonafide mistake. He also submitted that Mr. B.K. Juvekar, Advocate who had filed the standard rent application died few months before the dismissal thereof and the new advocate about to be engaged could not be engaged and, therefore, the petitioner was not aware that he was not an applicant in the standard rent application. He further submitted that for the purpose of making out an offence under section 191 of the I.P.C. it was necessary that the person who made a false statement on oath, must either know or believe the statement to be false. He further submitted that the false statement must be made intentionally. The petitioner had no intention to make a false statement. Further more, though the statement was incorrect, the petitioner did not know nor did he believe that the statement was incorrect but he was under the bonafide belief that he was a party to the standard rent application. 5. It is true that in order to make out an offence punishable under section 193 of I.P.C., the person making the statement must know the statement to be false or believe it to be false or does not believe it to be true. Further more, the intention is also material. However, in my view, whether the petitioner knew that he was not a party to the standard rent application or not is a question of fact which can be decided only at the trial. Similarly, whether the petitioner made the false statement intentionally or not can also be decided at the trial. The question whether the petitioner knew that the 5 statement to be false or believed it to be false or did not believe it to be true cannot be decided unless the evidence is adduced. In the circumstances, at the threshold it cannot be said that the order of the learned Judge directing the Court Registrar to make a complaint is incorrect. 6. For these reasons, there is no merit in the petition which is hereby dismissed. 7. After this order was pronounced, learned counsel for the petitioner prays for stay of the order for a period of 12 weeks to enable the petitioner to challenge it before the appellate court. The operation of this order is stayed for a period of 8 weeks. (D.G. KARNIK, J.)