- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL WRIT PETITION NO. 31 OF 2010. DR. SHYAM MURTI GUPTA …...Petitioner. V/S MR. ELI FURTADO …..Respondent. Ms. S. Linhares, Advocate for the petitioner. Mr. P. A. Kholkar, Advocate for the respondent. Coram:- N. A. BRITTO, J. Date:- 19th July, 2010. P.C. Heard. This writ petition is directed against two orders. The first is dated 13.10.2008 of the learned JMFC, Panaji and the second is dated 23.2.2010 of the learned Additional Session Judge, Panaji, upholding order dated 11.12.2009 of the learned JMFC. 2. Controversy between the parties centers around the affidavit filed by the respondent as complainant in an application - 2 - for condonation of delay of 2 days in filling a complaint under section 138 of the Negotiable Instruments Acts, 1881. The relevant portion of the affidavit read as follows:- “I say that since I was accompanying my daughter in Bangalore who was participating in All India Chess Tournament, I could return only on 15.11.2005.” More particularly, exception taken is the word “Bangalore” contending that the statement made in the said para was a false statement. 3. The said application for condonation of delay was granted by learned JMFC, first ex-parte and then by order dated 13.10.2008, after hearing both the parties. Against this order, the petitioner has not approached the Court of Session in revision but has directly approached this Court with the present petition, filed - 3 - under section 482 of the Code(Cr.P.C.1973). The said order was made after both the parties filed their respective affidavits. 4. According to Shri Kholkar, learned counsel appearing on behalf of the respondent/complainant there was a inadvertent mistake in mentioning Bangalore instead of Aurangabad. As per Ms. Susan Linhares, the learned Advocate for the petitioner, the complainant gave false evidence by virtue of the said statement when the complainant had not gone at all to Bangalore. 5. The learned JMFC, in her order dated 13.10.2008 observed that the only fact which was to be considered was whether the complainant was not in Goa during the said period and had failed to sign the vakalatnama, due to which there was delay in filing the complaint, by 2 days. Mentioning the wrong place by the complainant in the compliant and affidavit do not show any false intention on the part of the complainant. Learned - 4 - JMFC, therefore came to the conclusion that there was inadvertent mistake on the part of the complainant and, therefore, the said mistake did not amount to giving false evidence under section 193 of the Indian Penal Code and proceeded to condoned the delay of 2 days. In fact, even before this Court, it is not the case of the accused that the complainant was in Goa during the said days and it is also observed by the learned JMFC that even if it was assumed that there was no such tournament at Bangalore mentioned by the complainant, the fact that he was not in Goa, during the said period is not denied by the accused. The question is of condonation of delay of 2 days only. The learned Magistrate has in her discretion accepted the cause shown by the complainant and I am not inclined to interfere with the same in exercise of writ Jurisdiction. It is well settled (see 1988 7 SCC 123) that when a Court condones a delay in a positive exercise of discretion, superior Court ought not normally disturb the finding. - 5 - 6. The other two orders arise from an application filed by the accused, presumably, under section 340 of the Code with a view to take action against the complainant under section 193 of Indian Penal Code. The petitioner was examined in the inquiry held into the said application dated 1.8.2008 and in the course of his cross examination by the respondent/complainant, the petitioner admitted that in fact a tournament was held at Aurangabad from 6 to 13th November in which complainant's daughter had participated in the National Championship under 7 years, at Aurangabad in the year 2005 and she had got 3rd place. It follows from the said admission that tournament which was stated to be held in para 5 of the affidavit at Bangalore was infact held at Aurangabad. The learned Magistrate in disposing of the said application, in her order dated 11.12.2009 observed that the only purpose for not filing the complaint is that complainant was out of station and it was not the case of the accused(petitioner herein) that the accused was in Goa and had sworn a false affidavit that he was - 6 - in Bangalore and therefore whether the complainant was in Bangalore or in Aurangabad was immaterial and therefore learned JMFC dismissed the application of the Petitioner/accused dated 1.8.2008. 7. A revision having been filed by the petitioner/accused against the said order of the Magistrate also came to be dismissed by the learned Additional Sessions Judge, by order dated 23.2.2010. In dismissing the revision, the learned Additional Sessions Judge, observed that section 193 of the Indian Penal Code was clear that false affidavit must be given intentionally in any stage of judicial proceedings. Learned Additional Session Judge further held that intention has to be gathered and the same cannot be confused or mixed up with a mistake so also the discretion of the Court to conduct an inquiry or to take action against the said person under section 193 of the Indian Penal Code. The learned Additional Session Judge further observed that it was not the case - 7 - of the accused(petitioner) that the complainant was (not at all) present in Goa and inspite of that he had filed false affidavit and the material shows that there was only a mistake disclosing the place where the complainant went alongwith his daughter and the same could not be considered as intentional. Even before this Court it is not the case of the accused during the said two days the complainant was in Goa. Counsel on behalf of the respondent has submitted that the respondent even had a ticket to show that the complainant had travelled from Aurangabad to Goa on 13.11.2005 but had not produced the same as it was then thought, was not necessary. A copy of the said ticket was shown to the Court but it was objected to by the learned counsel appearing on behalf of the petitioner. Except for mentioning the word “Bangalore” in place of “Aurangabad” there is no other statement in said para which can be sated to be false. The accused himself had admitted on the basis of the information received by him under Right to Information Act that the tournament was held at Aurangabad for children under age - 8 - of 7 where the daughter of the complainant had secured a 3rd place. Therefore, it was obvious that the complainant was not present in Goa and had participated in said tournament at Aurangabad alongwith his 7 years old daughter. Mentioning of the place “Bangalore” was a clear case of inadvertent mistake or a mistake arising out of carelessness for which no action under section 193 of the Indian Penal Code was called for. It may be stated that the intention to give or fabricate false evidence is essence of section 193 of Indian Penal Code, which was not at all spelt out for the Court to have taken cognizance of the offence under section 193 of the Indian Penal Code. 8. Consequently, I find that there is no merit in this writ petition and the same is hereby dismissed with no order as to costs. N. A. BRITTO, J. vn*