APPLN.904-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 904 OF 2010 Pushp Holdings Ltd. ...Applicant Vs. The State of Maharashtra & Anr. ...Respondents *** Mr. M. V. Swar, for the Applicant. Mrs. A. S. Pai, APP for Respondent No.1. Mr. Vaibhav Khuman, for Respondent No.2. *** CORAM: V. M. KANADE J. DATE : OCTOBER 1, 2010 P.C. 1. Heard the learned counsel appearing on behalf of the applicant and respondent No.2. In the present case, the applicant herein filed a complaint under S. 138 of the Negotiable Instruments Act in the year 2003. The affidavit-in-lieu of evidence was filed on 2nd April, 2004. However, it appears that there was no verification clause in the said affidavit. The applicant filed an application, seeking leave of the Court to insert the verification clause. The said application was rejected. Against APPLN.904-10 - 2 - this order, he preferred a revision application, which was also dismissed. Thereafter, he filed a writ petition in this Court which was allowed by this Court by an order dated 8th August, 2008. The Special Leave Petition filed against the said order was dismissed. Thereafter the petitioner inserted the said verification clause in his affidavit-in lieu of evidence. In the said verification clause, however, no reference was made as to which paragraphs in the affidavit, were true to the best of his knowledge and which paragraphs were based on belief, information and advise. 2. Respondent No.2 therefore, filed an application, challenging the said verification on two grounds. Firstly, it was stated that the said affidavit was not in accordance with the provisions of the Criminal Manual since the paragraphs which were based on belief and advise were not mentioned; and secondly, it was urged that said verification was not in accordance with the provisions of S. 297 Cr.P.C. since it was not affirmed by the Magistrate. The trial Court passed an order stating therein that this question will be decided at the hearing of the trial. The applicant has challenged this order before the Sessions Court in revision, since he felt that at the final hearing of the case, an adverse order will be passed and he would not be in a position to cure the defect in verification clause regarding the manner of verification. The revisional Court, APPLN.904-10 - 3 - however, rejected the revision application, firstly by holding that the said revision application is not maintainable and thereafter he proceeded to decide the case on merits against the applicant. The applicant is therefore, approaching this Court under S. 482 Cr.P.C. 3. Firstly, it is submitted that the verification is proper and even if it is not stated which paragraphs in the affidavit are based on his belief and information, even then it could not be said that verification is defective. Secondly, it is submitted verification was affirmed before the Registrar, who has been delegated the powers to affirm an affidavits and therefore, there was no violation of S. 297 Cr. P. C. The learned counsel for the applicant placed reliance on the judgment of the Mysore High Court in the case of – Shivsharan Reddy, Petitioner Vs. State of Mysore & Ors., Respondents [AIR 1968 Mysore 119] and also a judgment of Patna High Court in the case of – Chandrika Prasad Singh & Ors., Appellants Vs. Hira Lal & Ors., Respondents [1924 Patna 312]. 4. On the other hand, the learned counsel for respondent No.2 submitted that present application under S. 482 is not maintainable since it was in fact a second revision application and in view of the various judgments of the Apex Court, second application for revision is not maintainable. He placed reliance on the following judgments- APPLN.904-10 - 4 - (i) Amar Nath & Ors., Appellants Vs. State of Haryana & Ors., Respondents [1977 Cri. L.J. 1891] ; (ii) Jagir Singth, Appellant Vs. Ranbir Singh & Anr., Respondents [ AIR 1979 Supreme Court 381], more particularly in paragraph 4; (iii) Rajan Kumar Manchanda, Appellant Vs. State of Karnataka, Respondent [1990 (Supp) Supreme Court Cases 132] (iv) Mohammad Aamin and Anr., Petitioner Vs. State of Rajasthan & Anr. [1998 Cri. L.J. 603]; 5. Secondly, it is submitted that once verification was made, it cannot be allowed to be changed by amending it. He also submitted that affidavit without verification and affidavit with defective verification cannot be admitted in evidence. He also relied on judgment of the learned Single Judge of this Court in the case of – Nandkumar Shankar Mhatre, Petitioner Vs. Dayanand Mahadev Mhatre & Ors., Respondents [1989(1) Bom. C.R.112]. 6. So far as the objection regarding maintainability of the present application under S. 482 Cr. P. C., raised by the learned counsel for respondent No.2 is concerned, said submission cannot be accepted. In the present case, Sessions Court has specifically held that the revision application filed by the applicant was not maintainable since it was against the interlocutory order and after having so held that it was not maintainable, it proceeded to decide the same on merits. In my view, the Sessions Court after having held that the revision application is not APPLN.904-10 - 5 - maintainable, could not have proceeded to decide the same on merits. The fact remains that revision application having been dismissed on the ground that it is not maintainable, does not mean that the present application filed under S. 482 Cr. P .C. will amount to a second application in disguise, therefore, the reliance placed on the judgments by the learned counsel for respondent No.2 would not be applicable to the facts of the present case. 7. So far as second submission is concerned, it is an admitted position that the learned Single Judge of this Court by an order dated 8th August, 2008 permitted the applicant herein to insert the verification clause and accordingly, he has carried out the said amendment. Against this order, Special Leave Petition filed by the respondent No.2 was dismissed. In this view of the matter, the judgment on which reliance is placed by the learned counsel for respondent No.2 in the case of Nandkumar S. Mhatre (supra) can no longer be agitated by the respondent at this stage. 8. In my view, the learned Magistrate ought to have decided the said application filed by the respondent No.2 immediately and should not have relegated the said application till the final disposal of the case. 9. So far as the said application is concerned, in my view, there APPLN.904-10 - 6 - is no substance in the objection raised by the respondent No.2. The said objection, apart from being frivolous objection, is obviously raised only for the purpose of protracting the trial of the case. A complaint was filed in the year 2003. An affidavit-in-lieu of evidence was filed in the year 2004. More than 7 years passed, criminal case is not decided on account of such frivolous application, filed by the respondent/accused. So far as first objection regarding the said verification not being in accordance with the provisions of the Criminal Manual is concerned, the said objection has only to be stayed before being rejected. Perusal of the said verification clearly reveals that the applicant has stated that the statements made in the affidavit are true and correct to the best of his knowledge, which he believes it to be true and correct. Merely because the applicant has not stated which paragraphs are true to the best of his knowledge and which paragraphs are based on information, cannot make the said affidavit defective. The Mysore High Court in the case of Shivsharan Reddy (supra) in paragraph 4 has observed as under- “The other preliminary objection raised by Mr. Malimath is about the affidavit filed by the petitioner in this case. Mr. Malimath argued that the facts are stated in the affidavit in a dubious way. It is not made specifically clear as to what is based on the personal knowledge of the petitioner and what is APPLN.904-10 - 7 - based on the information and what is based on his belief. Therefore, Mr. Malimath contended that the affidavit is not in accordance with the requirements of Section 539A(2) Cr.P.C. In support of the above contention, Mr. Malimath first relied upon the decision in Nem Chand V. The State, AIR 1953 All 99. In the said decision, it is held as follows: “An affidavit is completely useless when all the facts averred in it have been verified by the deponent as being true to his belief. The High Court cannot take into consideration what the deponent may believe. The affidavit should have been verified either on personal knowledge or on information derived from inspection of records. In case the deponent could not do it, it should have been sworn by a person who could do so.” Mr. Deshpande pointed out that the affidavit which was the subject matter in the above decision refers only to the belief of the deponent and therefore, it was not in accordance with the provisions of Section 539A (2) Cr. P. C. He urged that in this case, the petitioner has stated at the end of his affidavit that the contents of the affidavit are true and correct to the best of his personal knowledge, information and belief and therefore, he contended that the affidavit is in accordance with the provisions of Section 539A (2) Cr. P. C. Shri Malimath next relied upon a decision in Sant ram v. State, AIR 1952 J. & K. APPLN.904-10 - 8 - 28. In the said decision, the point considered by the Court, as pointed out by Mr. Deshpande, was that the fact of intimidation by the accused was sought to be proved in evidence by affidavit. The Court held that such a course was not open as such evidence is required to be tested on the touch-stone of cross-examination. Therefore, it was not the form of the affidavit that was considered by the court, but it was the intimidation offered by the accused that was required to be proved in evidence. On a reading of the affidavit in the instant case, it cannot be said that it has been made in violation of the provisions of section 539A (2) Cr. P. C. In the several paragraphs the averments made indicate that they are within the personal knowledge of the petitioner. No doubt, in the last para, the petitioner has not stated what were the facts which were in his personal knowledge and what were the facts which he got on information and what were the facts which he has stated on his belief. But this can be gathered on a reading of the entire affidavit. Therefore, this objection has no force and should fail.” 10. Perusal of the said judgment reveals that said objection, as raised in this case was over-ruled. Similarly in the case of Chandrika Prasad Singh (supra) also, the Division Bench of the Patna High Court has observed that - “In such a case it is clearly desirable and imperative that the APPLN.904-10 - 9 - deponent should state how much of the affidavit is sworn to from his own knowledge and how much is merely sworn to from information which he believes to be true; but the affidavit contains no such statement as that to which I have referred but merely alleges certain facts and is signed by the deponent who swears to them, it must, I think, be taken that the statements made by him are represented as statements true to his knowledge. I, therefore, think that in the present case no exception can be taken to the form of the affidavit on that ground.” 11. So far as second objection that the said affidavit is not in accordance with provisions of Section 297 Cr. P. C. is concerned, since it is not affirmed before the Magistrate, the said objection cannot be sustained since in the present case oath was administered in presence of the Registrar of the Esplanade Court, who was empowered to administer oath, pursuant to the powers delegated by the learned Chief Metropolitan Magistrate, in view of the provisions of Chapter VII, Section 12 of the Criminal Manual, the Registrar, Dy. Registrar and the Assistant Registrar can administer oath to persons making affidavit, to be filed and reference in evidence. In the result, application is allowed. The order dated 16-10-2009 passed by the learned Special Metropolitan Magistrate, Small Causes Court and the order of the Sessions Court dated 13th APPLN.904-10 - 10 - December, 2007, are quashed and set aside. The objection raised by respondent No.2 in his applications under S. 297 Cr. P. C. (Exhs. 31 and 32) is dismissed. The trial of the complaint bearing C.C. No. 666/SS/2003 is expedited. The learned Metropolitan Magistrate shall decide the said criminal complaint as expeditiously as possible, and in any case within a period of six months. [ V. M. KANADE J.]