N.N. Goswamy, J.
(1) This complaint under Section 340 of the Criminal Procedure Code read with Section 193, Indian Penal Code has been filed by the plaintiff-decree-holder against Dewan Chand, judgment debtor. The plaintiff filed a suit for the recovery of 1,04.488,70 on the ground that Dewan Chand respondent acting for M/s. Hukam Chand Dewan Chand approached theplaintbT for the purchase and supply of cotton cloth etc. on 8-6-1977. The plaintiff who is acting as puce arhtiya, at the instance of Dewan Chand, purchased the said goods to be supplied to M/s. Hukam Chand Dewan Chand. The goods worth Rs. 37,983.95 were purchased on 8-6-1977, goods worth Rs. 34,522.43 were purchased on 9-6-1977, goods worth Rs. 21,121.32 were purchased on 10-6-1977 and goods worth Rs. 4,316.24 were purchased on 11-6-1977. The plaintiff also claimed arahat, interest, commission and other customary charges amounting to Rs. 759.64. The plaintiff also debited defendant No. 1 for certain cash withdrawals. The suit of the plaintiff was decreed against defendants 1 and 2 on 22-8-1980.
(2) It is alleged that during the trial of the said suit No. 596 of 1978 in order to defeat the legitimate claim of the plaintiff Dewan Chand has been perjuring himself at various stages by filing wrong and contradictory affidavits by making wrong statements on oath and by denying documents to suit his purpose. It is stated that on 18-3-1980 when the respondent Dewan Chand appeared as his own witness during cross-examination made the following statement on oath :-
'BESIDESRs. 300.00 as mentioned by me, I had never taken any amount in cash from the plaintiff-firm.'
However, during the cross-examination he made a contradictory statement to the following effect :-
'I have seen the bahi entry of the plaintiff firm for 1971 and it is correct that I had taken said amount in cash from the plaintiff firm. I have seen the behi entry duly signed by me for the year 1974 and it is correct that I had received a sum of Rs. 436.00 from the plaintiff-firm. I have also seen the bahi entry for the year 1976 and it is correct that I had received Rs. 200.00 in cash from the plaintiff-firm- The entry is singned by me. Whenever I used to visit Delhi and I was in need of money, I would get it from the plaintiff-firm.'
Similarly on 19-3-1980 Dewan Chand made the following statement :- 'It is also incorrect to state that I was in Delhi on 27-2-1976.' However, on earlier occasions i.e. on 18-3-1980, in cross-examination, he admited the roceiving of Rs. 200.00 at Delhi from the plaintiff-firm on 27-2-1976.
(3) It is further stated that the plaintiff had filed an application under order 38 rule 5 of the Code of Civil Procedure for attachment before judgment. In the said application various deposits made by Dewan Chand in the name of his minor sons and other property which he had sold, were mentioned. When Dewan Chand appeared as his own witness on 19-3-1989 he was asked various questions regarding the sale of property which he categorrically denied in spite of the fact that in reply to 1.A. No. 2165 of 1978 which was duly supported by an affidavit he had admitted that fact. In his statement, he stated that he had not hold any property to Basar Mal. Whereas in reply to 1.A. he had stated that para 20 of the application was not admitted to the extent that defendant No. 2 sold his house at Sri Karan pur to M/s. Basar Mal Chhabil Dass. Another instance is that the respondent en 18-3-1980 in his examination-in-chief on oath stated that at earlier occasions, he had accomoanied Murari Lal to other shops in order to select goods while in cross-examination on 19-3-1980 he stated that he did not use to come to Delhi to select goods but he did come to Delhi to settle accounts with the plaintiff-firm. He stated in his statement that he did not purchase any goods through the plaintiff-firm on 8th, 9th and 10th of June, 1977. When confronted with his two post-cards Ex. P. 72 and Ex. P. 73, he admitted that he had promised to clear the balance of the outstanding amount to the plaintiff- firm and the postcards were in his handwriting. The respondent had also perjured himself by saying that he was illiterate while from the post-cards mentioned above, it is clear that the respondent know Lande and Hindi.
(4) It is further stated that in reply to 1.A. No. 2165 of 1978 which was duly supported by an affidavit, the respondent had stated :-
'THEdefendant No. 2 had deposited three amounts of Rs. 10,000/ each in the name of his three sons Hitler Babu, Rana Partap and Jangbahadur in the Punjab National Bank and in the State Bank of Bikaner and Jaipur at Sri Karanpur, Rajasthan, respectively... . ......The said amounts were withdrawn from the F.D.R. of the said sons in November, 1977.'
However, in his statement as D.W. 4 he stated :-
'IT is incorrect to suggest that there were three deposits of Rs. 10,000.00 each in the names of my three minor sons namely Hitler Babu, Rana Partap and Jang Bahadur in the Punjab National Bank and State Bank of Bikaner and Jaipur. It is also incorrect to suggest that I had stated on affidavit that these deposits did exist and I had withdrawn the amount in 1977. I have not sold any property to Bassar Mal. The reply to I.A. 2165/1978 has been read to me and I say that the facts stated in para 19 of the said reply, which is supported by my affidavit, are wrong.'
(5) It is further stated in that in cross-examination the respondent denied the suggestion that a case under Section 427 read with Section 477 I.P.C. was registered against him and Vinod Kumar. When confronted the F.f.R. he stated that he did not know the charges against him though he was arrested by the police. He further admitted that he and Vinod Kumar appeared before the Magistrate and where released on bail. Certain other minor discrepancies have also been pointed out. Since the same are of no consequence, I am not dealing with the said discrepancies.
(6) The pettition was contested by the respondent Dewan Chand It was pleaded in the reply that the petition had been filed with the object of putting undue pressure on the respondent because the respondent was contemplating to file an appeal against the decree passed by this court. It was also pleaded that during the course of evidence an oral notice was given by the Court as to way the proceedings under Section 195 read with Section 340 Cr. P.C. be not initiated against the respondent and on hearing the counsel for the respondent this Court had dropped those proceedings. The various contradictory statements mentioned above, have also been explained and it has been pleaded that there was no intention on the part of defendant No. 2 to give any false statement on oath. It is stated that the respondent being an illiterate person could not, remember certain facts and when confronted with the documents he admitted the same without any hesitation. The statement of the respondent was recorded in the year 1930 and the entries in the account books of the plaintiff-firm were much prior to that and as such the contradictory statements were made for lack of memory of the respondent. It is also stated that the respondent was cross-examined at length and he got confused while replying to certain questions. As a result of this, the respondent had moved an application on the very next day, when his evidence was recorded, for correcting certian statements. Those statements were regarding the sale of property to M/s. Bassar Mal and others and regarding the deposits of the amounts. It is pleaded that the alleged contradictions are due to confusion and misunder standing of the questions or lack of sharp memory.
(7) I have give my careful consideration to the pleadings and arguments advanced by the learned counsel for the parties. As regards the statements regarding taking of cash and his not being in Delhi on particular dates it is quite common with the witness to admit certain facts when confronted with the record. In this situation, these statements cannot be held to be a perjury as contemplated by Section 195 Cr. P.C.
(8) It is true that the respondent has made contradictory statements as regards the sale of property and the withdrawal of the amount in the names of his minor children and the pendency of the criminal case against him but the mere fact that a person made contradictory statements in his deposition is not a sufficient ground for his prosecution for perjury. It is further to be found that such contradictory statements were conscious and were made deliberately in order to thwart the administration of justice or to obstruct the Court in coming to a correct conclusion. In other words, the Court has to consider and come to a finding that the prosecution is expedient and necessary in the interest of justice.
(9) Applying the aforesaid observation, it is necessary to find out whether the statements regarding the sale of the property and the withdrawal of the amounts made by the respondent fall within the mischief of Section 195 read with Section 340 Cr. P.C. Considering the fact that during the course of the evidence itself the respondent had filed on application for correcting the said contradictory statements, I am of the opinion that the respondent had no intention to make such contradictory statements and the same were made only because the respondent was confused and could not properly understand the questions put by the counsel for the plaintiff. I had the occasion to watch the demeanour of the respondent when he was in the witness box. It is no doubt true that the respondent has been handling extensive business but at the time of cross-examination he was rather confused either because he had suffered financial set back or because he had no genuine defense to the case of the plaintiff. All the same he was behaving in a confused manner. It is also to be noted that the respondent though not absolutely illiterate is more or less illiterate and as such it was difficult for him to stand the lengthy crossexamination to which he was subjected to. In this state of confusion, he has made certain statements, which admittedly are contradictory. However, I am of the opinion that the statements though contradictory, were not conscious and deliberate in order to defeat the claim of the plaintiff.
(10) It is also ture that during the cross-examination of the respondent I had asked the counsel for the respondent to show cause as to why I should not initiate proceedings for pejury. After hearing the learned counsel for the respondent I had decided to drop the proceedings and not to proceed further.
(11) For the reasons recorded above, I am of the opinion that it is not expedient in the interest of justice that any further enquiry should bemade into the allegations leveled by the petitioner. Consequently the petition is dismissed