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Soundararajan and Co. Ltd. Vs. A.K. Sankarapandia Nadar and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1958CriLJ197
AppellantSoundararajan and Co. Ltd.
RespondentA.K. Sankarapandia Nadar and anr.
Cases ReferredKing Emperor v. B. K. Pal
Excerpt:
- - ..the petition for adjudication was filed in november 1955 well within one year of the vacating the premises. if he bad told the court and admitted that he had been living only in madura and not in madras the official assignee would have moved this court for the annulment of the adjudication and that would not live suited sankarapandia nadar at all. section 79 (1; states that the duties of an official assignee shall have relation to the conduct of the insolvent as well as to the administration of his estate......matters. section 78 of the presidency towns insolvency act runs as follows:power to administer oath an official assignee may, for the purpose of affidavits verifying proofs, petitions or other proceedings under this act, administer oaths.how mr. thyagarajan would read that section is this : an official assignee may administer oaths (1) for the purpose affidavits verifying proofs, (2) for the purpose of affidavits verifying petitions, (3) for the purpose of affidavits verifying other proceedings. now, if this view were right the, official assignee would be reduced to the status of a commissioner for oaths. but, when we have regard to the duties imposed on the official assignee, by the act it is impossible to-hold that such was the intention of the legislature.7. under sub-section (2).....
Judgment:
ORDER

Balakrishna Ayyar, J.

1. In 1954 Soundararajan and Co. Ltd., filed O. S. No. 1594 of 1954 on the file of the City Civil Court, Madras, to recover a sum or Rs. 13d8-2-6 with interest and costs from Sankarapandia Nadar. In an affidavit filed by the manager of Messrs. Soundararajan and Ca. Ltd., in Appln No. 20 of 1956 it is alleged that the suit was peremptorily posted for final disposal on 15-11-1955 and that on the respondent's representation that his wife was ill the suit was adjourned to 30-11-1955.

Alter having obtained an adjournment of the suit from the City Civil Court on this ground Sankarapandia Nadar filed I. P. Ill of 1955 before this Court on 29-11-1955 to get himself adjudicated insolvent, and this was done on the same day. On 30-11-1955 this fact was reported to the City Civil Court with the result that the suit was not proceeded with.

2. After he was adjudicated insolvent Sankarapandia Nadar was examined on oath by the Official Assignee. lie then stated 'For the last four months 'I have been living in Madras. I now live in No. 5 Cuddappah Rangiah Chetti St.' On 4-1-1956 Messrs. Soundararajan and Co. Ltd., filed Appln. No, 20 of 1956 for annulling the order of adjudication on the ground that Sankarapandia Nadar had got himself adjudicated on false allegations, viz., that he had been carrying on business in Madras till December 1954 and that he was residing in No. 5. Cuddapah Rangiah Chetti Street.

By an order made on 7th February 1956 I annulled the order o-f adjudication holding that certain material allegations on the basis of which Sankarapandia Nadar had obtained his adjudication were false. Thereafter, on the same day, notice was issued to Sankarapandia Nadar to show cause why a complaint should not be laid against him under Section 193, IPC in respect of the false statement that he had made on oath before the Official Assignee on 20-12-1955 to the effect that for the last four months he had been living in Madras and that he was then living in No. 5. Cuddapah Rangiah Chetti Street.

3. The respondent submitted an explanation in which he stated that he did not intentionally give false evidence and explained.

I had been carrying on business at No. 11 (now No, B-55) Rajagopala Naidu Street, Washermanpet, Madras and though the business was closed, the premises to question continued to be in my possession till 29-12-1954 when possession was delivered in execution through Court.... The petition for adjudication was filed in November 1955 well within one year of the vacating the premises.

He then added that there was no motive for him to make a statement and that if it be held that the statement before the Official Assignee is inaccurate he might be excused. He went on

As my wife fell ill and I had also frequently to come to Madras in connection with her illness and the litigation which was pending in Madras and the affairs of the business which had been closed, I had taken a room in No. 5 Cuddapah Rangiah Chetti St., Madras, on rent. My wife had to be admitted in the Opthahnic hospital as an inpatient and finding the Nadar's mansion which provides boarding and lodging more convenient I was also frequently staying in Nadar's mansion. I had stated in my petition that I have come down to Madras and also stated that I had been residing in Madurai. The further point was taken that it is a question for consideration whether a statement made before the Official Assignee was in respect of a judicial proceeding.

There can be no doubt whatever that the statement which Sankarapandia Nadar made on oath to the Official Assignee on 20-12-1955 is false, if the room was not big enough for him to sleep in obviously he could not have been staying there. If he had been living there he would not have been staying for periods of time in the Nadar mansions as is conclusively established by the documents. He would have been also able to say in which hotel at least he was taking his food.

I would further remark that even in the explanation which he furnished in answer to the notice issued to him he did not in express term say that he had been living in Madras. What he said was that the premises in question continued to be in his possession till 29-12-1954 when he was formally evicted. This technical possession is not equivalent to residence. Even so he did not state that he was living there, but merely ''I was keeping some of my things in the room at No. 5 Cuddapah Rangiah Chetti Street.

4. Finally, I would add that if for any reason the receipts relating to the payment of rent for this room which were referred to when I was disposing of Appln. No. 20 of 1956 on 7-2-1956 were not then available they could have been produced at least now

5. The next question in the language of Section 476, Cr.PC is whether it is expedient in the interests of justice that an enquiry should be held into the offence which Sankarapandia Nadar prima facie appears to have committed. I have no doubt that this question should be answered in the affirmative. It is necessary that individuals would realise that statements made on oath are serious matters and that fake statements cannot be made on oath with impunity. Mr. Thyagarajan argued that the statement which Sankurupandia Nadar made was one which he need not have made and that by making that false statement he stood to obtain no advantage.

I do not think so. One cannot possibly know what all schemes Sankarapandia Nadar had in his mind. But it seems to be obvious that he was trying to stave off the passing of a decree in O. S. No. 1594 of 1954. One way of doing that was to get himself adjudicated, and, this Court would have had no jurisdiction to adjudicate him unless he had Ordinarily resided or had a dwelling house or had carried on business within a year before the date of the presentation of this petition in this city. If he bad told the Court and admitted that he had been living only in Madura and not in Madras the Official Assignee would have moved this Court for the annulment of the adjudication and that would not live suited Sankarapandia Nadar at all.

I would add that I have been frequently astonished on this side of this Court with the facility and recklessness with which false statements are made on oath. It is certainly necessary to do something feat would discourage the feeling that perjury entails no risks whatever. I find that it is expedient in the interests of justice that an enquiry should be made into the offence which Sankarapandia Nadar appears to me at this stage to have committed.

6. Mr. Thyagarajan next raised this contention. Before a person can be punished under Section 193, T. P. C, it is necessary to show that he gave false evidence in a stage of a judicial proceeding. A judicial proceeding is defined in S, 4 (in) of the Cr.PC in these terms : 'Judicial proceeding' includes any proceeding in the course of which evidence is (Or may be legally taken on oath.'1 The Official Assignee administers oaths under Section 78 of the Presidency Towns Insolvency Act.

Under Section 78 he has no power to administer an oath except for purposes of affidavits verifying certain matters. On the argument of Mr. Thyagarajan that Section 193, IPC applies only to false evidence given in judicial proceedings I would observe that this argument applies only to sub-paragraph (1) of that section and does not apply to sub-paragraph (2). In the second place, I do not accept the view that the Official Assignee may administer oath only for the purpose of affidavits verifying certain matters. Section 78 of the Presidency Towns Insolvency Act runs as follows:

Power to administer oath an Official Assignee may, for the purpose of affidavits verifying proofs, petitions or other proceedings under this Act, administer oaths.

How Mr. Thyagarajan would read that section is this : an Official Assignee may administer oaths (1) for the purpose affidavits verifying proofs, (2) for the purpose of affidavits verifying petitions, (3) for the purpose of affidavits verifying other proceedings. Now, if this view were right the, Official Assignee would be reduced to the status of a commissioner for oaths. But, when we have regard to the duties imposed on the Official Assignee, by the Act it is impossible to-hold that such was the intention of the legislature.

7. Under Sub-section (2) of Section 33 of the Act every insolvent is required to attend any meeting of the creditors which the Official Assignee may require him to attend and he has to submit to such examination and give such information as the meeting may require. Under Sub-section (2) the insolvent is required among other things to ''submit to such examination in respect of his property or his creditors'', as may be required by the Official Assignee or special manager or may be prescribed or may be directed by Court. Section 79 (1; states that the duties of an Official Assignee shall have relation to the conduct of the insolvent as well as to the administration of his estate. Section 21 empowers the Court to annul an adjudication on the application of among other persons, the Official Assignee.

In particular it is the duty of the Official Assignee to investigate (lie conduct of the insolvent and to report to the Court upon various matters. If the Official Assignee had no power to administer all oath except for the purpose of verifying affidavits he cannot discharge duties under the Act. It is not to be readily inferred against this background that while the Legislature imposed on him various duties it denied to him the necessary powers, the most necessary of which is the power to take evidence on oath.

8. There is another difficulty in the view for which Mr, Thyagarajan contended. To get the re-salt he is arguing for one must, as already stated, read Section 78 in the following way: The Official Assignee may administer oaths (1) for the purpose of affidavits verifying proofs, (2) for the purpose of affidavits verifying petitions, (3) for tile purpose of affidavits verifying other proceedings. Now the expression 'affidavits verifying other proceeding' would be only a jumble of words containing no sense at all. The word 'proceedings' has two different meanings. In one sense it means the steps taken by a party vide Section 99 of the Act. In another sense it means the acts of a person in authority.

It seems to me that in Section 79 the word 'proceedings'' means the acts of the Official Assignee, and, it would be meaningless to say that the Official Assignee has power to verify affidavits in respect of the proceedings which he takes under the Act. It would be equally meaningless to speak of affidavits verifying the steps taken by a party; a party does or does not take certain steps or proceedings, there is no question of verifying them. I would read the section this way : the Official Assignee may administer oaths (1) for the purpose of affidavits verifying proofs (2) for the purpose of petition and (3) for the purpose of other proceedings under the Act.

9. Mr. Thyagarajan referred to the decisions in Queen Empress v, Sharma, I.L.R. 11 Bom 702 (A); Queen Empress v. Tulja, I.L.R. 12 Bom 36 (B); Dayaram v. Emperor : AIR1934All988 and Naudalal v. Emperor : AIR1944Cal283 . None of them is in point. In the first of these cases the Magistrate was a third class Magistrate who had no jurisdiction whatever to act under Section 164, Cr, P.C. To make that case applicable it is necessary to show that the Official Assignee had no jurisdiction whatever to examine the insolvent.

In the second case all that was decided was that a Sub-Registrar to whom a document was presented for registration was not a Court. In the third ca.-i.e. a distinction as made between an administrative and a judicial act of a Magistrate. In the last case an affidavit filed by the accused was sworn to before a first class Magistrate who had no jurisdiction to take evidence in the matter and it was held that the provisions of Sections 4 and 5 of the Oaths Act had been contravened and no offence committed under Sections 193 and 199 of the Indian Penal Code.

10. On the other side, the learned Official Assignee referred to the decision in King Emperor v. B. K. Pal, ILR Pat 273 : : AIR1947Pat54 (E). In that case a Sherishtadar of a Munsif s Court had been empowered to act as the Commissioner of oaths in respect of matters arising in the Court of the Munsif. It was held that a solemn declaration on affidavit: made before him in respect of matters arising in the Court of the Additional Munsif was a legal declaration receivable in evidence in a Court of justice. Therefore, a person who knowingly swore to a false affidavit before the Sheristadar was held to be liable to be punished under Section 199 of the Penal Code.

11. It is possible to raise one other contention. Section 476, Criminal Procedure Code runs:

When any civil, revenue or criminal Court is...of opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in Section 195, Sub-section (1), Clause (b) or Clause (c) which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary enquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing... to a Magistrate of the first class having jurisdiction....

It is possible to contend that the offence in this case was not committed 'in or in relation to a proceeding in Court.' The answer to this is two-fold. The proceedings before the Official Assignee were as a matter of fact in relation to the proceedings in this Court, viz., the Insolvency petition which Sankarapandia Nadar filed. Now if it were to be held otherwise and if the view is taken that the proceedings before the Official Assignee were not in relation to a proceeding in this Court then Section 195, Cr, P.C. would cease to apply and no formal complaint by the Court as such would be necessary. The result would be that there is no bar to the Court laying a complaint.

12. I, therefore, direct that a complaint he laid before the Chief Presidency Magistrate in respect of die offence which Sankarapandia Nadar appears to me to have committed. The First Assistant Registrar is authorised to sign the complaint.


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