False affidavit by Surety in a case u/s 138 N I Act
madhu mittal
(Querist) 22 July 2011
This query is : Resolved
In a case u/s 138 Negotiable Instruments Act there were two accused say A and B, so one surety named X gave bail for both the accused. The said person X gave bail to another accused named C in a separate case u/s 138.While giving bail for each accused, the surety X executed an affidavit. So in these way Surety X executed three affidavit and in each affidavit there is one point of affidavit that I ( i.e. surety) am not surety for any other accused. Now my question is whether the Surety X is not guilty of perjury u/s 193 IPC for giving false affidavit. If yes, how and in whose jurisdiction can he be prosecuted for this offence.
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M/s. Y-not legal services
(Expert) 22 July 2011
If my understanding is correct mean, as per your statement there are two cases.. Am i correct? First clear one thing that, both of that two cases are pending, or any one got dispossal?
M/s. Y-not legal services
(Expert) 22 July 2011
If any one got disposal and just one case only still alive mean its no problem to giving suretys. But if both cases still pending mean its questionable..
M/s. Y-not legal services
(Expert) 22 July 2011
One another thing for your knowledge, giving suretys to more than one person is not an offence. If he is worthfull to do that mean he can.. For example court usually ask for suretys worth about 5thousand or ten thousand.. If you have 50 thousand worth property mean you can give surety for your property worth. But stating false affidavit that am not as surety for any other person is offenceable.
Advocate Rajkumarlaxman
(Expert) 22 July 2011
As in the same case for both accused he stood surety being common to the case. he can do that. but for other matter if still pending then we can be held responsible for false affidavit. Invoke 340 Cr P C. and file application in that case before whom he has filed is second affidavit.
THANKACHAN V P
(Expert) 22 July 2011
Indian Penal Code (IPC)
Section 193. Punishment for false evidence
Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Explanation 1-A trial before a Court-martial; 1[* * *] is a judicial proceeding.
Explanation 2-An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.
Illustration
A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to be committed for trial, makes on oath a statement which he knows to be false. A this enquiry is a stage of a judicial proceeding, A has given false evidence.
Explanation 3-An investigation directed by a Court of Justice, according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.
Illustration
A, in any enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding. A has given false evidence.
I don't think above provision was incorporated in IPC is to book the sureties who has given 'false affidavit'in a bail matter. It will not come under the provisions 193 IPC.Kindly desist from this type of silly matters.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 22 July 2011
this is crime against administration of justice so an application u/s 340 has to be moved which will be first heard and than court may or may not make complaint.
The other side has right to appeal so in all co court entertains action on such minor lapse of law.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 22 July 2011
I mean to say that in thousands of such cases there is rare action.
If the other side is insistant at the most court does is compels the accused for punishment till rising of court.
Ajay Bansal
(Expert) 25 July 2011
Courts avoid taking actions on such petty things.
dev kapoor
(Expert) 25 July 2011
Ur proposition is not unwise.The Surety deponed on oath that he is not Surety for any other accused.Now,if by the said declaration of the surety was such that 'if he had stood surety for any other accused & he made false deponition'I am sure he can be prosecuted & punished u/ss 177 & 182 IPC.Plz go through these sections at least carefully.The complaint has to be lodged by the concerned Judge/Judicial Magistrate before whom the affidavit(s)was (were) presented due to which the accused was released on bail.
madhu mittal
(Querist) 26 July 2011
I want to study in depth to know in which section or rules, it is written that an affidavit will be submitted alongwith the surety-bond for bailable offence and what will be the performa of the Affidavit. In law where it is written that a person standing surety for one accused can not be surety of any other accused in any other case.
With regards and thanks in advance
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madhu mittal
(Querist) 28 July 2011
Now I want to know whether in your/experts’ opinion (as per judgement of Supreme Courts’ bench of five judges In Iqbal Singh Marwah Vs Meenakshi Marwah Decided On: 11.03.2005 (MANU/SC/0197/2005) enclosed herewith ) living aside the section 340 crpc, the complaint can be filed u/s 190 Crpc for the offence u/s 191 IPC, as in this judgement it is held in para 18,: Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded And in para 24 “21. Judicial notice can be taken of the fact that the Courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided.”
With regards,
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DEFENSE ADVOCATE.-firmaction@g
(Expert) 28 July 2011
Please go through the citation wholly , what you are pressing is the argument not the court direction.
In this citation the SC has given important interpretation that is CUSTODIA LEGIS.
When mischief is done at the court than only your argument holds , it is Custodia Legis.
Arun Kumar Bhagat
(Expert) 06 August 2011
Yes , the surety is liable for prosecution and the Court where the surety application is filed is competent to initiate proceeding.
madhu mittal
(Querist) 16 August 2011
Please provide me the format of affidavit for bail in English as in Rajasthan format is in Hindi and there are Words written in Urdu, so I want Format of affidavit for bail in English. I also enclosing the citation of Delhi High Court according to that, I think, action should be taken for any false averment in Affidavit.
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madhu mittal
(Querist) 17 August 2011
Respected Sirs,
Please provide me the format of affidavit for bail in English. From the views of all of you, it is clear that the surety has committed an offence.My belief is, if proceedings against surety will be initiated, there will be an extra pressure on accused to settle the matter earlier u/s 138 NI Act.
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DEFENSE ADVOCATE.-firmaction@g
(Expert) 17 August 2011
This is your impression which is not with reality. This is a bailable offense and new surity can be given.
madhu mittal
(Querist) 17 August 2011
Respected JSDN and other Sirs,
But still, Please provide me the format of affidavit for bail in English.Thanks in advance.
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madhu mittal
(Querist) 17 August 2011
I have tried my best with local advocates, but could not find in English, in Rajsthan format is in Hindi with Urdu Words Like "Deegar" etc. so if anybody can help in providing English format, I will be highly obliged. Thanks.
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madhu mittal
(Querist) 11 October 2011
Respected sir Arun kumar Bhagat ji and others,
Please provide any case law or citation about court jurisdiction:”where the surety application is filed is competent to initiate proceeding.”
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Arun Kumar Bhagat
(Expert) 11 October 2011
ms.Madhu Mittal, the trial magistrate shall pass an order to present the said Complaint to the Court competent to take cognizance. Alternatively you have to obtain certified copy of all relevant affidavits and file a Complaint petition in the Court of CJM/ACJM for taking cognizance of offence punishable u/s 199/200IPC.
madhu mittal
(Querist) 11 October 2011
Sir, I have taken all certified copies of all documents and put the matter before the magistrate where false affidavit is filed, but he is questioning about his jurisdiction. Now If you suggest, I am ready to withdraw the complaint from that court and apply fresh complaint in CJM court,Jaipur, but I require citation or any ruling about that also, because in courts everyone is reluctant to do work until and unless crystill clear matter is put in front of him, and he is compelled to do work according to law.
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