Legal Question in Criminal Law in India

writing para of citations in application/complainant itself

A person after filling documents promissory note etc taking loan from us through a/c paying cheque duly debited in our bank a/c and credited in his bank account (will be proved by bank certificate), denied at his defence in an affidavit at para 1 that he has not taken any loan from us. Filing of false affidavit is an offence u/s 2 (c) of contempt of court act as decided by supreme court. We are filing an application to magistrate to refer our application u/s 15(2) to High court to take cognizance. But it is also well decided that after bring the information to the knowledge of the court, the informer (in this case we) is nothing to do with that application and it is the sole right of the subordinate court whether it refers it or not and there is also no provision of appeal against the order of subordinate court if it decides not to refer it to High Court. So on the safer side, what we want is, to write the paragraphs of decisions of the supreme/high courts deciding that a court must refer the matter to High court, in application itself. Can we do so, if yes under what provision, if not why and under what provision?


Asked on 4/30/07, 12:51 pm

3 Answers from Attorneys
G. M. Gupta gmguptaandassociates

Re: writing para of citations in application/complainant itself

i think that the sections you mentioned are not appropriate to be used here.

file an application u/s 340 CrPC against the person who has submitted the wrong affidavit.

though u can refer and mention any judgement in the application but here it will not serve ur purpose.

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Answered on 5/01/07, 1:49 pm

Re: writing para of citations in application/complainant itself

you can move an application u/s.340 cr.p.c. before the trial court which will serve your purpose.No case u/s.2 of contempt of court Act is strictly made out unless and untill you prove the affidavit false.

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Answered on 4/30/07, 10:29 pm
Shrichand Nahar S.V.Nahar, Advocate

Re: writing para of citations in application/complainant itself

Normally, case laws or authorities are not cited in the application. The proper mode is to give the same under Written Notes of Arguments.

Making, swearing and using a false affidavit is an offence and offender can be prosecuted on two counts viz. making and swearing a false affidavit and use of such a false affidavit in a court proceedings. For the first offence, you or for that matter anybody can initiate a prosecution either by lodging a complainat with police or court within whose jurisdiction such an affidavit was made/sworn. For the second offence, you can apply to the court before whom a false affidavit was filed to take action contemplated by section 340 Cr.P.C.

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Answered on 5/02/07, 3:11 am


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