TMI Blog1964 (4) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... ales effected by them since the year 1952-53. That liability amounted to nearly ₹ 55000. The debtors, who were anxious to avoid insolvency, tried to enter into an arrangement with the petitioning creditors. But the withdrawal of the petitions could not be secured by merely satisfying those creditors. It was essential that other creditors the should be satisfied. Such an arrangement was entered into with all the creditors except the Sales-tax department, the dues to whom were not disclosed by the debtors, either by design or by inadvertence, to the court. An application was then filed by the debtors for permitting the withdrawal of the insolvency petitions. In support of it, the petitioner flied an affidavit purporting to disclose the entire assets and liabilities of the firm and of its partners. The affidavit also contained a statement as to the nature of the arrangement entered into with the creditors. The liability for sales-tax was not shown amongst the other liabilities; not was any reference made to the State Government as a creditor. Ganpatia Pillai J, before whom the application came, acting on the affidavit, the truth of the statements contained in which he had no rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal could lie against an order refusing to grant review of a judgment. 4. Pursuant to the directions contained in the order of Kailasam J. dated 4.3.1968 the First Assistant Registrar of this Court Bled a complaint against the petitioner before the Chief Presidency Magistrate, Madras, who, after taking the same on file, as disclosing an offence under Section 193 I.P.C transferred it to the Fifth Presidency Magistrate for disposal. 5. At trial the petitioner took two objection to the maintainability of the complaint: (1) that the offence charged would come only under Section 199, and not under Section 193 I.P.C. and (2) that no complaint under Section 479A could be made as the petitioner not appear before the court as a witness but only filed an affidavit. The learned Magistrate overruled both the contentions. There can be little double that his view that the complaint disclosed an offence under Section 193 I.P.C. is correct. 6. The substantial point that falls in consideration is, whether Section 479A can properly comprehend a case where false evidence was tendered in the form of an affidavit before a court answering that question in the affirmative, the learned Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to produce documents. In the latter case, there can be no testimony by him. But if such a person fabricates false evidence and produces the same in court, the offence will be no less serious. The court hearing the case has the same opportunity of judging the genuineness of such documents as of judging the falsity of oral evidence. Evidently, it is to cover such cases that the second clause has intentionally fabricated false evidence etc. has been introduced. 11. At one stage of the case we entertained some doubt as to whether those words namely, fabricated false evidence were not wide enough to cover a case where false evidence was given by means of an affidavit. But, on further consideration, we are satisfied that the terms of the section as well as the principle underlying it preclude such an interpretation. In our view, the words any person appearing before it as a witness qualify both the clauses, namely (1) has intentionally given false evidence, etc. and (2) has intentionally fabricated false evidence. This is made clear by the latter part of the section relating to the consideration of the expediency of the prosecution. That says that it should appear to the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s comprising (1) oral evidence, that is, all statements which the court permits or requires to be made before it by witnesses and (2) all documents produced for the inspection of the court. 14. Under that definition, affidavits as such, will not be evidence. For an affidavit is merely as declaration sworn to or affirmed before a person competent to administer an oath. Prima facie, it will amount only to a statement before the person before whom the affidavit is sworn to or affirmation made. It cannot certainly be regarded as oral evidence. But, nevertheless, the statutes have permitted affidavits to be used as evidence in certain cases. In several of the proceedings arising from and governed by the Civil Procedure Code, as welt as certain others under the Criminal Procedure Code, or other special enactment certain matters are permitted to be proved by means of affidavits. They will, undoubtedly, be evidence in the case by virtue of the statute which makes them evidence. 15. Section 479A in our view, relates only to that type of evidence covered by Clause (1) of Section 3 of the Evidence Act and not to the other cases specified above. Kailasam J., has held that a person filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained in the affidavits on behalf of the person swearing to the same that he was not fully aware of the contents thereof. In such a case, it will not I be proper for a court to summarily come to the conclusion, upon the mere perusal of the statements contained in the affidavit that they are false and that the persons swearing to them should be prosecuted. It is essential that the person concerned should be given an opportunity, in the shape of a preliminary enquiry like the one provided in Section 476, before the court comes to a conclusion that he has deliberately made a false statement. This essential distinction between oral evidence and that of evidence given by means of an affidavit, does call for a difference in the matter of procedure to be adopted for prosecuting the alleged perjurer. Section 479A should not therefore apply to these affidavits which are not supported by oral evidence. This view is supported by authority. In State v. Ugan Singh it has been held that the words appearing as a witness convey a sense of physical appearance of a person being witness before a court of law and that, therefore, a person who merely filed an affidavit without personally appeari ..... X X X X Extracts X X X X X X X X Extracts X X X X
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