Gauhar Hussain vs Ms. Mumtaz Ara

Ajit Bharihoke, J.—This is a revision petition against the order dated 02nd January, 2010 of learned Additional Sessions Judge whereby she dismissed the Criminal Appeal No. 17/2009 filed by the Petitioner against the order of learned M.M. dated 22nd July, 2009 dismissing the application u/s 340 CrPC.

Briefly put, facts relevant for the disposal of this petition are that the Respondent Mumtaz Ara filed a maintenance petition u/s 125 Code of Criminal Procedure against the Petitioner, wherein she filed an affidavit that she had no source of income. That the Petitioner came to know that the Respondent has authored a book "Balwant Singh: Fun Aur Shakshiyat" and got it published in 2003. Petitioner claims that this book has global circulation and from this, she has regular income. Thus he filed an application u/s 340 Code of Criminal Procedure seeking prosecution of the Respondent for perjury.

The defence of the Respondent before the Magistrate was that she has actually written that book and as per the agreement with the publisher, only 400 copies of the book were to be published, out of which, 100 copies were to be given to the Respondent without cost and the publisher had a right to sell remaining 300 copies.

Aforementioned application was dismissed by the learned M.M. vide order dated 22nd July, 2009. Feeling aggrieved by dismissal of the application u/s 340 Code of Criminal Procedure, the Petitioner filed an appeal, which appeal was dismissed by the learned Additional Sessions Judge vide order dated 02.01.2010. Aggrieved by the aforesaid order, the Petitioner has filed the instant revision petition.

Learned Counsel for the Petitioner submits that admittedly, Respondent is the author of the book titled "Balwant Singh: Fun Aur Shakshiyat". It is argued that no author would allow publishing of the book without asking for royalty or some consideration. Learned Counsel has contended that the Respondent is trying to take shelter of a fake agreement purported to have been executed on 15th September, 2003, wherein it is recorded that only 400 copies of the book shall be published, out of which, 300 shall be kept by the publisher for sale and remaining 100 copies shall be given to the Respondent and the Respondent shall not get any royalty. According to the learned Counsel for the Petitioner, aforesaid stand of the Respondent is belied by the fact that the book is still available for sale in market and in support of this contention, he has drawn my attention to a cash memo dated 02nd December, 2008 vide which, he purchased one copy of the aforesaid book for Rs. 200/-. Learned Counsel has argued that if the contents of the agreement dated 15.09.2003 were true, there was no occasion for the book, which was published in the year 2003 to be on a sale counter in December, 2008.

Learned Counsel for the Respondent, on the other hand, has referred to the affidavit of the Respondent dated 26th February, 2011 filed pursuant to the direction of this Court dated 16th December, 2010, wherein she has categorically averred that she never permitted the publisher to bring out second prints of the book after 15th September, 2003 nor the earlier agreement dated 15th September, 2003 has ever been revived with the publisher. It is submitted by learned Counsel for the Respondent that perusal of the copy of the agreement between Respondent and the publisher placed on record would show that in the Clause III of the Agreement, it is specifically mentioned that the Respondent was getting some financial assistance from Fakhruddin Ali Ahmad Memorial Committee, Lucknow (UP) for publication of said book and she had agreed to give entire financial assistance so received to the first party as consideration for the publication of the said book. Learned Counsel submitted that from this, it is evident that even the publication of book was part financed by the Respondent. Learned Counsel has further argued that Respondent has not concealed any fact from the court and she has not committed the offence of perjury. Thus, he has urged for dismissal of the petition.

I have considered the rival contentions and perused the material on record. The foundation of the application of the Petitioner u/s 340 Code of Criminal Procedure is availability of the book titled "Balwant Singh: Fun Aur Shakshiyat" for sale even on 02nd December, 2008 for Rs. 200/-. Learned Counsel for the Petitioner has produced the copy of the book purchased by him in December 2008, which is taken on record. Perusal of the book would show this copy of book was reprint of published in the year 2003. Thus, it cannot be said the book was published subsequent to the year 2003. There is a possibility that this title was not popular with public and some copies of the book might have remained unsold, one of which, has been purchased by the Petitioner in December, 2008. Therefore, on this preliminary ground alone, there is no justification in proceedings against the Respondent u/s 340 Code of Criminal Procedure. Further, learned Counsel for the Petitioner has failed to show me any other evidence such as an affidavit of the publisher or some document, showing that some royalty was paid to the Respondent after the first print of year 2003.

Thus, in my opinion, there is no infirmity in the impugned order dated 02nd January, 2010 of the learned Additional Sessions Judge which may call for interference in revisional jurisdiction.

Petition is accordingly dismissed.