Judgement

SIKRI, J.: In this appeal by special leave Jotish Chandra Chaudhury, hereinafter referred to as the appellant, challenges the order of a Division Bench of the Patna High Court in Criminal Appeal No. 4 of 1967, refusing to interfere with the order of the learned Single Judge directing the prosecution of the appellant under Section 199 and S. 200 of the Indian Penal Code or such other sections as may be found to be applicable.

2. In order to appreciate the contentions of the learned counsel for the appellant it is necessary to set out the relevant facts. The appellant with his five sons constituted a joint Hindu family. In 1952 partition took place. At that time three sons were minor while two were major. As a result of the partition joint family business, which was then being carried on under the name and style Ramnath Sarjug Prasad was allotted exclusively to the appellant and his three minor sons. The appellant filed a suit (Suit No. 5 of 1958) for damages against M/s. Lakshmi Bombay Thread Factory and others on the ground that the defendants had infringed certain trade marks registered under the Trade Marks Act, 1940. This suit was decreed by the District Judge, Patna, on March 31, 1962. The defendant filed an appeal against the said decree. This appeal was numbered First Appeal No. 227 of 1962. In the suit one contention of the defendants was that the suit was not maintainable because although the suit had been instituted by the appellant in his capacity as proprietor of the firm Ramnath Sarjug Prasad, his three minor sons, who were also proprietors of the firm according to the partition deed dated November 2, 1962, had not been impleaded. The learned District Judge held on this point that it was open to the plaintiff to sue on behalf of the entire family comprising himself and his minor sons as karta of his family without impleading the minors. In the course of the hearing of the appeal before the learned Single Judge, the appellant filed a petition under Order 1, Rule 10, Cr. P. C., on May 1, 1967, for addition of parties. On the same day the learned Single Judge directed the appellant to file an affidavit by May 2, 1967, giving the respective dates of birth of his three minor sons who were to be added as parties to the said appeal. The appellant, who has a large family, did not remember the exact dates of birth of his sons and sought information from the school authorities. The appellant received information from the Principal, Ram Mohan Roy Seminary, Patna, on May 2, 1967, that the date of birth of Subhash alias Ashok Kumar Jayaswal was June 9, 1954. On the same date the appellant swore and filed an affidavit stating therein the above date of birth of Subhas alias Ashok Kumar Jayaswal. The learned Single Judge in the judgment disposing of Appeal No. 227 of 1962 observed:

In conclusion, I would like to mention that the statement made by plaintiff-respondent Jotish Chandra Choudhury in the affidavit sworn and filed by him in this Court on 2-5-1967 about the date of birth of his youngest son Subhas being 9th June, 1954 appears to be false to his knowledge, as shown by the fact that this plaintiff-respondent himself was one of the executants in the Partition Deed (Ext. B) which is dated 2-11-1952 and he executed the same for himself as well as guardian of his three minor sons including the aforesaid Subhas. He is therefore directed to show cause by 11-7-1967 as to why he shall not be prosecuted for committing offences under Sections 199 and 200 of the Indian Penal Code or such other sections as may be found to be applicable."

The learned Single Judge, on cause being shown, was unable to accept the plea of the appellant that the date of birth of Subhas had been wrongly mentioned due to a bona fide mistake. We may mention that Subhas was actually born on December 12, 1951, and not on June 9, 1954. The learned Single Judge observed:

"This plea about bona fide mistake does not appear to be all convincing or acceptable.