A witness turning hostile or giving inconsistent statements does not automatically warrant an inquiry for perjury under Section 340 of the Cr.P.C. unless there is clear proof of intentional fabrication of evidence to mislead the court.

THIS CRIMINAL APPEAL IS FILED U/S.341 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:30.04.2012 PASSED BY THE XXXII ADDL. CITY CIVIL AND SESSIONS JUDGE AND SPL. JUDGE FOR CBI CASES, (CCH-34) AT BANGALORE IN CRL.MISC.NO.1889/2012 AND CONSEQUENTLY ALLOW THE APPLICATION FILED BY THE APPELLANT UNDER SECTION 340 OF CODE OF CRIMINAL PROCEDURE.

THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

ORAL JUDGMENT

This appeal is by the State represented by CBI, being aggrieved by the order dated 30.04.2012 passed in Criminal Miscellaneous No.1889/2012 on the file of XXXII Additional City Civil and Sessions Judge and Special Judge for CBI cases, Bengaluru, CCH 34, by which an application filed under Section 340 of Cr.P.C has been rejected.

2. Case of the appellant is that one Srikant Sharma, Income Tax Officer, Ward No.1, Chikkamagaluru, faced the trial in Special CC No.330/2010 for the offences punishable under Section 7 and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, on the allegation of he demanding and accepting the illegal gratification of Rs.10,000/- on 12.04.2010 from the complainant one L.M.Lokesh for showing official favour.

3. Charges were framed against said Srikanth Sharma and since he had denied, the matter was taken up for trial. It is alleged during the trial, a written complaint of complainant named L.M.Lokesh was marked as Exhibit P1, wherein he had specifically alleged regarding specific demand of bribe of Rs.10,000/- made by said Srikant Sharma. However, during the trial, said L.M.Lokesh had denied that said Srikanth Sharma had demanded the bribe. As such, he was treated as a hostile witness. In the cross examination he had admitted to the contents of the complaint and the signature and also drawing of the entrustment mahazar.

4. That based on the said evidence the trial Court had observed demeanor of the said witness who was examined as PW10 that there was "half hearted effort on his part to say he having handed over the bribe amount to the accused." It is based on this observation of the trial Court, it was contended that a prima facie case had been made out for the offences punishable under Section 193 IPC requiring lodging of the complaint before the competent Court after the enquiry under Section 340 of Cr.P.C.

5. Contenting as above, a petition under Section 340 was filed.

6. The trial Court on hearing the Special Public Prosecutor on the said application framed the following points for its consideration:

"1. Whether the prosecution establishes that it is expedient in the interest of the justice that an enquiry is required to be made regarding the commission of the offence by the respondent under Section 193 IPC?

2. Whether the prosecution establishes the prima-facie materials regarding intentionally giving false evidence by the respondent in Spl.CC No.330/2010 and it is just and expedient to make a complaint to the court of the competent jurisdiction?

3. What order?"

7. Trial Court on appreciation of the material on record answered points 1 and 2 in the negative and consequently rejected the application/petition. Being aggrieved, the present appeal.

8. Sri.P.Prasanna Kumar, learned counsel along with Sri.Rahul Krishna Reddy P., learned counsel for appellant taking this Court through the records vehemently submits that the trial Court has erred in not taking note of its own observation made during disposal of original case in Spl.C.C.No.330/2010 wherein Court had made categoric observation of said Lokesh-PW10 not deposing fully but making half-hearted atte