Petitioner signature in affidavit accompanying petition

975 votes

The thing is, you can go after the whole system. You have all the legal rights in the world, but you must ask yourself as to what are you fighting for and is it worth to invest your time pursuing the advocate or the attesting oath commissioner? Probably, the court may issue notice to the said party but don't you think it would dissuade you from the main issue at hand? I would rather suggest you better focus upon the marits of your case than going on a wild goose chase. Choose your fights cautiously and wisely. Time and money are hard earned. Good luck to you!

Advocate Puneet Srivastava LawRato

572 votes

1. *Passport/Travel Record:* Move an application before the Court to direct the petitioner to produce his passport. Also apply to FRRO/MEA for his travel history. Immigration stamps will prove he was in Canada on the date of affidavit. 2. *Handwriting Expert:* Pray for sending the disputed signature to FSL for comparison with his admitted signatures under Sec. 73 of Evidence Act. 3. *Oath Commissioner Record:* Summon the register of the Oath Commissioner/Notary to prove deponent was never present. *Legal Action:* File an application under *Sec. 379 BNSS (Old Sec. 340 CrPC)* in the same Court for holding an inquiry and to lodge a criminal complaint against the petitioner under *BNS Sec. 229, 233, 236 (Old IPC 191,193,199,200)* for false evidence and using forged affidavit. The main petition is also liable to be dismissed. *Against Advocates:* If done with the knowledge of his advocate, it is professional misconduct. You can file a complaint before the *State Bar Council under Sec. 35 of Advocates Act, 1961.* The attesting advocate who attested without physical presence of deponent is also liable for misconduct and cancellation of his Oath Commissioner licence.

Advocate Anchal LawRato

672 votes

If the petition was signed on behalf of the Petitioner by a duly authorised Power of Attorney Holder, in that case presence of Petitioner in Canada will not make any difference. However, if there is no power of attorney executed by Petitioner and petition is signed by someone else, in that case you may move an application before the concerned Court praying for dismissal of the Complaint. In addition you may also file an application under section 340 CrPC/ 379 BNSS for perjury i.e placing on record false evidence before the Court.

Advocate Shresth Nanda LawRato

532 votes

Dear Sir/Madam, if you have credible information that the affidavit filed with the civil petition was not actually signed or sworn by the petitioner, the issue can be raised before the concerned court. The first step should be to obtain the original/certified copy of the affidavit and carefully examine the signature, attestation/verification endorsement and the date and place of execution. You should then collect objective evidence showing that the petitioner was in Canada on that date, such as immigration entry/exit records, passport/visa records, airline or travel records and other contemporaneous documents. Mere absence from India, by itself, does not prove who signed the affidavit, so the two issues should be established separately. If it is established that somebody else impersonated the petitioner and signed/swore the affidavit, and the affidavit was knowingly filed in court as genuine, the matter can potentially involve false evidence/false declaration, use of a false document and abuse of the judicial process. Under the BNS, Section 236 specifically deals with a false statement in a declaration which is legally receivable as evidence, while Sections 227–233 deal with giving, fabricating or using false evidence. However, proceedings for perjury should not be initiated merely on suspicion; the Supreme Court has repeatedly emphasised that there should be a prima facie case of a deliberate and material falsehood supported by reasonable evidence, and the court must consider whether prosecution is expedient in the interests of justice. The advocate’s involvement has to be examined separately. If the advocate merely drafted the affidavit or represented the petitioner, that does not automatically make the advocate criminally or professionally liable for every incorrect statement in the affidavit. The Supreme Court has recently reiterated that mere identification of a deponent does not, by itself, make an advocate responsible for the contents of the affidavit. However, if there is evidence that the advocate knew that the petitioner was absent, knew that somebody else was signing on his behalf, participated in the impersonation, or knowingly presented the false affidavit as genuine, the position is materially different and professional-misconduct and other proceedings may be considered. The Supreme Court has also treated knowingly attesting an affidavit when the actual deponent did not sign or swear it in the advocate’s presence as professional misconduct. Accordingly, I would first place the complete documentary material before the civil court and seek appropriate directions regarding the authenticity of the affidavit, rather than immediately making unsupported allegations against the advocate. If the evidence establishes deliberate impersonation or fabrication, appropriate proceedings can then be pursued against the person who signed the affidavit and, if supported by evidence of knowledge or participation, against the concerned advocate as well.

Advocate Yuganshu Sharma LawRato

902 votes

The petition itself becomes infectious for the same reason. Also prosecution can be initiated against the said person on the basis of exit/entry Slip and/or immigration stamp details on the passport. Action can be taken against the Notary.

Advocate Anunay Sahay LawRato