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CASE NO.:

Appeal (crl.) 596 of 2001

PETITIONER:

M.N. DAMANI

Vs.

RESPONDENT:

S.K. SINHA AND OTHERS

DATE OF JUDGMENT: 02/05/2001

BENCH:

D.P. Mohapatra & Shivaraj V. Patil

JUDGMENT:

Shivaraj V. Patil, J.

Leave granted.

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The appellant filed a private complaint against the

respondents alleging that they made imputations against him

in the application made under Section 436 Cr.P.C. before

the XIth Additional Chief Metropolitan Magistrate, Mayo Hall

Court, Bangalore in C.C. No. 24877/96. The imputations

made are to the following effect: -

However Mr. M.N. Damani removed the cheque book at

9-30 by forcibly breaking open the drawer and made the

accused 2 and 4 to write and sign by forge/threat as

mentioned in the correspondence.

Mr. M.N. Damani had collected the cheques from us

forcefully at 9-30 p.m. by threatening to hit us by lifting

the office chair and by forcefully break opening the drawer

of table containing the cheque book which was locked by our

Accountant while leaving the office for the day.

The Magistrate found these allegations as false and

convicted the respondents (accused) for the offence under

Section 138 of the Negotiable Instruments Act on 17.12.1998.

An appeal filed against the said order was dismissed by the

IV Additional Sessions Court, Bangalore on 30.7.1999.

According to the appellant the respondents made false and

malicious allegations with intention or knowingly or having

reasons to believe that such imputations would harm his

reputation; due to these imputations made by them, the

reputation of the appellant has been lowered in the eyes of

his partners, the staff and the workers of factory at Vapi.

Hence he prayed for punishing the respondents for the

offence under Section 500 IPC. The Magistrate, on the

complaint, after taking cognizance of the offence, recorded

the sworn statement of the complainant (appellant herein).

The Magistrate in his order stated thus: -

From the sworn statement of the complainant and also

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from the documents produced by him, it is clear that the

accused persons have made imputation against the complainant

intending to harm or knowing or having reasons to believe,

that such imputation will harm the reputation of the

complainant. In my opinion, there are sufficient grounds to

proceed the case against the accused persons for the offence

punishable under section 500 of the I.P.C.

Hence he issued summons to respondents 1 to 3 for the

offence punishable under Section 500 IPC.

The respondents filed a criminal petition before the

High Court under Section 482 Cr.P.C. praying for quashing

the proceedings in C.C. No. 25353/99 arising out of PCR

559/99, pending on the file of the XIth Additional Chief

Metropolitan Magistrate, Mayo Hall Court, Bangalore. After

hearing the learned counsel for the respondents and the

appellant (party-in- person) the learned single Judge of the

High Court allowed the petition and quashed the proceedings

in C.C. No. 25353/99. Hence this appeal is brought before

this Court assailing the order of the High Court.

Mr. L. Nageswara Rao, learned senior counsel for the

appellant, contended that the impugned order is, on the face

of it, unsustainable. According to him the High Court was

not right in interfering with the order passed by the

learned Magistrate issuing summons to the respondents prima

facie finding a case against them for proceeding with the

complaint. In support of his submissions he cited two

decisions of this Court in Sewakram Sobhani vs. R.K.

Karanjia, Chief Editor, Weekly Blitz and others [(1981) 3

SCC 208] and Shatrughna Prasad Sinha vs. Rajbhau Surajmal

Rathi and others [(1996) 6 SCC 263].

Mr. B.B. Singh, learned counsel for the respondents,

while making submissions supporting the impugned order,

raised a new contention that the complaint filed by the

appellant was barred by time and no cognizance of it could

have been taken by the Magistrate. This argument was made

on the basis that similar statements were made in the letter

dated 26.2.1996 and the same were repeated in the

application filed by the respondents under Section 436

Cr.P.C. seeking their discharge in CC No. 24877/96; the

complaint was filed on 13.8.1999; if 26.2.1996 is taken as

the starting point for limitation the complaint filed on

13.8.1999 was clearly barred and no cognizance of it could

be taken under Section 468 Cr.P.C. This argument was

refuted contending that this point of limitation was not

raised before the Magistrate; the offence was continuing

one having regard to its nature; the imputations made in

the application filed by the respondents on 26.9.1996 under

Section 436 Cr.P.C. seeking their discharge is considered

as the date of commission of offence, the complaint filed by

the appellant is not hit by Section 468 Cr.P.C. The learned

counsel for the respondents in support of his submissions

relied on decisions in Manjaya against Sesha Shetti [(1888)

ILR 11 Mad., 477], Sayed Ally vs. King Emperor [AIR 1925

Rangoon 360], Anthoni Udayar and others vs. Velusami Thevar

and another [AIR (35) 1948 Madras 469] and Baboo Gunnesh

Dutt Singh vs. Mugneeram Chowdry and others [(1872) WR 11

SC 283].

We have considered the rival submissions. The High

Court relying on para 7 of the judgment in Madhavrao Jiwaji

Rao Scindia and another vs. Sambhajirao Chandrojirao Angre

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and others etc. [AIR 1988 SC 709] exercising jurisdiction

under Section 482 quashed the proceedings. The learned

Judge did not bestow his attention to the facts of that case

and the discussions made in paras 6 and 8 of the said

judgment. In that case the complaint was filed for offences

punishable under Sections 406 and 407 read with Sections 34

and 120-B of the Penal Code. That was a case where the

property was trust property and one of the trustees was

member of the family. The criminal proceedings were quashed

by the High Court in respect of two persons but they were

allowed to be continued against the rest. In para 6 of the

same judgment it is clearly stated that the court considered

relevant documents including the trust deed as also the

correspondence following the creation of the tenancy and

further took into consideration the natural relationship

between the settler and the son and his wife and the fall

out. Para 8 of the judgment reads: -

8. Mr. Jethmalani has submitted, as we have already

noted, that a case of breach of trust is both a civil wrong

and a criminal offence. There would be certain situations

where it would predominantly be a civil wrong and may or may

not amount to a criminal offence. We are of the view that

this case is one of that type where, if at all, the facts

may constitute a civil wrong and the ingredients of the

criminal offences are wanting. Several decisions were cited

before us in support of the respective stands taken by

counsel for the parties. It is unnecessary to refer to

them. In course of hearing of the appeals, Dr. Singhvi

made it clear that Madhavi does not claim any interest in

the tenancy. In the setting of the matter we are inclined

to hold that the criminal case should not be continued.

Thus, the said judgment was on the facts of that case,

having regard to various factors including the nature of

offences, relationship between the parties, the trust deed

and correspondence following the creation of tenancy. The

High Court has read para 7 in isolation. If para 7 is read

carefully two aspects are to be satisfied: (1) whether the

uncontroverted allegations, as made in the complaint, prima

facie establish the offence, and (2) whether it is expedient

and in the interest of justice to permit a prosecution to

continue. On plain reading of the order of the Magistrate,

issuing summons to the respondents keeping in view the

allegations made in the complaint and sworn statement of the

appellant it appears to us that a prima facie case is made

out at that stage. There are no special features in the

case to say that it is not expedient and not in the interest

of justice to permit a prosecution to continue. The learned

Judge has failed to apply the tests indicated in para 7 of

the judgment on which he relied. The High Court could not

say at that stage that there was no reasonable prospect of

conviction resulting in the case after a trial. The

Magistrate had convicted the respondents for the offences

under Sections 138 of the Negotiable Instruments Act and the

appeal filed by the respondents was also dismissed by the

learned Sessions Judge. Assuming that the imputations made

could be covered by exception 9 of Section 499 IPC, several

questions still remain to be examined whether such

imputations were made in good faith, in what circumstances,

with what intention, etc. All these can be examined on the

basis of evidence in the trial. The decisions in Manjaya

against Sesha Shetti [(1888) ILR 11 Mad., 477], Sayed Ally

vs. King Emperor [AIR 1925 Rangoon 360] and Anthoni Udayar

and others vs. Velusami Thevar and another [AIR (35) 1948

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Madras 469], cited by the learned counsel for the

respondents are the cases considered after conviction

having regard to the facts of those cases and the evidence

placed on record. The decision in Baboo Gunnesh Dutt Singh

vs. Mugneeram Chowdry and others [(1872) WR 11 SC 283]

arose out of a suit for damages for defamation. These

decisions, in our view, are of no help to the respondents in

examining whether the High Court was justified and right in

law quashing the criminal proceedings that too exercising

its jurisdiction under Section 482 Cr.P.C.

Para 6 of the judgment in Sewakrams case (supra) reads:

6. The order recorded by the High Court quashing the

prosecution under Section 482 of the Code is wholly perverse

and has resulted in manifest miscarriage of justice. The

High Court has prejudged the whole issue without a trial of

the accused persons. The matter was at the stage of

recording the plea of the accused persons under Section 251

of the Code. The requirements of Section 251 are still to

be complied with. The learned Magistrate had to ascertain

whether the respondent pleads guilty to the charge or

demands to be tried. The circumstances brought out clearly

show that the respondent was prima facie guilty of

defamation punishable under Section 500 of the Code unless

he pleads one of the exceptions to Section 499 of the Code.

Xxx xxx xxx xxx It is for the respondent to plead that he

was protected under Ninth Exception to Section 499 of the

Penal Code. The burden, such as it is, to prove that his

case would come within that exception is on him. The

ingredients of the Ninth Exception are that (1) the

imputation must be made in good faith, and (2) the

imputation must be for the protection of the interests of

the person making it or of any other person or for the

public good.

Again, in para 18 of the judgment dealing with the

aspect of good faith in relation to 9th Exception of Section

499, it is stated that several questions arise for

consideration if the 9th Exception is to be applied to the

facts of the case. Questions that may arise for

consideration depending on the stand taken by the accused at

the trial and how the complainant proposes to demolish the

defence and that stage for deciding these questions had not

arrived at the stage of issuing process. It is stated,

Answers to these questions at this stage, even before the

plea of the accused is recorded can only be a priori

conclusions. Good faith and public good are, as we

said, questions of fact and matters for evidence. So, the

trial must go on.

Para 13 of the judgment in Shatrughna Prasad Sinhas

case (supra) reads: -

13. As regards the allegations made against the

appellant in the complaint filed in the Court of Judicial

Magistrate, Ist Class, at Nasik, on a reading of the

complaint we do not think that we will be justified at this

stage to quash that complaint. It is not the province of

this Court to appreciate at this stage the evidence or scope

of and meaning of the statement. Certain allegations came

to be made but whether these allegations do constitute

defamation of the Marwari community as a business class and

whether the appellant had intention to cite as an instance

of general feeling among the community and whether the

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context in which the said statement came to be made, as is

sought to be argued by the learned Senior Counsel for the

appellant, are all matters to be considered by the learned

Magistrate at a later stage. At this stage, we cannot

embark upon weighing the evidence and come to any conclusion

to hold, whether or not the allegations made in the

complaint constitute an offence punishable under section

500. It is the settled legal position that a court has to

read the complaint as a whole and find out whether

allegations disclosed constitute an offence under Section

499 triable by the Magistrate. The Magistrate prima facie

came to the conclusion that the allegations might come

within the definition of defamation under Section 499 IPC

and could be taken cognizance of. But these are the facts

to be established at the trial. The case set up by the

appellant are either defences open to be taken or other

steps of framing a charge at the trial at whatever stage

known to law. Prima facie we think that at this stage it is

not a case warranting quashing of the complaint filed in the

Court of Judicial Magistrate, Ist Class at Nasik. To that

extent, the High Court was right in refusing to quash the

complaint under Section 500 IPC.

Having regard to the facts of the instant case and in

the light of the decisions in Sewakram Sobhani vs. R.K.

Karanjia, Chief Editor, Weekly litz and others [(1981) 3 SCC

208] and Shatrughna Prasad Sinha vs. Rajbhau Surajmal Rathi

[(1996) 6 SCC 263], we have no hesitation in holding that

the High Court committed a manifest error in quashing the

criminal proceedings exercising jurisdiction under Section

482 Cr.P.C.

Since the question of limitation was not raised before

the High Court by the respondents and further whether the

offence is continuing one or not and whether the date of the

commission of offence could be taken as the one mentioned in

the complaint are not the matters to be examined here at

this stage. In these circumstances we have to reverse the

impugned order of the High Court and restore that of the

Magistrate.

In the result for the reasons stated the impugned order

of the High Court is set aside and that of the Magistrate is

restored. The appeal is allowed accordingly.