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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. L...I...T.......T.......T.......T.......T.......T.......T..J

   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.