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2005 DIGILAW 142 (BOM)

Jetu Jacques Taru Lalvani v. State of Maharashtra

2005-02-04

S.T.KHARCHE

body2005
Judgment ( 1 ) BY invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure Code, the applicant/original accused has challenged the common order dated 01-12-2001 passed by the learned Sessions Judge in Criminal revision Application Nos. 196 of 2001 and 198 of 2001, whereby the revisions have been dismissed and the order passed by the learned j. M. F. C. directing issue of process for the offence punishable under Section 500 of indian Penal Code was confirmed. ( 2 ) MR. Parsodkar, learned counsel, for the applicant contended that M/s. Wasudha Enterprises is admittedly a partnership firm and respondent No. 2 Deepak wakharia, his father Popatlal and others were the partners of the said firm. It is contended that the firm had entered into lease agreement on 18-9-1995 with accused and the amount of Rs. 30,13,920/- with interest was outstanding against the firm and, therefore, the letters dated 16-1-1998 and 16-3-1998 were addressed by the applicant/accused to the partners of the partnership firm. As the said M/s. Vasudha Enterprises failed to pay the lease rent, the partners of the Firm were called upon to make the aforesaid payment with interest and the letters were in the nature of demand notice. He contended that respondent No. 2 and his father treated the said letters as defamatory and therefore instituted private complaint before the learned J. M. F. C. which were separately numbered as Criminal complaint Case Nos. 1993 of 2001 and 1994 of 2001. Being aggrieved by the order regarding issue of process, the father of respondent No. 2 had filed an application under Sec. 482 of the Code of Criminal procedure in this Court which was numbered as Criminal Application No. 386 of 2002 in which an undertaking was given that the matter has been settled amicably and consequently Criminal Case No. 1993/01 has been compounded and withdrawn. On the basis of this undertaking, this Court disposed of the aforesaid Criminal Appln. No. 386/02 on 4-12-2002. ( 3 ) THE learned Counsel contended that respondent No. 2 is the son of Popatlal and only to harass the petitioner/accused, the proceedings are continued and no prima facie case exists for continuation of the proceedings against the petitioner for the offence punishable under Section 500 of indian Penal Code. He contended that the entire proceedings initiated by respondent no. He contended that the entire proceedings initiated by respondent no. 2 is the gross abuse of the process of the court and the same is counter blast to the complaint filed by the petitioner through his constituted attorney against the brothers, father, sister-in-law, brother-in-law and other partners of M/s. Vasudha Enterprises in the court of Metropolitan Magistrate 33rd Court, ballard Estate, Bombay and also Civil Suit bearing Summary Suit No. 4525 of 1998 for recovery of the lease amount. He contended that though the father has withdrawn the proceedings and the matter has been settled, the son wants to prosecute the complaint filed at Akola only to harass the accused and in these circumstances when no offence has been made out for the offence punishable under Section 500 of Indian Penal Code, the learned Sessions Judge was not justified in rejecting the revision application and therefore the impugned order is not sustainable in law. He contended that if the proceedings in Criminal Case No. 1994 of 2001 is allowed to continue, that would be an abuse of the process of the Court and therefore the said criminal application may kindly be quashed. ( 4 ) MR. Mehadia, learned counsel, for respondent No. 2 contended that admittedly the lease agreement was dated 18- 9-1995, whereas respondent No. 2 who was one of the partners of M/s. Vasudha enterprises had retired from the partnership firm on 30-12-1989. He contended that the accused with an intention to lower down the image of respondent No. 2 has addressed and circulated the letters dated 16-1-1998 and 16- 3-1998 amongst the family members of respondent No. 2 and, therefore, the learned j. M. F. C. was justified on considering the material placed before him in issuing the process under Section 500 of Indian Penal code. He supports the impugned order passed by the learned Additional Sessions judge and contended that no case has been made out for interference into the impugned order and the petition may kindly be dismissed. In support of his submissions, he relied on the decision of apex Court in the case of Shatrughna Prasad Sinha Vs. Rajbhan Surajmal Rathi - 1996 (6) SCC 263 . ( 5 ) THIS Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that M/s. Vasudha Enterprises is a partnership Firm. Rajbhan Surajmal Rathi - 1996 (6) SCC 263 . ( 5 ) THIS Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that M/s. Vasudha Enterprises is a partnership Firm. It is also not in dispute that the said partnership Firm is registered with the Registrar of the Firms. It is also not in dispute that respondent No. 2 was also one of the partners of the said Firm and his name is shown as a partner in the extract of the register of Firms vide Annexure-A appended with the petition. The learned counsel for respondent No. 2 has produced on record the xerox copy of the extract of Register of Firms. ( 6 ) IT is also not in dispute that popatlal, who is the father of respondent no. 2, had filed similar complaint which was registered as Criminal Case No. 1993 of 2001 in the Court of J. M. F. C. Process for the offence punishable under section 500 of indian Penal Code was issued on the basis of the same letters and the same was challenged by the petitioner in this Court by filing criminal Application No. 386 of 2002. It is also not disputed that Popatlal had filed an undertaking in that criminal application and stated that the disputes with the petitioner have been settled and he undertook to withdraw Criminal Case No. 1993 of 2001 filed by him before the learned J. M. F. C. as compounded and that he has no objection for passing the order quashing the proceedings. Accordingly Criminal Application No. 386 of 2002 came to be disposed of on 4-12-2002 on the basis of the above undertaking. ( 7 ) IT is relevant to note that the father and the son have instituted private criminal complaints against the petitioner on the same set of facts. It is also interesting to note that the accused has also filed complaint against M/s. Vasudha Enterprises in the Court of Metropolitan Magistrate, 33rd Court, ballard Estate, Bombay and also Civil Suit bearing Summary Suit No. 4525 of 1998 for recovery of lease amount against the brothers, father, sister-in-law and brother-in-law and other partners of the Firm It would clearly reveal from the letters dated 16-1-1998 and 16-3-1998 that an amount of Rs. 30,13,920/- plus interest was due from M/s. Vasudha enterprises and its partners and for that civil proceedings have also been filed. Hence, it is obvious that basically there was a civil dispute between the parties and when the father of respondent No. 2 has given a clear cut undertaking before this Court that the matter has been settled and he undertook to withdraw Criminal Case No. 1993 of 2001, hardly anything remains in the complaint which has been filed by respondent No. 2 against the accused. At any rate, it is not possible to accept that the accused had addressed those two letters dated 16-1-1998 and 16-3-1998 in order to cause defamation of respondent No. 2. In such set of circumstances, it is apparent that prima facie it cannot be said that the contents of the aforesaid letters were per se defamatory and there is no material from which it could be said that the so-called imputations were published with an intention to cause defamation of respondent No. 2. Therefore, this Court is of the considered opinion that continuation of the criminal prosecution against the accused at the behest of respondent No. 2 would be an abuse of process of Court. In such circumstances, the impugned order passed by the learned sessions Judge cannot be sustained. Consequently, the impugned order is set aside and the criminal prosecution against the accused bearing Criminal Case No. 1994 of 2001 is hereby quashed. The application is accordingly allowed. Application allowed.