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2006 DIGILAW 137 (PNJ)

M. S. Ahuja v. Ami Chand

2006-01-17

NIRMAL YADAV

body2006
JUDGMENT NIRMAL YADAV, J. 1. Vide this petition under Section 482, Cr.P.C. the petitioner seeks quashing of complaint, Annexure P-l and the proceedings arising therefrom. 2. The facts in brief are that petitioner was posted as Superintending Engineer (Mechanical Construction) while complainant was working as Upper Division Clerk (Head Office Cadre) in the Accounts Wing/Construction, PTPP, HSEB, Panipat. Complainant was entrusted with the job of checking bills received from Engineering Department, Panipat, Thermal Power Project and to find if there were any deficiencies. Complainant had been making his independent noting with regard to deficiencies on the official file, which was not liked by the Superintending Engineer and he pressurised the complainant not to make such noting and, therefore, the accused was bearing malice against the complainant. A bill of M/s Nand Lal Raj Kumar, Contractor was sent to the Accounts Wing which came to the complainant for its checking. He found many deficiencies and shortcomings in the bill which he noted down on the noting sheet the concerned file He sent the noting sheet to accused through proper channel. The accused out of malice and ill-will against the complainant, made defamatory remarks on the margin of the noting sheet which read as under: “Nonsense? Who is this idiot who can afford to write such a language in file.” It is alleged by the complainant that the above defamatory remarks were seen by the senior officers and colleagues of the complainant. Accordingly, Mr. D.R. Singal, Superintendent Accounts Wing, Om Parkash Malik Upper Division Clerk and Jai Pal Deswal, Assistant, came to complainant and told him that after seeing the above remarks, the prestige of the complainant has been lowered in their eyes and in the eyes of other employees of the department. They have got the impression that complainant is not a competent employee. The accused has made the above remarks with a mala fide intention in order to lower and damage the complainant’s reputation. It is stated that the accused has no authority or power to make such defamatory remarks. Complainant performing his duties strictly in accordance with rules and regulations. Complainant approached the senior authorities for redressal of his grievance but he did not get any relief and, therefore, he filed complaint under section 499/500 IPC. The complainant produced his colleagues D.R. Singal, Ram Mehar Singh, Jai Pal Deswal and Parkash and himself appeared in support of his contentions. Complainant performing his duties strictly in accordance with rules and regulations. Complainant approached the senior authorities for redressal of his grievance but he did not get any relief and, therefore, he filed complaint under section 499/500 IPC. The complainant produced his colleagues D.R. Singal, Ram Mehar Singh, Jai Pal Deswal and Parkash and himself appeared in support of his contentions. They all stated that the prestige of the complainant was lowered in their estimation on account of remarks made by the accused. Taking into the consideration the evidence on record, the Additional Chief Judicial Magistrate, Panipat, summoned the petitioner-accused for commission of offences publishable under Section 500 IPC. 3. Mr. K.D.S. Hooda, Advocate, appeared for the petitioner. However, none appeared on behalf of the respondent. Even no reply has been filed in spite of the petition being pending since 1992. 4. Learned counsel for the petitioner argued that a bare reading of the document where the alleged remarks have been made, would clearly show that the word ‘idiot’ does not exist on the noting. The nothing reads as under : “Non sense, who is this immature person who can afford to write such a thing on file.” It is pointed out that In the noting, the complainant who is an Upper Division Clerk, wrote that charge regarding withholding the payment is quite ‘absurd’ and there has been no delay or piecemeal objections from this office. The things are neither stretched and instead remedies are suggested. The contents of the noting sheet, Annexure P-4, read as under: “Attention of FA&CAO is invited towards the observations raised by Sr. A.O. at NP 4 to 7 and reply given by AEE/XEN (CHM) from NP 7 to 14. the undersigned would like to sum up the whole issue as under- 1. This important job of shifting of coal from Bunkers to CHP Area, was executed as per the orders of C.E./Const., which were subsequently approved by the S.P.C. (Ch. 19). Had this job been allowed to slip on, the coal in the bunkers could form lump mass creating manifold complications for running of the unit subsequently? 2. The payments to the contractor are not being made on one pretext or the other and new objections are raised by the accounts Wing time and again, for best reasons, known to that office. 3. 2. The payments to the contractor are not being made on one pretext or the other and new objections are raised by the accounts Wing time and again, for best reasons, known to that office. 3. Though I agree, there had been some shortcomings on the part of Engineering Wing at the level of JE/AE/XEN during execution of the work, but there is a limit upto which this can be allowed to be stretched. 4. The office of Sr. A.O./Const. has no authority to involve S.E., to be responsible, during execution of the work order for which authority only lies with the C.E./Const. The coal density as recorded by JE is based on record, being maintained in the O&M Wing by XEN/CHM-1 and every office has to follow the same figure, since the inflow of coal, is from one source i.e. XEN/CHM-1. 5. It is a well known fact, that during April & May, 90 at the time of detection of fraudulent payments by the Vigilance Wing, all the SMBs., were taken over by one central office i.e. the respective Chief Engineers and new SMSs., were issued quite late. Therefore, the delay in recording the SMBs., and the explanation submitted by, XEN/CHM through his letter dated 17.6.1991 (Ch.25), appears to be quite convincing and should have been accepted by the Accounts Wing. I would, therefore, request that the work order may be finalised and the payment to the contractor got released, lest there may be legal complications because the contractor will be at liberty to go to the legal court, since he is not being paid for the last more than one year. I have already discussed the matter with him two or three times for his intervention and I hope, it will be resolved within a week’s time. Sd/- 18/7 S.E./Mech. Const. FA & CAO Nonesense. Who is this immature xxx who can affored to write such a language on file. Note of the SE/Mech. Const. At NP-15/16 particularly para-2 may kindly be seen wherein aspersions have been cast on this office though in the same breath in para-3, the SE admits that there have been some shortcomings on the part of Divl. Office. The shortcomings have not been rectified/regularised with the approval of competent authority though request for the same has been made by the Xen in his note. Office. The shortcomings have not been rectified/regularised with the approval of competent authority though request for the same has been made by the Xen in his note. The charge regarding with- holding the payment is quite absurd and there has been no delay or piece-meal objections from this office. Things are neither stretched by this office. Instead the remedies suggested in the observations itself have not been complied with. The facts of the case are as under :- The W.O. for the work executed from 29.3.90 to 27.4.90 was issued on 15.3.91 (after one year) and the bill was received in this office for the first time on 26.4.91. The bill was returned to the Xen on 6.5.91 with copies to S.E./Mech. Const. And CE/Const (Ch-20&22). Xen’s reply thereto was received on 17.6.91 at NP-4/7 and the file sent to the Xen/CHM-II on 27.6.91; to which his reply and SE’s above remarks are contained at NP-7 to 16. On going through the reply at NP-7 to 16, it is observed that the main thrust is laid on the JE for the omission and commissions. It may be mentioned here that whatever the JE has done or not done is the internal affair of the Division and this does not satisfy the audit.” 5. A reading of the entire noting sheet shows that Superintending Engineer, Mechanical Construction Branch, is referring to payments to be made to the contractor. According to him, payments are not made to the contractor on one pretext or the other and new objections are raised by the Accounts Wing time and again. It is further mentioned that though there are some shortcomings on the part of the Engineering Wing at the level of JE/AE/XEN during execution of the work, but there is a limit upto which this can be allowed to be stretched. In the last paragraph, the Superintending Engineer/Mechanical Construction has made a request that the work order may be finalised and the payment to the contractor be got released, lest there may be legal complications as no payment was made to the contractor for the last one year. After this, noting sheet travelled down to Upper Division Clerk i.e. complainant. He refuted the observations made by the Superintending Engineer and stated that charge regarding withholding the payment is quite absurd. After this, noting sheet travelled down to Upper Division Clerk i.e. complainant. He refuted the observations made by the Superintending Engineer and stated that charge regarding withholding the payment is quite absurd. On such a remark made by the complainant, the Superintending Engineer on the margin recorded the remarks - “who is this immature who can afford to write such a language on the file”. The word ‘idiot’ does not find mention in the noting sheet. It might have been written but when it travelled down to the Upper Division Clerk, the word ‘idiot’ has been scored off. 6. It is well established that only such imputations as are malicious and reckless and not for public good, tranquillity, peace or public security or as not made in good faith, can be brought within the definition of defamation. The writing made must convey some imputation against the complainant with the intention to harm reputation. The intention on the part of the accused to harm reputation or knowledge or reasonable belief that such an imputation will harm reputation of person concerned, is an essential ingredient of offence under Section 499 IPC. In the present case, the remarks made by the accused-petitioner cannot be such an imputation which can be said to be defamatory. The allegations of the complainant appear to be exaggerated as the language is not at all intemperate or disproportionate to the facts. Even the witnesses produced by the complainant clearly stated that word ‘idiot’ has been scored off and the expression ‘immature’ has been recorded in its place. Moreover, a bare reading of the entire noting sheet shows that the Superintending Engineer in exercise of superior authority had noted down that work order be finalised as the payment was not made to the contractor for the last one year in order to avoid legal complications. Thereafter, the complainant has clearly used harsh language and in that background the senior officer i.e. Superintending Engineer might have made the remarks ‘who is this immature person to write such a language on the file’. A superior officer’s noting that a subordinate had used objectionable language in the file would not, in any manner, bring the remarks within the ambit of defamation punishable under Section 500 IPC. 7. Learned counsel for the petitioner also raised a legal objection. A superior officer’s noting that a subordinate had used objectionable language in the file would not, in any manner, bring the remarks within the ambit of defamation punishable under Section 500 IPC. 7. Learned counsel for the petitioner also raised a legal objection. According to him, protection is extended to the employees of the Board under Section 82 of the Electricity (Supply) Act, 1948, which reads as under :- “82. Protection of persons action under this Act.- No suit, prosecution or other legal proceeding shall lie against any member or officer or other employee of the Board for anything which is in good faith done or intended to be done under this Act.” Learned counsel submitted that as per Section 82 of the Act, protection is provided to the person acting under the statute or the Act. The petitioner had made the remarks in his official capacity as a superior officer. Before taking cognizance of any offence, the prior permission was required to be taken. Admittedly, no such sanction was taken in the present case. In view of the above discussion, the allegations made in the complaint do not fall within the definition of defamation and, therefore, no case is made out against the petitioner. Accordingly, the petition is accepted and complaint, Annexure P-1 as well as summoning order, Annexure P-5 are quashed.