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2008 DIGILAW 1349 (JHR)

Binoy Khatri v. J. Kandulna

2008-11-27

JAYA ROY

body2008
JUDGMENT: Jaya Roy, J.- This instant appeal has been filed by the appellant under Section 378 (4) of the Criminal Procedure Code for setting aside the judgment dated 24th August, 1999 passed by Sri Ranjit Kumar Choudhary, learned Judicial Magistrate, 1st Class, Jamshedpur, in Complaint Case no. C/1/314 of 1991/T.R No. 580 of 1999 whereby the learned trial court has acquitted the accused persons from the charge of the offence committed under Section 500 of the I.P.C for defaming the complainant Sri Binoy Khatri. The complainant-appellant first filed the Special Leave Application no. 34 of 1999(R) for granting leave to file an appeal for setting aside the aforesaid order. The Hon'ble High Court after hearing the same granted leave vide its order dated 23.12.1999. Hence, this appeal. 2. The complaint case, in brief, is that on 28th April 1991 there was a general body meeting in the church in which the complainant and the witnesses numbering from 1 to 6 were present. The election was held without the presence of requisite numbers of the members. The Annual Audit report was also submitted before the complainant and the witnesses and more than Rs. 2,20,000/- in respect of pastorate funds and more than Rs. 1 Lakh in respect of Sundry accounts were missing in the said Audit Report. The complainant and the witnesses raised objections and asked the accused persons to rectify the audit report but they became furious and threatened the complainant and the witnesses to face the dire consequences. Thereafter, the complainant and the said witnesses sent the pleader notice to the accused persons for rectification of the accounts. But they did not do the same. Thereafter, the complainant filed a complaint petition before the Chief Judicial Magistrate, Dhanbad regarding the misappropriation and defalcation of the public funds under Sections 403, 406 and 109 of the I.P.C against them. The Chief Judicial Magistrate, Dhanbad sent the same complaint petition to Bistupur Police for investigation and for taking legal action. The police, after investigation, made an FIR under Sections 403/406/109 of the I.P.C and registered a case i.e. G.R Case No. 1163 of 1991 against the accused persons. The accused persons surrendered before the Court and released on bail. The Chief Judicial Magistrate, Dhanbad sent the same complaint petition to Bistupur Police for investigation and for taking legal action. The police, after investigation, made an FIR under Sections 403/406/109 of the I.P.C and registered a case i.e. G.R Case No. 1163 of 1991 against the accused persons. The accused persons surrendered before the Court and released on bail. After being released on bail, the accused persons alongwith one hundred associates came to the house of the complainant and started burning ''pattakas'' in front of the house of the complainant at new Sita Ram Dera. The entire new Sita Ram Dera areas were provocated and serious apprehension of breach of peace was there on the day of the said occurrence for which, the matter was reported to the police and a proceeding under Section 107 Cr.P.C was registered. Thereafter, on 2.8.1991 the accused persons organized a meeting at district level and in view of the occurrence of G.R case no. 1163 of 1991 and Misc. Case No. 1108 of 1991, an appeal was made to all the members of C.N.I, and asked them to sign in the appeal in which the decision has been taken to oust the complainant and the witnesses with their family members from the membership of the C.N.1. The said appeal was published and distributed amongst the members for signature and in this appeal of accused J.Kandulna, following imputation against the complainant were published which are as follows:- "Anushasan ke birudh kam karnewala aise jano ko saparibar Uttar Bharat ki kalesiya, chotanagpur ki sadasyata se banchit, nikal kiya jai" 3. The instant complaint was filed in the Court of Chief Judicial Magistrate, Jamshedpur who took cognizance and transferred the case record for enquiry and disposal under Section 192 Cr.P.C. After enquiry, the trial court summoned the accused persons to face trial under Section 500 of the I.P.C. Accordingly, the accused persons appeared in the Court and they pleaded not guilty and claimed for trial. 4. The point arising out of this case for determination is as to whether the prosecution has succeeded in proving its case beyond all reasonable sets of doubt or not ? 5. The prosecution has examined six witnesses. P.W. 1 is Onil Kumar Singh, P.W. 2 is O.Dhan, P.W. 3 is A.Toppo, P.W. 4 is Chalee Nag, P.W. 5 is Binoy Kumar Khatri, complainant himself and P.W. 6 is T.Bodra. 6. 5. The prosecution has examined six witnesses. P.W. 1 is Onil Kumar Singh, P.W. 2 is O.Dhan, P.W. 3 is A.Toppo, P.W. 4 is Chalee Nag, P.W. 5 is Binoy Kumar Khatri, complainant himself and P.W. 6 is T.Bodra. 6. The photocopy of the alleged appeal made by the accused persons for causing damaged to the reputation of the complainant has also been marked as 'X' for identification. Photocopy of the Darpan Patrika has been marked as X/1, Photocopy of Sundry Cash Audit has also been marked as X/2. 7. Considering the evidence of the witnesses, it has come to the light that these witnesses were not present in the meeting of the 2nd August, 1991 except the complainant P.W. 5 Binoy Kumar Khatri & P.W. 6 T. Bodra. But I find from the evidence of P.W. 6 T. Bodra that he has not seen the original appeal. Therefore, I find that none of the witnesses is eye witness of the alleged occurrence except the complainant (PW 5). Now, the entire case is based only on the documentary evidence i.e. on the photocopy of the documents. But, in my opinion, a photocopy of the appeal has no importance in the judicial proceeding in absence of any proof of authenticity. The complainant stated in his complaint petition that the appeal was made to the public and its copies were forwarded to Manoharpur, Goelkera, Sonua, Chakradharpur, Jamshedpur and other parts of C.N.1. But no original copies of this alleged appeal have been produced before the Court by the complainant. So far the contention of the complainant counsel in the court below that original copy of this appeal was with the accused persons and they avoided to produce it before the court inspite of the direction issued by the court to them for producing the same in the trial court. I do not find any such direction which was given to the accused persons by the trial court. 8. After perusing the lower court records, I find the order-sheet dated 18.3.1996 shows that on that very day, a petition was filed on behalf of the complainant to direct the accused to produce the original copy of this appeal. But I find that this petition was neither pressed nor any order was passed by the trial court in this regard. After perusing the lower court records, I find the order-sheet dated 18.3.1996 shows that on that very day, a petition was filed on behalf of the complainant to direct the accused to produce the original copy of this appeal. But I find that this petition was neither pressed nor any order was passed by the trial court in this regard. Thus, practically there is no documentary evidence on record to consider the allegations made by the complainant against the accused persons. Further, I find that the "appeal" in question was made in a General Body Meeting at District level. It is in practice that minutes of every meeting is to be recorded in a register of the organization. But I find the complainant did not take any step to produce the original volume of the register of the proceeding. Further, I find from the appeal that it is made in a General Body Meeting attended by one hundred members of C.N.I., and a good number of persons signed the said appeal. 9. In view of this, it cannot be said that the accused persons are only liable for the said appeal. Moreover, except the accused J.Kandulna, I do not find any signature of any of the accused persons on the photocopy of the said appeal. Further, when the decision taken by the members in a meeting for expulsion of certain members, it cannot be amount of any defamation. Neither the words mentioned in the said appeal is defamatory nor it lowered down the prestige of the complainant. 10. Taking overall view of the matter and circumstances and evidences on record, in my opinion, the prosecution has totally failed to prove its case beyond all reasonable doubts and the trial court has rightly acquitted the accused persons. 11. In the result, this appeal is dismissed and I hold the accused-respondents are not guilty of the allegations levelled against them and the are discharged from the liabilities of their bail bonds, if any.