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2011 DIGILAW 461 (JK)

Ashok Singh Manhas v. Ajay Gandotra

2011-08-30

Hasnain Massodi

body2011
1. The petitioner filed writ petition registered as OWP No. 464/2010 titled Ashok Singh Manhas v. M/s Shiva Overseas and ors. wherein the present respondent figured as Respondent no. 4. The petitioner in the writ petition made following averments:- "That the respondent no. 1 prepared a forged document of partnership with the help of respondent no. 4 in which the petitioner is shown partner of the firm M/s Shiva Overseas 33-GC/C, Gandhi Nagar, Jammu, whereas the petitioner have found out from the reliable sources and the habitant of the locality such firm never existed in the area. In addition to that making partner in the Shiva Overseas a mortgage deed was executed on 22.4.2008, registered on 25.4.2008 with the Sub Registrar Municipal Magistrate, Jammu by impersonation showing the petitioner as having registered the Mortgage Deed as collateral security vide which the land measuring 4 kanals 5 marlas comprising in Khasra No. 90 min, Khata No. 12 min and Khewat No. 1 situated at Village Chak Changerwan Tehsil and District Jammu against the stocks of the M/s Shiva Overseas and obtained loan of Rs. 50 lacs from respondents No. 3. That the petitioners came to know when the respondent no. 3 issued a notice bearing No. JMU/ Adv./ 70/ 2009-10 issued by UCO Bank branch Jammu under postal certificate. The petitioner's wife was seriously ill and he was busy in her treatment. Petitioner filed a suit in the court of Principal District Judge, Jammu titled Ashok Singh Manhas v. MS Shiva Overseas and another which was transferred to the Court of Sub Judge, Jammu. Before filing suit respondent no. 4 met to the petitioner in the court premises and enquired as to what for the petitioner has come to the court. The petitioner told that somebody has impersonated him and got mortgage deed of my land and against that Rs. 50 lacs loan has been secured from respondent No. 3 and have committed the fraud. That the respondent no. 4 kept watch and saw when the case was transferred to the court of Sub Judge Jammu for trial, he approached to the Sub Judge Jammu and the notice was issued to the respondent no. 3 and thereafter Mr. Kuldip Singh Puri, Advocate appeared for the respondent no. 3. Thereafter the court ordered him to file the written statement and the interim direction was not issued. That respondent no. 3 and thereafter Mr. Kuldip Singh Puri, Advocate appeared for the respondent no. 3. Thereafter the court ordered him to file the written statement and the interim direction was not issued. That respondent no. 1 in connivance with respondent no. 4 and the Bank authorities got open the account for the purpose of partnership in the respondent bank and received cheques, encashed cheques and draw the money, whereas physically sthere was not Firm M/s Shiva Overseas though its Proprietor Sh. Uttam Chand. The petitioner enquired from all over and found that the Firm never existed. Likewise the respondents 1 and 4 have committed forgery with the Bank as well as with the petitioner by impersonation produced some another person who happened to sign like the petitioner and he represented in the bank as well as in the Court for registering the document. That the transaction with the Bank is a fake transaction and forged transaction. The malafide of the respondents 1 and 4 is on the face of it." 2. The respondent aggrieved that the allegations levelled against him in the aforementioned writ petition was a wilful act on part of the petitioner to lower down his image in the society, filed a criminal complaint in the Court of Judicial Magistrate First Class (Passenger Tax, Jammu) alleging commission of offence punishable under section 499, 500 and 501 RPC by the petitioner. The Trial Magistrate recorded satisfaction that the complaint and the statement of the complainant and the witness prima-facie disclosed commission of offences punishable under section 499, 500 RPC and issued process against the petitioner. 3. The petitioner through medium of instant petition seeks quashment of the proceedings pending before the Trial Magistrate, in exercise of powers under section 561-A CrPC. The grounds urged in the petition are that the alleged imputation neither directly nor indirectly lowered down the moral or intellectual character of the respondent; that whatever was stated in the petition was pleaded by the petitioner in good faith for protection of his own rights and interests and thus does not amount to an offence under section 499 RPC; that the respondent cannot absolve himself from the alleged imputation made by the petitioner as the respondent was marginal witness to the partnership deed executed in the name of the petitioner by impersonating the petitioner. 4. Heard and considered. 5. 4. Heard and considered. 5. The inherent powers vested in the High Court under section 561-A Cr.P.C. are to be exercised to give effect to an order under Code, to prevent abuse of process of court or to otherwise secure ends of justice. The inherent powers, though very wide in its scope, are to be exercised sparingly and with caution. Whenever the Court is of the opinion that the exercise of inherent powers is bound to advance cause of justice and if the powers are not exercised, the injustice or abuse of process of court would be the outcome, the Court is not powerless to prevent injustice or abuse. The Supreme Court in State of Haryana v. Bhajan Lal, AIR 1992 SC 602 , has categorised the cases where inherent powers may be exercised to prevent abuse of process of court and secure ends of justice. The law laid down in Bhajan Lal's case has been consistently followed in all subsequent cases. The categories of case where inherent powers may be exercised and proceedings are quashed: 1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 155(2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 6. In the present case, the petitioner insists that the allegation, set out in the writ petition, even if making imputations against respondent, do not constitute the offence of defamation inasmuch as the case falls within the ambit of 9th Exception to Section 499 RPC. To better understand the argument advanced by learned counsel for petitioner, it would be profitable to reproduce here under Section 499 RPC:- "499. Defamation. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Nineth Exception. -- Imputation made in good faith by person for protection of his or other interest - It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good. 7. A bare look at Section 499 RPC reveals that an imputation made against another person which is intended by him to harm such other person or which he knows or believes to be injurious to such other person's reputation, constitutes offence of defamation. The imputation may be made in one or more ways specified in the Section i.e. (i) by spoken words (ii) by written words; (iii) by signs or (iv) visible representation. 8. It is necessary that the imputation must be "made" or "published". It implies that imputation must be made known to other person or persons. The imputation may be made in one or more ways specified in the Section i.e. (i) by spoken words (ii) by written words; (iii) by signs or (iv) visible representation. 8. It is necessary that the imputation must be "made" or "published". It implies that imputation must be made known to other person or persons. If the imputation is not "made" or "published" or otherwise communicated to other person or persons, the offence is not complete because the essence of the offence of defamation is to intentionally harm the reputation, which necessarily requires some kind of publicity to be given to the imputation. The defamation involves harm to reputation and injury which it suffers in the estimation of others. However, even if the imputation made satisfies all the ingredients of Section 499 RPC, it may not constitute the offence if it falls within one or more Exceptions to Section 499 RPC. Even where words spoken or intend to be read or signs or visible representations make any imputation concerning any person, intending to harm or knowing or having reason to believe that such imputation will harm reputation of such person, the offence of "defamation" would not be constituted if it is imputation of truth which public good requires to be made or published or it relates to public conduct of public servant or if it relates to any person touching any public question etc. 9. The case set up by the petitioner, in the present case, to seek quashment of the proceedings is that the imputation made by him in the writ petition-OWP NO.464/2010, though alleging abetment at the hands of respondent to forging of a partnership deed, forging documents to obtain loan from the bank, yet such averment do not constitute the offence of defamation as the matter falls within 9th Exception to Section 499 RPC. It is contended that the imputation has been made by the petitioner in good faith for protecting his interests. It is contended that the imputation has been made by the petitioner in good faith for protecting his interests. It is argued that as the petitioner was fraudulently shown to be partner of the firm M/s Shiva Overseas 33-GC/C (Gandhi Nagar) Jammu and the documents were forged in this behalf, impersonating petitioner before Registering Authority and thereafter on the strength of the forged documents loan was raised from the Bank in favour of firm of which the petitioner was not the partner and the petitioner resultantly was made liable to repay the loan to the bank, the petitioner to secure his interests was justified in making the imputation. The case, according to the learned counsel for petitioner, squarely falls within 9th Exception and the cognizance taken by learned Trial Magistrate on a complaint filed by respondent was unwarranted and amounted to abuse of process of court. 10. Learned counsel for petitioner to reinforce the case set out in the petition and to lend support to his arguments, seeks to place reliance on Bhagat Singh Sethi and others v. Zinda Lal AIR 1966 J&K 106 and Dr. Mohammad Akbar Bhat v. Abdul Ahad 2000 Cri.L.J. 2719. The argument advanced by learned counsel for petitioner is specious and the case law relied upon does not lend support to plea for quashment of the proceedings in exercise of powers under section 561-ACr.P.C. 11. It is pertinent to point out that the imputation made by a person for protection of his or others interests helps such person to wriggle out of penal consequence for such imputation only where such person is in a position to prove that the imputation was made in good faith for the protection of interests of his person or some other person/persons. It follows that the person, who insists that imputation made by him falls within purview of 9th Exception to Section 499 RPC, has to establish though by preponderance of probabilities only, that the statement of imputation was made in good faith. The Magistrate cannot visualise at the outset that the case falls within one or more of the Exceptions and in particular Exception 9th to Section 499 RPC and refuse to take cognizance where the matter otherwise satisfies all the requirements laid down under section 499 RPC. The Magistrate cannot visualise at the outset that the case falls within one or more of the Exceptions and in particular Exception 9th to Section 499 RPC and refuse to take cognizance where the matter otherwise satisfies all the requirements laid down under section 499 RPC. In other words, in case the complaint, statement of complainant and of the witnesses examined by the complainant at the time of filing of the complaint, discloses that the accused by words either spoke or intended to be read or signs or by visible representation, has made or published an imputation concerning complainant, intended to harm or knowing or having reason to believe that such imputation will harm the reputation of the complainant, the Magistrate would be justified in taking cognizance and issuance of process against accused. It is thereafter, as the matter proceeds, the accused may establish that the statement of imputation was made in good faith to protect his interests or interests of any other person(s). 12. It may be stated at the cost of repetition that the burden on the accused is not of the kind placed on the complainant to prove his case but only to be proved by preponderance of probabilities. Whether the petitioner in the present case made the imputation in good faith, cannot be determined by this Court when called upon to exercise inherent powers. The question is factual in character and it is only the Trial Court that can return a finding on the issue, of course after the parties bring evidence on record, whether the imputation was made in good faith and whether the case falls within 9th Exception to Section 499 RPC and that the offence of defamation as defined under Section 499 RPC was not proved against the petitioner. 13. In short the question whether the matter falls within 9th Exception to Section 499 RPC, is not a threshold question. While holding so, I draw support from law laid down in Harbhajan Singh v. State of Punjab AIR 1966 SC 97 . 14. For the reasons discussed, no case is made out for quashment of proceedings in exercise of inherent powers. The petition is accordingly dismissed. The Trial Court shall proceed with the trial. Nothing stated herein, however, shall have any bearing on the merits of the case.