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Gujarat High Court · body

2016 DIGILAW 2065 (GUJ)

SHAH VRAJLAL POPATLAL v. STATE OF GUJARAT

2016-09-23

A.Y.KOGJE

body2016
JUDGMENT : A.Y. KOGJE, J. 1. This petition under Article 226 of the Constitution of India and Section 482 of the Criminal Procedure Code is filed praying inter-alia for quashing and setting aside the order dated 26.06.2006 passed by the Metropolitan Magistrate, Court No. 9, Ahmedabad in Criminal Case No. 822 of 2006, by which the Magistrate was pleased to issue process against the petitioners for offences under Sections 500 and 114 of the Indian Penal Code. 2. The brief facts are as under:- 2.1 The petitioners had filed a private complaint before the Court of Chief Judicial Magistrate, Mahesana alleging that the petitioners are engaged in the business of selling of agricultural produces in the Marketing Yard and on 22.07.2007, had sold goods to a firm which was administered by one Dayabhai Patel and his colleagues. There was purchase of other commodities also and the said transaction was as per the settled practice of the business. However, in the said transaction, the petitioners were duped and though goods were sold, they did not receive any payment and therefore, the complaint of cheating was filed. 2.2 In the said complaint of cheating, the petitioners had referred to one Shri Baldevbhai Patel, who was partner in M/s. Dayabhai Bhikhabhai Patel firm and had given his addressed as C/o M/s. Rajesh Mehta and Company. In the said complaint, said Shri Baldevbhai Patel was also shown to be associated with M/s. Rajesh Mehta and Company. 2.3 It is this association of said Shri Baldevbhai Patel shown with M/s. Rajesh Mehta and Company which became subject matter of filing of the present complaint. The present complaint was submitted in writing on 18.01.2006 before the Court No. 9 of Metropolitan Magistrate, Ahmedabad and it is alleged in the said complaint that the petitioners, who are complainants of private complaint being Police Inquiry Case No. 39 of 2005, though knowing fully well that said Shri Baldevbhai Patel or M/s. Dayabbai Bhikhabhai Patel had no connection with M/s. Rajesh Mehta and Company, a proprietary firm, still with a view to defame M/s. Rajesh Mehta and Company and its proprietor, have deliberately associated their names in the complaint. It is also alleged in the said complaint that this fact was highlighted and published in various newspapers also. It is also alleged in the said complaint that this fact was highlighted and published in various newspapers also. As a result of such action, one of the customers of the complainant (respondent No. 2 herein) discontinued the business by addressing a letter, stating that the reason for discontinuing the business is the publication in newspapers. 2.4 On such complaint filed, the Court was initially pleased to order inquiry under Section 202 of the Criminal Procedure Code and thereafter by the impugned order dated 26.06.2006, issued process under Section 204 of the Code. It is at that stage that the petitioners have approached this Court for quashing the order of issuance of process. 3. This Court vide order dated 18.04.2012 was pleased to issue Rule and grant interim relief in terms of para-7(C), thereby staying the further proceedings in connection with Criminal Case No. 822 of 2006. 4. Heard learned Advocate Shri Ankit Shah for the petitioners, learned Advocate Shri Mahesh Poojara for respondent No. 2-original complainant and Ms. Hansa Punani for respondent No. 1-State. 5. Learned Advocate Shri Ankit Shah for the petitioners contended that considering the allegations made in the complaint, no ingredients of Section 499 of the Indian Penal Code are made out so as to attract the offence under Section 500 or any other offence as alleged in the written complaint. He submitted that insofar as respondent No. 2-complainant is concerned, it is now a matter of knowledge to everybody that serious offences have been registered against him with CID (Crimes), Gandhinagar and he has been charge sheeted for offences under Sections 406, 420, 467, 468, 471 and 120-B of the Indian Penal Code. He submitted that the respondent No. 2 had approached this Court for quashing of the charge sheet by filing Special Criminal Application Nos. 3167 of 2011 and 3169 of 2011. Those petitions for quashing have been withdrawn by the respondent No. 2, meaning thereby the allegations of fraud against the respondent No. 2 have been prima facie established for which he has been facing prosecution. 5.1 Learned Advocate for the petitioners submitted that the allegations made in the complaint filed by him were, according to respondent No. 2-complainant were false and baseless. 5.1 Learned Advocate for the petitioners submitted that the allegations made in the complaint filed by him were, according to respondent No. 2-complainant were false and baseless. A perusal of the complaint filed by the petitioners would reveal that in fact, no allegations are made by the petitioners against the respondent No. 2 which would amount to defamation. 5.2 Learned Advocate for the petitioners submitted that therefore, not only the process is required to be quashed but the entire complaint deserves to be dismissed as the same is without any merits. He submitted that the allegations which are the subject matter of previous complaint are yet to be tested in the Court of law and before any Court of law comes to conclusion that the allegations made therein are false, bogus or baseless, till such time, it cannot be said that the present offence has at all taken place. 6. As against this, learned Advocate Shri Mahesh Poojara for respondent No. 2-complainant submitted that a perusal of the complaint would clearly bring out the essential ingredients of defamation. He submitted that on facts for making good his case that there is enough substance against the petitioners in his complaint, he would like to produce on record xerox copy of the complaint filed by the petitioners against M/s. Dayabhai Bhikhabhai Patel and Baldevbhai Ganeshdas Patel where defamatory utterances are made against the complainant. He also produced on record xerox copy of “Sandesh” newspaper cutting purportedly dated 31.08.2005 to substantiate that his name is reflected in the newspaper which is defamatory. 7. A perusal of the complaint produced by respondent No. 2 herein emphasized more particularly on paras-5 and 6, which would reveal the contents of the complaint. The said paras read as under:- “(5) Before Messrs Dahyabhai Patel and his partners absconded, entire goods was mortgaged in ICICI Bank, Visnagar and loan was taken thereon and they have cheated the bank also. Baldevbhai Patel (resident of Visnagar) working in Rajesh Mehta and Company who took loan from ICICI bank, has cheated me and the bank in collusion with Dahyabhai. (6) Earlier, when Dahyabhai and his partners did not make payment within four days as per the rule of the Market Association, they were prevented from purchasing goods in auction and at that time Baldevbhai recommended to Mukeshbhai, President of Mahesana Market Yard not to prevent Dahyabhai from purchasing goods in auction. (6) Earlier, when Dahyabhai and his partners did not make payment within four days as per the rule of the Market Association, they were prevented from purchasing goods in auction and at that time Baldevbhai recommended to Mukeshbhai, President of Mahesana Market Yard not to prevent Dahyabhai from purchasing goods in auction. Thus, all the partners of Messrs Dahyabhai Bhikhabhai Patel Firm and administrator Dahyabhai Patel, Shaileshbhai Patel, Govindbhai Patel and Baldevbhai Patel have cheated me.” 8. A perusal of this portion of the complaint does not attribute any role to M/s. Rajesh Mehta and Company, i.e. respondent No. 2 herein, much less does it reflect any language which could be considered defamatory for the complainant. The submission of the learned Advocate for the respondent-complainant that the aforementioned paras in the complaint amounts to defamation as it show the complainant in bad light as if the complainant's firm has taken Bank loan and defrauded the Bank. The plain reading of the aforementioned paras indicates that the allegations are against the main accused who claimed to be associated with the complainant firm. Therefore, in view of this Court, the ingredients of defamation itself are not made out in the complaint filed by the petitioners and hence, the allegations made in the present complaint in question would not sustain. 9. With regards to the contention of the respondent No. 2 of the communication written by his client to discontinue the business on account of publication made in the newspaper, this Court is of the opinion that respondent No. 2 is not able to make good his contention as there is no nexus that can be drawn between newspaper report tendered by respondent No. 2 and the written communication of his client to discontinue the business. It would be pertinent to point out that the newspaper cutting, on which reliance is sought to be placed by respondent No. 2, is that of “Sandesh” newspaper dated 31.08.2005 whereas the so called communication of discontinuing the business by the client of respondent No. 2 is dated 11.01.2006 and the petitioners had given the complaint bearing Police Inquiry Case No. 39 of 2005 on 06.10.2005. These dates would make it amply clear that there exists absolutely no nexus to establish the allegations of the role to respondent No. 2 by the present petitioners which has led to defamation of respondent No. 2 and thereby adversely affecting his business. 10. Learned Advocate for respondent No. 2 contended that the petitioners have not shown any regard for the Court of law as though the process has been issued way back in the year 2006, the petitioners have neither remained present but have approached this Court after a very long time. 11. This submission of respondent No. 2 would fall into insignificance moment this Court comes to conclusion that the impugned complaint does not hold any substance worth the name. As observed in the preceding paras, no offence seems to have been made out even from the bare allegations made in the complaint. Not only that, the meaning sought to be given by the respondent No. 2 during the course of arguments would also not sustain the allegations insofar as attracting ingredients of the offence are concerned. 12. The complaint, therefore, being without substance does not deserve to be continued any further on the Board of the Magistrate. Proceedings in furtherance to such complaint would be abuse of the process of law. 13. Considering the contents of the complaint and even the material that has come on record by way of communication of the client of respondent No. 2 to discontinue his business referring to the publication made in the newspaper, it was incumbent upon the concerned Magistrate to examine as to whether ingredients of the offence are made out or not. Not having undertaken such exercise, the Magistrate ought not to have issued process under Section 204 of the Criminal Procedure Code and taken cognizance of the offence under Section 500 and 114 of the Indian Penal Code. 13.1 In coming to the aforementioned conclusion, this Court can draw support from the recent pronouncement by the Apex Court in the case of Subramanian Swamy vs. Union of India, Ministry of Law and Others, (2016) 7 SCC 221 , wherein in paras-207 and 208, the Apex Court observed as under:- “207. Another aspect required to be addressed pertains to issue of summons. Section 199 CrPC envisages filing of a complaint in court. Another aspect required to be addressed pertains to issue of summons. Section 199 CrPC envisages filing of a complaint in court. In case of criminal defamation neither can any FIR be filed nor can any direction be issued under section 156(3) CrPC. The offence has its own gravity and hence, the responsibility of the Magistrate is more. In a way, it is immense at the time of issue of process. Issue of process, as has been held in Rajindra Nath Mahato vs. T. Ganguly, 1972 (1) SCC 450 , is a matter of judicial determination and before issuing a process, the Magistrate has to examine the complainant. In Punjab National Bank vs. Surendra Prasad Sinha, 1993 Supp (1) SCC 499, it has been held that judicial process should not be an instrument of oppression or needless harassment. The Court, though in a different context, has observed that there lies responsibility and duty on the Magistracy to find whether the accused concerned should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded, then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. In Pepsi Foods Ltd. vs. Special Judicial Magistrate, 1998 (5) SCC 749 , a two-Judge Bench has held that summoning of an accused in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. 208. We have referred to these authorities to highlight that in matters of criminal defamation, the heavy burden is on the Magistracy to scrutinize the complaint from all aspects. The Magistrate has also to keep in view the language employed in Section 202 CrPC which stipulates about the residence of the accused at a place beyond the area in which the Magistrate exercises his jurisdiction. He must be satisfied that ingredients of Section 499 CrPC are satisfied. The Magistrate has also to keep in view the language employed in Section 202 CrPC which stipulates about the residence of the accused at a place beyond the area in which the Magistrate exercises his jurisdiction. He must be satisfied that ingredients of Section 499 CrPC are satisfied. Application of mind in the case of complaint is imperative.” 14. The complaint, therefore, being devoid of any substance, the Magistrate has erred in passing the impugned order dated 26.06.2006 issuing process. The said order is therefore set aside. The impugned complaint being Criminal Case No. 822 of 2006 is quashed. The petition is allowed. Rule is made absolute. Petition allowed.