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2017 DIGILAW 253 (JK)

Iqbal Malhotra v. Iqbal Malhotra

2017-05-23

MOHAMMAD YAQOOB MIR

body2017
Judgment 1. Petitioner, in essence, seeks quashment of the proceedings initiation on the complaint filed by the respondents before the Court of Judicial Magistrate 1st Class (Sub Registrar), Srinagar, including order dated 12.03.2015, in terms whereof process has been issued. 2. Respondents have filed a complaint titled “Trans Asian Industries Exposition Pvt. Ltd. & others Vs. Mr. Iqbal Malhotra” before the Court of Chief Judicial Magistrate, Srinagar, which has been transferred to the Court of Judicial Magistrate 1st Class (Sub Registrar), Srinagar. In support of the complaint statement of the complainant has been recorded on oath. Judicial Magistrate vide order dated 14.02.2015, after entertaining the complaint, has postponed the process and in terms of Section 202 Cr. P. C directed SHO, P/S Ram Munshi Bagh to enquire into the matter and to submit the report. SHO, P/S Ram Munshi Bagh had shown inability to enquire into the matter on the ground that the area of occurrence is beyond his territorial jurisdiction as the area falls within the territorial jurisdiction of Police Station, Kothibagh. Taking note of the same, Judicial Magistrate, in terms of order dated 21.02.2015, has directed SHO P/S Kothibagh to enquire into the matter who, accordingly, submitted the report. After considering the said report, Magistrate has issued the process under Section 204 Cr.P.C. vide order dated 12.03.2015. 3. According to learned counsel for the petitioner, petitioner and respondents have business transactions. They are entangled into litigation. Petitioner had filed a complaint bearing No.66/1/12 before the Court of Metropolitan Magistrate, Patiala House, New Delhi. To counter the same, respondents have filed a complaint at Srinagar. 4. Next he contended that the Magistrate after postponing the process and after obtaining the report in terms of Section 202 Cr.P.C. has issued the process but in the report as obtained from SHO, nothing different to what was alleged in the complaint or what was stated by the complainant before the Magistrate was reported. Once on same basis Magistrate was not satisfied so had postponed the issue of process, how could on the same basis without there being any change even on the basis of enquiry report he has derived satisfaction and then has issued the process. 5. Once on same basis Magistrate was not satisfied so had postponed the issue of process, how could on the same basis without there being any change even on the basis of enquiry report he has derived satisfaction and then has issued the process. 5. In the complaint filed by the respondents, amongst other allegations, it has been alleged that the petitioner herein has addressed a communication dated 9th January, 2014 to the Chairman and Chief Executive Officer, Jammu and Kashmir Bank Ltd. Corporate Headquarters, M. A. Road, Srinagar, copy whereof had been sent to Governor, Reserve Bank of India, making therein falsely and maliciously disparaging imputations concerning the complainants, their business, business affairs/activities and conduct thereof which constitute an offence under Section 500 RPC. The imputations as made have been referred to in the complaint. 6. The enquiry report as submitted by the SHO reveals that the parties have business disputes. On the basis of e-mail (communication above referred) sent by the petitioner to the Jammu and Kashmir Bank, Corporate Headquarter, no action has been taken by the Bank Headquarter, however, J&K Bank Branch Lajpat Nagar, New Delhi, has asked for a reply from Mohammad Yaseen Mir. It is evident that the matter is under consideration in Delhi. Both the parties are also present at Delhi. 7. What is discernible from the report of SHO is that communication (e-mail) had been sent by the petitioner to the Chairman, Jammu and Kashmir Bank, Corporate Headquarter, Srinagar. Learned Magistrate after receiving the said report appear to have been satisfied that as a matter of fact the communication (email) had been sent to the Chairman, Jammu and Kashmir Bank, Corporation Headquarter, Srinagar. In the said e-mail, the allegation to the following effect was levelled: “In fact it is my contention that the entire business TAIE is a sophisticated money laundering enterprise and because of ongoing investigation by the Customs Department, the payment of duly drawbacks cash refunds has been suspended thereby crippling the revenue stream of this company. Your bank needs to conduct an immediate investigation/audit to determine its current revenue and ability to pay back the loans taken over 5 years ago. I am also informed that interest payments are also in abeyance let alone the principal”. 8. Your bank needs to conduct an immediate investigation/audit to determine its current revenue and ability to pay back the loans taken over 5 years ago. I am also informed that interest payments are also in abeyance let alone the principal”. 8. Bringing to the notice or conveying to the Jammu and Kashmir Bank Corporate Headquarter at Srinagar about investigation by the Custom Department against the respondents would not constitute an offence of defamation but the words employed i.e. “entire business of TAIE is a sophisticated money laundering enterprise” is an imputation which definitely can have, prima-facie, effect of harming the reputation of the respondents. Learned Magistrate while postponing the process and directing the SHO to conduct enquiry appear to have been done so as to derive satisfaction about the e-mail (communication) to have reached to the Jammu and Kashmir Bank Corporate Headquarter at Srinagar. The cognizance taken and thereafter process issued cannot be found fault with. It shall be quite advantageous to quote Para 20 of the judgment rendered in the case of Manharibhai Muljibhai Kakadia and another Vs. Shaileshbhai Mohanbhai Patel and others, (2012) 10 SCC 517 : “Section 202 of the Code has twin objects; one, to enable the Magistrate to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an unnecessary, frivolous or meritless complaint and the other, to find out whether there is some material to support the allegations made in the complaint. The Magistrate has a duty to elicit all facts having regard to the interest of an absent accused person and also to bring to book a person or persons against whom the allegations have been made. To find out the above, the Magistrate himself may hold an inquiry under Section 202 of the Code or direct an investigation to be made by a police officer. The dismissal of the complaint under Section 203 is without doubt a pre-issuance of process stage. The Code does not permit an accused person to intervene in the course of inquiry by the Magistrate under Section 202. The legal position is no more res integra in this regard. The dismissal of the complaint under Section 203 is without doubt a pre-issuance of process stage. The Code does not permit an accused person to intervene in the course of inquiry by the Magistrate under Section 202. The legal position is no more res integra in this regard. More than five decades back, this Court in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker with reference to Section 202 of the Criminal Procedure Code, 1898 (corresponding to Section 202 of the present Code) held that the inquiry under Section 202 was for the purpose of ascertaining the truth or falsehood of the complaint, i.e., for ascertaining whether there was evidence in support of the complaint so as to justify the issuance of process and commencement of proceedings against the person concerned.” 9. It is well settled that while entertaining a complaint, taking cognizance and then for issuing process, a detailed order is not required to be passed. The proceedings must demonstrate that the Magistrate has applied his mind, it must be gatherable from the proceedings conducted by the Magistrate. While bestowing thoughtful consideration to the records as produced, no interference is warranted. Learned Magistrate has derived satisfaction before issue of process well within the confines of law. 10. Viewed thus, petition is found without any merit, hence dismissed. 11. Copy of the order be sent to the trial court for information.