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2019 DIGILAW 283 (MP)

Nimish Nema v. Laxmi Nema

2019-04-03

V.P.S.CHAUHAN

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JUDGMENT : VISHNU PRATAP SINGH CHAUHAN, J. 1. This petition has been filed under Section 482 of Cr.P.C. being aggrieved by the order dated 26.08.2017 [Annexure-A-3] passed by JMFC Damoh in Complaint Case No. 884/2017 whereby the learned trial Court registered the criminal complaint under Section 500 of the IPC and issued notice to the applicant for his appearance. 2. Facts giving rise to this petition in short are that, applicant's mother and respondent No. 1 are real sister and the respondent No. 2 is son of the respondent No. 1 and cousin of applicant. Smt. Brijrani, mother of the respondent No. 1 who was also mother of applicant died. After her death, she left some immovable property which was to be distributed amongst the successors i.e. Laxmi, Krishna and Narayani, but as per respondent No. 2, she executed a Will in his favour and on the basis of aforesaid Will, respondent No. 2 is entitled to hold all immovable and movable property left by Brijrani. Applicant who is son of Smt. Krishna and he is the sole successor of Smt. Krishna, in this respect, he claimed that he is one third successor of the property left by Brijrani. After death of Brijrani, when his share has not been given by the respondents, he send a notice to that effect claiming one third share in the property left by Brijrani and also denied for the execution of the Will. He stated in the notice that respondents prepared the forged documents and trying to grab the whole property of the Brijrani. In the last para of the notice it is clearly mentioned that if the applicant is not given his one third share, he will institute court proceedings. 3. Both the respondents being aggrieved by that notice filed a complaint before the Court of CJM Damoh under Section 200 of Cr.P.C. for the offence punishable under Section 500 of I.P.C. claiming therein that Brijrani before her death voluntarily executed a Will, but the applicant alleges that Will is forged and the same was prepared by the respondents and convinced this fact to other relatives and known persons and alleged therein that this act comes under the purview of defamation because of this the image/reputation of the respondents amongst other relative lowered down in the family. 4. 4. The learned CJM Damoh recorded the statements of (PW-1) Deepak Nema and (PW-2) Laxmi Nema and thereafter, transferred the case for disposal before the Court of JMFC Damoh. Learned JMFC Damoh after hearing both the parties vide order dated 26.8.2017 registered a complaint for the offence punishable under Section 500 of IPC and issued notice to the applicant. 5. Being aggrieved by the impugned order dated 26.08.2017, the applicant has filed this petition on the ground that the complaint/respondents pressurize the applicant not to defend in the civil Suit and prima facie the case of defamation has not been made out. The applicant served a legal notice to the respondents in regard to civil suit. The complaint filed by the respondents with mala-fide intention with ulterior motive and prayed to set aside the criminal proceedings arising emanating from the complaint and set aside the impugned order. 6. Counsel appeared on behalf of respondent No. 2 submitted that the alleged Will executed by the deceased Brijrani in favour of the respondent No. 2 was registered. The applicant malafidely alleged that respondents have prepared a forged document of Will and claiming forgery done by the respondent lowering the image before the family members and society members. Learned trial Court rightly registered the complaint under Section 500 of the IPC on the basis of statements recorded before the trial Court and prayed for dismissal of the petition. 7. After hearing both parties, perused the record, impugned order and other documents filed along with this petition, copy of the complaint, copy of the notice and the interlocutory application and the copy of the Civil Suit filed in the Court VIth Additional Civil Judge Class-II Damoh registered as Regular Civil Suit Appeal 00033/2015. 8. The act of defamation defined in Section 499 of the Cr.P.C. In this case, the respondents made a complaint before the Court of CJM alleging that the applicant send a notice to the them through Advocate saying that he is having a 1/3rd share in the property left by Brijrani and respondents prepared a forged and fabricated documents with intention to grab the whole property left by Brijrani. Consequent upon, the respondents filed a complaint for the offence punishable under Section 500 of the IPC. Consequent upon, the respondents filed a complaint for the offence punishable under Section 500 of the IPC. In paras-2 and 3 of notice it is mentioned that how the applicant claiming 1/3rd share left by Brijrani and in para-4 it is mentioned that he come to know that both respondents prepared a Will in their favour in order to grab the whole property. 9. For the sake of convenience, Section 499 of the IPC is quoted-below:- “499. Defamation - Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person. Explanation 1 - It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2 - It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3 - An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4 - No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.” 10. After perusal of the definition of Section 499 of IPC and the notice on the basis of which, respondents filed the complaint for the offence punishable under Section 500 of the IPC. The trial Court on the basis of statements of the witnesses recorded found defamatory act whereas after perusal of the notice, this Court does not find any derogatory or defamatory word in the legal notice send by the applicant to the respondent. 11. Apart from this, it is purely a civil dispute between the parties. The trial Court on the basis of statements of the witnesses recorded found defamatory act whereas after perusal of the notice, this Court does not find any derogatory or defamatory word in the legal notice send by the applicant to the respondent. 11. Apart from this, it is purely a civil dispute between the parties. The respondent filed a Civil Suit for claiming title on the basis of the Will executed by late Brijrani. The applicant being successor of Brijrani has every right to defend the will. If he objected on the Will and claimed that it is not executed by Brijrani. The act of applicant did not come under derogatory or defamatory act. Prima facie, the ingredients of the alleged offence are not made out against the applicant. 12. Hon'ble Supreme Court in the case of State of Haryana and Others vs. Ch. Bhajanlal and Others, (1992) AIR SC 604 has culled out some important points for quashing of the FIR or complaint, as under:- “108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercise. 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 Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. 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 Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 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 Section 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. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the on concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala-fide 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.” 109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliablity or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.” 13. On the basis of foregoing discussions and keeping in mind the principle laid down by the apex Court in the case of State of Haryana and Others vs. Ch. On the basis of foregoing discussions and keeping in mind the principle laid down by the apex Court in the case of State of Haryana and Others vs. Ch. Bhajanlal and Others (supra) this Court find that it seems that criminal proceeding is manifestly attended with mala-fide and the proceeding is maliciously instituted with an ulterior motive by way of criminal proceedings. In the opinion of this Court, this is a fit case for invoking the inherent powers enshrined under Section 482 of the Cr.P.C. Consequently, the petition is allowed and the impugned order dated 26.08.2017 whereby the trial Court has taken cognizance for the offence punishable under Section 500 of the IPC against the applicant is hereby quashed.