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Himachal Pradesh High Court · body

2025 DIGILAW 158 (HP)

Gurbachan Singh v. Dharampal Kaundal

2025-01-10

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. Petitioners have filed the present petition, under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘the Cr. P.C..) for quashing criminal Complaint No. 13 of 2022/59-1-2022, pending in the Court of learned Judicial Magistrate First Class Court No. (2) Amb, District Una, HP, (hereinafter referred to as ‘the Trial Court’), as well as, consequential order, including summoning orders, dated 21.7.2023, by virtue of which, learned trial Court has ordered to summon the petitioners for commission of offence, under Section 500 of the Indian Penal Code (hereinafter referred to as ‘the IPC’). 2. Petitioners have sought indulgence of this Court to quash the above titled criminal complaint, summoning order, as well as, proceedings resultant thereto. 3. Brief facts leading to filing of the present petition, as born out from the record, may be summed up, as under: Respondent has filed complaint under Section 500 of the IPC, against the petitioners, being members of Management Committee, Thathal Co-operative Agriculture Service Society Ltd., (hereinafter referred to as ‘the Society’), for allegedly making defamatory remarks, against the complainant. 3.1 The said complaint has been filed on the ground that petitioners had defamed him on agenda item No. 4, discussed in the general meeting of the Society, held on 12.3.2022. In this regard, according to the petitioners, respondent No. 2 has relied upon the certified copy of the notice, for calling the general meeting, dated 25.2.2022. 3.2 Thereafter, the complainant has examined five witnesses and has also stepped into the witness box, upon which, process has been issued by the learned trial Court. 3.3 On the basis of above factual position, relief of quashing of aforesaid complaint, has been sought on the ground that the newly formed management Committee of the Society came across some financial irregularities, committed by the respondent at the time, when he was President of the Society, during the process of Audit by retired Inspector, Co-operative Societies Una, H.P. The audit report of the year 2018-2019, has been annexed with the petition. 3.4 It is the further case of the petitioners that on 3.10.2019, the Management Committee of the Society, consisting of all the members, wrote a letter to the Assistant Registrar, Co-operative Society, Una, for making an inquiry into the allegation of financial misappropriation, committed by the respondent, at the time, when he was President of the Society. 3.4 It is the further case of the petitioners that on 3.10.2019, the Management Committee of the Society, consisting of all the members, wrote a letter to the Assistant Registrar, Co-operative Society, Una, for making an inquiry into the allegation of financial misappropriation, committed by the respondent, at the time, when he was President of the Society. 3.5 A request has also been made to take appropriate action for expulsion of the respondent, under Rule 22 of the HP Co-operative Society Rules, 1971. Thereafter, Assistant Registrar has appointed an Inspector of the Society to conduct the inquiry. The said Inspector has found that the allegations, against the respondent are true and the Society has been advised to take appropriate action, against the respondent. 3.6 It is the further case of the petitioners that thereafter, the Assistant Registrar, Co-operative Society, Una, wrote a letter to petitioner No. 1, mentioning therein that the allegations of the financial misappropriation, committed by the respondent are true and till the time, the entire amount, alongwith requisite interest, is not paid, the land mortgaged by the respondent should not be redeemed, by the society. Thereafter, one Arbitrator was appointed by the Assistant Registrar, for recovery of Rs. 28,391/-, from the respondent a sum of Rs. 56,618/- was also to be recovered from the respondent, on account of his deceased father, as per Rule 73(c) of the H.P. Co-operative Society Act, 1968. 3.7 Thereafter, the Secretary of the Society (petitioner No. 6) had issued a notice of general meeting to all the members of the co-operative society, Thathal, including the respondent, who refused to take the notice of the general meeting, to remain present on 12.3.2022 at 11:00 a.m. There were total six agendas, out of which, item No. 4 was related to expulsion of the respondent from the membership, in accordance with Rule 23 of the Himachal Pradesh Co-operative Societies Rules, 1971. 3.8 It is the further case of the petitioners that General House, consisting of 183 members of the co-operative society, Thathal, had passed agenda item No. 4 and expelled respondent from the membership of the society for allegedly committing financial misappropriation with the Society. After expulsion of the respondent by the Co-operative society, respondent has filed the alleged complaint against the petitioners, before the learned trial Court, upon which, process has been issued. After expulsion of the respondent by the Co-operative society, respondent has filed the alleged complaint against the petitioners, before the learned trial Court, upon which, process has been issued. 3.9 On the basis of above facts, it is the case of the petitioners that if the allegations, as contained in the complaint, are taken as it is, even then, no prima-facie case is made out against them. As per the petitioners, respondent No. 2 has concealed the material facts in the complaint and he has relied upon the part of the statement, without disclosing the entire statement, referred to, in agenda item No. 4. 3.10 It is the further case of the petitioners that the agenda/statement, on the basis of which, the entire criminal process, was initiated, was not given by any private individual, but, by a governing body created under a Statute. 3.11 The complaint is stated to have been filed to take personal revenge from the petitioners, being members of the Management Committee of the Society. The relief of quashing of the FIR has been sought on the ground that respondent has examined five witnesses, out of which, two were part of the general meeting, held on 12.3.2022, in which, respondent No. 2 was expelled from the society. The statement of these witnesses are stated to be false. 3.12 Lastly, it has been pleaded that the learned trial Court has issued the process in a mechanical manner without applying its judicial mind. 3.13 On the basis of above facts, a prayer has been made to allow the petition by setting aside the summoning order and by quashing the complaint, filed by the respondent. 4. On the basis of above facts, Mr. Piyush Dhanotia Advocate appearing for the petitioners have prayed that the present petition may be allowed, by quashing the complaint, as well as, the summoning order, passed by the learned trial Court. 5. Per contra, Mr. Onkar Jairath, learned counsel appearing for the respondent/complainant has argued that powers under Section 482 Cr. P.C. cannot be exercised as an Appellate Court or trial Court, as powers under Section 482 Cr. P.C., can only be exercised, in case, in view of bare perusal of the complaint, no case is made out. 6. In order to buttress his contention, learned counsel for the respondent has also relied upon the decision of Hon’ble Supreme Court in Priti Saraf & Anr. P.C., can only be exercised, in case, in view of bare perusal of the complaint, no case is made out. 6. In order to buttress his contention, learned counsel for the respondent has also relied upon the decision of Hon’ble Supreme Court in Priti Saraf & Anr. vs. State of NCT of Delhi & Anr., reported in 2021 Cr. L.J. 2212 wherein the Hon’ble Supreme Court has held that while exercising the powers under Section 482 Cr. P.C., the complaint, in its entirety, has to be examined, on the basis of allegation made in complaint/FIR/charge-sheet and the High Court is not under obligation to go into the matter or examine its correctness. Relevant paragraph-23 of the judgment is reproduced as under: “23. It being a settled principle of law that to exercise powers under Section 482 Cr. P.C., the complaint in its entirety shallhave to be examined on the basis of the allegations made in the complaint/FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge sheet and other documentary evidence, if any, on record.” 7. Judging the facts and circumstances of the case, in the light of aforesaid decision of Hon’ble Supreme Court, perusal of the complaint, copy of which is annexed with the petition, as Annexure P-1, shows that the complainant has approached the trial Court in complaint, filed under Section 500 IPC, on the ground that accused persons (petitioners herein) have respondent has published/made public the agenda item No. 4, by mentioning that the general house will be conducted on 12.3.2022 and the agenda item has been mentioned as “shri /kjeiky dkSMy [kkrk ua- 523 )kjk lHkk ds lkFk dh xà /kks[kk/kM+h** 8. Not only this, copy of the notice for calling the general meeting, published on 25.2.2022 has also been annexed alongwith the present petition. 9. Not only this, copy of the notice for calling the general meeting, published on 25.2.2022 has also been annexed alongwith the present petition. 9. In order to justify the said publication of notice, petitioners (accused persons) have also annexed the copies of the audit report of year 2018-2019, Annexure P-4, in which, it has been stated that rebate in the interest given to Dharampal, President of Society, A/C 523, is not logical, and the matter is required to be discussed for necessary action and even in the copy of resolution dated 3.9.2019, copy of which has been annexed as Annexure P-5, it has been mentioned that the matter is required to be investigated. Not only this, in the letter written by the Inspector, Cooperative Society, dated 23.12.2019, which was addressed to the Assistant Registrar, Cooperative Societies, the irregularities in the working style of the President, Cooperative Society, has been found. 10. The petitioners are before this Court to quash the proceedings, at this stage, by making the request that their act falls within Exception 8 of Section 499 of the IPC. 11. In order to buttress his contention, learned counsel for the petitioner has relied upon the decision of Hon’ble Supreme Court in M/s IVECO Magirus Brandschutztechnik GMBH vs. Nirmal Kishore Bhartiya & anr., reported in 2023 Live Law (SC) 860. 12. With due respect to the law laid down by Hon’ble Supreme Court, in the said case, the same is not applicable to the facts and circumstances of the case, as the dispute involved before the Hon’ble Supreme Court, was with regard to the authorization of the person to write the letter, whereas, in this case, the wordings of agenda item No. 4, have not been proved, on the basis of documents, as mentioned, in the record of the society. 13. A three judges’ Bench of Hon’ble Supreme Court, in Sonu Gupta & others vs. Deepak Gupta & others, reported in (2015) 3 SCC 424 has held that at the stage of cognizance and summoning, the Magistrate is required to apply his judicial mind only with a view to take congizance of offence. Relevant paragraphs 8 and 9 of the judgment is reproduced as under: “8. Relevant paragraphs 8 and 9 of the judgment is reproduced as under: “8. Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not. 9. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial.” 14. Considering the said factual position, as well as, in view of the discussions made above, this Court is of the view that petitioners are not able to make out a case in their favour, for exercising powers under Section 482 Cr.P.C. 15. Consequently, the present petition is dismissed, so also the pending application(s), if any.