Criminal Application (APL) No.34 of 2011,Criminal Application (APL) No.44 of 2011,Criminal Application (APL) Nos.35-38 of 2011

27th October, 2016.

Petitioner Counsel: Mr G.M. SHITUT
Respondent Counsel: Mr A.V. PALSHIKAR

Cases Cited:
Pepsi Foods Vs. Special Judicial Magistrate, 1998 ALL MR (Cri) 144 (S.C.)=1998 (5) SCC 749 [Para 8]
S. Khushboo Vs. Kanniammal, 2010 ALL SCR 1475=(2010) 5 SCC 600 [Para 8]
M.N. Ojha and others Vs. Alok Kumar Shrivastav and another, (2009) 9 SCC 682 [Para 8]
Harshendra Kumar D. Vs. Rebatilata Koley and others, 2011 ALL MR (Cri) 955 (S.C.)=(2011) 3 SCC 351 [Para 8]
Gadakh Yashwantrao Kankarrao Vs. E.V. alias Balasaheb Vikhe Patil and others, AIR 1994 SC 678 [Para 9]

JUDGMENT

Kum. Indira Jain, J. :- In these Criminal Applications since common questions of facts and law arise, they are disposed of by common judgment.

2. Applicants are arrayed as accused in Summary Criminal Case Nos.593 of 2010, 594 of 2010, 595 of 2010, 597 of 2010, 598 of 2010 and 599 of 2010 filed by respondent no.2 under Section 500 of the Indian Penal Code.

3. The facts giving rise to the applications may be stated in nutshell as under:-

Applicants and respondent no.2 are the members of Kanchanjanga Lok Everest Cooperative Housing Society Limited, J.S. Dosa Road, Mulund (West), Mumbai. Respondent no.2-complainant was the Chairman of Society and the dispute arose between him and the applicants on certain issues relating to the society. According to the complainant he is a peace loving person, very punctual about his work and accused came to know that he commands good respect in the village and people were treating him as god's angel as he built business empire in the small village like Nandgaon (Khandeshwar). Almost all the villagers were highly respecting him. Accused came to know this aspect and to take revenge tried to defame him in the eyes of villagers of Nandgaon (Khandeshwar).

4. Complainant states that when he was in Mumbai his family friend Gajanan Rambhau Bankar resident of village Nandgaon (Khandeshwar) called him on phone and informed that he had received one postal envelope and asked him "Saheb ap kya chitar ho, kya aap samaj ke liye ghatak ho, sahib hum apke yaha kam kare ki nahi". Complainant was surprised and rushed to Nandgaon (Khandeshwar) on 06-09-2010. He met Gajanan Rambhau Bankar and asked him to show the letter. On going through the letter shown to him by Gajanan Rambhau Bankar he could knew that the applicants purposely with intention to defame him have sent a letter to such person who treats him as god's angel. It is the case of complainant that letter was written and sent with deliberate intention to lower down his image, respect and status in the village. Similar such letter was received by manager of complainant at Nandgaon (Khandeshwar). He made a complaint to concerned Police Station at Nandgaon (Khandeshwar), District Amravati. As Police authorities did not take any step he filed private complaint before the learned Magistrate for the offence punishable under Section 500 of the Indian Penal Code.

5. After recording verification of the complainant learned Judicial Magistrate First Class issued process and registered Summary Criminal Cases against the applicants-accused. The proceedings in Summary Criminal Cases have been challenged by the applicants in these applications.

6. According to applicants, builder who constructed the buildings and flats had undertaken to complete the project of construction but he left it unfinished despite receipt of entire consideration from the flat owners. Initially applicants and respondent no.2 fought together against the builder but later on some of the members of Society and respondent no.2 were won over by the builder and started acting dehors the interest of members of Society including the applicants. It is submitted that respondent no.2 was elected as Chairman of the Society and some members who were supporting the builder were elected as office bearers of the Society. The entire exercise by respondent no.2 was in collusion with the builder. Even 1/3rd of flat owners were denied inclusion of their names as members of Society. Applicants were amongst them. This resulted into lodging of various complaints to the Government machinery and the Cooperative department. Respondent no.2 flouted various directions of the authorities. At times Police intervention was also sought. It is stated that respondent no.2 made all efforts to cover his fraudulent acts in collusion with builder. He deprived the members of basic amenities and made their lives miserable.

7. Applicants being sufferers knocked the doors of District Consumer Disputes Redressal Forum at Mumbai and filed separate complaints against the Society as well as managing committee members for redressal of their grievances. This had given rise to filing of a false complaint against them. Applicants stated that the letters on which reliance is placed by the complainant are unsigned. They were typed on a computer. The envelopes would reveal the addresses typewritten and letters were forwarded Under Certificate of Posting. The letters are identical and prepared by respondent no.2 himself with mala fide intention to wreck vengeance against the applicants in view of personal grudge. They denied the writing of letters and submit that mechanically process was issued without application of mind and in the facts complaint ought to have been dismissed outrightly or alternatively an enquiry under Section 202 of the Criminal Procedure Code could have been ordered.

8. During the course of arguments learned Counsel for applicants vehemently submitted that criminal prosecution is a serious matter. It affects the liberty of a person. To drag a person to the criminal case is a greater damage to his reputation and since the letters were unsigned trial Court ought to have refrained from taking cognizance and issuing process. On powers and duty of the Magistrate in such cases learned Counsel placed reliance on-

(a) Pepsi Foods v Special Judicial Magistrate [1998 (5) SCC 749] : [1998 ALL MR (Cri) 144 (S.C.)]

(b) S. Khushboo v Kanniammal and another [(2010) 5 SCC 600] : [2010 ALL SCR 1475]

(c) M.N. Ojha and others v Alok Kumar Shrivastav and another [(2009) 9 SCC 682]

(d) Harshendra Kumar D. v Rebatilata Koley and others [(2011) 3 SCC 351] : [2011 ALL MR (Cri) 955 (S.C.)]

9. The next point raised by the learned Counsel for the applicants is that letters were sent under certificate of posting which is a very easy mode to procure and no one would believe that with such allegations letters were sent Under Certificate of Posting. Learned Counsel urged that it would be risky to place reliance on version of complainant and in the absence of cogent material complaint ought to have been dismissed. On dispatch Under Certificate of Posting learned Counsel relied upon the decision of the Hon'ble Supreme Court in Gadakh Yashwantrao Kankarrao v E.V. alias Balasaheb Vikhe Patil and others[AIR 1994 SC 678]. The learned Counsel submits that this is a fit case to exercise extraordinary jurisdiction under Section 482 of the Code and quash the proceedings in entirety.

10. This Court has gone through the authorities referred by the learned Counsel for applicants. They reiterate the settled propositions of law. The essential ingredients of the offence punishable under Section 499 of the Indian Penal Code is that the imputation should have been made or published with intention of causing harm or with the knowledge or with reasons to believe that the imputation will harm the reputation of such person. A publication is also essential part of the cause of action.

11. Prime question in the case on hand is whether applicants are authors of the letters. It is not in dispute that the communications are typewritten and unsigned. For want of signature of applicants on letters on which reliance is placed, authorship of the letters cannot be attributed to the applicants. Complainant has to show that accused intended or knew or had reason to believe that imputation made by accused would harm the reputation of complainant.

12. Section 44 of the Indian Penal Code defines 'injury". It denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. The word "injury" includes harm caused to the reputation of any person. It also takes into account the harm caused to person's body and mind. Section 499 of the Indian Penal Code defines defamation. It provides for harm caused to the reputation of a person i.e. the complainant. It is not clear from the letters that accused intended to cause harm to the reputation of complainant as authorship of letters in question cannot be said to be of the accused. This is a serious drawback in the case of complainant which is fatal.

13. So far as the verification statement of complainant is concerned it is apparent that there were previous disputes between complainant and the applicants. Gajanan Rambhau Bankar and the manager of complainant were the star witnesses and they were not examined by complainant to show that there was a case to proceed against the accused. In the absence of Gajanan Rambhau Bankar and manager of complainant who received the letters and brought them to the notice of complainant verification statement of complainant would not be enough to set criminal proceedings into motion.

14. Another serious infirmity left in the complaint is regarding mode of receipt of letters. Complainant says that Gajanan Rambhau Bankar and his manager received the letters Under Certificate of Posting. The recipient do not come to the Court to say so. As rightly submitted by the learned Counsel for the applicants a certificate of posting is easy to procure and does not inspire confidence. With such serious allegations the sender would always ensure that letters should reach to the addressee and he would send a letter by registered post to ensure its delivery with a view to create cogent evidence of its dispatch.

15. As letters are unsigned, prima facie it cannot be said that accused sent those letters to third persons and as they were not dispatched by the secured mode of service it would be a futile exercise to go into the contents of letters relied upon by the complainant.

16. The next question that remains to be considered is regarding the order of issuance of process. Needless to state that Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly indicates that in the opinion of a Magistrate taking cognizance of an offence, if there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for issuance of summons but nowhere it mentions that the explicit narration of the same is mandatory. In any case it is not a mechanical process or a matter of course. The steps taken by the Magistrate under Section 190(1)(a) followed by Section 204 of the Code should reflect that Magistrate has applied his mind to the facts and the material placed on record and he is satisfied that there is a ground for proceeding further in the matter by asking the person against whom violation of law is alleged, to appear before the Court. In the present case the order of issuance of process reads as under :-

"Perused complaint and verified statement of the complainant. There are reasonable grounds for proceeding against the accused. Therefore, issue process for an offence punishable under Section 500 of Indian Penal Code against the accused. The case be registered as Summary Criminal Case."

17. Having gone through the order this Court is satisfied that there is no indication on application of mind by the learned Magistrate in issuing process against the applicants. Though no formal or speaking or reasoned order is required at the stage of Section 204 of the Code it is essential that there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence. From the aforesaid order there is no indication on application of mind by the Magistrate. The order of issuance of process is thus apparently unsustainable in law.

18. In the above premise and considering inherent deficiencies in the communications not remotely connecting the accused with the alleged offence this Court is inclined to exercise the jurisdiction under Section 482 of the Code of Criminal Procedure. Hence the following order :-

(a) Criminal Application Nos.34 of 2011, 35 of 2011, 36 of 2011, 37 of 2011, 38 of 2011 and 44 of 2011 are partly allowed.

(b) Proceedings in Summary Criminal Case Nos.593 of 2010, 594 of 2010, 595 of 2010, 597 of 2010, 598 of 2010 and 599 of 2010 pending before the learned Judicial Magistrate First Class, Nandgaon (Khandeshwar), District Amravati including the orders of issuance of process are hereby quashed and set aside.

(c) No order as to costs.

(d) Rule is made absolute in the aforesaid terms.

Applications partly allowed.