Bombay High Court
Sunil Son Of Durgaprasad vs Pramod Parasmal Shrimal on 15 December, 2011
Bench: A. H. Joshi
Cri. Appln. No.53/2011
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Application No.53 of 2011
1. Sunil son of Durgaprasad
Agrawal,
aged 37 years,
occupationig business,
resident of Dhamangaon Road,
Yavatmal, Tq. & Distt.
Yavatmal.
2. Akash son of Prakash
Yerawa,
aged 37 years,
occupation Business,
resident of Civil Lines,
Yavatmal,
Tq. & Distt. Yavatmal. .... Applicants.
Versus
1. Pramod Parasmal Shrimal,
aged 46 years,
occupation business,
resident of Gandhi Nagar,
Yavatmal,
Tq. & Distt. Yavatmal.
2. State of Maharashtra,
through its Police Station
Officer, Yavatmal. .... Respondents.
*****
Mr. D.P. Jaiswal, Adv., for the applicants.
Mr. B.D. Ruikar, Adv., for respondent no.1.
::: Downloaded on - 09/06/2013 18:00:42 :::
Cri. Appln. No.53/2011
2
Mr. P.V. Bhoyar, APP for respondent no.2.
*****
CORAM : A.H. JOSHI,J.
Date : 15th Dec., 2011.
ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith, and is
heard finally by consent of parties.
2. By this application, applicants are challenging
the order for issue of process in private Criminal
Complaint Case No. 649 of 2008.
3. In the said case, complainant pleaded that the
averments contained in the complaint filed by present
petitioners against him under Section 138 of the
Negotiable Instruments Act are libellous, as what had
occurred is:-
[a] Complaint constitutes publication of
the text therein.
[b] Text of the complaint itself was
defamatory.
4. Learned Adv., for the petitioners had read out
to the Court the text of the complaint. The text of the
complaint under Section 138 of the Negotiable Instruments
Cri. Appln. No.53/2011
Act, which, according to the complainant, constituted
defamation, has been reproduced in the private Criminal
Complaint Case No. 649 of 2008.
5. All that is seen by this Court is that what is
averred is discovery of existence of debt and failure to
pay the amount.
6.
Learned Adv. Mr. Ruikar has once again took the
Court through the contents of the private complaint case
discreetly and threadbare.
7. It is seen that no words casting aspersions as
regards integrity, character and/or reputation of the
accused in said Section 138 case are used. It is, thus, a
clear case where the private complaint case under Section
138 of the Negotiable Instruments Act was filed in order
to vindicate the grudge as regards non-payment of dues
which the complainant had against the petitioners.
8. It is obvious that filing of a case is a
publication, however, unless contents of the pleadings
are defamatory, cognizance of a complaint under Section
500 of Indian Penal Code could not have been taken, save
and except by an error of appreciation of facts and
Cri. Appln. No.53/2011
misreading of the text which was said to be defamatory.
9. At this stage, Court gave an opportunity to
learned Adv., Mr. Ruikar for the respondent no.1-
complainant whether the complainant would like to
withdraw the complaint. He says, he has no instructions
to withdraw the complaint.
10. Reading
ig of Judgment of the Revisional Court
gives an impression that Revisional Court was
unnecessarily dragged into the exercise of going through
the evidence recorded at the stage of verification etc.
For the purpose of testing as to whether contents of
complaint were defamatory, nothing, except text of
complaint was required to be seen.
11. It is evident from the Judgment that the
Revisional Court was dragged in this strenuous exercise,
mostly because the cause was argued vexatiously and
pesteringly than mannerfully and persuasively.
12. It appears that the learned Sessions Judge
practically fell prey to the pestered arguments akin to
browbeating. The learned Sessions Judge probably thought
that it was good to be on safer side to dismiss the
Cri. Appln. No.53/2011
Revision Application and be exertive in writing an
unnecessarily long judgment to justify an erroneous view.
He probably thought that it was safe to be wrong than to
be correct and to be a victim of rage of a pestering
lawyer. Right course would have been to quash the issue
of process.
13.
It is a clear case where the present petitioners
are being unduly vexed and, therefore, the petitioners
deserve to be awarded costs in token, for being dragged
right from the Trial Court, Revisional Court and this
Court.
14. Considering approach and attitude of the
complainant, it is a fit case where exemplary costs
require to be awarded. However, instead of losing
further time, it is better to award token costs.
15. In the result, this petition succeeds. Hence
following order:-
[a] Rule is made absolute in terms of Prayer
Clause [1].
[b] Criminal Complaint Case No. 649 of 2008 is
quashed and set aside.
[c] Petitioners are entitled to and the
Cri. Appln. No.53/2011
respondent no.1 shall pay costs which are
quantified at Rs.10,000-00 [rupees ten
thousand only] as token, which be recovered
by the applicants, equally divided in
accordance with law.
JUDGE
-0-0-0-0-
|hedau|
