Advocate For vs App For
2013 Latest Caselaw 172 Bom

                                               1                       APPLICATION 2513.13.odt


            IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                             BENCH AT AURANGABAD




                                                                             
                 CRIMINAL APPLICATION NO. 2513 OF 2013




                                                     
                    GOVIND ARJUNDAS ARTANI 
                             VERSUS
                BHASKAR KASHIRAM CHAUDHARI 




                                                    
                                 ...
              Advocate for Applicant : Mr. L.B. Palod  
               APP for Respondent 2 : Mr.V.P.Kadam
             Mr.D.B. Thoke advocate For Respondent 1 




                                       
                                 ...
                   CORAM : ABHAY M. THIPSAY, J.

Dated: November 20, 2013 ...

ORAL ORDER :-

1. Heard. By consent, admitted and taken up for final

hearing forthwith.

2. The applicant is the accused in SCC No.350/2012

registered in the Court of Judicial Magistrate First Class, Yawal

District Jalgaon. The case arises on a complaint filed by the

respondent herein. After examining the respondent on oath, the

learned Magistrate found that there were sufficient grounds for

proceeding against the applicant with respect to the offence

punishable under section 500 of the Indian Penal Code and

issued process accordingly. The applicant is aggrieved by the

2 APPLICATION 2513.13.odt

order issuing process and his prosecution with respect to the

offence punishable under section 500 of the Indian Penal Code

and has approached this Court invoking its inherent powers

praying that the order issuing process as well as the proceedings

of the said case be quashed.

3. I have gone through the application and the annxures

thereto.

4. A perusal of the complaint filed by the respondent

shows that the allegation that the respondent was defamed by the

applicant, is based on the following :-

That, the applicant had filed a criminal

complaint bearing case No.300/2003 with respect to the offence punishable under

section 138 of the Negotiable Instruments Act. That, in the said case, the respondent was prosecuted as one of the

accused on the basis that he was a Director of the company which was the main accused in the said case. That, actually

the respondent was only a nominal director and was not in-charge of the business of the said company. That, he had not signed the cheque in question, but inspite of there being no involvement of the respondent, the applicant had

3 APPLICATION 2513.13.odt

unnecessarily made him an accused in the said case. That, ultimately, the

respondent was acquitted by the Magistrate. However, the case proceeded

for about seven years which caused tremendous hardship to the respondent. That, the respondent was made to attend on

all dates of the case and therefore, suffered physically, mentally and financially. That, because of the case

the reputation of the respondent was affected and the respondent was lowered in

the esteem of the society. That, the applicant had settled with some of the

other accused in the said case, but had maliciously prosecuted the respondent with intention of defaming him.

5. It is clear from the averments made in the complaint

and the order passed by the learned Magistrate that defamation

is said to have been committed by the act of prosecuting the

respondent. There is no other allegation i.e. there is no claim

that the respondent was defamed by the applicant in any other

manner.

6. The offence of defamation has been defined in Section

499 of the IPC. It involves publication of a false statement about a

4 APPLICATION 2513.13.odt

man to harm his reputation or discredit him without any lawful

excuse therefor. It requires making of an imputation by words -

spoken or intended to be read, - or by making signs or visible

representation, and publishing such imputation with the requisite

intention, belief or knowledge, as mentioned in Section 499 of the

IPC. Whether the offence of defamation can be committed without

any words - spoken or written - or without any signs or visible

representation, does not appear to be entirely free from doubt.

However, even if a wider interpretation is given to the provisions of

Section 499 of the IPC, and it is held that defamation can be

committed by acts which do not involve any spoken or written

words, or signs, or visible representations, still, in the present

case, it is impossible to hold that a prima facie case had been

made out against the applicant.

7. Admittedly, the respondent was a Director of the

company which was prosecuted vide the criminal case No.

300/2003. It was the defence of the respondent that he was not

liable for the acts of the accused company. Admittedly, process

was issued by the learned Magistrate against the respondent

5 APPLICATION 2513.13.odt

which indicates satisfaction of the Magistrate about existence of a

prima facie case against the respondent. The learned counsel for

the respondent informs me that the respondent did not challenge

the issue of process against him and faced the trial.

8. It is also significant that there is no allegation that the

respondent has committed any offence of giving false evidence, or

of fabricating false evidence. No prayer was made before the

Magistrate who dealt with the case wherein the respondent was

prosecuted, that action should be taken against the applicant for

giving or fabricating false evidence.

9. Thus, it is only by the act of prosecuting the

respondent, that the defamation is alleged to have been committed

by the applicant, and there is no allegation of the defamation

having been committed in any other manner. It is not possible to

hold that the act of prosecuting the respondent with respect to an

offence punishable under section 138 of Negotiable Instruments

Act per se amounted to defamation of the respondent. If the

respondent was maliciously prosecuted as claimed by him, it

would be open for him to claim damages from the applicant by

6 APPLICATION 2513.13.odt

adopting appropriate civil proceedings.

10. The fact remains that there were no sufficient grounds

for proceeding against the applicant with respect to the offence

punishable under section 500 of the Indian Penal Code. The

complaint did not make out any such case. Consequently, the

order issuing process is bad in law. The prosecution of the

applicant, under the circumstances, cannot be permitted to be

continued.

11. The application is allowed.

The order issuing process as passed by the Magistrate

is quashed. The complaint shall stand dismissed.

12. The application is disposed of in the aforesaid terms.

In the circumstances, there shall be no order as to costs.

sd/-

( ABHAY M. THIPSAY ) JUDGE.

...

aaa/-