Bombay High Court
Kodibettu Keshava Prabhu S/O Lt. ... vs The State Of Mah. Thr. P.S.O., P.S. ... on 27 October, 2016
Bench: I.K. Jain
1 judg. apl 34.11.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Application (APL) No.34 of 2011
Mr. S.R. Sakhalkar s/o Rajaram B. Sakhalkar,
Aged 72 years, Occ.-Retired Company Executive,
R/o. B/1, 405, Kanchanjanga Lok Everest
Co-op. Housing Society Ltd., J.S. Dosa Road,
Mulund (West), Mumbai-80. .... Applicant
Versus
1] The State of Maharashtra,
through Police Station Officer,
Police Station Nandgaon (Khandeshwar),
District Amravati.
2] Suresh C. Jain,
Aged about 60 years, Occ.- Business,
R/o.-C/1, 1106, Kanchanjanga Lok Everest
Co-op. Housing Society Ltd., J.S. Dosa Road,
Mulund (West), Mumbai-80.
Also C/o Suresh Jain Milk Dairy,
Nandgaon Khandeshwar, District Amravati
(address as stated in the cause title of
the complaint). .... Respondents.
Mr G.M. Shitut, Advocate for applicant.
Mr A.V. Palshikar, Additional Public Prosecutor for State.
None for respondent no.2.
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2 judg. apl 34.11.odt
And
Criminal Application (APL) No.35 of 2011
Mr. G. Krishnan s/o Lt. A.T. Goviondan,
Aged 53 years, Occ.-Chartered Accountant,
R/o. C/1, 503, Kanchanjanga Lok Everest
Co-op. Housing Society Ltd., J.S. Dosa Road,
Mulund (West), Mumbai-80. .... Applicant
Versus
1]
The State of Maharashtra,
through Police Station Officer,
Police Station Nandgaon (Khandeshwar),
District Amravati.
2] Suresh C. Jain,
Aged about 60 years, Occ.- Business,
R/o.-C/1, 1106, Kanchanjanga Lok Everest
Co-op. Housing Society Ltd., J.S. Dosa Road,
Mulund (West), Mumbai-80.
Also C/o Suresh Jain Milk Dairy,
Nandgaon Khandeshwar, District Amravati
(address as stated in the cause title of
the complaint). .... Respondents.
Mr G.M. Shitut, Advocate for applicant.
Mr A.V. Palshikar, Additional Public Prosecutor for State.
None for respondent no.2.
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3 judg. apl 34.11.odt
And
Criminal Application (APL) No.36 of 2011
Mr. Laxmidas s/o Gopaldas Thakkar,
Aged 83 years, Occ.-Social Activist,
R/o. C/2, 502, Kanchanjanga Lok Everest Co-op.
Housing Society Ltd., J.S. Dosa Road,
Mulund (West), Mumbai-80. .... Applicant
Versus
1]
The State of Maharashtra,
through Police Station Officer,
Police Station Nandgaon (Khandeshwar),
District Amravati.
2] Suresh C. Jain,
Aged about 60 years, Occ.- Business,
R/o.-C/1, 1106, Kanchanjanga Lok Everest
Co-op. Housing Society Ltd., J.S. Dosa Road,
Mulund (West), Mumbai-80.
Also C/o Suresh Jain Milk Dairy,
Nandgaon Khandeshwar, District Amravati
(address as stated in the cause title of
the complaint). .... Respondents.
Mr G.M. Shitut, Advocate for applicant.
Mr A.V. Palshikar, Additional Public Prosecutor for State.
None for respondent no.2.
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4 judg. apl 34.11.odt
And
Criminal Application (APL) No.37 of 2011
Sundar s/o Gopal Poojari,
Aged 63 years, Occ.-Retired Company Executive,
R/o. C/1, 1202, Kanchanjanga Lok Everest Co-op.
Housing Society Ltd., J.S. Dosa Road,
Mulund (West), Mumbai-80. .... Applicant
Versus
1]
The State of Maharashtra,
through Police Station Officer,
Police Station Nandgaon (Khandeshwar),
District Amravati.
2] Suresh C. Jain,
Aged about 60 years, Occ.- Business,
R/o.-C/1, 1106, Kanchanjanga Lok Everest
Co-op. Housing Society Ltd., J.S. Dosa Road,
Mulund (West), Mumbai-80.
Also C/o Suresh Jain Milk Dairy,
Nandgaon Khandeshwar, District Amravati
(address as stated in the cause title of
the complaint). .... Respondents.
Mr G.M. Shitut, Advocate for applicant.
Mr A.V. Palshikar, Additional Public Prosecutor for State.
None for respondent no.2.
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5 judg. apl 34.11.odt
And
Criminal Application (APL) No.38 of 2011
Mr. Kodibettu Keshava Prabhu s/o Lt. Hariyappa Prabhu,
Aged 62 years, Occ.-Retired Company Executive,
R/o. C/1, 1105, Kanchanjanga Lok Everest Co-op.
Housing Society Ltd., J.S. Dosa Road,
Mulund (West), Mumbai-80. .... Applicant
Versus
1]
The State of Maharashtra,
through Police Station Officer,
Police Station Nandgaon (Khandeshwar),
District Amravati.
2] Suresh C. Jain,
Aged about 60 years, Occ.- Business,
R/o.-C/1, 1106, Kanchanjanga Lok Everest
Co-op. Housing Society Ltd., J.S. Dosa Road,
Mulund (West), Mumbai-80.
Also C/o Suresh Jain Milk Dairy,
Nandgaon Khandeshwar, District Amravati
(address as stated in the cause title of
the complaint). .... Respondents.
Mr G.M. Shitut, Advocate for applicant.
Mr A.V. Palshikar, Additional Public Prosecutor for State.
None for respondent no.2.
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6 judg. apl 34.11.odt
And
Criminal Application (APL) No.44 of 2011
Mr. Puthuserry Chakkapan Anthony s/o
Lt. Chakkapan Puthussery,
Aged 57 years, Occ.-Professor,
R/o. B/1, 1103, Kanchanjanga Lok Everest Co-op.
Housing Society Ltd., J.S. Dosa Road,
Mulund (West), Mumbai-80. .... Applicant
igVersus
1] The State of Maharashtra,
through Police Station Officer,
Police Station Nandgaon (Khandeshwar),
District Amravati.
2] Suresh C. Jain,
Aged about 60 years, Occ.- Business,
R/o.-C/1, 1106, Kanchanjanga Lok Everest
Co-op. Housing Society Ltd., J.S. Dosa Road,
Mulund (West), Mumbai-80.
Also C/o Suresh Jain Milk Dairy,
Nandgaon Khandeshwar, District Amravati
(address as stated in the cause title of
the complaint). .... Respondents.
Mr G.M. Shitut, Advocate for applicant.
Mr A.V. Palshikar, Additional Public Prosecutor for State.
None for respondent no.2.
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7 judg. apl 34.11.odt
Coram : Kum. Indira Jain, J.
Date of reserving judgment : 19-10-2016.
Date of pronouncement : 27-10-2016.
J U D G M E N T [Per 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,
8 judg. apl 34.11.odt
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
9 judg. apl 34.11.odt
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
10 judg. apl 34.11.odt
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
11 judg. apl 34.11.odt
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]
(b) S. Khushboo v Kanniammal and
another[(2010) 5 SCC 600]
12 judg. apl 34.11.odt
(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]
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 the 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
13 judg. apl 34.11.odt
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
14 judg. apl 34.11.odt
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
15 judg. apl 34.11.odt
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
16 judg. apl 34.11.odt
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
17 judg. apl 34.11.odt
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
18 judg. apl 34.11.odt
process are hereby quashed and
set aside.
(c) No order as to costs.
(d) Rule is made absolute in the aforesaid
terms.
JUDGE
Deshmukh
