Champalal S/O Ramlalji Khatri And ... vs Sohit Khatri And Others
2022 Latest Caselaw 1308 Bom

                                                       1                                  910.REVN.129-2020.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

       CRIMINAL REVISION APPLICATION (REVN) NO. 129 OF 2020
                          ( Champalal s/o Ramlalji Khatri & Anr.
                                           Vs.
                                  Sohit Khatri & Ors. )

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Ms. M.J. Kulkarni, Advocate for the Applicants.
                                  Mr. N.B. Kalwaghe, Advocate for the Non-applicant Nos. 1 & 2.
                                  Mr. S.M. Ghodeswar, A.P.P. for the Non-Applicant No.3/State.



                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 8th FEBRUARY, 2022.

Hearing was conducted through Video Conferencing and the learned counsel agreed that the audio and visual quality was proper.

2. Heard Ms. Kulkarni, learned counsel for the applicants and Mr. Kalwaghe, leaned counsel for the non-applicant Nos. 1 & 2.

3. The application challenges the judgment dated 31.10.2017 passed by the learned Sessions Court in Criminal Revision No. 49/2016, whereby challenge to the issuance of process against the present non-applicants, was accepted and the order dated 16.10.2015 passed by the learned CJM, Amravati in Criminal Complaint Case No. 117/2013 directing issuance of process against the non-applicants for the 2 910.REVN.129-2020.odt

offence punishable under Section 500 read with Section 34 of the Indian Penal Code was quashed and set aside.

4. Ms. Kulkarni, learned counsel for the applicants submits, that the impugned judgment, cannot be sustained as the learned Sessions Court, Amravati, was only required, to ascertain whether at the time of issuance of process there was an application of mind by the learned Magistrate for the said purpose. She further submits, that the learned Sessions Court has presumed incorrectly, that at the time of issuance of process the evidence has to be sifted in order to indicate an application of mind and there has to a mini trial at that stage, which is not the purport of law. She submits, that this view of the learned Magistrate can be culled out from the reasonings as contained in para 11 of the impugned judgment, wherein, the learned Sessions Court has observed that there was no prima-facie evidence to show that the revisional petitioners got managed the media people for publishing news in respect of the registration of the crime against the respondents (present applicants) with intent to defend them or have done so, in the matter of flashing of the news in the newspapers or circulation by Facebook. It is contended, that these are all matters of evidence and cannot be the fulcrum of consideration for the purpose of issuance of notice. She therefore submits, that the impugned judgment be quashed and set aside. Reliance is placed upon Fiona Shrikhande Vs. State of Maharashtra, 2013 (14) SCC 44 para 11, wherein, it has been held that at the 3 910.REVN.129-2020.odt

stage of issuance of process the learned Magistrate is merely concerned with the allegation made out in the complaint and has prima facie to satisfy himself whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to esquire into a detailed discussion on the merits or demerits of the case. Further reliance is placed upon John Thomas Vs K. Jagadessan, 2001 (6) SCC 30 , which holds, that even if the imputation as made in complaint was not per se defamatory, that by itself would not go to the advantage to the publisher, for, the complaining person can establish on evidence that the publication has in fact amounted to defamation even inspite of the apparent deficiency and the appellant cannot contend, at that stage, that he would be entitled to discharge on the ground that the imputations in the extracted publication, dated 15.06.2012 in local daily Amravati Darpan (page 39-40) as well as the circulation of the same by way of Facebook (page 43 to 46), as is indicated were not per-se defamatory. Further reliance is placed upon Pravin s/o Madhukar Nage & Anr. Vs. State of Maharashtra and Anr. Writ Petition No. 96/2019 decided on 12.06.2019 , wherein it has been held that while considering the issuance of process, the Magistrate is not expected to sift through the material on record with the object of ascertaining whether the complainant has made out a case for conviction but is only expected to consider the material on record to ascertain whether prima facie the averment in the complaint make out a case for trial. Blackburn Metals Vs. Zep Engineering Works and Ors., 4 910.REVN.129-2020.odt

2021 ALL MR(Cri) 4285, has also been relied upon to contend that the order of issuance of process cannot be faulted with for want of enquiry contemplated under Section 202 (1) of the Code of Criminal Procedure and in suitable cases the Magistrate can examine documents for satisfaction as to the sufficiency of ground for proceedings under Section 202 of the Code of Criminal Procedure.

5. Mr. Kalwaghe, learned counsel for the non-applicant Nos. 1 & 2, supports the impugned judgment and contends, that there is no material on record whatsoever for the learned Magistrate to even prima-facie to take a view regarding sufficiency of material of issuance of process. He invites my attention to the communication dated 21.02.2013, to contend that it was merely based upon a notice dated 04.12.2010 and was merely intended, to warn the tenants regarding the dispute between the trustees of Shri Ramlal Khatri Trust, inter-se and there was no intention of defaming anyone. He further contends, that the non-applicants, were in no way involved in the publication of the article in the local newspapers or for the circulation of the same on the Facebook and there was nothing on record to indicate so, considering which, the process ought not to have been issued by the learned Magistrate and the judgment of the learned Sessions Court therefore was clearly correct as it found no prima-facie material available. Reliance is placed upon Deep s/o Ramesh Saraf Vs. Dr. Murli Hanumandas Agrawal and Ors., 2017, SCC Online BOM 5 910.REVN.129-2020.odt

8494, which holds considering the order dated 10.11.2008 passed by the learned Magistrate as quoted in para 4 thereof that the same is without application of mind. Further reliance is placed upon Sharad Ramgonda Patil Vs. Shivaji Bhagwan Gaikwad, 2017 SCC Online BOM 7042, which holds that it was necessary for learned Magistrate before issuance of process to look into the matter in its entirety. Further reliance upon GHCL Employees Stock Option Trust Vs. India Infoline Ltd, (2013) 4 SCC 505, which holds that the order of the Magistrate while summoning the accused must reflect that there has been an application of mind to the facts of the case and law applicable thereto and recording of his satisfaction as to a prima facie case.

6. Perusal of the order passed by the learned Magistrate dated 16.10.2015 indicates, that he has not only gone through the complaint, the verification statement of the complainants, as well as documents produced on record but in support of the complaint one Anil Ramvilas Agrawal was also examined at Exh. 5 on 04.07.2015. It is also not in dispute, that the communication dated 21.02.2013, is admittedly issued by the non-applicant No.2, which is to all the tenants of the Trust in which prima-facie allegations have been made, that there may be misappropriation of the Trust income, which allegation is attributed to the complainants who were also trustees of the said Trust. That apart, the paper publication, in Amravati Darpan, appears to have been propagated by the non-applicant 6 910.REVN.129-2020.odt

No.1 on the Facebook, as is indicated by page 39, which shows that it is the non-applicant No.1 whose name is tagged to the same as being the propagator.

7. For the purpose of issuance of process, what is necessary as held in John Thomas (Supra), which though was a case of discharge, is that there should be an allegation contained in the complaint, regarding the offence alleged which should be prima-facie demonstrable, from the material on record. In the instant case, as indicated above, the notice dated 21.02.2013 and the propagation of the paper publication by Facebook by the non-applicants, in my considered opinion, satisfy the requirement. As rightly argued by Ms. Kulkarni, learned counsel for the applicants, at the stage of issuance of process, there cannot be a mini trial nor can the order be expected to contain a consideration of each and every document filed by the complainants vis-a-vis the allegations made in the compliant and the offence alleged. What is necessary, is that the impugned order, should make it clear that there was an application of mind, by the learned Magistrate before issuing process which considering the order dated 16.10.2015, does appear to be so. In Deep s/o Ramesh Saraf (Supra) relied upon by Mr. Kalwaghe learned counsel for the non-applicant Nos. 1 & 2, the complainants were not examined neither were the documents examined which is indicated from the observation in para 10 which speaks that the list of documents as enumerated would indicate that the 7 910.REVN.129-2020.odt

resolution dated 05.01.2002, was not placed on record nor the acknowledgment under the signature of non-applicant No.3 was produced on record to indicate that he was aware of the said resolution which was necessary considering that the accused therein were the Directors of the Company in proceedings under Section 138 of the Negotiable Instruments Act, in which, not only the Directors of the Company but the Bank Official of the Union Bank of India was also joined, in which the allegation was that, the non-applicant Nos. 1 & 2 had issued two cheques inspite of resolution dated 05.01.2002 of the Board of Directors resolving that no transactions with any Bank would take place without signatures of all the Directors. It was contended, that inspite of the said resolution the non-applicant No.1 had issued two cheques on behalf of the Company and though the Officials of the Bank was aware of the resolution, he had arrived in getting the cheques passed. It is in that context, it was held that without the said resolution dated 05.01.2002, being placed on record and the absence of anything to show that the Officials of the Bank, had been made aware of the same, the issuance of process was not justified. In my considered opinion, the case is totally different on facts and has no applicability. In GHCL Employees Stock Option Trust (Supra), it has been held, that it was necessary for the learned Magistrate to have recorded the prima-facie satisfaction regarding a case against the accused, and therefore, in absence of such a satisfaction, it was held that the order of issuance of process was incorrect. In the instant case, 8 910.REVN.129-2020.odt

the impugned order dated 16.10.2015 categorically records the prima-facie satisfaction of the learned Magistrate, for the issuance of process as indicated from the same, and therefore, GHCL Employees Stock Option Trust (Supra) is of no assistance to the argument canvassed by Mr. Kalwaghe leaned counsel for the non-applicant Nos. 1 & 2. In Sharad Ramgonda Patil (Supra) it has been held that the explanation in Section 499 of the Indian Penal Code have to be considered by the learned Magistrate, while issuing process. In my considered opinion, when the learned Magistrate is aware, that the proceedings before him, relate to an allegation under Section 499 of the Indian Penal Code and there are specific allegations regarding the defamation made by the complainants in pursuance to the actions attributed to the accused, the same would satisfy the requirement of Section 499 of the Indian Penal Code, as at that stage, it is not necessary for the learned Magistrate to deal with each and every explanation and exception to Section 499 of the Indian Penal Code in order to ascertain, whether the same is attracted or not, considering that averments were made in the complaint itself.

8. The impugned order, indicates from a perusal of para 11, that the learned Sessions Court was under the impression that the time of issuance of process itself the learned Magistrate should record his findings regarding the intent of the accused or that the accused had managed the media people which is prima-facie incorrect 9 910.REVN.129-2020.odt

in view of what has been held in Fiona Shrikhande as well as John Thomas (Supra) and also by the learned Single Judge of this Court in Pravin s/o Madhukar Nage & Anr. as at the stage of issuance of process, the learned Magistrate is not expected of sift through the material on record with the object of ascertaining whether a case for conviction has been made out and what has to be expected to be considered is the existence of a prima-facie case which may or may not result in conviction during the course of the trial.

9. Considering the above discussion, the impugned order dated 31.10.2017 passed by the learned Additional Sessions Judge, Amravati, cannot be sustained, the same is hereby quashed and set-aside with no order as to costs, and the application stands allowed as indicated above.

JUDGE SD. Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:09.02.2022 14:53