Vijay Kasar vs Smt.Sushma Alias Vinita And Ors
2021 Latest Caselaw 2740 Chatt

                                         1

                                                                          NAFR

                   HIGH COURT OF CHHATTISGARH, BILASPUR

                        Acquittal Appeal No. 129 of 2009
                       Judgment reserved on 21.09.2021
                       Judgment delivered on 08.10.2021

        Vijay Kasar, S/o, late Shri Chhotelal Kasar, Aged about 32 years,
        Occupation - Advocate, R/o, Temerpara, Durg (C.G.)
                                                  ---- Petitioner/Complainant
                                      Versus
        1. Smt. Sushma alias Vinita, W/o, Vinod Kumar Tamrakar, S/o late
        Shri Shivnarayan Kasar, Aged about 35 years, R/o, Gandhibagh,
        Jalalpura, Sharda Chowk, In front of Flag, Nagpur, (Maharashtra)
        Presently R/o, Santosh Sathya (Kasar), Urla Road, Gaya Nagar, Durg
        (C.G.)

        2.     Santosh Sathya (Kasar), S/o, Late Shri Purshottam Lal, Aged
        about 38 years, R/o Sathya Niwas, Urla Road, Gaya Nagar, Durg
        (C.G.)
                                                 ----Respondents/Accused

  For Petitioner               : Mrs. Fouzia Mirza, Senior Advocate
                                  assisted by Mr. Naveeh Shukla, Advocate.
  For Respondent              : Mr. Dashrath Kushwaha, Advocate on behalf
                                 of Mr. P.K. Patel, Advocate.


                    Hon'ble Shri Justice N.K. Chandravanshi
                            JUDGMENT [C.A.V.]

(1)   This appeal has been preferred against the judgment of acquittal dated

13.02.2009 passed by Judicial Magistrate, First Class, Durg in Complaint Case No.

439/08 whereby respondents/accused have been acquitted of the charge under

Section 500 of the Indian Penal Code (henceforth "the IPC").


(2)   Facts

of the case, in brief, are that appellant/complainant filed compliant case

under Sections 193, 196 & 500 of the IPC against the respondents/accused before

Chief Judicial Magistrate, Durg stating that respondent No. 1 had filed MJC Case

No. 157/98 against her husband to grant her maintenance under Section 125 of the

CrPC. In that case, appellant/complainant, being an Advocate, defended her

husband, thereafter, respondent No. 1/accused filed another complaint being

Complaint case No. 368/98 under Sections 494, 498, 323, 506-A of the IPC before

the Judicial Magistrate, First Class, Durg against her husband and his family

members. In that case, respondent No. 1 malafidely impleaded appellant/complaint

and his mother & brother only because appellant had defended her husband in the

aforesaid maintenance case. In Complaint Case No. 368/98, she has falsely

implicated the appellant/complainant and given false statement before the Court

that appellant was part of second marriage of Smt. Gayatri (Accused No. 4) and

they are her relatives whereas neither they are relatives of Smt. Gayatri nor they

have performed her second marriage, thereby, she has fabricated false evidence.

Complaint case No. 368/98 had been registered against accused persons including

appellant and his mother & brother also. On being summoned by the Court, they

appeared and filed their preliminary objection against the registration of the case

against appellant and his mother & brother. Their preliminary objection was allowed

by the Judicial Magistrate, First Class, Durg and vide order dated 26.5.1999, they

were discharged from the complaint Case No. 368/98. Revision preferred against

that order was also dismissed by Third Upper Sessions Judge, Durg vide order

dated 4.12.1999.

(3) Thereafter, the appellant/complainant filed present Criminal Complaint Case

No. 439/08 stating that since respondent No. 1 had created and given false

evidence against him in complaint case No. 368/98 and respondent No. 2/accused,

who is brother-in-law of respondent No. 1, had commented knowingly on the

profession of the appellant/complainant that since in the case of maintenance filed

by her sister in law (respondent No. 1), appellant/complainant had defended her

husband, therefore, they have pulled them [appellant & his mother & brother] in the

court and now his advocacy will be ruined and colour of his coat would be fade.

Due to false complaint filed and false statement given in the Court by respondent

No. 1 and also statement made by respondent No. 2 between member of their

society, appellant/complainant was insulted in his Society and his reputation

between his colleagues and society was tarnished and thereby

respondents/accused defamed his social and professional status.

(4) Learned trial Court, after registering the complaint case No. 439/2008 filed by

the appellant/complainant under Section 500 of IPC, summoned the respondents,

substance of accusation under Section 500 of IPC was read and explained to the

respondents/accused, which they denied by stating that they have been falsely

implicated in the Case. Respondents were examined under Section 313 of the

Code, in which, they denied circumstances appearing against them and pleaded

innocence and false implication. The respondent No. 1/accused has also stated that

complaint case (No. 368/98) filed by respondent No. 1 has not been decided yet,

therefore, this case is not maintainable being a premature case.

(5) In order to prove the guilt of respondents/accused, the appellant/complainant

has examined as many as 4 witnesses whereas respondents/accused have not

examined any witness in support of their defence.

(6) After hearing learned counsel for the parties, vide impugned judgment dated

13.02.2009, learned Judicial Magistrate, First Class, Durg held that the

appellant/complainant has not proved his case beyond reasonable doubt, therefore,

the respondents/accused have been acquitted of the charge under Section 500 of

IPC by extending the benefit of doubt. Hence, this revision.

(7) Learned counsel for the appellant/complainant would submit that respondent

No. 1 has field criminal complaint case No. 368/98 against the appellant/complaint

only because he has defended her husband in the case of maintenance under

Section 125 of the Code, in which, he and his mother & brother were discharged by

the Court below. She further submits that filing of aforesaid criminal complaint

against the appellant itself amounts to defame him, maline him and to tarnish his

reputation in the Society and lower the estimation as a lawyer in public. She further

submits that respondent No. 1 has not only falsely stated in her complaint that

appellant/complainant was part of second marriage of Gayatri (accused No. 4),

which was solemnized with her husband but such fact had also been stated by her

in the court statement and respondent No. 2 has stated between the member of

their society that since appellant has defended husband of respondent No. 1,

therefore, they have pulled him in the court case, and his advocacy will be ruined

and colour of his black coat would be fade. Aforesaid facts have been proved by

appellant/complainant and his witnesses also, despite that learned court below

without appreciating those evidence properly, acquitted the respondents/accused of

the charge under Section 500 of IPC. She placed reliance upon the judgment of the

Supreme Court in the matter of Sahib Singh Mehra v. State of U.P.1, Sukra Mahto

v. Basudeo Kumar Mahto and another 2 and M.A. Rumugam v. Kittu @

Krishnamoorthy3 in support of her submissions.

(8) Per contra, learned counsel for the respondents while supporting the

impugned judgment would submit that the impugned judgment is based on well

reasoned evidence, which does not call for any interference by this Court.

(9) I have heard learned counsel for the parties and perused the material

available on record of court below including impugned judgment with utmost

circumspection.

(10) Complainant - Vijay Kasar (CW-1) has stated in his deposition that in

complaint (Ex.P-1) case filed by respondent No. 1, she has contended that her

husband - Vinod Kumar has solemnized second marriage with Gayatri with support

of appellant and his family members. She has also falsified these facts in her court

statement (Ex.P-2). Since they have falsely impleaded in that case, therefore, on

being preliminary objection filed by them, they were discharged and the case was

dismissed against them vide order dated 26.5.1999 (Ex.P-4), which was upheld by

Third Upper Sessions Judge, Durg vide order dated 4.12.1999 (Ex.P-6). He has

further stated in his deposition that on the death of his relative, several persons of

their society were appeared where in front of them, respondent No. 2 had stated

that since he (appellant) defended husband of his sister-in-law (respondent No. 1) in

the case, he has pulled him in the Court and, therefore, his advocacy will be ruined 1 AIR 1965 SC 1451 2 AIR 1971 SC 1567 3 JT (2008) 11 638

and colour of his black coat would be fade. He has also stated that due to false

implication in the complaint case by respondent No. 1 and false statement made by

her in that case and defamatry statement made by respondent No. 2, his reputation

in the Society was tarnished and also his social status and professional status was

maline in front of his friends, colleagues and social members and thereby he got

defamed.

(11) Basant Kasar (CW-2), who is cousin brother of complainant, has supported

the statement made by complainant Vijay Kasar (CW-1). He has also stated that

respondent No. 2 has made aforesaid statement in his presence.

(12) Neeraj Choubey (CW-3) & S. Mirza (CW-4), who are colleague advocates of

appellant/complainant - Vijay Kasar (CW-1), have stated in their statement that due

to complaint filed by respondent No. 1, reputation of appellant/complainant got

reduced in their mind. They have also stated about the alleged comment made by

respondent No. 2 against the appellant/complainant.

(13) Statements of Vijay Kasar (CW-1) and his brother Basant Kasar (CW-2)

would show that both the parties are of same community and resident of same place

i.e. Durg. Aforesaid facts show that Vinod Kumar Tamrakar, who is husband of

respondent No. 1, performed second marriage with Gayatri Bai. As per deposition

of Vijay Kasar (CW-1), respondent No. 1 had contended in her complaint and

deposed in her court statement that her husband has performed second marriage

with help of him and his relatives. This fact does not seem defamatory because

such things generally happens in the life of a common man and people say / talk

about it. Ordinarily marriage takes place with someone's help, therefore, saying

such fact could not seem to be defamatory. As per explanation 4 of Section 499 of

of the Cr.P.C. any word spoken or written would not be defamatory unless it has

been done with an intention to harm the reputation of such person, which has not

been proved in this case.

(14) So far as alleged comment made by respondent No. 2 is concerned,

deposition of Vijay Kasar (CW-1) shows that alleged comment was not made in

presence of him, whereas his cousin brother Basant Kumar (CW-2) has stated in his

deposition that respondent No. 2 had stated in front of him and other society

members that he will pull the complainant and his family members in the Court and

ruine his advocacy because he had represented husband of his sister-in-law in the

case. Aforesaid statement of Basant Kasar (CW-2) shows that when alleged

statement was made by respondent No. 2, complaint case against the appellant and

his family members was not filed whereas, as per deposition of Vijay Kasar (CW-1)

when the comment was made by respondent No. 2 till that complaint case had been

filed. This contradiction creates doubt in truthfullness regarding making of alleged

comment by respondent No. 2. It is doubtful also because the alleged comment has

not been made in presence of appellant/complainant Vijay Kasar himself and as per

his statement, it was made in presence of Jagdish, Leela, Sanjay Verma and other

society members but he has not stated that at that time, his cousin brother Basant

Kasar (CW-2) was also there. If the alleged comment would have been made in

presence of Bansant Kasar (CW-2), then complainant - Vijay Kasar (CW-1) would

have stated about his presence in his statement.

(15) To prove the aforesaid fact, appellant/complainant should have examined

independent witnesses of their Society, who were present at the time of making of

alleged comment but such independent witnesses have not been examined. Other

two witnesses i.e. Neeraj Choubey (CW-3) and S. Mirza (CW-4) are hearsay

witness, therefore, their statements in this regard do not have any evidentiary value.

(16) The aforesaid factual discussion would show that alleged comment had not

been made by respondent No. 2, in presence of appellant/complainant Vijay Kasar

(CW-1) and making of such comment in presence of his brother Basant Kumar

(CW-2) is not found reliable. None of the independent witnesses have been

examined by the complainant in this regard, therefore, making of such comment by

respondent No. 2 has not been proved in this case.

(17) Appellant/complainant - Vijay Kumar (CW-1) is an Advocate by profession.

He has not stated anything in his statement that due to alleged case filed by

respondent No. 1 and alleged comment made by respondent No. 2, although it has

not been proved, his profession of advocacy had got any negative effect and any

clients have taken back his case/brief from him whereas he has admitted in his

cross examination that he is doing his profession/work after getting discharge from

the case also and he has been appointed as Government Advocate also and getting

respect of that post.

(18) Since making of defamatory statement and comment by

respondents/accused against the appellant has not been proved in this case,

therefore, in the fact situation, judgments cited by the leanred counsel for the

applicant do not helpful to the applicant in this case.

(19) Filing of complaint case No. 368/98 by respondent No. 1 impleading him as a

party may be a case of civil liability against respondent No. 1 but it does not found to

be a case of criminal defamation. Thus, I do not find any infirmity or illegality in the

impugned order acquitting the respondents of the offence under Section 500 of IPC.

(20) As a fallout and consequence of the aforesaid discussion, acquittal appeal,

being devoid of substance, is liable to be and is hereby dismissed.

Sd/-

(N.K. Chandravanshi) Judge D/-