M.C. Chaturvedi vs R.K. Chaturvedi
1990 Latest Caselaw 559 Del

JUDGMENT

V.B. Bansal, J.

(1) M.C. Chaturvedi has filed this petition under Section 482 of the Code of Criminal Procedure (for short Criminal Procedure Code .) praying that the complaint field by R.K. Chaturvedi respondent herein against him for the offences under Sections 499/500 Indian Penal Code pending in the court of Shri P.D. Jarwal, Metropolitan Magistrate, Delhi may be quashed.

 (2) Briefly stated the facts leading to the filing of this petition ate as under :    M.C.Chatnrvedi petitioner is the elder brother of R.K. Chaturvedi respondent (hereinafter referred to us the complainant. They have two sisters, namely, Smt. Bachi DeviandSmt.PadmaPaBdey. Their father ShriJagdish Pershad -was the owner of house No 11-A/I 6 Western Extension Area, Karol Bagh, New Delhi. Held on 18/7/1979.  

 (3) Disputes arose between the petitioner and the complainant over the partition of the property left by their father. Accordingly the complaintant filed s suit being No. 1242 of 1981 for partition and rendition of accounts " against the petitioner and his two shteri.  

 (4) The following averments were made by Ramakant Chaturvedi complainant in paragraph 6 of the plaint:-    "THAT the defendant No. 1 was requested by the plaintiff on a number occasions to effect partition of all the properties left by their late father Sh. Jagdish Pershad and to render and faithful accounts. The defendant No. 1 has, however, been avoiding to render true and faithful accounts of the properties and assets left by late Shri Jagdish Pershad".  

 (5) A written statement verified on 26th August, 1982 wa(r) filed Uf the petitioner in the aforesaid suit.  

 (6) The reply to para 6 of the plaint is 'contained in para 11 of the written statement which reads as onder:-    "THAT the contents of para 6 of the plaint as stated are incorrect andi aredenied. There was no question of effecting partition of the properties left by their late father and they were to be administered as according to the Will of their revered father. As a matter of fact, the plaintiff bad come to know that he is not getting any property under the Will and as such in order/to terrorize the answering defendant the plaintiff bad been threatening harrassing. in various forms and had even gone to the extent of  giving physical threats to the' answering defendant. The answering defendant is working in the Parliament House and as he has to remain out for his official duties from 10 A.M. to 6 P.M. an an attempt was also made to kidnap the son of the answering defendant by the plaintiff and it may be mentioned that the answering defendant has only one son. The plaintiff has misused his authority as a court Ahalmad in the lower courts and as Such it had become his regular practice to come daily drunk in the bough accompanied with bad characters and would pressurise the answering defendant by showing the force of the revolver and the gun. Wife of the answering defendant had also been humiliated gird threatened hi the like manner and accordingly the answering defendant did not have his perfect mental control and he was so much terrorised by the plaintiff that be could not find any way to solveit. He reported this matter to various people, especially in the family and amongst friends and all of them tried to help and intervene and the responsible and wrong behavior of the plaintiff prevented every one. The answering defendant, however, never accepted to effect the partition of the property nor be was legally capable to do so."  

(7) R.K. Chaturvedi complainant filed a complaint dated 30th October, 1982 in the court of Shri P.D. Jarwal, Metropolitan Magistrate, Delhi for trial of M C. Chaturvedi accused petitioner for the offenses under Sections 499/500 Indian Penal Code It was, into alia, claimed by the complainant that his brother R.K. Chaturvedi gave a copy of the written statement of the aforesaid case to S.P.Kumar s/o Shri S.L Kumar asking him specifically to go through para 11 of the written statement and that the aforesaid S.P. Kumar told him that be should not have stopped so low having litigation with his real elder brother. It was, thus, alleged that his brother gave copy of the written statement a printed matter to S P. Kumar levelling false allegations against his character and, thus, the accused petitioner has lowered the esteem of the complainant in the eyes of his friends and other members of the society. It was also alleged that similarly a copy of this written statement was given by, the complainant petitioner to G.S. Bunker. his another friend which was a deliberate attempt at his back to lower the esteem of the complainant in the eyes of his friends and thus, has committed an offence punishable under Sections 500 IPC.

(8) In support of his complaint R.K-Chaturvedi appeared as Public Witness l and examined G.S Bunker (Public Witness 2). The petitioner was summoned to face trial for the offence under Section 500 Indian Penal Code, vide order dated 22nd January, 1983.

(9) I have heard Sbri Arvind Kumar, learned counsel for the petitioner and Shri K.K.Sud, learned counsel for the respondent. I have also gone through the record.

(10) Learned counsel for the petitioner has submitted that whatever facts were mentioned by the petitioner in the written statement they have been correctly stated and the civil suit being still pending it was not permissible for the petitioner to have filed a complaint in respect of the facts. stated in the written statement He has further submitted that the matter is yet to be adjudicated upon by the civil court and in case the allegations are found to be incorrect it would be open for the court to file a complaint against the petitioner for giving false evidence in any stage of the judicial proceedings or fabricating false evidence in terms of Section 193 Criminal Procedure Code . He has also submitted that there is a complete bar to the taking of a cognizance of such an offence in view of Section 195 Cr P.C. He has also submitted that. in any case the petitioner is saved by exception 9 to Section 499 Indian Penal Code since he has stated the facts in good faith believing them to be correct.

(11) These submissions have been controverter by learned counsel for the respondent who has also submitted that- the petitioner has committed the the offence of defamation independently of what be has alleged in the written statement and there is no bar to the complaint being proceeded further.

(12) After giving my thoughtful consideration to these submission I have no hesitation in coming the conclusion that this petition has no force- and there is nothing wrong in the complaint being proceeded further in accordance with law.

(13) There is no doubt initially the allegations against the character of the complainant have been made by the petitioner only in the written statement filed in the High Court in the suit instituted against him by the complaint: It has, inter alia, been pleaded by the petitioner that "the com- plainant has misused his authority as a court Ahlmad in the lower courts and as such it has become his regular practice to come daily drunk in the house accompanied with bad characters and would pressurise the answering defendant by showing the force of the revolver and the gun". It was also alleged that "an attempt was also made to kidnap the son of the answering defendant by the plaintiff and ft may be mentioned that the answering defendant has only one son". Had it been a case of the complainant that making these allegations which are false he has been defamed by the petitioner there could have been force in the submission of learned counsel for the petitioner that no separate complaint could have been filed though this is also not free from doubt. However, in the instant case it has specifically been alleged and stated by the complainant that copies of this written statement containing aforesaid allegations were supplied by him to S.P. Kumar and G.S. Boonkar .and, thus, material defamatory to the complainant was circulated among bids friends and be was lowered in the eyes of his friends. While deciding the question of issuing process under Section 204 Cr.P C.all that is required to be determined by the court is as to whether there sufficient grounds to proceed further. It is not, thus, power of the magistrate- at. this stage to hold an enquiry to the effect as to whether there would be sufficient material for the conviction of an accused. The moment magistrate finds grounds for pro- ceding further and that the allegations made in the complaint appear to be- intrinsically true be has perhaps no option but to proceed further by way of issuing process for the summoning of the accused. The question as to whether the accused petitioner is covered by an exception will have to be decided only on production of the material evidence on record by the accused In order to succeed in bringing his case within Exception 9(2) of Section 499 of the Indian Penal Code the petitioner will have to show that the imputation was made by him in good faith and it was made for the protection of his interest or for the public good. Reference in this 'regard can also be made to the case Goya Ram and other v. Smt. Shami and another Indian Law) Reports 1971 M D. 373. I am conscious of the fact that it is not permissible- for a complainant to split up the offences so as to avoid the provisions of Section 195 Criminal Procedure Code .under which no court can take cognizance for making of a complainant in writing by a public servant. The mere fact that the civil suit is still pending and evidence is yet to be recorded can, in my view, be not a ground to bold that there was no ground for the magistrate to proceed further in the complaint in which the offence of defamation is claimed to have been committed by the petitioner-accused. It is an independent action of the petitioner-accused of banding over copy of his written statement and. specifically pointing out to others the allegations, against the Complainant alleging that be was drunkard also. Strong reliance was placed by learned- counsel fort the petitioner on Kallumatam Gurubasayya v. Sanna Setra Siddalingappa Air 1940 Madras 677. In the said case complaint for an offence under Section 500 Indian Penal Code was based on averments made in the com- plaint in a suit for partition and recovery of shares of the vendors of the accused. It was held that in such a case a complaint by the court is necessary for a prosecution for an offence under. Section 193 and that the parties cannot be permitted to evade that provision of law by filing a complaint of- defamation. The facts of this case are entirely different and in the instant case there is a specific allegation of the publication of the defamatory state- ment by the complaintant to his friends and the friends of the complainant so as to lower him in the esteem of others.

(14) A number of judgments were cited by learned counsel for the petitioner to the effect that provision of Section 195 Criminal Procedure Code . cannot be by- passed and separate complaint cannot be made in respect of the offences under Sections 198 to 199 Indian Penal Code Those cases are, however, distinguishable and not applicable to the facts of the present case and so it is not necessary to refer to the said cases.

(15) In the in.stant case the complainant has initiated criminal proceedings complaining of reckless allegations made by the accused-petitioner affecting his reputation The learned Metropolitan Magistrate has come to the conclusion that a prima facie case for summoning of the accused has been made out on the basis of the statement of the complainant and one witness. It is based on the allegations contained in the written statement copies of which are stated to have been banded over by the accused to two different persons who are friendly to wards both the parties. The complainant. thus, has made an effort to save his reputation and no case has been made for interference by this Court in the impugned order.

(17) As a result, the petition stands dismissed. Parties are directed to appear before the concerned court on 7th January, 1991.