Sh. R.K. Jha vs Govt. Of Nct Of Delhi And Anr.
2007 Latest Caselaw 322 Del

JUDGMENT

A.K. Sikri, J.

Page 0860

1. By means of this petition the petitioner has invoked the provisions of Section 482 of the Code of Criminal Procedure for quashing the summoning orders dated 27.7.2002 and subsequent orders dated 19.8.2002 and 26.8.2002 passed by the learned ACMM in the complaint lodged by the respondent No. 2 (complainant herein) under Sections 500, 501 and 506 IPC. The petitioner also challenges order dated 26.10.2002 passed by the learned ASJ dismissing the criminal revision petition of the petitioner.

2. Respondent No. 2 herein is the complainant. In the complaint filed by him under Sections 500, 501 and 506 IPC, it is alleged that he was in possession of land forming part of Khasra No. 3087/1/10 and 3088/1/11 situated in village Karkardooma, Shahdara, on which he had raised the construction. He filed Suit No. 387/89 in which the Civil Court had granted injunction in his favor. During the continuance of this order the petitioner made an attempt to demolish the property. The petitioner was posted as Assistant Commissioner of Police, Vivek Vihar and had demanded certain amount from the complainant which the complainant had refused. On this he started making all sorts of allegations and used filthy language against the complainant and tarnished his image. The complainant was summoned at the Police Station and the petitioner wanted to create smoke screen. The complainant filed application before the Deputy Commissioner of Police. The accused started writing letters to the DDA to the effect that injunction was granted in respect of the property in possession of the complainant. The Elaka Patwari confirmed that injunction in favor of the complainant was in respect of same property. However, the petitioner still went beyond his jurisdiction in taking extra interest and wrote letter dated 4.4.1996 to the Dy. Director (Land Protection Branch), DDA to remove construction on Khasra No. 3078/1. As per the allegations, copy of this letter was sent through one constable to the complainant's house and it was demanded that the complainant should give money or would suffer at the hands of the accused (petitioner herein). Sh. S.M. Aggarwal, learned ASJ, penalised the accused by imposing fine of Rs. 2.50 lakhs for implicating innocent persons in a false case and recovery as to the penalty was referred to the High Court. The main imputation on the basis of which complaint for defamation is filed is that the Page 0861 petitioner had alleged that the complainant was having forged documents. On 2.4.1996 when he (complainant) was called to the Police Station, the petitioner had stated 'TUM MARWARI BAHUT PAISE WALE HOTEY HO. AB TO PAISE DENE HI PARENGE. MUJHEY MARWARIO SE PAISE NIKALNEY AATE HAI.' It is further alleged that in the Police Station the petitioner used abusive language and copies of the letter dated 4.4.1996, written by the petitioner to the Dy. Director (Land Protection)DDA, were distributed in the neighborhood of the complainant because of which his prestige had been lowered down and he had suffered mentally and physically.

3. At the pre-summoning stage the complainant examined himself and one Sh. Rakesh Kumar, who also testified about asking of money by the petitioner from the complainant. Another witness Sh. Subhash Chand was also produced to testify that the Police had distributed copies of the complaint (Ex. CW-1/7) in the locality and the police was sent by the petitioner. Two more witnesses were examined. On this basis summoning order dated 27.7.2002 was passed by the learned MM. The petitioner filed revision petition thereagainst and vide detailed judgment dated 26.10.2002 this revision has also been dismissed. Perusal of the order of the learned ASJ would show that plea of limitation was taken arguing that the alleged offence was committed in the year 1996 for which limitation was three years and cognizance thereof was taken in the year 2002, i.e. after six years. This contention was not accepted on the ground that the complainant had filed the complaint in the year 1996 itself and he had no control over the proceedings, as he could not compel the Court to record evidence and pass summoning order within limitation holding that under these circumstances the complainant could not be penalised for the delay on the part of the Court. He referred to the following judgments:

i)1985 Crl.L.J. 1215

ii) 1990 Crl.L.J 360

iii) 1991 Crl.L.J 557

4. The learned ASJ further opined that even if the complaint was barred by limitation, delay could be condoned under Section 473 of the Cr.P.C. as held in 1982 Crl.L.J. 734. No application was required for condensation of delay and he also relied upon the judgment of this Court in 1991 (11) CCC 445 holding that the Court should be liberal while considering applications for condensation of delay. The learned ASJ also rejected the contention of the petitioner that Section 191 of the Cr.P.C. had been ignored, as according to him, Section 191(3) Cr.P.C. empowers the Court of Sessions also to take cognizance of defamation directly without committal if offender is a public servant.

5. In this petition filed by the petitioner challenging the aforesaid orders, it is stated that at the relevant time the petitioner was posted as the ACP in Vivek Vihar when the complainant had come to his office with some other local persons and requested that police assistance be not given to the DDA officials for demolition of unauthorised structures in the locality. The petitioner had refused this request. On 3.5.1995 he had received letter dated 27.4.1995 from the Dy. Director (Land Protection), DDA in which name Page 0862 of the complainant was mentioned by the DDA authorities along with others with request to provide police force during demolition. Thus, the letter dated 4.4.1996 written by the petitioner to the DDA was only an assurance granting requisite police force during the demolition of illegal construction and does not disclose any defamatory remarks against the complainant. It was also pointed out that Suit No. 108/96 filed by the complainant for damages on account of alleged defamation was dismissed with costs by the learned ADJ, Delhi vide his judgment dated 26.7.2003, which would again signify that no case for defamation was made out.

6. Learned counsel for the complainant, on the other hand, submitted that on the basis of allegations contained in the complaint and supported with the evidence of witnesses at pre-summoning stage clear case of defamation was made out as there were false and defamatory accusations against the complainant in the letter addressed to DDA, which letter was circulated in the locality as well and, therefore, the petitioner could not claim that it was an official communication.

7. It is clear from the aforesaid narration of facts that the complaint is primarily filed on the basis of letter dated 4.4.1996 written by the petitioner to the DDA wherein it is alleged that the complainant was making unauthorised construction on Khasra No. 3078/1 and further that in case DDA wanted to demolish the said construction, police shall render requisite assistance. It is an inter-departmental communication. However, allegation is that it was circulated in the locality. As noted above, the complainant had also filed suit for damages on the same allegations of defamation. Issue No. 1 in the suit was framed, which reads as under:

Whether the defendant has defamed the plaintiff.

8. Evidence was led by the parties. On the basis of evidence on record and after hearing the matter the learned ADJ recorded the findings on this issue against the complainant and in favor of the petitioner holding that the complainant could not prove that the petitioner had defamed him. It would be apposite to reproduce the entire discussion on this issue:

12. Issue No. 1: For the decree of the present suit it shall be incumbent upon the plaintiff to establish that the defendant defamed the plaintiff. In support of this issue the plaintiff has averred in the para 10 of the plaint that the defendant in his personal capacity wrote letter dated 04.04.1996 to deputy Director, Land branch of D.D.A. regarding demolition programme and indirect communication was given in the said letter that the defendant has been named in the said letter. In para 12 of the plaint, it has been averred that the defendant tarnished the image of the plaintiff by writing such letters and distributing copies among the neighbours as well as among persons known to the plaintiff. These averments have been supported in his affidavit as PW-1 wherein it has been deposed that on 14.04.1996 defendants sent a copy of the letter dated 04.04.1996 Ex. PW-1/2 at his residence and also circulated the same in his locality. In his cross examination he has denied Page 0863 the suggestion that the copy of the letter dated 04.04.1996 was obtained by him from the office of D.D.A. and denied the suggestion that defendant did not give a copy of the letter to him. PW-2 has deposed that plaintiff is his neighbour and their shops are adjacent. He further deposed that the defendant had called plaintiff to his office, he accompanied the plaintiff and there the defendant gave him a copy of letter written to D.D.A. which was circulated in the locality. The residents of the locality started suspecting the character of the plaintiff. The date of the incident when this witness accompanied the plaintiff to the office of the defendant has been given by him to be Feb., 1995.

The defendant has denied the averments as regards circulation of the above said letter. It has been pleaded that the letter was written as an inter- departmental communication in his capacity as Additional Commissioner of Police. The defendant has deposed that it his not the practice of the police department to circulate the correspondence to the Government parties like D.D.A.

9. The specific finding recorded is that there was no convincing evidence of circulation of letter much less by the petitioner. The learned trial court further held that PW-2 was totally untrustworthy witness, who had deposed about the circulation. PW-2 is one Rakesh Kumar, who has appeared as a witness in the criminal complaint also at pre-summoning stage. It is trite law that findings of the Civil Court are binding on the Criminal Courts.

10. The petitioner has also placed on record judgment of a Division Bench of this Court in State v. Sant Kumar 2003 II AD (Delhi) 341, which is a case where Sh. S.M. Aggarwal, learned ASJ, had imposed fine on the petitioner herein and referred the matter to the High Court. As per this judgment, the High Court has given clean chit to the petitioner holding that there was no evidence on record that the prosecution had falsely implicated the accused with whom they had enmity and the directions of Sh. S.M. Aggarwal, ASJ, directing compensation to be paid by the petitioner in the sum of Rs. 2.50 lacs has been set aside. After examining the whole case I am of the view that the aim of the petitioner in writing letter dated 4.4.1996 was to ensure that no illegal construction is raised and the illegal constructions which have come up should be razed. If with this intention and spirit in mind letter dated 4.4.1996 was written to the DDA by the petitioner herein, it cannot become a case for defamation. This petition accordingly succeeds. Summoning order dated 27.7.2002 is quashed and the complaint filed against the petitioner is dismissed.