Delhi High Court
Rajesh Bhalla vs Rieva Bhalla Nee Rieva Roshan on 23 February, 2011
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: February 03, 2011
Date of Order: February 23, 2011
+ Crl. MC No. 269/2010
% 23.02.2011
Rajesh Bhalla ...Petitioner
Versus
Rieva Bhalla Nee Rieva Roshan ...Respondent
Counsels:
Mr.Yogesh Saxena for petitioner.
None for respondent.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. This petition under Section 482 Cr.P.C has been preferred by the petitioner
against an order dated 30th July, 2008 passed by learned Additional Sessions Judge,
Delhi setting aside the order of learned MM dated 1st May, 2007 and directing that the
petitioner/ accused be summoned under Section 499, 500 IPC and he be proceeded as
per law.
2. A perusal of the present petition would show that the learned Sessions Judge had
not served any notice to the petitioner and observed that since the complaint was
dismissed even before summoning of the petitioner, thus there was no need to issue
notice. However, learned Sessions Judge made following observations in his order:
Crl.MC 269/2010 Page 1 Of 5
"17. In the present case what we find, „The petitioner in her
plaint certified copy of which was proved on record as Ex.CW-1/F,
inter alia, claimed that in view of the marriage between the parties
the accused had gifted the flat to her and in this regard she inter
alia relied upon various photographs and letter dated 06.09.2002
Ex.CW-1/D and the other dated 11.09.2002 Ex. CW-1/E. The
accused in his aforesaid complaint case certified copy of which
was proved as Ex.CW1/2 inter alia admitted in paragraph 2
thereof that he remained in custody from February, 2002 to
October, 2005. So both the said letters Ex.CW1/D dated
06.09.2002 and Ex. CW1/E dated 11.09.2002 were written by him
to the petitioner while he was in jail. These letters were addressed
to the petitioner and mention her address as Flat No.288, 3rd
Floor, Vasant Apartment, New Delhi-110020. This is also the flat
in question. In these letters the accused clearly stated that the
said flat was her i.e. of the petitioner. Even in his aforesaid written
statement certified copy of which is Ex. CW1/N, the accused
admitted the execution of the said letters but stated that the
petitioner got these written from him, by blackmailing her. As
regards, the photographs filed by her in support of her averments
in the plaint Ex.CW1/F showing both of them in the comfortable
and cozy company of each other, the accused stated that the said
photographs had been taken by the petitioner with the object to
blackmail him and extort money from him. So, in my view, the
said photographs and the letters, prima facie show that there were
warm and very close personal relations between them and they
also cohabited together in the flat. Further, the said letters
Ex.CW1/D and Ex.CW1/E also show that the flat was given by the
accused to the petitioner as per his own admission as contained
therein. Indisputably these facts were in the knowledge of the
accused when he alleged in the aforesaid written statement that
the object of the petitioner was to blackmail and extort money from
him and also leveled accusations against her mentioned in
paragraph 6 hereinbefore. So, there was clearly lack of good faith
on his part. It appears that he was actuated by malice.
Crl.MC 269/2010 Page 2 Of 5
18. As held in the case of Sewak Ram‟s 1981 Crl.L.J 894,
good faith is a question of fact and a matter for evidence.
19. The said defamatory statements mentioned in paragraph 6
hereinbefore were not made by the accused honestly. They were
made with an oblique motive. The said allegations are perse
defamatory and were made with the intention to defame the
petitioner or with the knowledge that the said allegations would
harm her reputation particularly when the petitioner in her sworn
testimony before learned trial court inter alia deposed that, apart
from that, the accused had spread these allegations in common
friends and let her down in the eyes of others. Further according
to the petitioner, because of complaints made by the accused, he
tried to prejudice the mind of the Court and also because of the
said complaints, the locality people, stopped inviting her in public
functions.
20. At best, the accused could take benefit of exception 9
appended to Section 499 IPC. Hon‟ble Supreme Court while
dealing with the said provision of law in the case of Harbhajan
Singh vs. State AIR 1966 SC 97 has held as follows:
"It is true that under Section 105 of the Evidence Act, if an
accused person claims the benefit of exceptions, the burden of
proving his plea that his case falls under the Exception is on the
accused. But the question which often arises and has been
frequently considered by judicial decisions is whether the nature
and extent of the onus of proof placed on an accused person who
claims the benefit of an exception is exactly the same as the
nature and extent of the onus placed on the prosecution in a
criminal case; and there is consensus of judicial opinion in favour
of the view that where the burden of an issue lies upon the
accused, he is not required to discharge that burden by leading
evidence to prove his case beyond reasonable doubt. That, no
doubt, is the test prescribed while deciding whether the
prosecution has discharged its onus to prove the guilt of the
accused; but that is not a test, which can be applied to an accused
Crl.MC 269/2010 Page 3 Of 5
person who seeks to prove substantially his claim that his case
falls under an exception. Where an accused person is called upon
to prove that his case falls under an Exception, law treats the onus
as discharged if the accused person succeeds "in proving a
preponderance of probability". As soon as the preponderance of
probability is proved, the burden shifts to the prosecution which
has still to discharge its original onus. It must be remembered that
basically, the original onus never shifts and the prosecution has at
all stages of the case, to prove the guilt of the accused beyond a
reasonable doubt. If it can be shown that the appellant has led
evidence to show that he acted in good faith and by the test of
probabilities that evidence proves his case, he will be entitled to
claim the benefit of Exception Nine. What the ninth Exception
requires an accused person to prove is that he made the
statement in good faith...."
3. A perusal of above observations would show that that the learned Sessions
Judge in fact adjudicated the entire case itself without even hearing the petitioner herein.
It is settled law that nobody can be condemned unheard. If the learned Sessions Judge
had to consider the revision petition worth admitting and had to hear the revision on
merits, it was incumbent upon the learned Sessions Judge to issue notice of the petition
to the respondent. The petitioner herein in this case has definitely been prejudiced
because of the order of learned Sessions Judge. Reliance has been placed by the
counsel for the petitioner on Rameshan P.O. and others v Rakesh Kumar Yadav and
another (2009) 13 SCC 546 wherein the Supreme Court in similar circumstances, set
aside the order of High Court and remanded back the matter.
4. In view of above, the petition is allowed to the extent that the matter is remanded
back to the learned Sessions Judge for hearing the petitioner herein and passing an
order after hearing the petitioner. Until the order is passed by learned Sessions Judge on
merits after hearing the petitioner herein, the proceedings before the learned MM shall
remain stayed. Parties to appear before the learned Sessions Judge on 10th March,
Crl.MC 269/2010 Page 4 Of 5
2011.
5. The petition stands disposed of in terms of above order.
February 23, 2011 SHIV NARAYAN DHINGRA, J
rd
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