Punjab National Bank vs Satender Kumar Garg
2012 Latest Caselaw 2746 Del

*                THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL.M.C. 717/2012 & Crl. M.A. No. 2535/2012

                                          Date of Decision: 26.04.2012

PUNJAB NATIONAL BANK                                 ..... Petitioner
                 Through:             Mr. Hashmat Nabi, Adv.

                     versus


SATENDER KUMAR GARG                                  ..... Respondent
                Through :             Mr. M.N. Dudeja and Ms.
                                      Fizani Husain, APP for State.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This is petition under section 482 Cr. P.C. against the order dated 19.11.2011 of ASJ whereby the revision petition filed by respondent against the order dated 19.07.2011 of MM dismissing his complaint under section 500 IPC, was allowed.

2. The respondent was empanelled Advocate of the petitioner bank. He was depanelled by way of a circular issued by the petitioner. He alleged the said circular to be defamatory and filed a complaint under section 500 IPC against H.M. Bali, Assistant General Manager of the petitioner bank. Ultimately vide order dated 19.07.201, the said complaint was dismissed by the MM. While dismissing the complaint, the MM reasoned as under:

"In the present case the alleged letter was not put in public domain rather it was an internal circular addressed to the concerned branches of the said bank for information and compliance. Further the words used in the said circular doesn't seem to be intended to malign the reputation of the complainant rather convey the justification for his depanelment (maybe right or wrong). Even otherwise the alleged person Mr. H.M. Bali is only the issuing authority and the reasoning (alleged words) for the depanelment of complainant must be observed by the competent authorities as reflected by the language therein.

A bare perusal of the alleged circular reflects that it was issued in the ordinary course of business without any ill-will or malafide on the part of issuing authority.

In the case of Khajuri ON 1981, Crl. L.J. 1729 (Bom.) "a Branch Manager of a bank was suspended by the bank's competent authority for his acts of gross misconduct and all powers on behalf of the bank were

withdrawn from him, and with a view to forewarn the public in that behalf and guard them against his activities, a public notice was published in a daily newspaper by way of abundant caution, on a complaint under section 500, it was held that the impugned notice did not make out a prima facie case, besides that was in public interest and for public good." In view of the aforesaid discussion and considering the entirety of circumstances it is held that the alleged circular was neither issued for public consumption nor intended to harm the reputation or lower the esteem of the complainant in the eyes of others. Accordinlgy, present complaint is dismissed as no prima facie case is made out."

3. The petitioner filed a revision petition against the said order of the MM. Vide the impugned order dated 19.11.2011, the ASJ set aside the order dated 19.07.2011 of the MM and remanded the case back to him observing as under:

"9. Since no effort was made to tell the names of the officers of the then authorities who took the decision to de-panelize the complainant- petitioner and also because the record which

was allegedly taken into consideration for arriving at such decision, was not produced, the Trial Magistrate could not dispose of the complaint or come to any conclusion if the depanelmentof the complainant was or was not justified.

10. In the given circumstances, this revision petition deserves to be allowed. Same is allowed and the impugned order is set aside. The complaint is restored and remanded to the Trial Court with the directions that Trial Court should direct Punjab National Bank for production of record depicting names of the persons/officers, who constituted the authority, for considering depanelment of the complainant-petitioner and also for production of record which formed basis of their decision. The Trial Court shall be at liberty to resort to all the provisions under the Code of Criminal Procedure to secure production of such record. Thereafter, the Trial Court to dispose of the complaint afresh."

4. The petitioner bank challenged the said order of ASJ passed in the revision petition. The learned counsel appearing for the petitioner

made two submissions, one, that the learned ASJ has set aside the order of MM without any notice to the petitioner bank, which was contrary to law and second, the learned ASJ completely erred in remanding the case back to the Court of MM for securing the production of documents from the petitioner bank relating to the decision taken by the authorities for his depanelment. In this regard his submission was that the issue in the complaint was not validity of the depanelment, but the allegation of defamation.

5. On the other hand, learned respondent counsel submitted that present petition was premature since the summoning order was not yet passed by the Magistrate. It was also submitted that the petitioner bank has no locus standi to challenge the order of ASJ. It was also submitted that there was no illegality or infirmity in the order of the ASJ.

6. At the relevant time Mr. H.M. Bali was posted as Assistant General Manager of the petitioner bank, when the bank issued the circular dated 06.12.2008 to all its branches. The allegations of the complainant/ respondent were that Mr. Bali and other officers of the bank had conspired to depanel him without there being anything against him and that the circular dated 06.12.2008 for depanelment was derogatory and defamatory. The said circular dated 06.12.2008, which was issued by the petitioner to its branches read thus:

"This is to inform you that considering the attitude, professional misconduct and unethical

practice of Advocate Sh. S.K. Garg, the authorities have decided to depanel his name from the bank's panel of Advocates."

7. The respondent/complainant is aggrieved of this circular and alleged the same to be defamatory and derogatory.

8. The learned MM after discussing the averments of the complaint and also the testimonies of the witnesses including that of the complainant, recorded that the aforesaid letter/circular was not put in public domain, rather, it was internal circular addressed to the branches of the petitioner bank for information and compliance. He has also observed that Mr. H.M. Bali was only an issuing authority and the reasoning for the depanelment of the complainant/respondent were that of the competent authority as is reflected from the language of the said letter/circular.

9. The respondent/complainant not being satisfied, challenged the same in revision petition before the ASJ. The issues were raised as regards the authority who decided to de-panel the complainant and the record considered for taking such a decision and the non-production thereof. It is surprising to note that the learned ASJ dwelt into those issues to find out the names of the officers who had taken the decision to depanel the complainant and the record allegedly considered for such a decision. The learned ASJ seems to have side-traced the main issue as to whether ingredients of section 500 were made out against the petitioner and Mr. Bali or not. Instead of examining the judgment

of the Magistrate on this aspect, he rather observed that the complaint could not have been decided by the Magistrate without coming to know the names of the officers responsible for taking decision of depanelment and in the absence of record taken into consideration by them for arriving at such a decision. Led by these perceptions, he remanded the case back to the MM with the direction to direct the petitioner bank for the production of the record depicting the names of the officers responsible for taking the decision of depanelment and also to produce the record which formed the basis of their decision. He also directed the Magistrate to resort to all the provisions under the Code of Criminal Procedure to secure production of such record. This order of the ASJ is manifestly unjust and not sustainable under law. The complaint against the petitioner bank and its officer Mr. Bali was of defamation under section 500 IPC. What was required to be seen as to whether from the averments in the complaint and the evidence led in support thereof, offence under section 500 IPC was made out or not. It was neither warranted nor was within the domain of the Court to make a fishing inquiry to ascertain the names of the officers responsible for taking decision of depanelment or the record that was considered by them. In addition, the ASJ has also erred gravely in proceeding to decide the criminal revision petition even without notice to the petitioner bank. This was the requirement of section 399 read with section 401(2) of Cr.P.C. that no order under a revision petition could be made to the prejudice of the accused or other person unless he is afforded an opportunity of hearing either personally or by

pleader in his own defence. In view of the above, the petition is allowed and the order of the ASJ is set aside.

10. The petition disposed accordingly.

M.L. MEHTA, J.

APRIL 26, 2012 awanish