M.P.Singh Sahni vs State & Ors.
2013 Latest Caselaw 2549 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : 1st FEBRUARY, 2013
                                    DECIDED ON : 30th MAY, 2013

+            CRL.M.C. 3779/2003 & CRL.M.A.5100/2003

      M.P.SINGH SAHNI                                     .... Petitioner

                           Through :         Petitioner in person.

                           versus

      STATE & ORS.                                        ..... Respondents

                           Through :         Mr.Harnam Singh in person.

AND

+            CRL.M.C.54/2008 & CRL.M.A.199/2008

      MOHINDER PAL SINGH SAHNI                                 ....Petitioner
              Through : Petitioner in person.

                                    versus

      HARNAM SINGH                                        ....Respondent
              Through :             Mr.Harnam Singh in person.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. M.P.Singh Sahni (hereinafter referred as the petitioner or

accused) has preferred various petitions CRL.M.C.Nos. 3772/2003, 2444-

45/2005, 54/2008, 2790/2000, 3773/2003, 3779/2003, 3781/2003,

3782/2003, 3784/2003, 3193/2005 and 3783/2003 for quashing of the

various criminal proceedings initiated against him by Harnam Singh

(hereinafter referred as complainant or respondent).

2. Case of the complainant is that he is a highly qualified ex-

banker having an experience of seventeen years. He was earlier posted at

Senior Executive level in a Nationalized Bank. The petitioner and his wife

Narider Pal Kaur Sahni engaged him to provide professional services in

respect of non-delivery of 40,000 shares of M/s.Essar Gujarat Ltd. and for

clearance of 11 FDRs with Kuwait International Finance Company

(KIFCO). For that purpose, an agreement dated 22.07.1991 and

irrevocable Power of Attorney dated 01.08.1991 were executed.

Supplementary agreement dated 09.10.1992 was also executed. Again, an

agreement/ memorandum of understanding dated 07.03.1995 and

subsequent agreement dated 14.03.1995 were executed along with

irrevocable General Power of Attorney (GPA) dated 18.05.1995 in his

favour. He filed complaint with the National Consumer Dispute Redressal

Commission; Civil Suit bearing No.2436/1996 against M/s.Essar Gujarat

Ltd. and incurred expenses from his pocket. Vide notice dated 22.10.1997,

the petitioner through his counsel Mr.Arvind Kumar Gupta, Advocate

cancelled the GPA dated 18.05.1995. He sent reply to the petitioner on

25.10.1997.

3. Petitioner‟s case is that he is a Non Resident Indian and is

residing in Kuwait for the last 30 years with his family. He is doing

business in Kuwait. He had fixed deposits with Bank of Credit and

Commerce International (BCCI), Bombay to the tune of US $8,23,348.

The FDRs were pledged with Kuwait Investment Finance Company

(KIFCO) against some loan. There were some dispute between him and

KIFCO. To protect his interest, he secured the services of the complainant

and agreement dated 22.07.1991 was executed whereby the complainant

was to get 5% as professional fee on the amount realized in India.

Subsequent agreement was also executed in which the professional fee

was increased to 7% for clearance of one FDR No.1798. The respondent

filed suit in 1993 after an inordinate delay. Since the respondent was

unable to protect his interest, he was forced to cancel GPA executed in his

favour. Thereafter, the litigation started between the parties.

4. On 01.02.2013, the petitioner opted to address arguments

without the assistance of his lawyer. The respondent also opted to address

arguments himself. Common arguments in all the petitions were addressed

by both.

5. The petitioner urged that the respondent has implicated him

in numerous false and frivolous cases. When he cancelled GPA executed

in his favour, the respondent started lodging false complaints on frivolous

grounds. He did not commit any offence. Respondent‟s only motive to file

complaint cases against him was to extract money as he was unable to

pursue those cases being an NRI residing in Kuwait. He did not forge any

document. He had no intention to defame him any time. He had reposed

confidence in him and had availed his professional services to get clear his

FDRs and to get back 40,000 shares. The respondent did not account for

the amount received and illegally retained the shares handed over by M/s.

Essar Company.

6. The petitioner filed written synopsis and relied upon the

authorities : „Suryalakshmi Cotton Mills Limited vs. Rajvir Industries

Limited and ors.‟ : (2008) 13 SCC 678, „All Cargo Movers (India) Private

Limited and ors. Vs. Dhanesh Badarmal Jain and anr.‟ : (2007) 14 SCC

776, „M/s. Indian Oil Corporation vs. M/s. NEPC India Ltd and ors.‟ :

AIR 2006 (SC) 2780 & „Dr.P.Sharma vs. P.S.Popli and anr.‟ : 2002 (1)

JCC 66.

7. The respondent/ complainant urged that the petitioner is a big

fraud and a habitual offender. He concealed the material fact that earlier

Crl.M.M. 2207/1999 was filed by him for quashing of the complaint

cases. He made false statements and on 01.07.1999, moved two

applications before the learned Metropolitan Magistrate for recalling of

the summoning order and for exemption of personal appearance. The

exemption for appearance was „allowed‟ and not „dismissed‟ as stated in

the petition No.2790/2000. He simultaneously filed Revision 592/1999

(New No.1/2000) before learned Additional Sessions Judge during the

pendency of the petition before this Court and did not disclose the same in

his revision. The present petitions for quashing of the cases are not

maintainable as the matters are still at initial stage and the petitioner has

not appeared in many cases so far. He further argued that petitioner

deliberately omitted/ deleted 24 important words from the orders of

learned Additional Sessions Judge dated 01.07.2000 and added two words

of its own which were not in the order. The petitioner made false

statement that ` 3.25 lacs were given in cash to him in Kuwait in Petition

No.2790/00. No cash payment was ever received by him in Kuwait on

05.07.1997 and no receipt of said cash was executed. The petitioner did

not file any such receipt in the Court. Contrary to that, he had given

written instructions to Babli, his brother-in-law to issue two cheques from

his account. These two cheques were found forged. Charge-sheet have

been filed against the petitioner. The petitioner gave false/ contrary

statement of non issuance of cheque of ` 3.25 lacs which is a disputed

fact. The petitioner cheated him by issuing forged cheques for ` 3.25 lacs

and also misrepresenting him by various means that he had settled the

dispute with KIFCO for 3 lacs Kuwait Dinar. He obtained various

undertakings by deceitful means to cause wrongful loss to him. He filed

suit for Rendition of Accounts in July, 1997. After coming to know about

settlement, he filed complaint under Section 420 IPC in December, 1997

and the said suit was dismissed in default on 28.08.1998. He further

argued that General Power of Attorney dated 01.08.1991 was irrevocable

and was for valuable consideration. By cancelling the same, the petitioner

committed breach of trust. From the judgments passed by District Courts,

New York, USA, it reveals that the petitioner committed fraud of

approximate 8.60 millions US Dollars i.e. approximately ` 50 crores by

forgery, cheating etc. He is a part of an international shipping frauds

syndicate that runs of shadow operation across the globe, employs

numerous shifting identities and dummy corporations and assaults official

witnesses, bribes and defrauds Government officials. It was specifically

observed that Mohinder (sic petitioner) had not conducted himself in a

trustworthy manner. The petitioner falsely claimed that he was not the

same Mohinder Singh Sahni named in the original complaint. He

attempted to fool Judge Casey as to his identity. He posed himself as

Jogender at the April, 2004 meetings. In the present petitions, the

petitioner has claimed that he is Mohinder Pal Singh Sahni and not

Mohinder Singh Sahni. He is having two passports one in the name of

Mohinder Pal Singh Sahni and another in the name of Mohinder Singh

Sahni. He further argued that FIR was registered by Crime Branch

Mumbai on the complaint of Bank of Bahrein at Kuwait vide FIR/MCR

2/2001 under Sections 467/420/468/471/120B IPC. He further argued that

in Crl.M.M.3193/05, the petitioner used/ filed copies of various medical

certificates dated 20.05.1999, 07.06.1999 and 30.06.1999.

8. The respondent /complainant filed supplementary written

submissions to state that after the judgments/ orders were reserved,

Insp.Satya Pal Singh of PS Tilak Nagar filed status report in the Court of

Ms.Navita Bagha, Metropolitan Magistrate and it was stated that the

certificates did not carry attestation of the concerned authority and not

signed by two doctors and directors of the Hospital as per the ministerial

decisions applied therefor.

9. He relied upon the authorities : „State of A.P. and anr. Vs.

T.Suryachandra Rao‟ : (2005) 6 SCC 149, „Rajinder Prasad vs. Bashir

and ors‟ : AIR 2001 SC 3524, „Satish Khosla vs. Eli Lilly Ranbaxy Ltd.‟ :

1998 (1) JCC (Delhi) 54, „Kuldeep Kapoor vs. Susanta Sengupta‟ : 126

(2006) DLT 149, „Suo Motu Proceedings against Mr.R.Karuppan‟ : 2001

CRI.L.J. 2611 & „Gangawwa vs. State of Mysore‟ : AIR 1969 MYSORE

114.

10. It is also relevant to note that summoning of accused in a

criminal case is a serious matter. Hence criminal law cannot be set into

motion as a matter of course. The order of Magistrate summoning the

accused must reflect that he had applied his mind to the facts of the case

in the law applicable thereto. The Magistrate has to record his satisfaction

with regard to existence of a prima facie case on the basis of specific

allegations made in the complaint supported by satisfactory evidence and

other material on record.

11. In „Pepsi Foods Ltd and Anr. v. Special Judicial Magistrate

and Ors.‟, 1998 SCC 1400, the Supreme Court held :

'28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both

oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.'

12. In „Indian Oil Corporation vs. NEPC India Ltd. and Ors.‟,

AIR 2006 SC 2780, the Supreme Court held :

„10. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which, do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of UP : 2000CriLJ824 , this Court observed:

It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in taw. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the

basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.

While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.‟

13. The petitions filed by the petitioner are being considered in

the light of above facts and law.

14. The petitioner has preferred the petition under Section 482

Cr.P.C. vide Crl.M.C.3779/2003 for quashing of summoning order dated

02.05.2003 under Section 500 IPC. The respondent filed complaint case

on 15.10.2001. He alleged that the petitioner was summoned in the

complaint case instituted under Section 138 Negotiable Instruments Act

vide order dated 04.06.1998. The Review Petition against the summoning

order was dismissed on 18.09.1999. The petitioner thereafter, filed

Crl.Revision No.582/1999 (New No.124/1999). In para (f) at page 8, he

falsely alleged that he (the petitioner) was not the signatory of the cheques

and the respondent was fully aware of it. He falsely alleged that the

cheques were forged by Harnam Singh (respondent) as he was in

possession of his papers and various documents as attorney. The cheque

book came in his possession and he misused it. These allegations were

deliberately made by the petitioner for the first time with an intention to

tarnish his image and to lower his reputation in the eyes of his friends,

neighbours and relatives. By the impugned order dated 02.05.2003, the

petitioner was summoned under Section 500 IPC.

15. The petitioner has also preferred Crl.M.C.No.54/2008 under

Section 482 Cr.P.C. for quashing of the order dated 29.09.2005 in

complaint case No.583/2001 of 2004, Harnam Singh vs. M.P.Singh by

which he was summoned for committing offence punishable under

Section 500 IPC. The complainant alleged in the complaint that suit (Suit

No.49/1998, New No.148/2004), Mohinder Pal Singh and anr. Vs.

Harnam Singh was listed for evidence on 24.03.2004 in the Court of Sh.

V.K.Jain, the then learned ADJ. Despite knowing that the charge-sheet

had already been filed against him by the police regarding forgery of

cheques No.221803 & 221804, in his cross-examination, the petitioner

leveled defamatory and false imputations against him as :

"...... I did not write any letter to Harnam Singh that he was blackmailing me. No notice was sent to defendant in this regard. No FIR was lodged by me against Harnam Singh. It is wrong to suggest that I had made a false and defamatory allegation against Harnam Singh in the plaint.......,"

16. The petitioner was aware that the aforesaid statement/

averments were false and defamatory and would harm the reputation and

respect of the complainant. The averments were made with an intention to

defame him by all means. The said complaint was filed on 08.09.2004 and

by the impugned order dated 29.09.2005 the petitioner was summoned

under Section 500 IPC.

17. I have heard the petitioner and respondent in person, and

have examined the Trial Court record. It reveals that Civil Suit

No.49/1998 for Mandatory Injunction and Damages was filed by

Mohinder Pal Singh Sahni and Narinder Pal Kaur Sahni against the

respondent Harnam Singh before this Court. In para No.9 of the plaint, it

was mentioned that the respondent with the mala-fide intention never gave

status of the issuance of shares from M/s. Essar Gujarat Ltd. and started

blackmailing them. In the written statement, the respondent denied the

allegations and pleaded that the plaintiffs were fully informed of the status

and development from time to time including the factum of DUD/ non

saleable/ duplicate share certificates given by M/s. Essar Gujarat Ltd. He

further pleaded that the allegations were scandalous and defamatory. The

petitioner filed evidence by way of affidavit dated 23.03.2004 and

reiterated the assertions. Aggrieved by the allegations, the respondent

thereafter filed complaint case on 08.09.2004 under Section 500 IPC

alleging that the allegations in para No.9 of the plaint of Suit No.49/1998

were scandalous and defamatory. The petitioner falsely alleged payment

of ` 8.75 lacs to the respondent for incurring expenses and other charges.

The petitioner had given letter dated 06.07.1997 addressed to his brother-

in-law Mr.Babli @ Mahinder Pal Singh Anand directing him to issue two

cheques for a total sum of ` 3.25 lacs. These two cheques were found

forged. A criminal case was registered for issuing the forged cheques at

Police Station Tilak Marg. The charge-sheets have been filed in the said

cases. The respondent examined himself as CW-4 besides producing CW-

1 (Narinder Kumar), CW-2 and CW-3 (Harish Kumar) in support of his

complaint. Vide impugned order dated 29.09.2005, the petitioner was

summoned under Section 500 IPC.

18. The petitioner urged that the complaint cases do not disclose

any cause of action. There was no defamatory imputation against the

respondent. The respondent vehemently argued that the petitioner in the

pleading in the civil suit as well as in the affidavit in the form of evidence

deliberately imputed scandalous and defamatory allegations that he was

blackmailed by him or the payment of ` 8.75 lacs was made. The

assertions were false to the knowledge of the petitioner as he was never

blackmailed by him. Contrary to that, the petitioner wrote a letter in his

presence directing his brother-in-law Babli to pay ` 3.75 lacs to him by

issuing two cheques. Those cheques were issued by Mr.Babli, when the

cheques were presented in the bank, they were dishonoured. The cheques

in question were forged with the connivance of the petitioner as it did not

contain his signatures. The petitioner did not lodge any complaint against

Babli for forging or fabricating his cheque book.

19. There are numerous litigations between the parties.

Admittedly, the suit for Mandatory Injunction and Damages was filed by

the petitioner and his wife Narinder Pal Kaur Sahni against the respondent

and it was contested by him. The petitioner adduced evidence by way of

affidavit dated 23.03.2004. The said case has not yet been decided. None

of the parties has placed on record any final verdict of the Civil Court in

the said suit. The said civil suit was filed in January, 1998. The respondent

however, did not file any complaint case alleging defamation. After an

inordinate delay of about six years, the respondent filed the complaint

case in question on 08.09.2004. He has not offered any explanation for

delay in filing the complaint case. Nothing has come on record to show if

during this period due to the assertions in the suit, the reputation of the

complainant was affected in any manner whatsoever. No application was

ever moved by the respondent in the said civil suit for striking of the

alleged defamatory or scandalous pleadings. The Civil Court did not

record any findings that the contents of the pleadings were defamatory in

nature. Without waiting for the findings of the Civil Court, the respondent

filed the complaint cases under Section 500 IPC. In my considered view,

the contents of the pleadings and the affidavit do not disclose commission

of any offence under Section 500 IPC even if taken on their face value.

The allegations made in the complaints are inherently improbable and no

conclusion can be reached that there was sufficient ground to proceed

against the petitioner. It appears that the criminal proceedings were

initiated with mala-fide ulterior object with a view to harass the petitioner

due to private and personal grudge. The use of word „blackmailing‟ and

the assertion that payment of ` 8.75 lacs was made and the cheques were

forged cannot be considered defamatory statements. These are the

assertions of the petitioner which he was required to substantiate by

leading evidence before the Court. A defamatory statement is one, which

has a tendency to injure the reputation of the person to whom it refers;

which tends that is to say, to lower him in the estimation of right-thinking

members of the society generally and in particular to cause him to be

regarded with feelings of hatered, contempt, ridicule, fear, dislike or

disesteem. The statement is judged by the standard of an ordinary, right-

thinking member of the society. In the instant case, it cannot be inferred

that due to the assertions in the pleading/ evidence referred above, the

complainant was lowered in the estimation of right-thinking member of

the society generally.

20. In „Bhagat Singh Sethi & Ors. Vs. Zinda Lal‟, AIR 1966 J&K

106 (6), relied upon in „Girisii Kakkar and Anr. Vs. Dhakwanti & Ors.‟,

1991 Crl.L.J.5, this Court held :

'(16) In Bhagat Singh Sethi & Ors. Vs. Zinda Lal Air 1966 J&K 106(6), on review of case law, while holding that if defamatory statement is made in pleadings absolute privilege is not applicable to cases under the Penal Code in India but qualified privilege applies the learned Judge expressed the opinion that if in a pleading of a party certain matters are alleged which may not strictly be correct but are made in good faith and are made to protect the interest of the maker they are privileged and the person making them cannot be prosecuted or convicted for defamation. In that case the defamatory statements were alleged to have been made in application seeking an order of attachment before judgment and issue of temporary injunction. The court held that the allegations were made in good faith to protect the interest of the maker in the suit. It was also noticed that no express malice has been pleaded or alleged in the complaint or in the statement of the witnesses before

the trial Magistrate. In the present case, like the case before the J&K Court, no express malice has been pleaded or alleged in the complaint or the statement of the complainant before the trial Magistrate. The Criminal proceedings in Bhagat Singh Sethi's case were quashed.'

21. In „Dr.P.Sharma vs. P.S.Popli & Another‟, 2002 (1) JCC 66,

the respondent had filed a complaint under Sections 420/336/338 IPC

against the petitioner who was summoned as an accused. Against the

summoning order, the petitioner went to the Supreme Court and the

proceedings were ordered to be quashed. In SLP filed before the Supreme

Court, the petitioner pleaded that the complaint filed by the respondent

was mischievous and intended to „blackmail him‟. The respondent filed a

complaint case under Section 500 IPC on the basis of the allegations in

SLP. This Court held :

'10. Admittedly, copy of the complaint along with other connected documents were filed by the petitioner. The whole emphasis in the Special Leave Petition with the Special Leave Petition was to get the complaint quashed. It s apparent that the imputation was preferred in good faith by the petitioner to get the order of summoning quashed. This imputation cannot be said to have been made with the intention or knowledge to cause harm to the reputation of petitioner. The accusations were made before the Supreme Court which undoubtedly had authority over the subject matter in dispute. Thus, even if the allegations made in the complaint are taken to be true, in my view, no offence of defamation is made out.'

22. In the light of above discussion, the impugned orders

02.05.2003 and 29.09.2005 cannot be sustained and are set aside. The

Complaint Cases, and the proceedings emanating from it are quashed.

Petitions are accordingly allowed.

23. Pending applications also stand disposed of. Trial Court

record (if any) be sent back forthwith.

(S.P.GARG) JUDGE MAY 30, 2013/tr