Madras High Court
M.K.Vedhambal vs A.Subramanian on 19 November, 2021
Crl.O.P.No.6460 of 2017 &
Crl.M.P.Nos.4753 & 4754 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 19.11.2021
Coram:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Crl.O.P.No.6460 of 2017 &
Crl.M.P.Nos.4753 & 4754 of 2017
M.K.Vedhambal ...Petitioner
Vs
A.Subramanian ...Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Criminal
Procedure Code, to call for the records and quash the criminal proceedings against
the petitioner / 1st accused in C.C.No.697/2017 pending on the file of the learned
X Metropolitan Magistrate, Egmore, Chennai.
For Petitioner : Mr.P.H.Aravind Pandian, Senior Counsel
for Mr.R.Rajesh
For Respondent : Mr.S.P.Sudalaiyandi
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ORDER
The above petition has been filed to quash the private complaint taken on
file for the offences under Section 500 of I.P.C.
2. The crux of the allegation in the complaint is that the mother of defacto
complainant took possession of certain Government poramboke land in the year
1979 and after her death, the property was in continued possession of the de facto
complainant. The further allegation is that the petitioner had purchased the
property vide Sale Deed dated 31.10.1988 by creating false documents.
Thereafter, the petitioner had lodged a complaint against the de facto complainant
for trespass, creation of false documents and criminal intimidation. Based on the
above complaint, FIR has been registered and the de facto complainant has been
arrested. The further case of the de facto complainant is that the FIR has been
quashed by this Court in Crl.O.P.No.3338 of 2012. As the arrest lead to the
consequence of suspension of the defacto complainant from the service, he has
suffered loss of reputation and he has also filed a suit. Hence, it is his contention
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that the complaint filed by the present petitioner which lead to the filing of FIR is
nothing but malicious and lowered the reputation of the de facto complainant.
Accordingly, he sought to prosecute the petitioner herein. The Trial Court has
taken cognizance of the private complaint in C.C.No.697 of 2017 on the file of the
learned X Metropolitan Magistrate. The present petition has been filed to quash
the above private complaint.
3. The main contention of the learned Senior Counsel appearing for the
petitioner is that the mere filing of FIR to vindicate his right may not be construed
to mean that he has harmed the reputation of the defacto complainant. Therefore,
it cannot be said that the FIR has been lodged only to lower the reputation of the
de facto complainant.
4. It is his contention that in the private complaint itself the defacto
complainant has admitted that his mother has encroached the property and he has
continued his possession in the property. Whereas the present petitioner has
purchased the property by a valid sale deed by lawful means. At no stretch of
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imagination, such legal remedy constitute the offence of defamation merely
because of FIR has been quashed on technical grounds. It is further submitted that
even assuming that filing of the FIR gave rise to cause of action for the offence
under Section 500 of Indian Penal Code, the alleged FIR was given on 07.12.2011.
In that case, the private complaint ought to have been taken on file within a period
of three years, whereas the learned Magistrate took cognizance of the offence after
the period of three years which is barred under Section 468 of Code of Criminal
Procedure. At any event, it is his contention that the lodging of the complaint
cannot be construed as publication of the defamatory statement. At the most, the
remedy is only for claiming damages, if any, and not criminal prosecution. In
support of his submissions, he relied on the judgments in A.N.Shanmugam &
Others Vs. G.Saravanan reported in [2015] 1 L.W. 806, P.M.Kathiresan Vs.
Shanmugam, Retired Captain reported in [1995] 2 MWN (Criminal) and
Mohd.Khalid Khan Vs State of Uttar Pradesh and another reported in [2015] 15
Supreme Court Cases 679.
5. Whereas the learned Counsel for the respondent submits that already the
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petitioner has filed a suit in the year 2002 for declaration of title and the above suit
was rejected on 23.10.2013. Thereafter, the complaint has been filed on
25.10.2013. It is his further contention that the learned Magistrate while taking
cognizance has condoned the delay and thereafter, the suit has been rejected.
After filing of the suit, the present complaint has been filed with a delay of more
than three years which is the reason for quash of the FIR by this Court. It is his
further contention that based on FIR, the respondent was arrested and he was
placed under suspension. Therefore, it clearly shows that FIR is nothing but false
prosecution and has lowered his reputation. Therefore submitted that merely
because civil suit is pending for damages, the same is not a ground to quash the
private complaint. In support of his submissions, he relied on the judgment in the
case of Shivaji Rao Gaikwad @ Rajinikanth Vs. S.Mukunchand Bothra reported
in [2020] 1 MWN Criminal 436.
6. At the outset, this is a case where the criminal prosecution has been
launched under Section 500 of Indian Penal Code mainly on the ground that
accused was arrested based on the FIR that has been quashed. It is not in dispute
that the civil suit between the parties is pending. Though the suit was filed for
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declaration of title which was rejected on the ground of delay, the same has been
challenged and pending before this Court in Criminal Revision Petition No.1968
of 2014.
7. It is to be noted that the de facto complainant himself admitted in the
complaint stating that the subject Government poramboke property was originally
encroached by his mother and thereafter, the defacto complainant continued the
possession after her death. Whereas the contention of the present petitioner is that
he has purchased the property from his predecessor in title, from one Mir
Mohammed Hussain in the year 1988 by way of Sale Deed dated 31.10.1988. The
allegation in the FIR indicates that the de facto complainant in the FIR is an
absentee landlord at that point of time. Therefore, there is a delay and he has filed
a complaint stating that the property has been encroached. It is to be noted that
based on the complaint, FIR has been registered and the law was set in motion for
various offences and the respondent was arrested. Based on his arrest, he was also
placed under suspension by the Department, since he is a Government servant.
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8. Now the crux of the issue is whether mere lodging of the complaint to
vindicate the rights based on the title deeds will amount to criminal offence. It is
to be noted that to attract the offence under Section 500 of IPC any action of the
respondent must have been done by words either spoken or intended to be read, or
by signs or by visible representations, makes or publishes any imputation
concerning any person intending to harm, or knowing or having reason to believe
that such imputation will harm, the reputation of such person, is said, except in the
cases hereinafter excepted to defame that person. Therefore, to bring within the
ambit of the offence under Section 500 of IPC, it must be established that the
reputation has been lowered with intention by the person who caused such
imputation and such imputation would have harmed. Merely because FIR is filed
based on the title deeds which resulted in filing of FIR by investigating agency, it
cannot be said that the very complaint itself is lodged with the intent to lower the
reputation of the persons. The FIR has been quashed by the Court on technical
ground of delay. Therefore, when a person sets the law in motion on the basis of
title deeds to vindicate his right over the property he has purchased, such an action
cannot be construed as a criminal offence unless it is shown that such lodging of
the complaint itself was intended to harm the reputation of the other, which is not
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in this case.
9. In this case, the law was set in motion only to vindicate the right of the
petitioner based on the title deeds. Whereas the respondent claims to be in
occupation of the property. In his private complaint, he has admitted that the
property was originally encroached by his mother and he has continued possession
after her death. Having admitting in the private complaint about his status in the
subject property, now, he has taken 'U' turn in the counter before this Court that
his mother has purchased the property in the year 1979. In that situation when the
law was set in motion by the parties to establish their rights based on a registered
sale deed, such a conduct cannot be construed as a criminal offence, particularly,
defamation. Even the Court while quashing the FIR filed on the basis of
complaint, quashed the FIR mainly on the ground of delay, after filing of the suit.
The Court has never recorded anything that complaint itself was filed with intent
to harm the reputation of the respondent.
10. Another contention of the learned Counsel for the respondent is that
pursuant to the lodging of the FIR, he has been arrested and therefore his
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reputation is lowered. Admittedly the civil suit is pending between the parties.
Whether the prosecution is malicious or not, it has to be gone into only after full
trial. The main grievance of the defacto complainant is that he was arrested and his
suspension has been published in the news paper, therefore, private complaint has
been filed. The publication of the news in the news paper is not connected to the
petitioner herein. The news agencies, the editor published what was recorded in
the complaint and just published arrest made by the investigation officer. Such a
publication was never made by the petitioner herein. Therefore, for publication of
the news item in the news paper, the petitioner cannot be brought under Section
500 of IPC. If the allegations in the FIR was made with an intent to lower the
reputation, then it is different scenario. But on a perusal of the FIR, this Court is of
the view that there is no material even to infer that the complaint was lodged only
to lower the reputation. Primarily, FIR has been lodged only to vindicate the right
of the petitioner over the immovable property on the basis of the title deed.
Therefore, this Court is of the view that continuation of criminal prosecution is
certainly nothing but abuse of process of law.
11. The respondent had also filed a suit for damages. It is for him to
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establish the damages suffered by him on account of the proceedings. In a
judgment in the case of P.M.Kathiresan Vs. Shanmugham, Retired Captain
reported in [1995] 2 MWN (Criminal), this Court has held that taking cognizance
almost four years after the commission of the alleged offence under Section 500
of I.P.C. is not proper as per law. This Court has held that the period of limitation
has to be recurred from the date of offence. The learned Magistrate has taken
cognizance beyond the period of three years.
12. In the case of Mohd. Khalid Khan Vs. State of Uttar Pradesh and
another, the Apex Court has held that -
3. Suffice it to say at this stage that while rejecting the
applications filed under Section 482 Cr.P.C., the High Court
had considered certain facts which prima facie might not be
correct. Some observations with regard to the oral gift
(Hiba) have been made which, according to us, are not
correct, as we do not find the same in the sale deed which
had been executed in favour of the present appellants.
4. Looking at the aforesaid facts, we are of the view
that at this stage no case has been made out against the
present appellants for initiating any criminal proceedings.
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Therefore, we set aside the impugned order so far as the
present appellants are concerned and quash the process
issued against them and also the charge-sheet filed against
the present appellants in pursuance of First Information
Report No.332 of 2005 dated 31st October, 2005 lodged at
Police Station, Wazirganj District, Lucknow.
13. In the case of A.N.Shanmugam & Others Vs. G.Saravanan, this Court
has held as follows :
“a proper consideration of the above said averments
found in the plaint will make it clear that the plaint
averments are not enough to spell out a cause of action for
suing the petitioners for damages for the alleged
commission of the tort of defamation. Furthermore, the
filing of the suit, claiming damages to the tune of
Rs.10,00,000/- for the respondent, his brother and his
family members who were facing the criminal trial will
make it clear that the suit itself has been filed as an abuse of
process to escape from the criminal prosecution and also to
make the second petitioner to come to terms in the
matrimonial cause that is pending before the Family Court
at Chennai. If every complainant, who lodges a complaint
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with the Law Enforcing Agency for imputation against the
persons accused are to face civil cases for defamation on
the premise that the imputations, according to the accused,
are false, many people fearing such actions on the part of
the accused, may not come forward to lodge a complaint to
the Law Enforcing Agency. When an imputation has been
made in a complaint made to the Law Enforcing Agency
with the belief that such Agency would take criminal action
against the persons against whom such imputation are
made, the same will provide a valid exception taking such
act outside the scope of tort of defamation. Besides, the
lodging of the complaint with the police could not be
considered to be a publication of a defamatory statement. If
at all any wrong is committed by lodging a false complaint
with the police and thereby setting the criminal law in
motion, it may amount to malicious prosecution, for which
action can be taken only after the disposal of the criminal
case, wherein a specific finding shall be given to that
effect.”
14. In the case of Shivaji Rao Gaikwad @ Rajinikanth Vs. S.Mukunchand
Bothra reported in [2020] 1 MWN Criminal 436 this Court has held that filing of
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a private complaint against the imputation made in the civil suit is not legally
barred. At the same time, this Court has also recorded in paragraph 6 that the
allegations made by the accused person in the civil proceedings are relevant to the
issues and are absolutely necessary to be pleaded in order to substantiate the case
of the accused in the civil proceedings. Sometimes the character and conduct of
the person may also become necessary and important to be pleaded to substantiate
the case. Ultimately what is required to be seen is whether the allegation made is
totally unconnected or unwarranted to decide the issues involved in the suit.
15. Having regard to the above judgment and also the fact that the
complaint has been filed only to vindicate the civil right of the petitioner based on
the title deed and there is no material available on record to show that the same has
been made only to lower the reputation that too with intention and certainly
Section 500 of IPC will not be attracted. Admittedly, Civil Suits are pending and it
is for the respondent to establish his right in the Civil Suits and claim damages, if
any, after establishing damages suffered on account of the loss of reputation.
16. Accordingly, this Criminal Original Petition stands allowed and the
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C.C.No.697 of 2017, pending on the file of the learned X Metropolitan Magistrate,
Egmore, Chennai, is hereby quashed. Consequently, connected miscellaneous
petitions are closed.
19.11.2021
vrc/kbs
Index : Yes
Internet : Yes
Speaking Order
To
The X Metropolitan Magistrate,
Egmore, Chennai.
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N.SATHISH KUMAR, J.
vrc/kbs
Crl.O.P.No.6460 of 2017 &
Crl.M.P.Nos.4753 & 4754 of 2017
19.11.2021
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