TMI Blog2013 (8) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... rporated under the Companies Act, 1956 having its office at 13B, Balu Hakkak Lane, P.S. Karaya, Kolkata-700017. The case No. C-1284/2008 had been instituted on the basis of the complaint filed by the opposite party No. 2 before the Court of learned CJM, South 24 Parganas, Alipore inter alia alleging commission of offence by the petitioners punishable under Section 500, IPC. The allegations leveled in the compliant are i) the opposite party No. 2 is an IPS Officer and hold an important and respectable position in the society being posted as the DIG, Police, Home Guards, W.B.; ii) having faith and respect in complainant, the opposite party No. 2 and his wife, in the year, 2004, a large number of people of the ancestral home in a village of Gazipur, U.P. had given cash in trust to the opposite party No. 2 for purchase of land at Rajarhat, Kolkata. The opposite party and his wife contacted the land broker Abdur Rahim Gazi for purchasing land. He was given cash of Rs. 1,02,50,000/- by the wife of the opposite party No. 2. The said money was given to him in different installments between 25.2.2004 to 1.9.2004 in good faith and trust. All such payments were recorded by the opposite party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to our Chairman advising him against lodging any complaint against him. It would be evident from the above that Shri Akbar Ali Khan, DIG had illegally retained an amount of Rupees fifty seven lacs fifty thousand of money belonging to our company, for his personal use, alongwith the IGRs of the lands that have been purchased for the company. 4. In view of the above, I do hereby lodge a complaint against Akbar AN Khan, DIG of Police, Home Guards having its office at Bikash Bhavan, Salt Lake, Kolkata and residing at Ballygunge Circular Road, Kolkata for having committed Criminal Breach of Trust of an amount of Rupees fifty seven lacs fifty thousand which was paid to him with other money for the purchase of land. Akbar AN Khan has also illegally retained IGRs of those lands purchased for our company. 5. Similarly, in the letter dated 20.3.2006 written by the petitioner No. 2 to the Hon'ble Chief Minister, W.B. the following defamatory statements have been made: I in shocked to see one Govt. servant of IPS status using his position and office for his undue personal interest. Meanwhile, Mr. Khan has indeed arranged a complaint in Kolkata Leather Complex P.S., South 24 Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and his statement was recorded and finding a prima facie case made out against the accused persons under Section 500, IPC before the learned J.M., 9th Court, Alipore issued process against them. 10. On the other hand, the case of the present petitioner is as follows: M/s. Nishka Properties Pvt. Ltd. being the petitioner No. 1 company, is under the Management of Pataka Industries Pvt. Ltd. alongwith M/s. Subamarekha Properties Pvt. Ltd. And Eureka Properties Pvt. Ltd. and together they form the Pataka Industries Pvt. Ltd. 11. With the intention to increase, business of Pataka Group of Companies, it was intended that Pataka Food Park and a model residential school would be set up by Pataka Group in or around Kolkata Airport and in course of such search for land, the company came in contact with Abdur Rahim Gazi, who claimed himself to be a reputed land broker of the locality. Abdur Rahim Gazi further represented that he had helped to procure land for M/s. Robin Gold Trading Co. Ltd., its representative, being the opposite party No. 2 herein. 12. In such circumstances, the petitioner No. 2, contacted the opposite party No. 2 who was known to him for long time and discl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2 was compelled to handover the registration slips of the land purchased at the intervention of senior executives/officers of the Home Department, Govt. of W.B. but he refused to render accounts or return the balance amount of money lying with him. 17. Finding no alternative, Mustak Hossain wrote a letter of complaint dated 3.3.05 to the Hon'ble Chief Minister, W.B. who was in charge of the Home Ministry at that relevant point of time, intimating him about the illegal activities of the opposite party No. 2. On receipt of the complaint dated 3.3.05 at the instance of Hon'ble Chief Minister, W.B., Mr. Ajoy Prasad, DIG of Police, W.B. took quick action and was pleased to forward the said complaint dated 3.3.2005 of Mustak Hossain to Sri Rama Krishnan, Additional Director General, Administration for enquiry. 18. A confidential enquiry was held wherein the said Abdur Rahim Gazi and the petitioner No. 2 made statements and finally Sri Rama Krishnan was pleased to arrive at a finding that the allegations against the complainant/opposite party No. 2 herein was substantiated and he recommended that a criminal case by initiated against the opposite party No. - 2 for criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased by the said Company. 22. On 19.5.2006, one Ganesh Ch. Sen, the authorised representative of Pataka Industries had filed an application under Section 156(3) of the Code of Criminal Procedure before the learned C.M.M., Calcutta being case No. C-4252 of 2006 disclosing commission of offence by opposite party No. 2 punishable under Sections 406/409/411/420, IPC. The learned C.M.M., Calcutta directed the O.C., Park Street Thana to put investigation but the O.C. submitted report stating that the accused being an IPS Officer, the investigation should be completed by Commissioner of Police. Later, the learned Magistrate dropped the proceedings. As a retaliatory measure, the petitioner No. 2 created a defence against the allegations. The present impugned proceedings and other proceedings have been initiated by the opposite party No. 2 on fake and false allegations. In order to protect its interest the petitioner No. 1 filed suit for permanent injunction before 6th Court of learned Civil Judge, Jr. Div., Alipore being T.S. No. 325/2008 against opposite party No. 2. 23. The petition of complaint of the impugned proceedings falls within the jurisdiction of Park Street P.S. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the letters which contained defamatory imputations against the opposite party No. 2 were annexed to the Plaint of T.S. 325/2008 which is pending before the learned Civil Judge, Jr. Div., 6th Court, Alipore and has been filed by M/s. Nishka Properties Pvt. Ltd. i.e. the petitioner No. 1. The contents of the said purported defamatory letters related to certain allegations made against the opposite party No. 2 regarding acts committed by him which has caused serious threat and financial prejudice to the 'Pataka Group of Companies'. Issuance of letters by the petitioner No. 2, being the Chairman of Pataka Group, to the various superior administrative authorities including the Hon'ble Chief Minister, W.B. cannot but be construed to be the action taken by him for protection of his interest as also for bringing to the notice of the authorities, who are in a position superior to the opposite party No. 2, about the activities of the opposite party No. 2 which was not in consonance with his position as a member of the IPS. Such action clearly stands covered within Exceptions 8 and 9 to Section 499, IPC and thus the writing and sending of such letters and subsequent use thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Sections 499 and 500, IPC are reproduced hereunder: S. 200, Cr.P.C.- Examination of complainant -A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any; and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. Provided that when the complaint is made in writing, the Magistrate nee not examine the complainant and the witnesses- a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192; Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them. S. 202, Cr.P.C.-Postponement of issue of process-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state or in a state generally considered as disgraceful. First Exception - Imputation of truth which public good requires to be made or published - It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. Second Exception - Public conduct of public servants - It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no farther. Third Exception - Conduct of any person touching any public question - It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question and respecting his character, so far as his character appears in that conduct, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both. 30. It was argued by the opposite party No. 2 that Section 202(1) of the Code of Criminal Procedure does not prescribe any specific method or mode of enquiry like X or Y or any particular duration of inquiry like an hour or a day. It is left to the judicial discretion of the learned Magistrate to conduct such inquiry for the purpose of deciding whether or not there is sufficient ground for proceeding. The Section also specifies the purpose for which the said inquiry is required to be conducted by the learned Magistrate which is to decide whether or not there is sufficient ground for proceeding . The complainant states and submits that since the defamatory documents are in writing and are obviously defamatory as a bare perusal of those documents would clearly show the learned Magistrate was fully satisfied that there were sufficient grounds for proceeding in the matter and hence issued the summons against the accused. Therefore, there was no need to postpone issue of process on the alleged ground that the accused were residing at a place beyond the area in which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaint. The Hon'ble Court observed as under: The duty of a learned Magistrate receiving a complaint is set out in Section 202 of the Code of Criminal Procedure and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal Court. The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 of the Code of Criminal Procedure is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient grounds for him to proceed further. The scope of enquiry under Section 202 of the Code of Criminal Procedure is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint - (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out, and (iii) for deciding the question purely from the point of view of the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treet P.S. and Kolkata Leather Complex P.S. The action on the part of the said petitioner No. 2 in exercise of his natural right to take such necessary action is for protection of his own interest and/or rights. Such action cannot be construed to be attended with malice and as such, cannot be construed to have been made with intent to defame the opposite party No. 2. In the absence of mens rea on the part of the petitioners, the continuance of the impugned proceeding would be clearly an abuse of the process of Court. 37. In order to justify a charge under Section 500, IPC it is required that the allegations satisfy requirement of Section 499, IPC as also the explanations appended thereto. It is thus required to be shown by an aggrieved person that the imputation which has harmed his reputation, directly or indirectly lowered his moral and intellectual character in the estimation of others. In the event, the moral or intellectual character of the aggrieved person is not lowered in the estimation of other persons, making of the imputation cannot per se lead to commission of offence of defamation, in the instant case, neither the petition nor the statement of the opposite party No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused. The learned Magistrate also has to carefully scrutinise the evidence brought on record and then examine if any offence had been committed by any of the accused. In the instant case, the allegations made by the opposite party do not make out any contravention of the provisions as alleged and as such the learned Magistrate by holding that a prima facie case has been made out against the petitioners regarding commission of the - offence punishable under Section 500, IPC has shown non-application of mind to the facts as disclosed in the complaint. 40. Next aspect of the matter is that the opposite party No. 2, appears to have filed an application on 12.11.10 before the learned Chief Metropolitan Magistrate, Calcutta wherein he also filed similar type of cases as was in the 9th Court of learned Judicial Magistrate at Alipore. The relevant portion of the petition of complaint filed before the learned Magistrate runs as follows: to save his time as well as precious time of the learned Court as well as to ease his financial burden which the complainant has upon himself due to pendency of many cases and suits; the complainant does not wish to proceed with the complaint case and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question arises whether pleadings made in civil proceedings can fall within the parameters of the offence of defamation. Further, it is to be considered as to whether the annexed document to an application filed before the Court of law can be said to be a publication. In this regard, the learned Counsel for the petitioners referred to a decision reported in 1993 Cr.L.J. 1899 (Bom.) (supra) wherein the Hon'ble Supreme Court held that one needs to realize that litigants and counsels are of necessity required to be clothed with a certain degree of license in relation to the conduct of a judicial proceeding where it may be legitimately necessary to make allegations or counter allegations. As long as the record indicates that there was valid justification for this, there would be a total absence of the ingredient of malice and in that event, there can be no question of alleging defamation. To my mind, this is really the crux of the matter and the learned Trial Magistrate has completely overlooked this fact. He ought to have taken note of the fact that the statement in the two paragraphs are not to be viewed at in a vacuum, in isolation, or dehors the background of the case and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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