Amar Singh and ors. vs Naranjan Lal

K.S. Tiwana, J.

Niranjan Lal complainant, respondent in this petition, and the petitioners were partners in business and were running a cinema under the name and style of `Ram Sham Theatre'' in village Pundri Fatehpur in Haryana in 1972. A dispute arose between the parties during the currency of that business. Niranjan Lal complainants and Smt. Narmada Rani w/o Prem Chand Shorewala filed a suit against the petitioners in the court of SubJudge, Kaithal, on 1st of March, 1976 for dissolution of partnership and rendition of accounts. An application on behalf of Smt. Narmada Rani for the appointment of a Receiver was filed. Reply to that application was filed on 10th of March, 1976 by the petitioners alleging that they had paid Rs. one lac to Niranjan Lal and Smt. Narmada Rani for payment of their share in the partnership firm, for which no receipt was issued. Written statement in that case was also filed by the petitioners on 4th of October, 1979, the relevant portion of which is as under :

"(1) That the suit is mala fide one, the partnership has already been dissolved mutually by the parties prior to the institution of the suit in the month of October, 1976, whereon according to the terms of the dissolution agreed to between the parties. Rs. 1,00.000/ were paid to plaintiff No. 1 and to the husband of plaintiff No. 2 who had been acting on behalf of the plaintiff No. 2 for all intents and purposes.

(ii) Later on plaintiff No. 1 and the husband of plaintiff No. 2 who are very close to each other and are partners in various concerns changed their minds and stand and filed the suit just to harass the defendants and to fulfill their unjustified and indiscreet greed for money."

These passages are common in the reply to the application and written statement.

Niranjan Lal filed a complaint in the court of Judicial Magistrate Ist Class, Kaithal, under section 500 of the Indian Penal Code stating that the abovequoted imputation was made against them without any basis with a mala fide intention to defame them and that the petitioner and Prem Chand Shorewala were respectable persons and were held in high esteem by the public. On behalf of the complainant an application for condonation of the limitation was also filed. The learned Magistrate summoned Amar Singh and Gautam Muni as accused after examining the complaint under Section 204 of the Code of Criminal Procedure, 1973, on the basis of the material placed before him.

Amar Singh and Gautam Muni filed Criminal Misc No. 2694M of 1981, Amar Singh and another v. Niranjan lal and another under section 482 of the Code of Criminal Procedure, 1973, in this court, which was decreed on 24rd of July, 1981. Those proceedings were quashed on the ground that the learned Magistrate could not take cognizance of the complaint without application of his hand to the application filed by the respondents for condoning the delay in filing the complaint. It was directed that the learned Magistrate should, after hearing the complainant, decide the application regarding condonation of delay. While taking cognizance he should clearly state when the alleged offence was committed by the respondents.

After the remand of the case, the application was decided by the learned Magistrate and he condoned the delay regarding the offence which was committed, in his view, on 10th of March, 1976. He also came to the conclusion that the offence of defamation was also committed on 4th of October, 1979, when the written statement was filed. On appreciation of arguments advanced on behalf of the complainant and examining the allegations he formed an opinion that the first part of the abovequoted passage from the written statement regarding the payment of Rs. one lac did not amount to defamation to attract criminal proceedings. The reason advanced by the Magistrate is : "As stated above such like pleadings are generally raised by the contesting parties in the civil suits and at this stage it cannot be said that the aforesaid allegation was made with an intention to defame the complainant and Prem Chand Shorewala". Regarding the second partbecame to the conclusion that this was made with an idea to harass the respondents and to defame them. He, therefore, summoned the respondents under section 500, Indian Penal Code, for making allegations in the second part. In this view, the offence of defamation was committed on 10th of March, 1979, for which he condoned the delay for filing the complaint, and on 4th of October, 1979, when the reply to the application and written statement was filed.

This petition under section 482 of the Code of Criminal Procedure 1973, has been filed by the petitioners to seek the quashing of the order of summoning. The record of the petition has been gone into and the counsel for the parties have been heard at length.

At the outset Shri R.S. Bindra, learned counsel for the petitioners, has urged that the learned Magistrate has erred in condoning the delay in filing the complaint, as according to him, the limitation starts to run as soon as the offence is committed. The civil suit remained pending before the Court uptil 25th of November, 1980, as was noticed by the learned Magistrate in his order. The observations of the learned Magistrate in condoning the delay are :

"The case of the complainant is that before the decision of the civil suit he was not in a position to institute the complaint under section 500 of the Indian Penal Code. There is force in the contention of the counsel for the complainant that before the decision of the suit, the complainant was unable to file a criminal complainant against the accused. Before the decision of the suit, the complaint could not allege that allegations made by the accused in the reply to the application filed by them were false, malafide or defamatory because while deciding the suit, the court could give a finding that the said allegations were correct. There was, therefore, sufficient cause for the complainant for not filing the complainant before the decision of the suit. The suit was decided on 25.11.1980 and the present complaint was filed on 10.3.1981"

On this basis the delay was condoned.

The learned counsel for the petitioners has relied on Surinder Mohan Vikal v. Ascharej Lal Chopra, 1978 Crl. L.J. 764 : 1979 C.L.R. (S.C.) 199] to urge that section 468 of the Code raises the bar of limitation for taking cognizance of criminal offences by the courts. On this basis he has urged that the pendency of the case in a court, in which these allegations were made does not give the respondents a right to wait till the decision of that case to withhold the filing of the complaint regarding the commission of the offence. The facts of Surinder Mohan Vikal''s case were :

"The appellant was working as General Secretary, of the Central Bank of India Employee Union, Punjab, Ludhiana, which was a registered body. The respondent was employed as Special Assistant in that Bank, and one Amreek Singh was employed there as clerk. The respondent was working as the General Secretary of the Union while Amreek Singh worked as its Treasurer before the appellant took over as General Secretary. The appellant filed a complaint in the Court of Judicial Magistrate 1st Class, Ambala Cantt. on March 15, 1982, for the commission of an offence under section 406/420 I.P.C. alleging that the respondent and Amrik Singh with a common intention and collusion with each other, transferred a donation entry of Rs. 1100/ in the personal account of accused No. 1 (A.L. Chopra) by adjustment vide voucher dated 19.2.1971 at Ambala Cantt. It was alleged that the accused misappropriated a sum of Rs. 1100/ of the Union with `criminal intention'' and `fraudulently and with a dishonest intention''. By his judgment, dated February 11, 1975, the Magistrate convicted the Respondent and Amreek Singh of the offence under section 408/34 I.P.C. and sentenced them to rigorous imprisonment for one year and a fine of Rs. 1000/. The Additional Sessions Judge of Ambala however, acquitted both of them by his judgment dated April 1, 1975, and that judgement was upheld by the High Court on May 15, 1975. Respondent Ascharaj Lal Chopra then filed a complaint against the present appellant Surinder Mohan Vikal in the Court of Judicial Magistrate 1st Class, Ambala, dated February 11, 1976, for the commission of the offence under section 500 I.P.C. The Magistrate examined the complainant and his witnesses, and made the order dated September 15, 1976, for the issue of summons for the appearance of the present appellant in that case. That was why the present appellant applied to the High Court under section 482, Cr.P.C. for quashing the Magistrate''s order taking cognizance of the offence against him. As his application has been rejected by the High Court, accused Surinder Mohan Vikal has preferred the present appeal as aforesaid".

Surinder Mohan Vikal approached the High Court under Section 482 of the Code of Criminal Procedure, 1973, for quashing the proceedings against him as the complaint was filed beyond the period prescribed under section 468 of the Code. The High Court dismissed that petition on similar reasoning which has been adopted by the Magistrate in this case. On appeal the Supreme Court accepted the appeal and quashed the order of summoning observing :

"As has been stated subsec. (1) of Section 469 of the Code specifically provides that the period of limitation prescribed in Section 468, in relation to an offender, shall commence (inter alia) on the date of the offence. It would, therefore, follow that the date of the offence was March 15, 1972, when the defamatory complaint was filed in the Court of the Magistrate, and that was starting point for the purpose of calculating the three years period of limitation. The High Court clearly erred in taking a contrary view".

It was further held in the case :

"It would thus appear that the appellant was entitled to the benefit of subsec. (1) of section 468 which prohibits every Court from taking cognizance of an offence of the category specified in subsection (2) after the expiry of the period of limitation. It is hardly necessary to say that statutes of limitation have legislative policy behind them. For instance, they shut out belated and dormant claims in order to save the accused from unnecessary harassment. They also save the accused from the risk of having to face trial at a time when his evidence might have been lost because of the delay on the part of the prosecutor. As has been stated, a bar to the taking of cognizance has been prescribed under section 468 of the Criminal Procedure Code and there is no reason why the appellant should not be entitled to it in the facts and circumstances of this case".

Regarding the question of limitation, the present appeal is covered by the judgment of the Supreme Court in Surinder Mohan Vikal''s case. The order of the learned Magistrate in condoning the delay regarding the filing of the complaint on the basis of reply filed in the Civil Court on 10th of March, 1976 and on that basis summoning the petitioners as accused under section 500 of the Indian Penal Code for the commission of offence on that date, is hereby quashed.

This brings me to the second part of the allegation, which in the opinion of the learned Magistrate amounted to a defamation within the ambit of Section 500 of the Indian Penal Code. A reading of both the, paragraphs which according to the respondents are defamatory suggests that the second paragraph is dependent on the first paragraph. As the petitioner have levelled an allegation about the payment of one lac to the respondents the second part flows from it, saying that they had "changed their mind and stand and filed the suit just to harass the defendants and to fulfil there unjustified and indiscreet greed for money". This allegation has its basis has former part and flows from it. It cannot be dissected to form and in dependant part for the purpose of defamation. As the allegations made wherein the same sequence the second part cannot be torn off from the first to be read out of context for assumption of jurisdiction. When the learned Magistrate came to the conclusion on the basis that those were a part of pleadings to allow the benefit of qualified privilege to the petitioners, he could not act on the truncated portion of the statement to eliminate the dominant portion and to retain the service portion for attribution of malafides. On this ground alone the impugned order is liable for quashing.

There is another aspect of the matter, which can be looked into. The allegations quoted above were made in the pleadings, that is, the written statement by the petitioners. I agree with the learned counsel for the respondent that the theory of absolute privilege to the allegations made in the pleadings is not applicable to India. In Bhagat Singh Sethi and others v. Zinda Lal, AIR 1966 Jammu and Kashmir, 1906, after referring to the relevant law in India on the matter of pleadings, it was observed :

"Absolute privilege not being applicable to cases under the Penal Code in India, we come to what is termed legally as `qualified privilege''. In India the authorities lay down 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 interests of the maker they are privileged and the person making them cannot be prosecuted or convicted for defamation".

In the Indian Criminal law exception to defamation of this type is created in the statutory form in exception 9 to section 499 of the Indian Penal Code, which is :

"It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good".

It is not disputed that the allegation was made by the petitioners in the written statement for the protection of their interest. They had alleged Rs. one lac had been paid to Naranjan Lal and Prem Chand Shorewala and their change of mind and stand was motivated for unjustified and indiscreet greed for money. Regarding the first part whether the payment of Rs. one lac was made, the learned Magistrate found that no offence was made out. It is a part of the same allegation, which the petitioners have made for the protection of their interest. Any lack of good faith or deliberate malafide intention in making of the allegation is not made out from the body of the complaint or the statements made before the learned Magistrate. At the most, it was an imputation made on the characer of the respondents for the protection of the interest by the petitioners in the light of their averment in the pleading about the payment of one lac rupees. In the circumstances of the case, the petitioners got an additional ground in their favour in the form of exception 9 to section 499 of the Indian Penal Code.

For the foregoing reasons, I am of the view that the circumstances of the case are such which go to show that no case at all under section 500 of the Indian Penal Code is made out against the petitioner. In such a situation, the order of summoning of the petitioners deserves to be quashed. The petition is, therefore, accepted and the impugned order vide which the petitioners have been summoned for trial is hereby quashed.