Dayashankar Vyas vs Ajay Kanthed

The petitioner / complainant (since dead now represented through legal heirs) has filed the present petition under Section 482 of Cr.P.C., against the order dated 30.1.2016 passed by the first Addl. Sessions Judge, Ratlam whereby the criminal revision has been dismissed and the order of dismissal of complaint against respondent No.1 by JMFC vide order dated 20.2.2015 passed in Cri.Case No.474/15, has been affirmed.

Late Dayashankar Vyas filed a complaint case u/s. 499/500 of IPC against the present petitioner and Ajay Kanthed, Advocate before the JMFC, Ratlam which was registered as Cr. Case No.474/2015. Late Dayashankar Vyas recorded his statement u/s. 200 of Cr.P.C. on 19.12.2014. Other witnesses viz. Vivek Upadhyaya, Advocate, Premlata, Advocate and Shantilal Choudhary have also recorded their statement in support of the complaint before the JMFC on same day. By order dated 20.2.2015, learned JMFC has partly allowed the application by taking cognizance u/s. 499/500 of IPC against the present petitioner and rejected the complaint with respect of Ajay Kanthed, Advocate.

During pendency of the aforesaid complaint case, complainant - Dayashankar Vyas expired on 27.3.2017. Two sons of deceased Dayashankar Vyas being his legal heirs, filed an application seeking impleadment of their name as complainant. Arguments on the said application were heard and vide order dated 2.6.2017, learned JMFC has allowed the application by placing reliance over the judgment Ashwin Nanubhai Vyas V/s. State of Maharashtra : AIR 1967 SC 983.

Being aggrieved by order dated 20.2.2015, Late Dayashankar filed a criminal revision under Section 397 of Cr.P.C., before the court of Addl. Sessions Judge. Vide order dt.30.1.2016, the learned JMFC has dismissed the revision. Hence, the present petition before this court.

Shri S. Kochatta, Advocate appearing for the applicants submits that Late Dayashankar before his death had more than 70 years of unblemished practice in the Bar. He earned reputation, respect amongst the members of the Bar and judiciary. He was engaged as an Advocate in a civil case pending between Smt. Ramkuwar and Shivnarayan, i.e., respondent No.2 pending in Civil Case No.139A/11, before the 3rd Addl. Sessions Judge, Ratlam. Smt. Ramkuwar (Plaintiff), filed an application under Section 24 of CPC before District Judge, seeking transfer of the proceeding of the suit from the court of 3rd Addl. Sessions Judge to any other court because he was delaying the trial and did not decide the application under Order 39 Rule 1 and 2 of CPC, expeditiously therefore, she was not hopeful to get the justice.

The present respondent No.2 filed a reply to the said application through Shri Ajay Kanthed, Advocate in which in para 7, he made a defamatory averments against Late Dayashankar by levelling false allegations aspersion. Since the reply become the part of the record for the civil court and was gone through by himself his clerk and other colleague advocates and because of this Late Dayashankar felt humiliation and thereafter, he served a legal notice to the respondents on 1.11.2014 and demanded a compensation of Rs.1.00 Crore.

In reply to the said notice both the respondents did not deny the averment made in the reply and, therefore, he filed a complaint under Section 499 and 500 of Cr.P.C, against them. In the said complaint the statement of Late Dayashankar, Vivek Upadhyay, Prelata, Shantilal Choudhary, Advocates have already been recorded. On the basis of the allegations made in complaint, the court has taken the cognizance against the respondent No.2 only but wrongly discharged the respondent No.1. Thereafter, the revision was filed, but the Addl. Sessions Judge has affirmed. Shri Kochatta, learned counsel submitted that the averment made in the reply as well as in legal notice were in the knowledge of the respondent No.1 and at his instance and instigation, the respondent No.2 has made the false and defamatory allegations against the Senior Advocate therefore, both are equally liable to be convicted under the offence under Section 499 of CrP.C.

Shri Sanjay Sharma, learned counsel for the respondents submitted that the learned trial court as well as the Addl. Sessions Court has wrongly taken a cognizance against the respondent No.2, but have rightly discharged the respondent No.1. The respondent No.2 has separately challenged the order in M.Cr.C.No.2049/2016. The learned Courts below have rightly exercised its discretion on the basis of the material available on record. Hence, the same is not liable to be interfered.

He further submitted that the respondent No.2 in his reply has simply averred that Late Dayashankar used to take advantage of his seniority while conducting the case. There was no intention to defame reputation and Late Dayashankar. He further submitted that now he no more therefore, the entire proceeding is vitiated and the respondent No.2 is also liable to be discharged.

That the respondent No.2 filed the reply to the application filed under Section 24 of IPC. The pleadings were verified and signed by the respondent No.2. The counsel who drafts the petition as well as the reply have no personal knowledge about the matter. He drafts application or reply, only on the information given by his client. Therefore, if pleadings are verified and signed by the party, the counsel cannot be held responsible. It is his duty to narrate the fact as disclosed by his client. He cannot add or delete any fact from his personal knowledge. He can only advice the legal provisions of law and, therefore, the learned courts below have not committed any error of law while discharging the respondent No.1.

So far the contention of Shri Kochatta, learned counsel for the applicants that in reply to the legal notice, the respondent No.1 has also categorically stated that he knows Shri Dayashankar since 1984 and have seen his conduct in the court, therefore, he is also liable to be punished under Section 499 of IPC.

In a complaint, the case filed before the JMFC Lt. Dayashankar, pleaded only in respect of averment made in the reply, to the application filed under Section 24 of C.P.C. He has reproduced the said offending pleading in memo of complaint and in his statement recorded under Section 200 of CrP.C before the court also he stated that the defendants have written the defamatory language in Exhibit P/2. He did not depose anything about the statement made in the reply to the legal notice. Therefore, no complaint was filed in respect of the averment made in the reply to the legal notice. Hence, I do not find any infirmity or illegality in the order impugned. No case for taking cognizance of the offence against the respondent No.1 as prayed is made out.

M.Cr.C.No.2161/2016, is accordingly, dismissed.