Harkishan Lal Chopra vs Hans Raj

A.S. Nehra, J.

This criminal revision is directed against the order dated 31st August, 1992 passed by the Judicial Magistrate 1st Class, Patiala, by which the application of petition for dismissing the complaint filed by the respondent under Section 500 of the Indian Penal Code.

Counsel for the petitioner has contended that the complaint filed by respondent is liable to be dismissed because in case the complaint made by the petitioner to Shri S.K. Sharma, Senior Superintendent of Police, Patiala, is found false, then the petitioner can be tried under Section 182 of the Indian Penal Code.

It was further contended by the learned counsel for the petitioner that on the complaint filed by the petitioner, the Court cannot take cognizance of the offence in view of the provisions of Section 195 of the Code of Criminal Procedure.

It has been further contended that a plain reading of complaint made by the petitioner to Shri S.K. Sharma Senior Superintendent of Police, Patiala, is to protect the interest of daughter of the petitioner and this imputation was made in good faith and the case of the petitioner is covered by Ninth exception to Section 499 of the Indian Penal Code. In support of this arguments, the learned counsel for the petitioner has relied upon Anil Kumar Chopra v. M.K. Khosla, 1989(1) Chandigarh Law Reporter 655.

Mr. Sudeep Mahajan, Advocate, the learned counsel for the respondent has submitted that mere fact that the allegations constituting an offence of defamation are contained in a petition to a public servant or a Court, is per se no ground for holding that section 195, Criminal Procedure Code, is a bar to the cognizance of the offence. He further submitted that the question whether the facts placed in the complaint really constitute an offence falling within the provisions of section 95, Criminal Procedure Code, or not must depend upon the circumstances of each case. The learned counsel further submitted that if the facts alleged, prima facie constitute the offence under section 500, Indian Penal Code, there is no reason why that offence should not, be taken cognizance of on a complaint filed by the aggrieved person.

In support of his arguments, the learned counsel for the respondent has relied upon Baldev Raj v. Kesar Das and others, 1973 Chandigarh Law Reporter 486 and Chanan Singh and others v. Tarak Singh, AIR 1942 Lahore 76.

It has been further contended by the learned counsel for respondent that Section 182 of the Indian Penal Code is also no bar to the complaint filed by the respondent. As the offence for which the petitioner has been summoned is under Section 500 of the Indian Penal Code. He has further submitted that if is a different offence than the offence under section 182 of the Indian Penal Code, therefore, the complaint filed by the respondent is maintainable before the learned Magistrate under Section 500 of the Indian Penal Code. Counsel for the respondent has further contended that Anil Kumar Chopra v. M.K. Khosla''s case (supra), is not applicable to the facts of the present case. After hearing the learned counsel for the parties, I hold that the complaint filed by the respondent under section 500 of the Indian Penal Code is maintainable and provision of Section 195 of the Code of Criminal Procedure is not a bar to cognizance of the offence. It is further held that Baldev Raj v. Kesar Dass and others and Chanan Singh and others v. Tarak Singh''s case (supra) are fully applicable to the facts of the present case.

Provision of Section 182 of the Indian Penal Code is also no bar to the present complaint filed by the respondent under Section 500 of the Indian Penal Code because Section 182, Indian Penal Code is a different offence from Section 500 of the Indian Penal Code. The complaint filed by the respondent is maintainable and there is no force in the contention raised by the learned counsel for the petitioner and the same is rejected.

The relevant provision in the present case is ninth exception to Section 499 of the Indian Penal Code. Section 499 deals with defamation. Section 500 prescribes punishment for defamation. There are nine exceptions to Section 499. These nine exceptions are the cases in which there is no defamation. The ninth exceptions covers the present case and is as follows :

"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''".

The ingredients of ninth exception are first that the imputation must be made in, good faith; secondly, the imputation must be for protection of the interest'' of the person making it or of any other person or for the public good. Good faith is a question of fact. So is protection of the interest of the person making it. Public good is also a question of fact. The Supreme Court in Harbhajan Singh v. State of Punjab, (AIR 1964 SC 97) while dealing with the Ninth exception to Section 499 of the Indian Penal Code said that it would have to be found out whether a person acted with due care and attention. The court observed therein "Simple belief or actual belief by itself is not enough. The appellant must show that the belief in his impugned statement had a rational basis and was not just a blind simple belief. That is where the element of due care and attention plays an important role". The person alleging good faith has to establish as a fact that he made inquiry before he made the imputation and he has to give reasons and facts to indicate that he acted with due care and attention and was satisfied that the imputation was true. The proof of the truth of the statement is not an element of the Ninth execution as of the first exception to Section 499. In the ninth exception the person making the imputation has to substantiate that his enquiry was attended with due care and attention and he was thus satisfied that the imputation was true. The accent is on the enquiry, case and objective and not subjective satisfaction. Anil Kumar Chopra v. M.K. Khosla''s case (supra) relied upon by the learned counsel for petitioner is not applicable to the fact of the present case. In that case, M/s Nidhi Industries of Janakpuri, New Delhi, were to supply one lac vest woollen of 95 cm size to Defence Ministry for Rs. 54 lacs at the rate of Rs. 54/ per piece. In turn M/s Nidhi Industries agreed to purchase the vest woollen from M/s. M.K. Khosla, Family Traders of Ludhiana at the rate of Rs. 51.50 paise a piece. Balance of Rs. 2.50 per piece was their profit. A sum of Rs. 50 lacs was admittedly paid by M/s Nidhi Industries to their vendor M/s M.K. Khosla Family Traders. Balance of Rupees 1.5 lacs still remained to be paid. On Ist August, 1987 the vendor sent a legal notice for recovery of sales tax and storage charges., besides the balance payment aforesaid on the basis of allegedly oral agreement and assurances dated May, 18, 1987. As against the claimed payment, the vendee is alleged therein to have offered to the vendor a paltry sum of Rs. 40,000/ towards full and final satisfaction of the claim on July 25, 1987. According to the averments made in the notice, this action of the vendee revealed a mala fide and deceitful intent on his part in his mind. In the reply dated August 12, 1987 the vendee revealed the vendor as (i) bit manipulator in respect of allegedly unsigned letter and a telegram (allegedly never received), (ii) a person who intended defrauding the Government of its saletax revenue, (iii) a person who had stolen the supply statement forwarded by the vendee to DGSD from Government firm and (iv) one who had betrayed the confidence reposed by the vendee in him. In respect of the allegations aforesaid the vendor had filed, against the vendee a complaint under Section 500 of the Indian Penal Code in which the learned Magistrate ordered the summoning of Anil Kumar'' Chopra. Anil Kumar Chopra, one of the proprietors filed a petition under section 482, Code of Criminal Procedure for quashing the summoning order dated October 27, 1987 on the ground that letter dated August 12, 1987 was addressed by him by way of reply to his legal notice dated August 1, 1987 and contains reference in regard to the conduct of the complainant in the course of business transactions and the words used are in reply a repudiation of the claim preferred in the legal notice, that the communication was addressed bona fide and in good faith by the petitioner for protection of his own business interests and does not constitute a defamation in terms of exception 9 to Section 499 of the Indian Penal Code. In view of the narration of the facts mentioned about Anil Kumar Chopra v. M.K. Khosla, is not applicable to the facts of the present cage.

Petitioner in his complaint to Shri S.K. Sharma, Senior Superintendent of Police, has mentioned as under :

It may be enquired through CBI whether Hans Raj is running "Sharab Ka Dhaba" and a brothel house for prostitution at his residence. 5 New Lal Bagh Colony, Patiala in collusion with Shri Karam Singh, retired Superintendent of Police where Sh. Hans Raj is harbouring terrorists and antisocial elements and gundas for spinning black money. So as to discover the truth of the family history of Hans Raj is also required to be explored by your honour whether he possesses criminal family history or not."

The allegations levelled by the petitioner primafacie constitute the offence under Section 500 of the Indian Penal Code and there is no reason why that offence should not be taken cognizance of on a complaint filed by the aggrieved person.

In view of the above discussion, there is no merit in this revision petition and the same is dismissed.