K.P. Menun and another vs S.S. Makin

P.D. Sharma, J.—S.S. Makin filed a complaint u/s 500, Indian Penal Code, against K.P. Menon and S.D. Sharma in the Court of the Judicial Magistrate, 1st Class, Jullundur. K. P. Menon is the Managing Partner in Messrs. Thereupon Pharmaceuticals, 53, Proctor Road, Bombay 7. The complainant worked as a Medical Representative with the said firm from 23rd September, 1959, to 5th April, 1965. He was entrusted with the job of publicity of the firm''s products and in that connection was required to give free medical samples to the members of the medical profession. K.P. Menon, accused, terminated his services in the month of April, 1965. The complainant alleged that this was done at the instance of S. D. Sharma, accused who was not on good terms with him and that subsequently the accused wrote defamatory letters to Anup Singh, partner Messrs. Imperial Medical Hall, Jullundur, to the effect that the complainant''s services were terminated as he had been selling samples. S.D. Sharma is alleged to have verbally conveyed similar insinuations to the said Anup Singh and one I.S. Marwah, Subash Gali, Ambala Cantt. According to the complainant, the insinuations made by the two accused against him had resulted in lowering his reputation in the eyes of his friends and other public with whom he had business relations.

The trial Magistrate, after preliminary enquiry issued processes against the two accused. Thereupon they filed the present petition u/s 561-A of the Code of Criminal Procedure for quashing the proceedings pending against them on the ground that the first of them wrote only one letter to the complainant while terming his services and telling him that he had been selling samples of medicines given to him for free supply to the medical practitioners and that the three witnesses examined by the complainant before the Magistrate u/s 200 of the Criminal Procedure Code did not involve him in the matter. As regards S.D. Sharma, it was urged that he informed Anup Singh in routine in order to safeguard the interests of the company and that the letter written by him to IS. Marwah did not contain any defamatory matter. The complaint is alleged to have been filed simply to harass the two accused and as it was devoid of all merits, they prayed that the proceedings taken on it may be quashed.

The complainant in his written reply explained that the evidence produced by him before the trial Court was sufficient to sustain the charge u/s 500, Indian Penal Code, against both the accused and that the insinuations made by them against him were defamatory in character.

The complaint besides himself also examined Anup Singh and I. S. Marwah as his witnesses as during the preliminary enquiry held on 18th April, 1966. He gave out while in the witness-box that K.P. Menon wrote to Anup Singh in the month of April, 1965, that he had been removed from service as he used to sell the samples of medicines supplied to him. He then referred to a letter written by K.P. Menon to him also in similar terms He went on to say that S.D. Sharma, accused, also talked to Anup Singh and I.S. Marwah in similar terms which lowered his reputation in the eyes of his friends and public with whom he had dealings. Anup Singh deposed that S.D. Sharma wrote to him a letter in 1965 that the complainant had been removed from service. He then informed him orally some time later that the complainant was removed from service as he used to sell samples supplied to him for free distribution to medical practitioners According to him this talk lowered the complainant in his estimation. I.S. Marwah also referred to certain letters which S. D. Sharma wrote to him that the complainant had been removed from service on account of his misconduct. He further stated that K P. Menon also told him that the complainant had been removed from service as he used to sell free samples of medicines supplied to him in the market. The learned Magistrate as it appears from his order dated 4th May, ls6tf, was satisfied from the complaint, statement of the complainant and other preliminary evidence that a prima facie case u/s 500. Indian Penal Code, had been made out against both the accused. He, therefore, ordered that they should be summoned on payment of process fee for 2nd of June 1986. There was evidence on the record to show that the two accused had been telling persons that the complainant had been removed from service because he had bean selling samples of medicines in the market which had been supplied to him for free distribution amongst the medical practitioners. The insinuations made against the complainant prima facie are defamatory in character. Thus the Magistrate''s order found support from the evidence before him. The Learned Counsel for the petitioners urged that the two accused informed their other dealers about the misconduct of the complainant in good faith for the protection of their interest and or for the public good. This act of theirs was covered by Exception 9 of section 499 of the Indian Penal Code. The material before the trial Magistrate was not sufficient to make out that the two accused made the imputation on the character of the complainant in good faith for the protection of their interest or for the public good.

The Supreme Court while examining the scope of section 561-A of the Code of Criminal Procedure in R. P. Kapur v. State of Punjab AIR 1961 S.C. 866 observed as follows:-

The inherent power of High Court u/s 561A, Criminal Procedure Code, cannot be exercised in regard to matters specifically covered by the other provisions of the Code. The inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction.

Some of the categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised are;

(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category.

(ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not;

(iii) Where the allegations made against the accused person to constitute an offence alleged bat there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction u/s 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate and ordinarily it would not be open to any party to invoke the High Court''s inherent jurisdiction and contend that on a reasonable appreciating of the evidence the accusation made against the accused would not be sustained.

The instant case indeed does not fall in any one of the above three categories of cases where the inherent jurisdiction 0f this Court could be exercised to quash the proceedings. The revision petition fails and is dismissed

The parties, through their counsel have been directed to appear before the trial Court on 16th November, 1967.