Som Mahajan and ors. vs Jitender Kumar Aggarwal

G.S. Chahal, J.

Som Mahajan and Smt. Rajinder Mahajan petitioner seek quashing of summoning order Annexure P2 by filing this petition under Section 482 Cr.P.C.

The petitioners are being prosecuted on the basis of complaint filed by Jitender Kumar Aggarwal, for offences under Sections 193, 196 and 500 of the Indian Penal Code. The respondent had filed a petition under Section 13 of the Haryana Urban Control of Rent and Eviction Act, 1973, against the petitioners on 5121990 and notice of this application was issued to them for 1011991. They having not put in appearance on that date exparte proceedings were ordered against them and the case was fixed for evidence for 23rd March, 1991. On 7th February, 1991 an application supported by an affidavit was filed and it was alleged by the petitioners that the same contained concocted and false allegations, which are described as under:

"i) The petitioners are shrewed and mischievous type of persons mentioned in para No. 2 of their application by respondents/accused in the learned Rent Controller, Gurgaon causing defaming the complainant in the eye of judiciary as well as public which lowered down the prestige of the complainant and therefore accused/respondent are punishable.

ii) In para No. 4 of the application by respondents/accused alongwith affidavit dated 7291 the accused made serious false allegations on the complainant saying that accused No. 2 respondent had received a summon alongwith copy of petition by post. While the accused fully knows that the accused No. 2 has received summon in person with the copy of petition from the process server. Therefore making false, concocted allegations knowingly in a Court is punishable.

iii) In Para No. 5 of the application by respondents/accused alongwith the affidavit dated 721991 the accused made very serious allegations of forgery of signature of accused No. 2 on the summon by the complainant, when they fully know that the allegations are concocted, false accused clearly denied the receipt of summon through the process server, but wrongly says that the summon is received by accused No. 2 by post, knowing that the allegation on the complainant is absolutely false and fabricated. As mentioned above the accused No. 2 has received only summon through the process server and not by post and also accordingly signed the copy of summon as required and caused injury to the compliant."

The respondent claims that he has been defamed by making of these allegations and further that the false allegations of forgery have also been made.

On the basis of the evidence recorded, the learned Judicial Magistrate vide his order dated 9th December, 1991 summoned the petitioners for offences under Sections 193, 196 and 500 of the Indian Penal Code.

So far as charges under Sections 193 and 196 of the Indian Penal Code are concerned it cannot be disputed that Section 195 will stand as bar to their trial unless a complaint is filed by the Court before whom this affidavit was filed. Thus the order of the Magistrate so far as it relates to summoning of the petitioners under Section 193 and 196 of the Indian Penal Code are concerned are liable to be quashed.

However, with respect to the charge under Section 500 of the Indian Penal Code, the allegations contained in para No. 4(i) describing the respondents as `shrewed'' and `mischievous'' are per se defamatory. If the petitioners have some defence they will have to establish it.

In Esufalli Abdul Hussein Versus Emperor, 1918 (Vol. DVLJ) Indian Cases 411, the Bombay High Court ordered acquittal of the person who described another as a `rougue'' on the basis that his case fell within the purview of 9th Exception to Section 499 of the Indian Penal Code.

In Thakaria v. Puran Singh 1922 (Vol. LXVII) Indian Cases 589, a complaint under Section 500 of the Penal Code was quashed considering that words `pichhlag'' and `Lawaris'' did not mean illegitimate and were not defamatory. The principles contained in the above authorities are not attracted to the facts of this case.

Learned counsel has urged that reply dated 6th February, 1991, which is alleged to contain defamatory matter having been filed through counsel, the petitioners could not be tried for that offence and in support of his argument he has relied upon the observations of the Kerala High Court in Subbu Chettiar v. Ayyavu Chettiar, AIR 1959 Kerala 342. The point involved therein was to the effect that the reply containing defamatory words having been sent through a counsel it could not be safely held that the accused must be presumed to have given instruction to the lawyer for reply. This obviously was a case on its own facts and the decision came at the stage after entire evidence was recorded. In the present case, the complaint is just at the threshold, may be the petitioners have some defence open to them but then they shall have to prove it. No case is made out for quashing the summoning order or complaint under Section 500 of the Indian Penal Code.

This petition is partly allowed to the extent that summoning order under Sections 193 and 196 of the Indian Penal Code is quashed and the complaint shall proceed under Section 500 of the Indian Penal Code. Parties are directed through their counsel to appear before the trial court on 3rd November, 1992.