Karnataka High Court
Shri.Vijay Balakrishna Pusalkar vs Dr. Anil. G Gandhi on 29 November, 2022
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CRL.RP No. 100293 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 29TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE G. BASAVARAJA
CR.R.P.NO.100293/2016
BETWEEN:
SHRI.VIJAY BALAKRISHNA PUSALKAR,
AGE: 72 YEARS, OCC: BUSINESS,
R/O: 816, 8TH LANE,
SINDH HOUSING SOCIETY,
PUNE-411007.
...PETITIONER
(BY SRI. SHREEVATSA HEGDE, ADVOCATE)
AND:
1. DR. ANIL. G GANDHI,
AGE: 72 YEARS, OCC: MEDICAL PRACTITIONER,
R/O: 20-A, LAXMIN SOCIETY,
SANAPATI BAPAT MARG,
PUNE-411016.
2. PROF.S.G.. KANITKAR,
AGE: YEARS, OCC LECTURER,
R/O: CHANDRAMANI,
NEXT TO SANGLI URBAN CO-OP. BANK,
VISHRAMBAG,
SANGLI.
...RESPONDENT
(BY SRI. SANTOSH RAWOOT AND
SRI. S.B.SHAIKH, ADVOCATES FOR R1;
SRI. M.A.SAYYAD AND
SRI. VISHWANATH HEGDE, ADVOCATES FOR R2)
ROHAN
Digitally signed
by ROHAN
HADIMANI T
THIS CRIMINAL REVISION PETITION IS FILED UNDER
HADIMANI Date:
T 2022.12.12
18:24:23
SECTION 397 READ WITH 401 OF CR.P.C., SEEKING TO SET ASIDE
+0530
THE ORDER DATED 14.07.2016 PASSED IN CRIMINAL REVISION
PETITION NO. 120 OF 2014 BY THE XI ADDITIONAL DISTRICT AND
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CRL.RP No. 100293 of 2016
SESSIONS JUDGE, BELAGAVI IF NECESSARY BY CALLING FOR THE
RECORDS AND RESTORE THE PRIVATE COMPLAINT NO. 343 OF 2012
TO THE FILE OF THE JUDICIAL MAGISTRATE FIRST CLASS-IV,
BELAGAVI.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 25.11.2022 COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This criminal revision petition is filed under Section 397 read with Section 401 of the Code of Criminal Procedure ("Cr.P.C." for short) seeking to set aside the order dated 14.07.2016 passed in Criminal Revision Petition No.120/2014 by the XI Additional District and Sessions Judge, Belagavi if necessary by calling for the records and restore the Private Complaint No.343/2012 to the file of the Judicial Magistrate First Class-IV, Belagavi.
2. The parties are referred to as per their rank before the Trial Court.
3. The brief facts of the case are that the complainant has lodged a private complaint in Private Complaint No.343/2012 before the JMFC IV, Belgaum -3- CRL.RP No. 100293 of 2016 against the respondents and four others. The Trial Court took cognizance for the offence punishable under Section 500 of the Indian Penal Code ("IPC" for short) and issued process to the respondents. The said issuance of process was belatedly challenged before the XI Additional District & Sessions Judge, Belagavi in Criminal Revision Petition No.120/2014. The Revision Court not only condoned delay of 7 months without proper reasons but also proceeded to allow the petition filed by the respondent No.1 and set aside the order passed by the Trial Court.
4. Being aggrieved by the said order dated 14.07.2016 passed in Criminal Revision Petition No.120/2014 by the learned XI Additional District & Sessions Judge, Belagavi, the present revision petition is filed.
5. Heard the arguments of both the counsel.
6. Sri. Shreevatsa S.Hegde, learned counsel for the revision petitioner has submitted his arguments that -4- CRL.RP No. 100293 of 2016 the Revisional Court fell in error in extending the benefit of the 9th and 10th exceptions provided under Section 499 of the IPC at the stage of revision.
6.1 The Court of Revision ought to have held that it is an established principle of law that the exceptions if pleaded by the Accused in an enquiry for the offence punishable under SEctions 499 and 500 of the IPC, the same would be a matter of trial and not inference. 6.2 The Revisional Court ought to have held that, if the Accused is raising any defense in respect of exceptions then the matter would be one to be tried by the Trial Court and examine the applicability of the said exceptions and it is not for a Court of Revision to infer the applicability.
6.3 The Revisional Court also failed in invoking the exception No. 8 insofar as the Respondent No.2 is concerned without any basis.
-5-CRL.RP No. 100293 of 2016 6.4 The Court of Revision has failed to appreciate that publication need not be always to the general public and erred in recording a finding in Paragraph No. 31 of its Judgment that since the Ex.C.4 affidavit has not come to the knowledge of general public a case of defamation is not made out.
6.5 The Court of Revision erred in extending the benefit of revision filed by the Respondent No. 1 to even the Respondent No. 2 (Accused No. 3) when there was no challenge posed by him.
7. Further the learned counsel for the petitioner submits that the Revisional Court has no jurisdiction to entertain the revision petition which is challenged as to the issuance of the process. To substantiate his arguments, he relied on the decisions in the case of SUBRAMANIUM SETHURAMAN Vs. STATE OF MAHARASHTRA AND ANOTHER reported in 2004 CRI. L. J. 4609 and in the case of JEFFREY J. DIERMEIER AND ANOTHER Vs. STATE OF -6- CRL.RP No. 100293 of 2016 WEST BENGAL AND ANOTHER reported in (2010) 6 SCC
243. With all these grounds, he sought for allowing this revision petition.
8. As against this, the learned counsel appearing on behalf of the respondent No.2 has submitted his arguments that the learned XI Additional District & Sessions Judge, Belagavi has properly appreciated the matter and passed the impugned order which does not requires any interference of this Court. With this, he sought to dismiss this petition.
9. I have perused the order passed by the learned JMFC IV, Belgaum in Private Complaint No.343/2012 and the order passed by the learned XI Additional District and Sessions Judge, Belagavi in Criminal Revision Petition No.120/2014 and gone through the submissions of the learned counsel on both the sides.
10. A perusal of the order passed by the Court of the JMFC IV, Belgaum in Private Complaint No.343/2012 -7- CRL.RP No. 100293 of 2016 dated 10.06.2013 reveals that one Sri. Vijay Balkrishna Pusalkar who is the present petitioner herein has filed a private complaint under Section 200 of the Cr.P.C., against six persons for the commission of offence punishable under Section 500 read with Section 34 of the IPC. The Trial Court has passed a speaking order dated 10.06.2013. The portion of the order reads as under:
"ORDER Register the case against accused Nos.1 and 3 in Criminal Register No.III for offence punishable u/Sec.500 of IPC.
Issue summons to accused Nos.1 and 3 if P.F. is paid and copies of the complaint are furnished."
11. Being aggrieved by the order passed by the Trial Court, the present petitioner had filed a criminal revision petition in Crl.R.P.No.189/2014 against Dr. Anil G.Gandhi and five other accused persons. Accused No.1- Dr. Anil G.Gandhi has also filed a criminal revision petition in Crl.R.P.No.120/2014 on the file of the XI Additional District & Sessions Judge, Belagavi against the present revision petitioner Vijay Balkrishna Pusalkar and five -8- CRL.RP No. 100293 of 2016 others. The learned XI Additional District & Sessions Judge, Belagavi passed an order dated 14.07.2016, which reads as under:
"ORDER The criminal revision petition filed U/Section 397 of Cr.P.C. in 189/2014 is hereby dismissed.
While criminal revision petition filed U/Section 397 of Cr.P.c. in 120/2014 is hereby allowed.
The impugned order passed by the learned JMFC IV, Belagavi in Private Complaint No.343/2012 is hereby partly set aside as to issuing process against accused no.1 and 3 and confirmed partly as against the Accused No.2, 4 and 5.
Send a copy of this order to the learned trial court along with LCR forthwith."
12. Being aggrieved by this order passed by the learned XI Additional District & Sessions Judge, Belagavi, the present revision petitioner has filed this revision petition only in respect of the orders passed in Crl.R.P.No.120/2014 which was filed by accused No.1-Dr. Anil G.Gandhi. The revision petitioner has not filed this revision petition against the order passed in Crl.R.No.189/2014.
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13. A perusal of the impugned order passed by the learned XI Additional District & Sessions Judge, Belagavi dated 14.07.2016 it is crystal clear that the accused No.3- Prof. S.G.Kanitkar in Private Complaint No.343/2012 on the file of the Court of JMFC IV, Belgaum has not challenged the order passed by the Trial court in Private Complaint No.343/2012 dated 10.06.2013. However, the Revisional Court has set aside the impugned order passed by the Court of the JMFC IV, Belgaum in P.C.No.343/2012 against accused No.3 has set aside the order passed P.C.No.343/2012 which is not sustainable under law.
14. With regard to accused No.1-Dr. Anil G.Gandhi and accused No.3-Prof. S.G.Kanitkar are concerned, the Trial Court has taken cognizance against them for the commission of offence punishable under Section 500 of the IPC.
15. In paragraph Nos.31 to 33 of the impugned judgment passed by the learned XI Additional District &
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CRL.RP No. 100293 of 2016 Sessions Judge, Belagavi dated 14.07.2016 it is observed as under:
"31. With respect to the publication of the imputation made against the complainant by the accused No. 1 & 3 it is pre-requisite that such publication should be made to others with an intention to defame the complainant. When I examined the aspect of publication the complainant has produced Ex.C-3 and Ex.C.4 and also Ex.C-5. Ex.C-4 is the specifically concerned with the accused No.1 an affidavit sworn to by him. Ex.C-5 is the concerned to accused No.3. When this court specifically examined Ex.C-4 that clearly states about the misappropriation and mismanagement of MTES society, there is nothing on record to show that the said allegations against the complainant are false. Further, the imputation made against the complainant appears to be in good faith for protection of interest of MTES society, wherein the interest of the public at large involved. Thus same falls within 9th & 10th exceptions of the Section 499 IPC allegation against the complainant is also nothing but conduct of him touching public interest. When it is specifically observed as to the publication of that affidavit, there is nothing on record as to the publication making it known the general public.
32. Examination of 2 witnesses by the complainant before the trial court only shows existing good reputation to the complainant, but did not discloses publication of any defamatory imputation against the complainant. Even the newspaper produced as Ex.C-3 is not the publication of any imputation by the complainant, instead of the same is the evidence to show the reputation of the complainant.
33. Ex.C-5 is just an official communication made by the accused No.3 to the Company Secretary, Ugar Sugars Works as to initiation of the official proceedings against the complaint. The same will not in any way be considered defamation of the complainant. All other documents and evidence on record produced by the complainant are not in any way supports his case. Thus, the trial court is not justified in taking cognizance against the accused No.1 &
3. The trial court fails to considered the aspect of publication a pre-requisite of constitute the offence of
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defamation to its true prospects within the meaning U/Section 499 of IPC. Thus, I answer this point in negative."
16. In this regard, the learned counsel appearing on behalf of the revision petitioner has submitted his arguments that the Revisional Court ought to have held that if the accused are raising any defense in respect of exceptions then the matter would be one to be tried by the Trial Court and examine the applicability of the said exceptions and it is not for a Court of Revision to infer the applicability. To substantiate his arguments, he has relied on the decisions in the case of SUBRAMANIUM SETHURAMAN Vs. STATE OF MAHARASHTRA AND ANOTHER reported in 2004 CRI. L. J. 4609 and in the case of JEFFREY J. DIERMEIER AND ANOTHER Vs. STATE OF WEST BENGAL AND ANOTHER reported in (2010) 6 SCC
243.
17. The relevant paragraph Nos.39 to 41 of the case of JEFFREY J. DIERMEIER AND ANOTHER Vs. STATE
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CRL.RP No. 100293 of 2016 OF WEST BENGAL AND ANOTHER reported in (2010) 6 SCC 243, the Hon'ble Apex Court has observed as under:
"39. The question has to be considered on the facts and circumstances of each case, having regard to the nature of imputation made; the circumstances on which it came to be made and the status of the person who makes the imputation as also the status of the person against whom the imputation is allegedly made. These and a host of other considerations would be relevant and required to be considered for deciding the appellants' plea of "good faith" and "public interest". Unfortunately, all these are questions of fact and matters for evidence.
40. In the instant case, the stage for recording of evidence had not been reached and, therefore, in the absence of any evidence on record, we find it difficult to return a finding whether or not the appellants have satisfied the requirements of "good faith" and "public good" so as to fall within the ambit of the Tenth Exception to Section 499 IPC. Similarly, it will neither be possible nor appropriate for this Court to comment on the allegations levelled by Respondent 2 and record a final opinion whether these allegations do constitute defamation. Reading the complaint as a whole, we find it difficult to hold that a case for quashing of the complaint under Section 482 of the Code has been made out. At this juncture, we say no more lest it may cause prejudice to either of the parties.
41. For the aforegoing reasons, we are of the opinion that the High Court was right in refusing to quash the complaint under Section 500 IPC. The a appeal, being devoid of any merit, is dismissed accordingly. Nothing said by the High Court or by us hereinabove shall be construed as expression of final opinion on the merits of the complaint."
18. A perusal of the above judgment, it is crystal clear that the plea of good faith and public interest all are
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CRL.RP No. 100293 of 2016 questioned of fact and matters of evidence. In the absence of any evidence on record, the Revisional Court ought not to have expressed any opinion as to the question of fact. But unfortunately, the Revisional Court has expressed its opinion as if there is an evidence on record which is not sustainable under law in view of the decisions of the Hon'ble Apex Court.
19. With regard to the maintainability of the petition is concerned, this Court has already passed an order on 02.01.2020. Therefore, there is no need to discuss about maintainability of this revision petition.
20. In view of the aforesaid reasons and discussions, I proceed to pass the following:
ORDER i. The revision petition is allowed.
ii. The order passed by the XI Additional District & Sessions Judge, Belagavi in Criminal Revision Petition No.120/2014
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dated 14.07.2016 in respect of accused Nos.1 and 3 is set aside.
iii. The order passed by the Court of the JMFC IV, Belgaum in Private Complaint No.343/2012 dated 10.06.2013 is restored..
iv. Send back the Trial Court Records to the concerned Court to proceed against the accused No.1 and 3 as per order passed by the Court of the JMFC IV, Belgaum in Private Complaint No.343/2012 dated 10.06.2013.
v. Registry is directed to transmit the Trial Court Records along with a copy of this order to the Trial Court.
Sd/-
JUDGE RH