Delhi High Court
A.L. Mehta vs Niit Ltd. & Anr. on 10 February, 2009
Author: Mool Chand Garg
Bench: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M.C. 2745/2008
% Reserved on : 03.02.2009
Date of decision : 10.02.2009
A.L.MEHTA ... Petitioner
Through: Petitioner in person
Versus
NIIT LTD. AND ANR. ...Respondents
Through: Mr.N.K.Kaul, Sr.Advocate with
Mr.Sanjay K.Chadha, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
MOOL CHAND GARG, J:
1. By this petition the petitioner seeks interference by this Court
under Section 482 Cr.P.C. and prays for quashing Complaint Case No.
2408/2007 and proceedings arising therefrom initiated by respondent
No.1 under Section 499 IPC pending trial in the Court of Metropolitan
Magistrate, Karkardooma, on account of the petitioner having
allegedly circulated a letter dated 17.5.2007 addressed to Shri
P.K.Misra, Member investigation CBTD in which defamatory allegations
were made by the petitioner against the respondent which were also
read over and discussed by a number of employees of the first
respondent. As such, it was alleged that the petitioner committed an
offence under Section 500 of the Indian Penal Code.
2. The petitioner thereafter filed a revision petition bearing No.
Crl.M.C. 2745/2008 Page 1 of 10
17/2008 against the summoning order inter alia on the following
grounds :-
(a) Defamatory letter dated 17.05.2007 was in public interest and falls
under the exceptions 1, 6,8 & 9 of Section 499 IPC.
(b) Respondent has not mentioned its name of employee who has
received and discussed the defamatory letter.
(c) The court has no jurisdiction to try and entertain the complaint.
3. The said revision petition was dismissed by the learned
Additional Sessions Judge vide its order dated 21.5.2008. The learned
ASJ observed :
"5. I have given my careful consideration to the arguments advanced
before me. In the letter dated 17.05.2007 it is mentioned that con-man of NIIT
was able to purchase the concerned officers namely Sh P C Khandelwal, Sh. S.
S. Rathore as well as Sh Manu Malik, Additional Commissioner of Income Tax,
Central Circle, New Delhi. It is further alleged in the said letter that cases of
large scale evasion of income tax by NIIT Ltd and its associate companies have
been virtually killed and messed up by Sh P C Khandelwal, Assistant
Commissioner of Income Tax. In my opinion, the language used by the
appellant in the said letter is defamatory. To say that the respondent company
is indulging in large scale of evasion of income tax in connivance with Assistant
Commissioner of Income Tax or to say that con-man of the respondent
company was able to purchase the Income Tax officers are certainly
defamatory. A charge of corruption/bribery leveled by the petitioner against
the respondent company, in my opinion, is defamatory. The case of the
petitioner does not fall under the exceptions 1, 6, 8 and 9 of Section 499 IPC.
From the perusal of material placed on record of trial court, prima facie a case
under Section 500 IPC is made out.
6. The letter in question is not in dispute. CW 1 in her testimony has
categorically stated that the said letter was dropped at the respondent's
centre by the petitioner and was opened by the employee of the respondent
company in the Reception Section as the envelop was not specifically marked
to any one. The said letter was read over by number of employees of the
respondent. Just by not mentioning the name of any employees who
happened to read the said letter in the complaint as well as in the testimony of
CW1 will not make the summoning order bad.
7. In the complaint as well as in the testimony of CW 1, it is stated that
the said letter was dropped/dispatched by the petitioner at the respondent
office which falls to the jurisdiction of Karkardooma Courts. Thus, the trial
court has jurisdiction to try and entertain the complaint."
4. The petitioner by way of the present petition has once again
challenged the summoning order dated 18.9.2007 passed by the ld.
MM on the same grounds and facts as it was in its earlier revision
petition, which was dismissed on merit by learned Additional Sessions
Judge, Karkardooma.
5. According to the petitioner, the impugned order summoning the
Crl.M.C. 2745/2008 Page 2 of 10
petitioner to face prosecution in respect of the offences alleged against
him by the first respondent is not sustainable and therefore is required
to be quashed by this Court in exercise of powers vested in this Court
under Section 482 Cr.P.C. and/or Article 227 of the Constitution of India
because according to the petitioner the complaint does not make out
any case against him.
6. On a query raised by the Court as to how the aforesaid petition is
maintainable in view of the provisions contained under Section 397(3)
Cr.P.c. which bars a second revision by a person who has already
availed the remedy under Sectin 397 Cr.P.C. by filing a revision petition
before the Court of Sessions under Section 482 Cr.P.C., the petitioner
has relied upon the following judgments:-
1. Kirshnan and Anr. Vs. Krishnaveni and Anr., (1997) 4 SCC 241
2. Kailash Verma Vs. Punjab State Civil Supplied Corporation,
2005(1)JCC 209
3. Jitender Kumar Jain Vs. State of Delhi, (1998) 8 SCC 770.
7. A perusal of the aforesaid judgments goes to show that after the
right of revision is exercised by petitioner, a second revision on his
behalf is barred under Section 397(3) Cr.P.C. The power vested in this
Court under Section 482 Cr.P.C. can only be exercised where the
impugned action is an action abusing the process of court or has
caused miscarriage of justice.
8. In this regard, I may extract some observations made by the
Apex Court in the case of Kailash Verma Vs. Punjab State Civil Supplies
Corporation & Anr. (2005) 2 SCC 571 :
5. It may also be noticed that this Court in Rajathi v. C. Ganesan said that
the power under Section 482 of the Criminal Procedure Code has to be
exercised sparingly and such power shall not be utilized as a substitute for
second Revision. Ordinarily, when a Revision has been barred under Section
397(3) of the Code, the complainant or the accused cannot be allowed to take
Crl.M.C. 2745/2008 Page 3 of 10
recourse to Revision before the High Court under Section 397(1) of the
Criminal Procedure Code as it is prohibited under Section 397(3) thereof.
However, the High Court can entertain a petition under Section 482 of the
Criminal Procedure Code when there is serious miscarriage of justice and
abuse of the process of the court or when mandatory provisions of law were
not complied with and when the High Court feel that the inherent jurisdiction is
to be exercised to correct the mistake committed by the revisional court.
9. This issue has also been discussed in the case of Krishnan & Anr.
Vs. Krishnaveni and Anr. (1997) 4 SCC 241. Some of the observations
made in this regard are reproduced hereinbelow for the sake of
reference:
"6. Section 401 of the Code gives to every High Court power of
revision. Sub-section (1) of the said section provides that in the
case of any proceeding the record of which has been called for
by itself or which otherwise comes to its knowledge, the High
Court may, in its discretion, exercise any of the powers
conferred on a Court of Appeal by Sections 386, 389 and 391
and on a Court of Sessions by Section 307. Apart from the
express power under Section 397(1), the High Court has been
invested with suo motu power under Section 401 to exercise
revisional powers. In addition, Section 482 saves inherent
powers of the High Court postulating that "Nothing in this Code
shall be deemed to limit or affect the inherent powers of the
High Court to make such orders as may be necessary to give
effect to any order under this Code, or to prevent abuse of the
process of any Court or otherwise to secure the ends of
justice." Section 483 enjoins upon every High Court to so
exercise its continuous superintendence over the Courts of
Judicial Magistrates subordinate to it as to ensure that there is
an expeditious and proper disposal of cases by such
Magistrates. It is, therefore, clear that the power of the High
Court of continuous supervisory jurisdiction is of paramount
importance to examine correctness, legality, or propriety of
any finding, sentence or order, recorded or passed as also
regularity of the proceedings of all inferior Criminal Courts.
7. It is seen that exercise of the revisional power by the High
Court under Section 397 read with Section 401 is to call for the
records of any inferior Criminal Court and to examine the
correctness, legality or propriety of any finding, sentence or
order, recorded or passed, and as to the regularity of any
proceedings of such inferior Court and to pass appropriate
orders. The Court of Session and the Magistrates are inferior
Criminal Courts to the High Court and Courts of Judicial
Magistrate are inferior Criminal Courts to the Sessions Judge.
Ordinarily, in the matter of exercise of power of revision by any
High Court, Section 397 and Section 401 are required to be
read together. Section 397 gives powers to the High Court to
call for the records as also suo motu power under Section 401
to exercise the revisional power on the grounds mentioned
therein, i.e., to examine the correctness, legality or propriety of
any finding, sentence or order, recorded or passed and as to
the regularity of any proceedings of such inferior Court, and to
dispose of the revision in the manner indicated under Section
401 of the Code. The revisional power of the High Court merely
conserves the power of the High Court to see that justice is
done in accordance with the recognised rules of criminal
jurisprudence and that its subordinates Courts do not exceed
the jurisdiction or abuse the power vested in them under the
Code or to prevent abuse of the process of the inferior Criminal
Courts or to prevent miscarriage of justice.
8. to 9. xxx xxx xxx
10. Ordinarily, when revision has been barred by
Crl.M.C. 2745/2008 Page 4 of 10
Section 397(3) of the Code, a person - accused/
complainant - cannot be allowed to take recourse to the
revision to the High Court under Section 397(1) or
under inherent powers of the High Court under Section
482 of the Code since it may amount to circumvention
of the provisions of Section 397(3) or Section 397(2) of
the Code. It is seen that the High Court has suo motu
power under Section 401 and continuous supervisory
jurisdiction under Section 483 of the Code. So, when the
High Court on examination of the record finds that
there is grave miscarriage of justice or abuse of process
of the Courts or the required statutory procedure has
not been complied with or there is failure of justice or
order passed or sentence imposed by the Magistrate
requires correction, it is but the duty of the High Court
to have it corrected at the inception lest grave
miscarriage of justice would ensue. It is, therefore, to
meet the ends of justice or to prevent abuse of the
process that the High Court is preserved with inherent
power and would be justified, under such
circumstances, to exercise the inherent power and in an
appropriate case even revisional power under Section
397(1) read with Section 401 of the Code. As stated
earlier, it may be exercised sparingly so as to avoid
needless multiplicity of procedure, unnecessary delay in
trial and protraction of proceedings. The object of
criminal trial is to render public justice, to punish the
criminal and to see that the trial is concluded
expeditiously before the memory of the witness fades
out. The recent trend is to delay the trial and threaten
the witness or to win over the witness by promise or
inducement. These malpractices need to be curbed and
public justice can be ensured only when expeditious
trial is conducted."
10. Now coming to the facts of this case, I may observe that the
petitioner herein undisputedly is an ex employee of the first
respondent/complainant. He had some disputes that the first
respondent in relation to some dues which he submits were
outstanding and for which a settlement also took place between him
and the complainant. Thus according to the complainant the petitioner
had all the reasons to defame the complainant. In this regard, it may
be appropriate to take note of the following paragraphs of the
complaint:
"8 That the complainant company states that it has built the reputation
and goodwill of the company throughout the country with huge efforts and
diligence. It is submitted that a large amount of planning and expenditure was
involved in gaining trust and confidence of lakhs of students and professionals
in the industry.
9. That the Accused is an ex-employee of the Complainant Company.
The accused was employed with the Complainant Company from 1995 till
December, 2001 as Deputy General Manager and thereafter worked on
retainer-ship basis w.e.f. 3rd December, 2001 till March, 2002. However, due to
his inadequate and below par performance, the retainership agreement was
foreclosed by the Complainant Company in March, 2002. The accused left the
Complainant Company with a revengeful mind and at the time of leaving the
Crl.M.C. 2745/2008 Page 5 of 10
organization he had also threaten it with dire consequences.
10. That at the time of leaving the organization he had further threatened
that as he has all trade secrets of the Complainant Company as he was
working as Deputy General Manager, he would ruin the entire company. Not
only this he also instigated his fellow employees against the Complainant
Company by making false representations, as a result of which, lot of
hardworking employees also left the company.
11. That after leaving the Complainant Company, the accused started making
illegal demands from the Complainant Company. The accused having been
disgruntled on account of non-satisfaction of his totally illegal demands,
continued to somehow harm and damage the Complainant Company and
started fabricating and filing totally false, frivolous and defamatory complaints
against the Complainant Company before various Government Organizations.
12. That based upon the said complainants the accused had also been
trying to blackmail the Complainant Company and has been making illegal
demands with threats that in case, the same are not gratified, he would further
file false cases against the Complainant Company before various Government
Authorities. The Accused had written certain e-mails/letters to the officers and
directors of the Complainant Company.
13. That the accused to malign the reputation and goodwill of the
complainant company had also filed various false and frivolous complaints
against the Complainant, amongst others, before the Enforcement Directorate
and the Department of Income Tax. Before the ED based on the Replies filed
by the Complainant Company with evidence with regard thereto, all charges
against the Complainant Company were dropped. Similarly most of the
inquiries before the I.T. department were duly closed. Even after this, the
Accused continued to pursue his false complaints against the complainant
company to tarnish its reputation and to take undue and illegal advantage and
also to harass it.
14. That on 16.08.2007, the complainant company received a letter dated
17.05.2007 addressed addressed by the accused to Sh. P.K. Mishra, Member
(Investigation) Central Board of Direct Taxes, North Block, New Delhi
xxxxxxxxxxxxxxxxxxxxxxxxxxx
made in the said letter by the Accused was read and discussed by a number of
employees. Similar envelopes were also received at the other centres of the
complainant company. Further, the accused has also sent the above said
letter to the higher officials of the Government.
16. That the accused by making and publishing the above said derogatory
and defamatory statement against the complainant company has tarnished its
reputation and the company's reputation has been lowered not only in the
eyes of the employees of the complainant company but also before the
Government Officials and the general public. The complainant company has
been defamed on account of the derogatory and defamatory statement made
and published by the accused.
17. That the derogatory and defamatory statement made by the accused
has harmed the reputation and goodwill of the complainant company. It is
stated that the said imputation made by the accused were made intentionally
and deliberately to harm and tarnish the reputation and goodwill of the
complainant company which it is enjoying worldwide."
11. The aforesaid paragraphs establish that the complaint has been
filed by the complainant in view of the following:
(i) that the petitioner was an ex employee of the complainant
(ii) that he was interested in defaming the complainant with a view
to settle scores on account of certain disputes which were pending
between him and the complainant-company inasmuch as he left the
services of the company with a revengeful mind and while leaving the
Crl.M.C. 2745/2008 Page 6 of 10
company threatened it with dire consequences.
(iii) He admittedly wrote a letter dated 17.5.2007 addressed to
P.K.Mishra which is something more than mere information. Some of
the contents of the aforesaid letter which have been reproduced in the
complaint are relevant, which are reproduced hereunder:
"...how cases of large scale evasion of Income-Tax by NIIT Ltd. and its
associates, companies have been virtually killed and messed up by Sh. P.C.
Khandelwal's Assistant Commissioner of Income-Tax....."
".....Shri S.S.Rathore, Commissioner of Income-Tax, Central Circle-III, and
Ms.M.H. Kherawala, Chairperson of CBDT about Sh. P.C. Khandelwal apparent
bias in favor of NIIT....."
".....the Con-man of NIIT was able to purchase the concerned officers, namely,
Sh. P.C. Khandelwal, Sh. Sri S.S.Rathore as well as Sri Manu Malik, Additional
Commissioner of Income Tax, Central Circle, New Delhi....."
"....As the orders passed by the Assistant Commissioner of Income-Tax, Central
Circle-II, New Delhi are not only prejudicial to revenue, inasmuch as these are
erroneous, non-speaking and unsustainable in the eyes of law but have been
made out on the instructions of Sri S.S. Rathore, Commissioner and Sri Manu
Malik, Additional Commissioner of Income-Tax......."
12. According to the first respondent, the letter in question was
dropped by the petitioner at the complainant's centre and was opened
by an employee of the complainant company in reception and
thereafter the said letter was also read by a number of employees of
the complainant company. This fact is borne out from the affidavit of
one Deepika Singh, the authorized representative, filed with the
complaint, where the deponent repeated all the allegations made in
the complaint including the circulation of the letter in question. At this
stage the allegations will have to be taken as it is.
13. It is on the basis of the aforesaid material available on record,
the learned Magistrate issued the summoning order dated 18.9.2007
and a perusal thereof goes to show that it is a speaking order and is
based upon the material which has been brought on record by the
complainant.
14. The petitioner in his written submission has submitted that he is
an informer of the Government of India and had furnished authentic
Crl.M.C. 2745/2008 Page 7 of 10
information supported by the documentary evidence to the Directorate
of Income Tax regarding the tax evasion of over 100 crores by
respondent group of companies on the basis of which searches, etc.
were conducted and incriminating documents were recovered. He was
also paid an interim reward of Rs.50,000/- by the Governor. It is
submitted that the letter dated 17.5.2007 was a confidential document
and a copy thereof has been taken out by the complainant illegally. He
also submits that question of dropping of the said letter in the
Karkardooma Courts does not arise because it was not meant for
public consumption. It has also been submitted that the allegation
made in the letter dated 17.5.2007 contained true facts and that the
information had been given by him in good faith and therefore, he was
protected under exceptions 1, 6, 8 & 9 of Section 499 IPC. These
exceptions added to Section 499 IPC reads as under:
"Section 499 Defamation
Whoever, by words either spoken or intended to be read, or by signs
or by visible representations, makes or publishes any imputation
concerning any person intending to harm, or knowing or having
reason to believe that such imputation will harm, the reputation of
such person, is said, except in the cases hereinafter expected, of
defame that person.
First Exception-Imputation of truth which public good requires to be
made or published: --It is not defamation to impute anything which is
true concerning any person, if it be for the public good that the
imputation should be made or published. Whether or not it is for the
public good is a question of fact.
Sixth Exception-Merits of public performance: --It is not defamation to
express in good faith any opinion respecting the merits of any
performance which its author has submitted to the judgment of the
public, or respecting the character of the author so far as his
character appears in such performance, and no further..
Eight Exception - Accusation preferred in good faith to authorized
person. -- It is not defamation to prefer in good faith an accusation
against any person to any of those who have lawful authority over
that person with respect to the subject-matter of accusation.
Ninth Exception-Imputation made in good faith by person for
protection of his or other's interests: - 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 interests of the person
making it, or of any other person, or for the public good."
15. A bare perusal of the letter dated 17.5.2007 goes to show that
Crl.M.C. 2745/2008 Page 8 of 10
the aforesaid contention of the petitioner who argued the matter
himself and was not interested in seeking appointment of a senior
counsel though he made a grievance of the appearance of senior
counsel from the side of the first respondent has no legs to stand.
Some of the paragraphs of the aforesaid letter are reproduced
hereunder:
"1. I am constrained to bring to your kind notice, how cases of large scale
evasion of Income Tax by NIIT Limited and its associate companies have been
virtually killed and messed up by Shri. P.C. Kahndelwal's, Assistant
Commissioner of Income Tax, Central Circle-2, New Delhi.
2. It is shocking to note that such an astounding development should
have occurred despite the Informer sounding a note of caution to Shri S S
Rathore, Commissioner of Income Tax, Central -III and Ms. M.H. Kherawala,
Chairperson of CBDT about Shri P.C. Khandelwal's apparent bias in favour of
NIIT vide his letters dated 14th March 2006 and 25th March, 2006 respectively,
followed by a letter dated 6th May, 2006 addressed to CVC."
16. The averments made in the aforesaid letter shows that the
petitioner had even challenged various actions taken by the
adjudicating authorities and the department and have also suggested
certain steps to be taken which does not come within the realm of
supplying information and therefore, it does not lie in the mouth of the
petitioner to say that the letter in question was merely an information
furnished by the petitioner as an informer and was given in good faith.
17. This is a matter of record that the petitioner was an ex
employee. He had certain disputes with the first respondent. He left
the services of the first respondent in a revengeful mood and has
taken this action basically to settle the scores. The issue of circulation
of the aforesaid letter and causing of defamation has been very
categorically stated by the complainant in his complaint which has
been supported by the affidavit of Ms. Deepika who appeared as CW -1
in this case before the order of summoning was issued.
18. Some of the judgments which have been referred to by the
respondents deserve notice that are judgments reported in (2001) 8
SCC 522, (2002) 3 SCC 89, (2005) 1 SCC 122 and 2008 VII AD (Delhi)
Crl.M.C. 2745/2008 Page 9 of 10
461, which also lays down the proposition as discussed in paragraphs 8
and 9 above.
19. Since nothing has been brought to my notice that filing of
complaint against the petitioner is either an abuse of process of law or
has resulted in miscarriage of justice, the filing of present petition
which is in the nature of second revision petition after having lost the
battle in the court of sessions is an abuse of the process of Court and
therefore deserves to be dismissed as there is no reason to invoke the
jurisdiction of this Court under Section 482 Cr.P.C.
20. Accordingly the petition is dismissed. The TCR be sent back
forthwith. Parties to appear before the concerned Metropolitan
Magistrate on 9.4.2009.
MOOL CHAND GARG, J.
FEBRUARY 10, 2009 dc Crl.M.C. 2745/2008 Page 10 of 10