Delhi District Court
Abnash Chander Mahajan vs Mohan Garg on 8 August, 2017
IN THE COURT OF SH. JAGDISH KUMAR ,
ADDITIONAL SESSIONS JUDGE -02(WEST) , DELHI.
Criminal Revision No. 55947/2016
1. Abnash Chander Mahajan,
R/o 199, Ambika Vihar,
New Delhi-110087
2. Atul Mahajan,
R/o 199, Ambika Vihar,
New Delhi-110087
............ Revisionists
Versus
1. Mohan Garg
S/o Late Sh. K. C. Garg
R/o Ganpali Villa, 6/1 Jai Dev Park
New Delhi - 110026
2. Pankaj Arora
S/o Sh. R. C. Arora
R/o 19/5, East Punjabi Bagh,
New Delhi -110026
............Respondents
1. The present revision petition under section 397/399 Cr.P.C. assails the order dt. 25.02.2013 & 09.09.2015 (hereinafter called impugned orders) as passed by Ld. MM-01 (West)/Delhi, (hereinafter called the Ld. Trial Court), whereby the Ld. Trial Court has summoned the revisionists and ordered to frame a notice U/S 251 Cr. P. C., respectively, against the C.R. No.55947/2016 Abnash Mahajan & Anr. Vs Mohan Garg & ors Page 1 of 14 revisionists for the offence punishable u/s 500 of IPC.
2. Brief facts of the present case are that the respondents / complainants has filed a complaint against the revisionists/ accused persons alleging that the revisionists/ accused persons have got published a defamatory public notice in newspaper Hindustan Times dated 18.06.2010.
3. After completion of pre-summoning evidence, the Ld. Trial Court has summoned both the revisionists for the alleged offence U/S 500 of IPC, vide order dated 25.02.2013. Thereafter, both the revisionists/ accused persons went in revision against the summoning order. The revision petition was disposed of with the liberty to the revisionists/ accused persons to raise all the contentions at the time of framing of charge/ notice before the Ld Trial Court in view of judgment in case titled as "Arvind Kejriwal Vs. Amit Sibbal & Ors. (2014) 1 JCC 229". The revisionists/ accused persons have moved an application for discharge before Ld. Trial Court, thereby contending that the Ld. Trial Court has summoned the revisionists/ accused persons to face trial for the commission of offence punishable U/S 500 of IPC which is not made out C.R. No.55947/2016 Abnash Mahajan & Anr. Vs Mohan Garg & ors Page 2 of 14 against them.
4. The Ld. Trial Court, after perusing the records, has held that there was only one summon issued against the revisionists/ accused persons and that was to face trial for the offence U/S 499/500 of IPC only. It is alleged that Ld. Trial Court has got totally off the track and got confused by observing in the impugned order that the allegation in the present matter, according to petitioner, relate to the Section U/s 387 IPC. While the matter pertaining to the alleged offence U/s 387 IPC was a separate 3rd matter before the Ld. Trial Court and same was fixed before the Ld. Trial Court for pre-charge evidence vide order dated 09.07.2015. Ld. Trial Court after dismissing the discharge application ordered to frame a notice U/S 251 of Cr P C for the offence U/S 500 IPC against the revisionists.
5. Aggrieved by the impugned order, the revisionists/ accused persons therein filed the present revision petition assailing the said orders.
6. It is submitted in the present revision petition C.R. No.55947/2016 Abnash Mahajan & Anr. Vs Mohan Garg & ors Page 3 of 14 that Ld. Trial Court has ignored the fact that the alleged public notice dated 18.06.2010 was issued by the Counsel for revisionists merely informing the general public. The information being published is a pure and simple information of fact which cannot make out any offence U/s 499/500 IPC. The statement in itself is not defamatory at all. It is submitted that the purpose of informing the public at large was to inform them as the respondents were selling the properties / spaces to unknown public persons to the prejudice of revisionists. It is further submitted that an FIR bearing no. 121/10 was also filed against the respondents which is still pending. The matter was also pending before Company Law Board for adjudication. It is further submitted that no offence is made out against the revisionists for which they have been summoned and subsequently notice U/s 251 Cr.PC has been served upon them.
7. I have heard Ld. Counsel for revisionists and Ld. Counsel for respondents and have perused the record. Ld. Counsel for revisionists has argued in consonance with the grounds as taken in the revision petition.
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8. On the other hand, Ld. Counsel for respondents has argued that the petition of the revisionists for setting aside the order dated 25.02.2013 is barred by limitation. It is further submitted that the revisionists have committed the offence for defamation and Ld. Trial Court has passed a reasoned and correct order. It is prayed that revision be dismissed.
9. So far as the submission of Ld. Counsel for respondents that the revision petition against the order dated 25.02.2013 is time barred, is concerned. It is admitted fact that the Ld. Sessions Court vide its order dated 19.02.2015 has disposed of the revision petition no. 529/2/2013 and directed the revisionists to move appropriate application for discharge before the Ld. Trial Court in view of judgment of Hon'ble High Court of Delhi in case titled as Arvind Kejriwal (Supra).
10. Admittedly, subsequently the Hon'ble Supreme Court of India in case titled as Amit Sibal & Ors. Vs. Arvind Kejriwal & Others has remanded back the case to the Hon'ble High Court by setting aside the judgment Arvind Kejriwal (Supra). C.R. No.55947/2016 Abnash Mahajan & Anr. Vs Mohan Garg & ors Page 5 of 14 Consequently, the law remained that the Magistrate is not empowered to discharge accused persons at the stage of considering the provisions envisaged U/s 251 Cr.PC.
11. The Hon'ble High Court of Delhi in case titled as India Trade Promotion Organization Vs. International Amusement Limited WP (C) Nos. 2015/2001 and 18974/2006 decided on 16.07.2007.
12. "So far as the first submission regarding non-
maintainability of the writ petition is concerned, we are unable to accept the said submission on the ground that when the aforesaid writ petition was filed in this Court, the judgment of the supreme Court in Konkan Railway Corporation was holding the field and as on that date the aforesaid writ petition was maintainable. Subsequently, the aforesaid decision was over ruled and in SBP and Co. (Supra) it was held that an order under Section 11 is judicial order and not an administrative order. We do not think that in SBP and Company case (supra) the Supremer court has held that appointment of Arbitrator or Tribunal already made will be treated as valid and cannot be challenged and questioned, C.R. No.55947/2016 Abnash Mahajan & Anr. Vs Mohan Garg & ors Page 6 of 14 even if the appointment made stands challenged in a writ petition, which is sub-judice and pending. The Supreme Court conscious of its earlier judgments and the affect the decision in SBP and Co., applied doctrine of prospective overruling.
13. "25. In case titled as Harish Dhingra v.
State of Haryana AIR 2001SC3795, it was observed :
19. Prospective declaration of law is a device innovated by this court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a device adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declaration of law it is deemed that all actions taken contrary to the declaration of law, prior to the date of the declaration are validated. This is done in larger public interest. Therefore, the subordinate forums which are bound to apply law declared by this Court are also duty bound to apply such dictum to cases which would arise in future.
Since it is indisputable that a court can overrule a decision there is no valid reason why it should not be restricted to the future and not to the past. Prospective overruling is not only a part of constitutional policy but also an extended facet of stare decisis and not judicial legislation. C.R. No.55947/2016 Abnash Mahajan & Anr. Vs Mohan Garg & ors Page 7 of 14
14. Hon'ble Supreme Court in the case of Baburam v. C. C. Jacob, reported in MANU/SC/0175/1999 IILLJ983SC, has observed in paragraph 5 as follows: "The prospective declaration of law is a devise innovated by the Apex Court to avoid reopening to settled issues and to prevent multiplicity of proceedings. It is also a devise adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declaration of law prior to its date of declaration are validated. This is done in the larger public interest. Therefore, the subordinate forums which are legally bound to apply the declaration of law made by this court are also duty bound to apply such dictum to cases which would arise in future only. In matters where decisions opposed to the said principle have been taken prior to such declaration of law cannot be interfered with on the basis of such declaration of law."
15. Here in the present case, the revisionists had filed the revision petition against the impugned order dated 25.02.2013 within the period of limitation but same was disposed of with the direction to the revisionists to raise all C.R. No.55947/2016 Abnash Mahajan & Anr. Vs Mohan Garg & ors Page 8 of 14 the issues regarding discharge before the Ld. Trial Court. In the circumstances of passing of judgment by the Hon'ble High Court in Arvind Kejriwal (Supra). But subsequently due to the decision of Hon'ble Supreme Court of India the Ld. Magistrate could not have discharged the revisionists at the stage of serving notice U/s 251 Cr.PC. So in the given circumstances the revision petition is maintainable against the order dated 25.02.2013 because the present revision petition has been filed with in the period of limitation from the dismissal of the application for discharge of the revisionist. Even otherwise delay also condoned accordingly.
16. Considering the arguments. The law is settled that at the time of framing charge meticulous consideration of evidence and other material is not necessary. The reliance can be placed upon the judgment of State Vs. S. Bangarappa AIR 2001 SC 222. Here in the present case, the fact is admitted on the part of revisionists that they have got published a public notice in the newspaper Hindustan Times dated 18.06.2010 which reads as under : "PUBLIC NOTICE Through this notice the General Public is hereby informed that our client M/s Abnash Mahajan & Others are holders of 16.35% C.R. No.55947/2016 Abnash Mahajan & Anr. Vs Mohan Garg & ors Page 9 of 14 share in M/s Vikas Promoters Pvt. Ltd., a Company which is building a Multiplex and Commercial Shopping Mall known as Vikas Cine Mall at G. T. Road, Shahdara. Our Client has filed cases alleging cheating, fraud and others by Chairman of M/s Vikas Promoters Pvt. Ltd. Mr. Pankaj Mohan Garg, Pankaj Arora (Directors) and some of his relatives in collaboration and conspiracy with each other and certain other persons. The same are enquired into by the law enforcement agencies. A petition no. 110 of 2009 before the Company Law Board against Sh. Mohan Garg, Pankaj Arora and others is also pending. Any person dealing with Mr. Mohan Garg or the Company Vikas Promoters Ltd. Shall be doing so purely at his own risk and cost.
17. On bare perusal of this public notice it can be divided into three parts. The first part may be considered as "PUBLIC NOTICE Through this notice the General Public is hereby informed that our client M/s Abnash Mahajan & Others are holders of 16.35% share in M/s Vikas Promoters Pvt. Ltd., a Company which is building a Multiplex and Commercial Shopping Mall known as Vikas Cine Mall at G. T. Road, Shahdara", C.R. No.55947/2016 Abnash Mahajan & Anr. Vs Mohan Garg & ors Page 10 of 14
18. So far as this part is concerned it may be a fact which may denotes the relations between the revisionists and respondents. The second part of the notice reads as under:-
"Our Client has filed cases alleging cheating, fraud and others by Chairman of M/s Vikas Promoters Pvt. Ltd. Mr. Pankaj Mohan Garg, Pankaj Arora (Directors) and some of his relatives in collaboration and conspiracy with each other and certain other persons. The same are enquired into by the law enforcement agencies. A petition no. 110 of 2009 before the Company Law Board against Sh. Mohan Garg, Pankaj Arora and others is also pending".
19. This part shows the pending of dispute between the parties before the Company Law Board. It may be a fact. I mean that the petition may have been filed against the revisionists before the Company Law Board and which may have been pending adjudication. This content may be true. As the respondents may have filed a petition before the Company Law Board alleging therein cheating, fraud against the Chairman of M/s Vikas Promoters Pvt. Ltd. Mahan Garg and Pankaj Arora and some of his relatives. This may be a fact.
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20. So far as third part of the public notice is concerned which reads as :- "Any person dealing with Mr. Mohan Garg or the Company Vikas Promoters Ltd. Shall be doing so purely at his own risk and cost."
21. On simple perusal of these two lines it may reveals that anybody, who will deal with Mr. Mohan Garg or the Company Vikas Promoters Pvt. Ltd. shall have to do at their own risk".
22. The above said two lines are controversial lines. It is not there in the public notice that the respondents company and its Director are dealing with only a project known as Vikas Cinemall at GT Road Shahdara. The company or its director may have dealing with other projects also. It is up to them that they have to prove a fact that how the people know them have behaved after reading the public notice. These two lines prima facie constitute the defamatory statement with respect to respondents. The submission of the Ld. Counsel for revisionists that the public notice was published in the public interest and in good faith is the defence of revisionists which C.R. No.55947/2016 Abnash Mahajan & Anr. Vs Mohan Garg & ors Page 12 of 14 may be put at an appropriate stage i.e. at defence stage.
23. So far as the issue of reading of publication by the known person of respondents is concerned. Though there is no such witness has been examined by the revisionists but the Hon'ble High Court of Delhi in case titled as Gautam Adhikari & Ors. Vs. Sh. Jagir Singh 2002 Crim. Law Journal 911 has observed as : -
"To be noted that statement of respondents U/s 200 Cr.Pc was recorded limited to the purpose of passing summoning order. Independent witnesses in regard to his having been defamed as a result of publication of offending article are to be examined during trial".
24. In view of discussion above I do not find any illegality, infirmity or impropriety in the order of Ld. Trial Court. The revision petition is dismissed. Needless to say that nothing expressed herein, shall tantamount to an expression of opinion on the merits of the case.
25. Let a copy of this order be sent to Ld. Trial Court/Successor Court with TCR with the directions to C.R. No.55947/2016 Abnash Mahajan & Anr. Vs Mohan Garg & ors Page 13 of 14 continue and proceed in accordance with law.
26. Revision records be consigned to record room after due completion.
ANNOUNCED IN THE OPEN COURT ON THIS 08.08.2017 (JAGDISH KUMAR ) ADDI SESSIONS JUDGE-02 (WEST):DELHI C.R. No.55947/2016 Abnash Mahajan & Anr. Vs Mohan Garg & ors Page 14 of 14