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As mentioned earlier, on 26-9-1990, the petitioner got elected as President. He did not permit Seltzer Pinto, to run the permit room on the basis of the previous contract. Consequently, Seltzer Pinto filed a suit in the City Civil Court at Bombay, bearing Short Cause Suit No. 7936 of 1990, against the club for various reliefs. By letter dated 3-12-1990, Seltzer Pinto informed the complainant that as the City Civil Court had not granted ad interim reliefs, he had preferred an appeal in the High Court. In the said letter, Seltzer Pinto also informed the complainant that the petitioner had filed an affidavit in the High Court making defamatory allegations against him. Para 3, 4, 6, and 8 of the said affidavit are reproduced in the complaint and the burden of the song in them, is that the previous Managing Committee, of which the complainant was President, had acted fradulently and in collusion with Seltzer Pinto so that he could have unfair advantage. It is alleged in the complaint that the said averments in the said paras, are defamatory. Consequently, in para 12 of the complaint, it is stated that the original accused Angele Pereira, (petitioner) had committed an offence under section 499 I.P.C., which is punishable under section 500 I.P.C.

The contention of Mr. Sathe is that since the case of the petitioner falls within the Exception 8th and 9th to section 499 I.P.C., the entire proceedings against the petitioner, arising out of Complaint Case No. 171/S/1991, are an abuse of process of Court and deserve to be quashed.

On the other hand, contention of Mr. Kamble, Counsel for the respondent No. 1 is that the question of applicability of the Exceptions to section 499 I.P.C., cannot be gone into at this stage, and can only be decided after evidence has been adduced in the trial Court.

5. I find merit in Mr. Kamble's submission. The Hon'ble Supreme Court in the case , Balraj Khanna and others, Appellants v. Moti Ram, Respondent, cited by Mr. Kamble, has observed thus in para 30 :-

" It is needless to state that the question of applicability of the Exceptions to section 499 I.P.C., as well as all other defences that may be available to the appellants, will have to be gone into during the trial of the complaint."

6. It needs to be emphasised that ordinarily the complaint and the proceedings arising therefrom can only be quashed by this Court, in exercise of its inherent powers under section 482 of Criminal Procedure Code, if the averments alleged in the complaint, unrebutted, do not make out an offence. See R.P. Kapur v. State of Punjab, and Municipal Corporation of Delhi ...appellant v. Ram Kishan Rohatgi and others, respondents. In the latter decision, in para 10, Supreme Court thus observed :-

"It is therefore manifestly clear that proceedings against accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are without adding or subtracting anything, if no offence is made out, then the High Court will be justified in quashing the proceedings in exercise of its powers under section 482 of present Code. "

7. In my view, the averments as disclosed in the complaint make out a prima facie offence under section 499 I.P.C. against the petitioner.