Criminal Misc. No. M-25865 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-25865 of 2009 (O&M) Date of Decision:08.10.2009 Lt. Col. R.S. Yadav .....Petitioner Vs. State of Haryana and others .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. K.S. Yadav, Advocate for the petitioner. **** HARBANS LAL, J. This petition has been moved by R.S. Yadav under Section 482 of Cr.P.C for setting aside order dated 6.2.2009 (Annexure P.3) passed by the learned Additional Chief Judicial Magistrate, Rewari and the judgment dated 11.4.2009 (Annexure P.4) rendered by the Court of learned Additional Sessions Judge, Rewari. The brief facts giving rise to this petition are that the petitioner had filed complaint Annexure P.1 before the Additional Chief Judicial Magistrate, Rewari. The dispute relates to Kothi No.42, Sector 3-II, Rewari which is a defence reserve category. The respondents- accused wanted to convert it into General Category for the purpose of sale. They are making false complaints against the petitioner to pressurise him to convert this kothi into the said Category and by doing so, they are defaming and damaging the reputation of the petitioner by all means. Respondent No.1 – Ishwar Singh is an unauthorised property dealer. Respondents No.1 to 5 by way of Criminal Misc. No. M-25865 of 2009 (O&M) -2- conspiracy involved respondent No.6 – son of the petitioner to run a business of sale and purchase for ulterior motive to grab the above- mentioned kothi. The loan of Rs.19,67,340/- raised for the said kothi was paid by the petitioner to respondent No.6 from his retiral benefits. Respondent No.6 has executed a sale deed for Rs.10 lacs, whereas the value of the property in question is more than Rs.40 lacs. Thus, this is a case of fraud and forgery. That the impugned orders being against law and facts are liable to be set aside. I have heard the learned counsel for the petitioner, besides perusing the record with due care and circumspection. In Annexure P.3, the impugned order dated 6.2.2009, it has been observed that “the complainant has not examined anybody except himself and that the complaint contains serious allegations against the accused which need to be substantiated by cogent evidence to summon the accused. The complainant has alleged that the forgery has been committed by the accused in collusion with each other. He has not proved the required documents on file to substantiate his allegations. The complainant has not mentioned any case which has been decided in his favour confirming that the documents assailed by him were termed as bogus or forged. The complainant has alleged to have disowned his son who has been made an accused also in this case. One of the accused is his daughter-in-law i.e. wife of his son. The dispute revolves around Kothi No.42 allegedly owned by the complainant. It is unbelievable that property which is owned by a person of the rank of Lt. Col. can be alienated by playing fraud upon him.” The learned Additional Sessions Judge, Rewari in his order dated 11.4.2009 has observed that “As a matter of fact, Criminal Misc. No. M-25865 of 2009 (O&M) -3- the revisionist has tendered no document on the record to prove his title over the kothi. The original documents have not been produced. It has nowhere been established that the accused have committed the forgery or cheating. It has nowhere been held by any authority that the complaints filed by the revisionist are false.” As alleged in complaint Ex.P1 “Accused Nos.1, 3, 4 and 5 under a conspiracy obtained General Power of Attorney of accused No.6 without the knowledge of his superior Army Authority and executed sale deed for Rs.10 lacs for property of more than Rs.40 lacs by fraud and forgery. That accused No.5 made out a prima-facie case by conspiring with Sub Divisional Magistrate, Deputy Superintendent of Police, District Attorney Rewari with a view to damage and defame the complainant and submitted false, fake, fictitious and fabricated complaint.” It is pertinent to point out here that both the Courts below have rightly observed that the petitioner has not adduced any evidence in proof of alleged fraud and forgery. It is a celebrated dictum of law that the summoning order must reflect application of mind by the learned Magistrate. Here in this case, there being no evidence with regards to the alleged fraud or forgery, how the learned Magistrate would have reflected the application of his mind. It is also notable here that but for, the statement of complainant, no other evidence has been adduced by him. There are specific allegations in the complaint itself that accused No.5 made out a prima-facie case by having a conspiracy with Sub Divisional Magistrate, Deputy Superintendent of Police, District Attorney Rewari with a view to damage and defame the complainant and submitted false, fake, fictitious and fabricated complaint. As observed in the impugned orders, “the alleged Criminal Misc. No. M-25865 of 2009 (O&M) -4- fabricated complaint has not been proved on the record as provided by law.” Mere allegations cannot be substituted for proof. Had the alleged complaint been proved in a legal manner on the record by adducing luculent and proper evidence, only then the Magistrate would have been expected to apply his mind to find out as to whether the case of forgery or defamation is made out. There being no such evidence, the learned Magistrate cannot be blamed for not applying his mind to the facts of the case. The offence of defamation consists of three essential ingredients, namely, (i) making or publishing any imputation concerning any person, (ii) such imputations must have been made by words either spoken or intended to be read or by signs or by visible representations and (iii) the said imputation must have been made with the intention to harm or having reason to believe that it will harm the reputation of the persons concerned. The intention to cause harm is the most essential “sine-qua-non” of an offence under Section 499 of IPC. A careful delving into the impugned orders would reveal that evidence in proof of these essential ingredients is lacking and it is because of this reason that the learned trial Court has dismissed the complaint. Sequelly, no interference is warranted in the impugned orders and thus, this petition is dismissed in limine. October 08, 2009 ( HARBANS LAL ) renu JUDGE