1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, NAGPUR BENCH, NAGPUR CRI. APPLICATION NO. 854 OF 2009 1) Shri Anil s/o Ganeshdas Tareleja, aged about 45 years, President Amravati Wholesale Readymade & Hosiery Vyapari Sangh, C/o Anil Hosiery Center, Khatri Complex, Amravati, Tq. Distt. Amravati. 2) Shri Suresh Batra, Secretary, Amravati Wholesale Readymade & Hosiery Vyapari Sangh, C/o Shailesh Garment, Khatri Complex, Amravati. 3) Shri Rameshlal Kingrani, Vice President, Amravati Wholesale Readymade & Hosiery Vypari Sangh, C/o Saroj Chowk, Amravati. 4) Shri G.L. Das Hemnani, Cashier, Amravati Wholesale Readymade & hosiery Vyapari Sangh Office, Khatri Complex, Amravati. 5) Shri Sukhdeo Wadhwani, Executive Committee Member of Amravati Wholesale Readymade & Hosiery Vyapari Sangh, Khatri Complex, Amravati. 6) Shri Sanjay Haryani, Executive Committee Member of Amravati, Wholesale Readymade & Hosiery Vyapari Sangh, Khatri Complex, Amravati. 7) Shri Bhakchand Bajaj, Executive Committee Member of Amravati, Wholesale Readymade & Hosiery Vyapari Sangh, Khatri Complex, Amravati. 8) Shri Prem Jagmalani, Executive Committee Member of Amravati, Wholesale Readymade & Hosiery Vyapari Sangh, Khatri Complex, Amravati. 2 9) Shri Rameshlal Panjani, Executive Committee Member of Amravati, Wholesale Readymade & Hosiery Vyapari Sangh, Khatri Complex, Amravati. 10)Shri Rajkumar Panjani, Executive Committee Member of Amravati, Wholesale Readymade & Hosiery Vyapari Sangh, Khatri Complex, Amravati. 11)Shri Manoharlal Sadwani, Executive Committee Member of Amravati, Wholesale Readymade & Hosiery Vyapari Sangh, Khatri Complex, Amravati. All C/o Office Khatri Complex, Amravati, Tq. & Distt. Amravati. -- Applicants -Versus- 1) Vimalchand s/o Jayawantrao Jain, Aged about 48 years, Occupation – Business, 2) Sau. Jayashree w/o Vimalchand Jain, Aged about 35 years, Occupation – Business. Both 1 & 2 are resident of Jain Complex, Yavatmal, Tq. & Distt. Yavatmal. 3) State of Maharashtra, Represented through Public Prosecutor, District Court Building, Yavatmal. -- Non-applicants -------------------------------------------------------------------------------------------------------- Mr. Shyam Dewani Advocate for the applicants. Mr. S.K. Mirza, Advocate for respondent Nos. 1 and 2. Mr. D.M. Kale, A.P.P. for the respondent No.3/State. CORAM:- R. Y. GANOO, J. DATED :- 18th AUGUST, 2009. P.C. 1. The non-applicant Nos. 1 and 2 filed complaint in the Court of Judicial 3 Magistrate First Class, Court No.6, at Yavatmal being Summary Criminal Case No. 1555/2006 under Sections 499, 500 of the Indian Penal Code, alleging therein that the applicants have committed an offence of defamation inasmuch as certain boards were exhibited in the market at Amravati by which the association to which the applicants belonged had communicated to persons concerned that nobody should deal with the non-applicant No.1, who is the Proprietor of a firm by name M/s Paridhan Dresses. 2. The learned Judicial Magistrate First Class issued process under Sections 499 and 500 of the Indian Penal Code. The said order of issuance of process came to be challenged by the applicants in the Sessions Court by filing Criminal Revision No. 79/2006. The said revision came to be decided by learned Ad hoc Additional Sessions Judge, Yavatmal by order dated 22nd September, 2008. The said revision came to be dismissed. Against these two orders this petition has been filed. 3. I have extensively heard learned Advocate on both sides. Learned Advocate for the applicants submitted that the complaint came to be filed by non-applicant No.1 and non-applicant No.2 and non-applicant No.2 happens to be the Proprietor of the said firm namely, M/s Paridhan Dresses and therefore, filing of the complaint by non-applicant No.1 and non-applicant No.2 is not tenable and bad in law. Learned Advocate for the applicants in support of this contention relied upon the Judgment in the case of Zain Sait Vs. Intex-Painter, Interior Decorators, Civil Worker, Maintenance Workers and Water Profors and other reported in 1993 Cri.L.J. 2213. He also relied upon the Judgment in the case of Zac Poonen Vs. Hidden 4 Treasure Literature Incorporated in Canada and another reported in 2002 Cri.L.J. 481. These two cases pertain to a complaint filed by two persons who approached the concerned Court saying that on account of the overt act of the respective accused in the respective complaints, both the complainants have suffered that is how both of them filed a complaint. Learned Advocate Mr. Dewani submitted that the above two decisions clearly indicate that two separate complaints ought to have been filed. He further relied upon the judgment in the case Vijay Vishwanath Kuvalekar Vs. Suresh Raghunathrao Kalkundrikar and another reported in 2000 (2) Mh.L.J. 91, wherein it is observed that complaint must be filed by a person who is aggrieved or anybody who is covered by any exceptions under Section 499. I have heard learned Advocate Mr. Mirza in the present case for non-applicant No.2 who happens to be the owner of the proprietor of the shop by name M/s Paridhan Dresses and therefore, institution of the complaint by non-applicant No.2 would be proper as the defamatory material concerned with the said firm. The defamatory material mentioned M/s Paridhan Dresses and non-applicant No.1 is shown as a Proprietor. If at all the non-applicant No.1 is not the Proprietor of M/s Paridhan Dresses, then there is no question of defamation of non-applicant No.1. It is true that the non-applicant No.1 has filed the complaint. In my view, joining by non- applicant No.1 to the said complaint is a superfluous on part of non-applicant No.1. Therefore, institution of the present complaint by non-applicant Nos. 1 and 2 cannot be faulted upon. In any case, no prejudice is caused to the present applicants. To that extent the argument advanced by learned Advocate Mr. Dewani is rejected. It was argued by learned Advocate Mr. Dewani for applicants that, even if, it is observed that the material on the basis of which the complaint is filed 5 amounts to defamatory material, the applicants have a good defence as set out in exceptions 1, 3 and 10 attached to section 499. He drew my attention to the judgment in the case of Sukra Mahto Vs. Basdeo Kumar Mahto and another reported in 1971(1) SCC 885 to place before this Court the importance of exceptions to section 499 and the effect thereof. It is required to be mentioned that the Hon’ble Supreme Court was required to look into the said facts of the trial. The Hon’ble Supreme Court observed that the case of the accused therein was falling in the exceptions which were claimed by the accused. In the present case, we are at the threshold of the complaint and it is required to be seen whether the process issued against the applicants was properly issued or not. In my view, if the applicants claim that their case is covered by exceptions 1,3 and 10 to section 499 of the Indian Penal Code, that would constitute defence by the applicants and applicants would be able to put their defence before the learned Judge at the time of trial. I am sure that the said defence will be considered by the learned trial Judge. To that extent the argument advanced is required to be rejected. The complaint mentions that the defamatory material was published at Amravati and certain persons residing at Yavatmal known to non-applicants had been to Amravati and they noted the defamatory material and then informed about the said material to the non-applicant Nos. 1 and 2 and in a way expressed surprise and shock. According to learned Advocate Mr. Dewani, this will go to show that the publication of the defamatory material was at Amravati and not at Yavatmal and therefore, if, at all, any complaint could have been filed, it could have been at Amravati and that the Court at Yavatmal did not have jurisdiction, keeping in view of the provisions of Criminal Procedure Code as regards the jurisdiction of a Court and entertaining the 6 complaint. In support of this he relied upon the judgment in the case of Y. Abraham Ajith and others Vs. Inspector of Police, Chennai and another reported in AIR 2004 AIR SC 4286 and the judgment in the case of State of Karnataka Vs. Chikkahottappa @ Varade Gowda and others reported in 2008 Cr. L.J. 3495. I have considered these two judgments. It is required to be mentioned that these two cases pertain to offences under sections 498-A/406 of the Indian Penal Code. It is noted that the present complaint relates to offence under sections 499 and 500 of the Indian Penal Code. Insofar as the offence of defamation in concerned the place where the defamatory material is published will certainly have the jurisdiction. Similarly place where the effect of that defamatory material is felt will also have jurisdiction. In the present case, the defamatory material was published at Amravati. The effect of the same was felt by non-applicant Nos. 1 and 2 at Yavatmal inasmuch as they are the resident of Yavatmal. It is seen that residents of Yavatmal noted the defamatory at Amravati and they had expressed to non-applicants their reaction on it and that is how the reputation of non-applicants came to be lowered in the eyes of people at Yavatmal. The two judgments which are cited relate to provisions of sections 498/406 of the Indian Penal Code. The principles to be applied with reference to commission of the offence and the jurisdiction of the Court were applied by the said Court while deciding the matters keeping in view Section 498/406 of I.P.C. Those principles may not be applicable to the case where offence is under sections 499 and 500 of the Indian Penal Code. In view of the above, the stand taken by the applicants that Court at Yavatmal had no jurisdiction cannot be accepted. Of course respondents will have to make out a case at the time of trial as mentioned in the body of the complaint that well-wishers of non-applicants contacted them at 7 Yavatmal informed them about the defamatory material. In view of the above discussion argument advanced by Learned Advocate for applicants Mr. Dewani cannot be accepted. 4. After having considered the entire record, I am inclined to observe that the learned Judge has rightly issued process. The same was rightly confirmed by the learned Sessions Judge and hence, there is no need to admit this petition as no interference is required in the impugned order. Hence, the following order. i) Petition is dismissed. ii) It is clarified that all the aforesaid discussion was required to be made because the learned Advocate for the applicants has pressed that the process was wrongly issued, and the impugned material does not amount to defamation. This judgment shall not be used by non-applicants at the stage of final hearing to say that the applicants have committed an offence. It will be open to the learned Judicial Magistrate First Class to apply his mind and pass appropriate order. JUDGE adgokar