Criminal Misc. No. M-29304 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-29304 of 2009 (O&M) Date of Decision:21.10.2009 Lt. Col. R.S. Yadav (Retd.) .....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 Lt. Col. R.S. Yadav (Retd.) under Section 482 of the Code of Criminal Procedure for setting aside the impugned order dated 27.1.2009 (Annexure P.3) passed by the learned Additional Chief Judicial Magistrate, Rewari and the impugned judgment dated 11.4.2009 (Annexure P.4) passed by the learned Additional Sessions Judge, Rewari. The brief facts giving rise to this petition are that respondent No.5 and 6 married their daughter to respondent No.2 – son of the petitioner on 4.1.2003 with ulterior motive to grab the petitioner's property by blackmailing and coercing with a threat that they will file a false case of dowry and harassment of their daughter to defame him by harming his reputation whereas respondent No.1 – daughter of respondents No.5 and 6 was already engaged with Krishan Pal. This fact was never disclosed to the Criminal Misc. No. M-29304 of 2009 (O&M) -2- petitioner at any stage. On the other hand, they were keen to engage their younger daughter with younger son of the petitioner which could not be materialised and that being so, the relations became strained. Respondent No.8 is an unregistered property dealer who converts black money through the sale/purchase and transfer of HUDA plots at Rewari. Respondent No.2 – son of the petitioner was also involved in sale/ purchase business by respondent No.8. Thus, respondent No.2 was disassociated and delinked from his parents. All the respondents by hatching a conspiracy pressurised the petitioner to hand over the original paper of defence category Kothi No.42, Sector 3-II, Rewari which was in the possession of the petitioner by making false complaint to the local authorities as well as other authorities to harm his reputation. The impugned order dated 27.1.2009 (Annexure P.3) and impugned judgment dated 11.4.2009 (Annexure P.4) are against the law and facts. I have heard the learned counsel for the petitioner, besides perusing the record with due care and circumspection. In Annexure P.3, impugned order dated 27.1.2009, it has been observed that “The instant complaint has been filed against the accused for commission of offence punishable under Sections 499/500 and 120-B of IPC. The complainant has however, not been able to adduce relevant evidence as required to prove a prima facie case of summoning of a person under the aforesaid provisions. The complainant has not submitted anything regarding the decision of the alleged complaint filed by the accused against him. He has also not been able to adduce any evidence that the accused had spoken anything which lowered the respect and honour of the complainant. Criminal Misc. No. M-29304 of 2009 (O&M) -3- In fact from the allegations, it appears that civil and criminal litigation is going on between the parties and until it is disposed of, it is not desirable to conclude that either of the accused has committed any offence punishable under Sections 499/500 read with Section 120-B of IPC.” The learned Additional Sessions Judge, Rewari in his order dated 11.4.2009 (Annexure P.4) has observed that “PW-3 R.S. Yadav has submitted that the accused hatched a conspiracy to defame him by involving in a case of dowry. PW-1 Pardeep Singh and PW-2 Vijay Singh have made similar statements. But surprisingly, there is no document available on the record to show that the revisionist has been acquitted by the Court. The dispute among the parties is with regard to selling of Kothi No.42, Sector 3, Rewari. Copy of the case under which the revisionist has been involved has also not been placed on the record. As a matter of fact, the summoning of a person as an accused is not an automatic procedure.” It has been further observed that “the learned lower Court has rightly discussed the evidence and the facts of the case. The impugned order is justified and does not require any interference.” It is worth pointing out here that both the Courts below have rightly observed that the petitioner has not adduced any evidence in proof of defamation. It is an accredited rule of law that the summoning order must reflect application of mind by the learned Magistrate. In the instant one, there being no evidence with regards to defamation, how the learned Magistrate would have reflected the application of his mind. Mere allegations cannot be substituted for proof. The offence of defamation consists of three essential ingredients, namely, (i) making or publishing any Criminal Misc. No. M-29304 of 2009 (O&M) -4- 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 21, 2009 ( HARBANS LAL ) renu JUDGE