IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.08.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.OP.Nos.30736 to 30744/2006 Cr.MP.Nos.1 to 1/2006 1.L.Lakshmanan, Chairman and Managing Director M/s.Rane Brake Linings Limited Chennai-28 Petitioner/A1 in Cr.OP.30736/06 2.L.Ganesan, Vice Chairman M/s.Rane Brake Linings Limited Chennai-28 Petitioner/A2 in Cr.OP.30737/06 3.K.S.Krisnaswami Petitioner/A3 in Cr.OP.30738/06 4.V.Ramachandran, Director M/s.Rane Brake Linings Limited Chennai-28 Petitioner/A5 in Cr.OP.30739/06 5.A.Murali Prasad, Director M/s.Rane Brake Linings Limited Chennai-28 Petitioner/A6 in Cr.OP.30740/06 6.R.Ravi Petitioner/A7 in Cr.OP.30741/06 7.S.Nandha Gopal Petitioner/A8 in Cr.OP.30742/06 8.P.S.Rao, President M/s.Rane Brake Linings Limited Chennai-28 Petitioner/A9 in Cr.OP.30743/06 9.D.Bheemsingh Melchisedec General Manager (Operations) M/s.Rane Brake Linings Limited Chennai-28 Petitioner/A10 in CrOP.30744/06 Vs G.Jayapalan Respondent in all Cr.OPs Prayer:- Cr.OP.No.30736/06 is filed to to call for the records and quash the complaint in CC.No.429/2006 on the file of the District Munsif Cum Judicial Magistrate, Ambattur against the Petitioner. The other Criminal Original Petitions are filed for the reliefs as stated therein. For Petitioners : Mr.P.S.Raman, SC for M/s.Gupta & Ravi [Cr.OP.30736 to 30742/06] Mr.A.Ramesh, SC for M/s.Gupta & Ravi [Cr.OP.30743 to 30744/06] https://hcservices.ecourts.gov.in/hcservices/ For Respondent : Mr.M.Ramamoorthy ORDER The Petitioners, who are arrayed as A1 to A3 and A5 to A10 in all these Criminal Original Petitions seek to quash the complaint in CC.NO.429/2006 on the file of the District Munsif cum Judicial Magistrate, Ambattur 2. The Respondent/complainant has filed the private complaint against the Petitioners/A1 to A3 and A5 to A10 and one C.R.Rao, Director of M/s.Rane Brake Linings Limited, who is arrayed as A4, under Section 500 of IPC. The Respondent was working as an Operator in M/s.Rane Brake Linings Limited (herein after referred to as the Company) and its Factory is situated at No.30, Ambattur Industrial Estate, Chennai-58 and the said Company manufactures brake linings for all automobiles and trucks, brake blocks for railways and clutch facings. For the purpose of said manufacture, the Company has employed 318 permanent workers and all of them said to have been represented by a Union called M/s.Rane Brake Linings Employees Union (herein after referred to as the Union), in which the Respondent is said to be the elected General Secretary from the year 1989. 3. It appears from the complaint that the last wage cum work load settlement expired on 3.12.2005 and the complainant as the General Secretary of the Union had submitted a charter of demands on 1.12.2005. It is alleged that A9 and A10 had suggested to the complainant that unless 150 workmen are sent out on voluntary retirement scheme, it is not possible to commence the settlement talks. There was a division among the workmen and the rival Union had filed a suit in OS.No.614/2005 against the complainant, seeking for interim orders, but the same was not granted on the ground that the relief prayed for in the interim application and in the suit are one and the same. The said interim application is said to have been closed on 28.2.2006 as against which, CMA.Nos.20 and 21/2006 were filed before the Sub Court, Poonamallee. It is alleged that thereafter on 28.8.2006, A9 called the complainant to his room and coerced him to opt for voluntary retirement scheme, stating that they want only those officer bearers, who would cooperate in reducing the workmen by voluntary retirement scheme and since the complainant was not cooperating with them, he should opt for voluntary retirement scheme and leave the Company. According to the complainant, A10 again coerced the complainant to opt for voluntary retirement on 28.8.2006 and thereafter started creating several problems to the complainant. 4. It is also alleged in the complaint that on 4.10.2006 at about 3.45 p.m., A10 at the instance of A1 to A9 displayed a notice in the notice board of the Company at Plot NO.30, Industrial Estate, Ambattur, Chennai-58, which contained defamatory material as against the complainant. The said notice/circular was signed by A10 and in the said notice/circular it is stated that the concession granted to the complainant was abused and he along with other section of the employees had been indulging in the trade union activities of other Companies and have taken positions as office bearers in various other Companies. It is further alleged in the complaint that the notice had been read by all the workmen of the company including the https://hcservices.ecourts.gov.in/hcservices/ witnesses 2 to 6 and they informed the complainant about the defamatory material and told him that a reading of the said notice tend to lower the prestige of the complainant. On the said facts and circumstances, the Respondent has given the private complainant against A1 to A10 for defaming the Respondent/complainant. 5. The complaint has been taken cognizance of by the learned Magistrate and process has been issued against the Petitioners, which is challenged in these Criminal Original Petitions. 6. Mr.P.S.Raman, learned senior counsel for the Petitioners/A1 to A3 and A5 to A9 in Crl.OP.Nos.30736 to 30742/2006 contended with all vehemence and force that in an offence under Section 499 of Penal Code punishable under Section 500 of IPC, the Petitioners cannot be made vicariously liable in their capacity as the Directors of the Company, merely because the notice containing the alleged imputations was signed by an Officer, A10 of the Company. He would submit that except a bald allegation that the notice containing imputations was published at the instance of the Petitioners, as the Directors of the Company, the complaint is bereft of any material particulars and there is no positive allegation to infer any such instigation on the part of the A1 to A9 for display of such notice as alleged in the complaint and therefore, no offence is attracted as against the Petitioners/A1 to A3 and A5 to A9. 7. The learned senior counsel would further submit that the notice in question was displayed by A10 in his capacity as the Employer, having lawful authority over the Respondent in the notice board of the Company within the premises of the factory for communication of the information to the workers of the factory explaining the causes leading to the suspension of the Respondent from service in order to maintain industrial peace and harmony among the workmen of the factory. Apart from the fact that no offence could be attributed as against A1 to A9 and they cannot be made vicariously liable for the act done by A10, even assuming that the notice contained imputations against the Respondent, the said conduct of A10 would squarely be covered by Exceptions 7 and 9 to Section 499 of IPC. He would further submit that the entire object of the notice was to inform the workmen the reasons behind the withdrawal of the privilege of 'duty off' granted to the office bearers of the Union and explain the causes behind the suspension of the Respondent, who was till then the General Secretary of the Union. In the said view of the matter, as an Employer, A10 was entitled to take such actions as are necessary for preventing any disturbance of industrial peace and harmony in the factory premises and it cannot be construed as defamatory so as to attract Section 499 of IPC. 8. The learned senior counsel would further submit that the allegations contained in the complaint are of the offences under a general statute and vicarious liability can be fastened only by reason of a provision of a special statute and not otherwise. It is his contention that even under a special statue, when the vicarious criminal liability is fastened on a person on the premise that he was in charge of the affairs of the Company and responsible to it, all the ingredients laid down under the statute must be fulfilled. In support of his contention, he would place reliance on the decision of https://hcservices.ecourts.gov.in/hcservices/ the Honourable Supreme Court rendered in the case of R.Kalyani Vs. Janak C.Mehta [2008-14-Scale-85]. 9. At this juncture, it is relevant to refer to the observations made by the High Court of Andhra Pradesh in the case of TGL Groundnut Corporation and others Vs. The Agricultural Market Committee, Adono and another [1985-XXIV-MLJ-608], while dealing with Rule 70(2) of the AP [Agricultural Produce and Livestcok] Market Rules, 1969, wherein the partners of the Firm were prosecuted for non compliance of the said Rule, the High Court of Andhra Pradesh has held that the liability cannot be extended to the partners of the Firm. The relevant paragraph is extracted below:- "On a reading of the aforesaid section, it is clear from the words "whoever commits" that a person is made personally liable for an offence committed under the Act and the liability cannot be extended to any other person merely by virtue of any office or position he holds in a company or firm. In order to extend the liability for an offence committed under the Act to any individual, it has to be specifically averred in the petition of complaint that particular person is personally guilty of any act of commission or omission which tantamount to an offence punishable under the Act." 10. On the other hand, Mr.M.Ramamoorthy, learned counsel for the Respondent would submit that it is not the case of the complainant that the Petitioners are vicariously liable for the act of A10 and it is their case that all the accused had taken a decision jointly to malign the complainant and that the joint involvement of the Petitioners/accused in the publication could be proved only at the time of trial. He would contend that the Petitioners cannot invoke the jurisdiction of this court under Section 482 of Code of Criminal Procedure as other remedies such as filing of discharge petition is available to them before the lower court. 11. The said submissions of the learned counsel for the Respondent does not merit acceptance, as the position of law on this point is well settled by a recently pronounced judgement of the Honourable Supreme Court rendered in the case of Keki Hormusji Gharda and others Vs. Mehervan Rustom Irani and another [2009-6-SCC- 475], wherein it is held as under:- "17. The Penal Code, 1860 save and except in some matters does not contemplate any vicarious liability on the part of a person. Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director of the Directors of the Company, thus, cannot be said to have committed an offence only because they are holders of offices. The learned Additional Chief Metropolitan Magistrate, therefore, in our opinion, was not correct in issuing summons without taking into consideration this aspect of the matter. The Managing Director and the Directors of the Company should not have been summoned only because some allegations were made against the Company." In the same decision, regarding the availability of other remedy of filing an application for discharge, it is held thus:- https://hcservices.ecourts.gov.in/hcservices/ "19. Even as regards the availability of the remedy of filing an application for discharge, the same would not mean that although the allegations made in the complaint petition even if given face value and taken to be correct in its entirety, do not disclose an offence or it is found to be otherwise an abuse of the process of the court, still the High Court would refuse to exercise its discretionary jurisdiction under Section 482 of Code of Criminal Procedure." As regards the availability of the remedy of filing an application for discharge to answer the contention of the Respondent in the present case, the Honourable Supreme Court has observed that the same would not mean that although the allegations made in the complaint petition even if given face value and taken to be correct in its entirety, do not disclose an offence or it is found to be otherwise an abuse of process of the court, still the High Court would refuse to exercise its discretionary jurisdiction under Section 482 of Code of Criminal Procedure. The Honourable Supreme Court has made a reference to one of its earlier decisions rendered in the case of Pepsi Food Limited Vs. Special Judicial Magistrate [1998-5-SCC-749] in that regard. 12. In the instant case, on a perusal of the complaint, the relevant allegations against the Petitioners/Accused are that A10 at the instance of A1 to A9 created several problems to the complainant and that on 4.10.2006 at about 3.45 p.m., A10 at the instance of A1 to A9, had displayed a notice in the notice board of the Company, containing defamatory matters as against the complainant. Except the said allegations, there is no specific allegation as to how and when he had come to know that A1 to A9 had instigated A10 to publish such a notice and what is the specific act done by the Petitioners in bringing such a notice in order to make out an offence under Section 499 of IPC punishable under Section 500 of IPC. 13. Indisputably, A4 had died even before filing of the complaint i.e. on 1.10.1999 and A3, A7 and A8 are said to have resigned and got relieved from the Directorship and that apart surprisingly, the non Executive Director and a Senior Advocate by name V.Ramachandran has been arrayed as A5 to have instigted A10 in the commission of the alleged act without any basis. Very rightly as contended by the learned senior counsel for the Petitioners, it is a classic example where there is clear abuse of process of the court. 14. In the case of Punjab National Bank and others Vs. Surendra Prasad Sinha [1993-1-Supp-SCC-499], the Honourable Supreme Court has come down heavily on the vindictive practice of the parties, who file the private complaint as vendetta to harass the persons needlessly and cautioned the Magistracy to take all relevant facts and circumstances into consideration before issuing process. It is held thus:- "6. It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duly on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged https://hcservices.ecourts.gov.in/hcservices/ for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle we find that the Respondent had abused the process and laid complaint against all the appellants without any prima facie case to harass them for vendetta." 15. On a perusal of the allegations made in the complaint, I am of the considered view that no case has been made out as against the Petitioners and hence, making the Petitioners to face trial or even to approach the trial court for further proceedings would not be in the interest of justice. 16. It is now well settled that the High Court in exercise of its inherent power conferred under Section 482 of Code of Criminal Procedure may quash the criminal proceedings when the allegations made in the complaint petition, even if they are taken on their face value and accepted in their entirety, does not disclose any cognizable offence. Some of the principles, which could be analysed for invoking the said jurisdiction, have been laid down in the case of Indian Oil Corporation Vs. NEPC India Limited [2006-6-SCC-736], wherein it is stated that a complaint may also be quashed where it is a clear abuse of process of the court, when the criminal proceedings is found to have been initiated with mala fide/malign for wrecking vengeance or to cause harm or where the allegations are absurd and inherently improbable. Taking note of the allegations made in the complaint and the same being made against the dead person and other accused who have no connection with the affairs of the Company, it can be said without any doubt that it a clear case of abuse of process of the court. 17. Mr.A.Ramesh, learned senior counsel for the petitioners in Crl.OP.Nos.30743 and 30744/2006 urged before this court that the complainant was the employee of the Company and in his capacity as General Secretary of the Union, he has been initiating various proceedings against the Company and its Directors and consequent to certain acts and misconduct committed by him, he was placed under suspension by the Management pending enquiry and the notice in question was displayed for the information of the workmen of the factory, explaining the causes leading to his suspension from service mainly in order to maintain industrial peace and harmony and to prevent any industrial unrest among the workmen of the factory arising out of the suspension of the Respondent. So according to the learned senior counsel, the impugned notice dated 4.10.2006 would squarely be covered by Exceptions 7 and 9 to Section 499 of IPC. 18. The learned senior counsel would further submit that the Respondent was removed from the post of General Secretary of the https://hcservices.ecourts.gov.in/hcservices/ Union of the employees of the Company and the suit was filed by the rival employees of the Union to restrain him from functioning as the General Secretary, which was dismissed by the court below, but the same was allowed in the criminal revision preferred by the rival claimants. He would submit that it would be evident from the conduct of the Respondent that he has chosen to invoke the provisions of Section 499 of Penal Code only to settle the scores with the management on the premise that the management was supporting the rival Union. He would submit that the notice in question has only reiterated the accusations made in the charge memo leading to the suspension of the Respondent and he would urge that a charge sheet or an order of suspension issued to a workman can be displayed in the notice board for the information of the workmen and there is no allegation that such display would have the effect of harming the reputation of the Respondent. He would further contend that any action taken by the Management in exercise of its right of managing disciplinary control over the workman of a factory premises can never be construed as an imputation of defamatory character, so as to attract the offence under Section 499 of IPC. 19. It is not in dispute that the notice in question was put up by A10 in his capacity as the Employer having lawful authority over the Respondent. On a perusal of the notice, it is seen that the Management has explained the reasons behind the withdrawal of privilege of "duty off" granted to the office bearers of the Union and the reasons behind the suspension of the Respondent, who was till then the General Secretary of the Union. The Respondent raised an industrial dispute as against his suspension and the same is pending before the authorities concerned. For better analyzation of the facts, the material allegation in the impugned complaint has been extracted below:- ",jdpilna 3/10/2006 k; njjpahfpa new;W bjhHpw;r';fj;jpd; bghJr; brayhsh; jpU/b$aghyd; (tpy;iy vz;/117) Kw;gfy; Rkhh; 11/30 kzpastpy; rPUil mzpahky; bjhHpw;rhiyf;Fs; te;J c&hg; g;nshUf;Fs; m';Fk; , ';Fk; Rw;wpj; jphpe;J gzpbra;J bfhz;oUe;j gzpahsh;fspd; ntiyf;F , iza{w Vw;gLj;Jk; tpjkhf Tl;lk; Tl;o ngrpa[s;shh;/ mjid mwpe;J eph;thfj;jpd; mjpfhhpfs; c&hg; g;nshUf;Fs; mthplk; mJ gw;wp nfl;lnghJ jhk; ntiyf;F te;jpUg;gjhf mth; gjpy; mspj;jpUf;fpd;whh;/ rPUil mzpahky; c&hg; 1 g;nshUf;Fs; te;jnjhL jkf;Fhpa gphptpy; vd;W xh;f myhl;bkd;l bgw;Wf;bfhs;shkYk; ntiy bra;ahkYk; eph;thfj;jplk; Kiwahd mDkjp bgwhky; gpw gzpahsh;fis miHj;J Tl;lk; nghl;L ngrp ,ila{W Vw;gLj;Jtija[k; Rl;o fhl;o epWtd mjpfhhpfs; mtiu tpdpta nghJ mth; mjpfhhpfsplk; jfuhW bra;a[k ; tpjkhft[k; rPUil mzpe;J ntiy bra;a ntz;Lk; vd;W ve;j xg;g;ejj;jpy; brhy;yp , Uf;fpd;wJ vd;Wk; ehd; Md; L:l;oapy; ,Uf;nfd; vJf;F xh;f myhl;bkd; th';fDk; vd;Wk; fyfk; tpistpf;Fk; nehf;fj;njhL thf;Fthjhk bra;Js;shh;/ nkYk; kdpj tsj;Jiwapy; Kjepiy nkyhshpd; miwf;F te;J mkh;e;J bfhz;L. mtiu ghh;f;f ghitahsh; te;J fhj;Jf;bfhz;L ,Uf;fpwhh; vd;W brhd;dgpwFk; To mtuJ miwia tpl;L btspnaw kWj;J mog;gil fz;zpak; Tl ,y;yhky; nkw;go egh; ele;J bfhz;L ,Uf;fpd;whh;/ " 20. According to the complainant, the above said allegations are defamatory in nature intended to defame him. It appears that the complainant has also published various notices containing allegations https://hcservices.ecourts.gov.in/hcservices/ against the management, which has been referred to in the impugned notice displayed in the notice board. The main contention of the Petitioners is at the risk of repetition that the entire object of the notice was to convey to the workmen the reasons behind the withdrawal of privilege of 'duty off' granted to the office bearers and to explain the causes behind the suspension of the Respondent in order to exercise their right of maintaining disciplinary control over the workmen of the factory and to prevent any unrest among the workmen due to the withdrawal of the privilege given to the office bearers of the Union. So, it is contended by the Petitioners that the action of the Petitioners squarely come under Exception 7 and 9 to Section 499 of IPC, as the Petitioners acted in good faith for the protection of interest of the workmen and the factory for the public good. 21. On going through the details and the particulars mentioned in the notice in question and the private complaint filed by the Respondent, there can be no doubt that the steps taken by the Management was in the interest of the management and the workmen and if the management had not taken such steps, it would meet utter failure in management of its affairs and would lose the disciplinary control over the workmen. The narration made in the notice are based on the information received by the management and as a result of the proceedings initiated in the civil forum and also before the Assistant Commissioner of Labour. In my view, the management has acted in a justified manner both in its interest and the workmen who may act detrimental to the Company in order to warn the workmen to maintain discipline and smooth working of the factory. Therefore, the Petitioners were within their rights to prevent the improper conduct of the Respondent and the Petitioners had lawful authority to deal with the subject matter of the complaint and take proceedings against the persons in their own interest, even if it is said that the said action of the management directly or by its consequences be injurious or painful to the persons against whom such action has been taken. 22. Exceptions 7 and 9 to Section 499 of IPC is nothing more than a reproduction of the cannon or guiding principle which was cited by Lord Campbell, CJ and the Honourable Supreme Court in Kanwal Lal [AIR-1963-SC-1317] has cited a passage from the judgement of Lord Campbell, CJ, and observed: "A communication made bona fide upon any subject matter in which the party communicating has an interest or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although, it contains criminatory matter which without this privilege would be slanderous and actionable." 23. In the case of O.N.Kajuria Vs. The State of Maharastra [1981-Crl.LJ-Bombay-1729], which arose on facts that the complaint under Section 500 of IPC was filed by the Branch Manager of the Bank on the basis of public notice issued by the Bank Management intimating the public that the complainant was believed to be involved in criminal case, for which he had been suspended and was no more authorised to deal in any way on behalf of the bank, the Bombay High Court has held that issue of process on facts and circumstances was unwarranted as public