1 IN THE HIGH COURT OF BOMBAY BENCH AT PANAJI, GOA. CRIMINAL REVISION NO.69 OF 2008. PETITIONER: Shri Rosario Colaco s/o Mariano Colaco, major in age, r/o H.71, Cupem, Nuvem, Salcete, Goa. ..VERSUS.. RESPONDENTS: 1. Mrs.Amelia Mariquinha Zuzarte, major, resident of H.No.514, St. Anthony Vaddo, Colvale, Bardez-Goa. 2. State through the Public Prosecutor, Panaji – Goa. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.R.G.Ramani, Advocate for the petitioner. Mr.C.A.Ferreira, Public Prosecutor for the respondent/State. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM : C.L.PANGARKAR,J. DATE : 21/01/2009. ORAL JUDGMENT : 1. This revision is preferred by the complainant against the order passed by the Additional Sessions Judge in revision whereby he set aside the order of issue process against the respondent/accused. 2 2. The facts giving rise to the revision are as follows - The petitioner/complainant has filed Special Civil Suit No.85/2006 in the court of the Civil Jude (Sr.Dn.), Mapusa for compensation and damages against the respondent/accused. In the said civil suit, the respondent/ accused in her capacity as power of attorney of defendant made defamatory allegations. The complainant moved an application under Order 6 Rule 16 of C.P.C. for striking out those defamatory statements. The complainant submits that the accused has used per se defamatory words in the said written statement. The complainant has reproduced those defamatory statements in the complaint and submits that these words are per se defamatory and accused was, therefore, liable to be punished. 3. The learned Magistrate recorded the verification statement and issued process under Section 500 of the Indian Penal Code. The accused felt aggrieve by the said order and preferred revision before the Sessions Judge. The learned 3 Sessions Judge, mainly on the ground that the dispute between the complainant and the accused was of civil nature and civil suit was pending, held that the institution of such complaint was an abuse of process of the court. He, therefore, allowed the revision and set aside the order. Being aggrieved by that, this revision has been preferred by the complainant. 4. The learned Additional Sessions Judge has set aside the order of issue of process on the ground that the institution of the criminal proceedings where dispute is of a civil nature, is clearly an abuse of process of law. He also found that there was no sufficient ground to proceed against the accused upon consideration of the contents of complaint and the verification statement. The learned Sessions judge clearly seems to have fallen in error. 5. There is no doubt that the initial dispute between the complainant and the accused was of civil nature and for 4 that the complainant has instituted the civil suit. It is the contention of the complainant that the accused/respondent has made defamatory statement in the written statement filed in the civil suit. It can certainly be said that this complaint, therefore, is not related to the dispute in the civil suit at all. It is not a complaint in respect of the cause of action in the civil suit. Therefore, the cause of action for this complaint is not that which is made out in the civil suit. In fact, the cause of action for this complaint is essentially the allegations and averements made by the defendant in the written statement. The learned Sessions Judge was, therefore, wrong when he observed that the dispute was of civil nature and institution of criminal proceeding was abuse of process of law. It is not that for the same cause of action the complainant was availing of two remedies – one civil and other criminal. Even if that is so, no party is prevented from availing of these remedies, if they are so available. 6. This takes me to the second aspect whether there 5 was no ground to proceed against the accused and the order of the Magistrate suffered from illegality or impropriety. I am taken through the contents of the complaint and the written statement filed by defendant/accused. Here, it must be borne in mind that the complainant/plaintiff is a building contractor. It is in this context, the following sentences in the written statement need to be appreciated. 4. the plaintiff has been totally dishonest. 6. ........ the plaintiff is a contractor who undertakes destruction works and not construction works as claimed. 13. ...... with a dishonest contractor. 18. ....... the defendant could tolerate the dishonesty, greed and bad workmanship of the plaintiff no longer. 19. ...... made after the dishonesty of the plaintiff has been exposed by the defendant. 7. These words can certainly be said to be per se 6 defamatory. One wonders how the learned Sessions Judge did not find the allegations as above not to be defamatory and not demeaning. The Magistrate was very much justified in issuing process and Sessions Judge ought not to have set aside the order. The order of the Sessions Judge, in fact, suffers from illegality as well as impropriety and not that of the Magistrate. The order of the Sessions Judge is, therefore, set aside and that of the Magistrate restored. The revision is allowed. Rule is made absolute. JUDGE. chute