IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.533 OF 2000. WRIT PETITION NO.533 OF 2000. WRIT PETITION NO.533 OF 2000. Mr. Ram Jiwatram Buxani & Ors. ..Petitioners. versus Dr. Laxmikant Rewachand Bhojwani & Ors...Respondents. .... .... Mr.S.V. Kotwal, for the Petitioners. None for the Respondents. Mr. J.P. Yagnik, APP, for Respondent No.6. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 11TH JULY,2008. : 11TH JULY,2008. : 11TH JULY,2008. ORAL JUDGMENT : 1. The submissions of the learned counsel for the petitioners were heard on the last date. As none appeared for the respondents, the judgment was not dictated on that day and the petition was adjourned till today. Today when the petition was called out, none appeared for the first to fifth respondents. The first respondent is the only contesting party. 2. The prayer made in this writ petition under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 is for quashing the process issued on a private complaint filed by the first respondent. In the normal course, in view of the law laid down by this - 2 - Court in the case of V.K.Jain & Ors. vs. Pratap Padode & Anr., [2005 (3) Mh.L.J. 778], the petitioners would have been relegated to the remedy of filing a revision application under section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ’the said Code’). However, I find that this Court issued notice in the present petition on 13th March 2000 and thereafter, rule was issued by this Court on 15th April 2002. Therefore, at this stage, it will be unjust to the petitioners to relegate them to the remedy of revision application. In any case, availability of the said remedy does not affect the power of this Court under section 482 of the said Code. 3. The first respondent filed a private complaint against the petitioners and second to fifth respondents alleging commission of an offence punishable under section 500 of the Indian Penal Code. 4. The first respondent claims to be a Director of a Limited Company M/s. Ram Laxman Hotel Limited. The first respondent claimed that he was the Chairman and the Managing Director of the said Company. - 3 - According to him, his appointment was further confirmed and approved in the annual general meeting of the company held on 30th September 1994. According to the first respondent, the petitioners and second and fifth respondents were initially the Directors of the said company, however, in a meeting held on 14th September 1998 they were removed from the post of Directors. The dispute between the parties ultimately lead to filing of a civil suit by the first respondent. In the said civil suit, the petitioners and second to fifth respondents were injuncted by an order of temporary injunction from restraining the first respondent from functioning as the Chairman and the Managing Director of the company. It is alleged that the order of the temporary injunction in favour of the first respondent became final. The allegation of the first respondent is that, in the meeting dated 15th July 1998, relying upon the statements made by the accused nos. 1 to 4, it was contended that the first respondent has ceased to be a Director of the said company in view of section 295 of the Companies Act, 1956. It is alleged that all the accused have entered into a conspiracy to defame the first respondent. It is alleged that the accused were - 4 - indulging in activities with a view to damage the reputation of the first respondent. In the complaint, the first respondent referred to another letter sent under the signature of the second respondent herein which was addressed to the share holders of the said Company. The first respondent also referred to a letter dated 21st January 1999 allegedly sent by the second respondent and the first petitioner herein to a finance company. It was alleged that the contents of the said letters have been published and circulated, as a result, the first respondent is required to give explanation to the others as regards what is stated in the said letters. The complaint filed by the first respondent is that the contents of the said letters are defamatory. Process was issued on the said complaint by the learned Magistrate by order dated 14th July 1999 after referring to verification statement of the first respondent. 5. The submission of the learned counsel appearing for the petitioners is that even on the plain reading of the averments made in the complaint as well as what is stated in the aforesaid letters, it is obvious that there are no defamatory statements - 5 - made by the petitioners. It is submitted that in any case, taking the letters as it is, nothing mentioned therein can be said to be defamatory. 6. I have carefully considered the submissions. The allegation of commission of offence punishable under section 500 of the said Code is based only on the contents of the said two communications. Therefore, it will be necessary to refer to the said communications. The first communication is addressed to the share holders. It is stated in the said letter that the good performance of the Hotel Holiday Inn run under the management of the said Company is not reflected from the accounts of the company and the company has registered losses in the year 1996-97. It is alleged that there is apparently a large scale diversion of the company’s funds. It is stated that the Chairman and Managing Director has not thrown any light on the transactions. It is stated that the first respondent filed a suit not only against others but also against the said Company. It is further stated in the said letter that in the meeting of the Board of Directors held on 15th July 1998 a resolution was passed recording that by virtue of section 295 of the Companies Act, the - 6 - petitioner had ceased to be a director. 7. In the communication dated 21st January 1999, it is alleged that in view of financial irregularities, the first respondent and his other family members were understood to have vacated the respective offices as per section 283 and section 295 of the Companies Act, 1956. 8. On plain reading of both the communications and even accepting that what is stated therein is correct, it is difficult to come to a conclusion that what is stated in the said communications has been said with an intention to harm the reputation of the first respondent. There is no reason to believe that the same will harm the reputation of the first respondent. Explanation I and IV to section 499 of the Indian Penal Code will have to be also considered in this behalf. Thus, by taking what is stated in the communications as true and after considering the averments in the complaint, it is impossible to hold that a prima-facie case was made out for issuing process for an offence punishable under section 500 of the Penal Code. - 7 - 9. Hence, petition must succeed. Accordingly, rule is made absolute in terms of prayer clause (a). [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]