{1} CWP No.87/2004 Drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.87 OF 2004 Sudhakar Vamanrao Sherkar PETITIONER Age-62 years, Occ-Nil- Retired Managing Director of the Ahmednagar District Central Cooperative Bank Ltd., Station Road, Ahmednagar Dist-Ahmednagar VERSUS 1. Sunil Tankas Shirsath RESPONDENTS Age-26 years, Occ-Nil R/o Adinath Nagar, Vradheshwar Sahakari Sakhar Karkhana Ltd., Tq-Pathardi, Dist-Ahmednagar 2. The State of Maharashtra 3. Vishnu Mansing Jadhav DELETED Age-52 years Occ-Service Branch Manager, R/o Vradheshwar Branch, Ahmednagar District Central Cooperative Bank Ltd., Pathardi, Tq-Pathardi Dist-Ahmednagar ....... Mr.V.S.Kadam h/f Mr.R.N.Dhorde, Advocate for the petitioner Mr.V.S.Bedre, Advocate for respondent No.1 Mr.S.D.Kaldate, APP for respondent State {2} CWP No.87/2004 Respondent No.3 deleted ....... [CORAM : A.V.POTDAR, J.] DATE: 21 st October 2011 ORAL JUDGMENT: 1. Rule has been issued in this petition on 25.03.2004 along with interim relief. 2. Heard learned counsel for the petitioner followed by the submissions of learned counsel for respondent No.1 and learned APP for State. 3. Such of the facts, as are necessary for the decision of this petition, may briefly be stated thus- The petitioner is the retired Managing Director of the Ahmednagar District Central Cooperative Bank Ltd. It appears that as there was some misappropriation in the said Bank, a complaint was lodged by Vishnu Jadhav, Branch Manager, against {3} CWP No.87/2004 respondent No.1. Pursuant to the said complaint an offence at Crime No.52/2001 was registered and respondent No.1 was arrested in connection with the said offence and was taken initially in police custody and subsequently in Magisterial custody and later on he was released on bail. In the said offence, after completion of the investigation, a report was submitted by the Investigating Officer u/s 169 of the Criminal Procedure Code. Due to the said report, the proceedings initiated pursuant to Crime No. 52/2011 were dropped against respondent No.1. After the report, submitted by the Investigating Officer u/s 169 of the Criminal Procedure Code, was accepted by the learned trial court and respondent No.1 came to be discharged from the said offence, it appears that he filed a complaint before JMFC, Pathardi being RCC No.565/2001 against the petitioner and Vishnu Jadhav for the alleged offence punishable u/s 193, 202, 203, 341, 342, 426 and 500 r/w section 34 of the Indian Penal Code. It appears that after filing of the said complaint, verification of respondent No.1 was recorded and in view of the averments in the complaint so also in the verification statement, a process was {4} CWP No.87/2004 issued against the accused i.e. petitioner and Vishnu Jadhav only for the offence punishable u/s 500 r/w 34 of the Indian Penal Code and not under the other sections for which the complaint was lodged. After issuance of the process, the petitioner approached the Sessions Court by filing Revision Application No.25/2002, which came to be dismissed vide judgment and order dated 09.01.2004 thereby confirming the process issued against the accused u/s 500 r/w 34 of the Indian Penal Code, which is impugned in the present petition. 4. Learned counsel for the petitioner would urge that it is specifically alleged in the complaint that for lack of /short of evidence, a report u/s 169 of the Criminal Procedure Code was filed and hence respondent No.1 was discharged from Crime No. 52/2011 so also the trial court has not issued process against the petitioner for the offence punishable u/s 193, 202, 203 which speak for giving false evidence, intentional omission and giving false information in respect of commission of offence, which is not challenged by respondent No.1. Learned counsel for the petitioner would further urge that the grievance of respondent No.1 is that {5} CWP No.87/2004 due to publication of news in the newspaper, his reputation has been damaged and he felt defamed and the said news created hurdle in getting a job for him, however, the complaint is conspicuously silent as to the point that the said news was published at the instance of the petitioner and accused Vishnu Jadhav. According to learned counsel for the petitioner, both the Courts below have lost sight of this vital aspect that the complaint is conspicuously silent that the said news was published at the instance of the accused intentionally to defame the complainant and hence there shall not be offence punishable u/s 500 r/w 34 of the Indian Penal Code. 5. While opposing these submissions, Mr.Bedre, learned counsel for respondent No.1 has urged that accused Vishnu Jadhav had lodged the complaint against respondent No.1 at the instance of the petitioner without verifying the facts and hence it was in fact a false complaint. It is further submitted that after the offence was registered, respondent No.1 was arrested and was remanded in police as well as Magisterial custody so also the said news caused damage to the reputation of respondent No.1, which {6} CWP No.87/2004 he has averred in the complaint. According to learned counsel for respondent No.1, the contents of the complaint as well as the verification statement prima facie establish commission of offence punishable u/s 500 r/w 34 of the Indian Penal Code and hence process has been rightly issued against the accused and, therefore, prayed for dismissal of the petition. 6. Learned APP pointed out that the trial court has refused to issue process against the accused for the offence punishable u/s 193, 202, 203 of the Indian Penal Code, which indicates that the trial court has found that the complaint registered against respondent No.1 was not a false complaint. It is further urged that on the basis of the complaint filed by Vishnu Jadhav, the investigating machinery had taken some action of which news was published, which would certainly not constitute an offence punishable u/s 500 r/w 34 of the Indian Penal Code. 7. In the light of the submissions advanced by all the parties, perused the complaint. Minute perusal of the complaint so also the verification statement of respondent nowhere disclose that {7} CWP No.87/2004 the said news was published at the instance of the petitioner and accused Vishnu Jadhav. Even there is no averment that the said news was published at the instance of petitioner or accused Jadhav intentionally to defame respondent No.1. In the premise, certainly, there cannot be offence u/s 499, which defines defamation and requisite ingredients to constitute an offence of defamation. 8. Once the complainant failed to establish that the said news was published at the instance of the petitioner and accused Jadhav, then it cannot be inferred that there was intention of the petitioner and accused Jadhav to defame respondent No.1. If the basic ingredients of section 499 of the Indian Penal Code are not established from the averments in the complaint so also from the verification statement, then the issuance of process against the petitioner and accused Jadhav for an offence punishable u/s 500 r/w 34 of the Indian Penal Code is without application of mind. In the premise, the process issued against the petitioner requires to be quashed and set aside. {8} CWP No.87/2004 9. Consequently, the petition succeeds. Criminal Case No. 565/2001 is hereby quashed and set aside. Rule is made absolute in terms of prayer clause “B” 10. Considering the observations of the Apex Court in “Raju V/s State of Madhya Pradesh” 2008 (15) SCC 133, wherein it is observed that in the light of the fact that the Apex Court found the prosecution story doubtful and in view of the judgments in “Raja Ram V/s State of MP (1994) 2 SCC 568, Arokiya Thomas V/s State of T.N. (2006) 10 SCC 542 and “Suresh Chaudhary V/s State of Bihar” (2003) 4 SCC 128, benefit of judgment of acquittal be given to the non appealing accused also, therefore, in view of the fact that I have found that the averments in the complaint are not sufficient to constitute the offence punishable u/s 500 r/w 34 of the Indian Penal Code for which process was issued against the petitioner and accused Jadhav, benefit granted to the petitioner is also extended to non appealing accused Vishnu Mansing Jadhav, who has not {9} CWP No.87/2004 approached this Court. Consequently, the entire proceedings of Criminal Case No.565/2001 pending on the file of JMFC, Pathardi, Dist-Ahmednagar is hereby quashed and set aside. [A.V.POTDAR, J.] drp/B11/cwp87-04