skt/- 1 25.wp.3115.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3115 OF 2009 Vasudev Tanaji Narvekar ... Petitioner (Ori. Complainant) Vs. The State of Maharashtra & Anr. ... Respondents ...... Mr.Abhay Ostwal for the petitioner. Ms.M.H.Mhatre, APP for respondent no.1-State. ...... CORAM : J.H. BHATIA, J. DATE : 21st JULY, 2010. P.C. 1 Heard learned counsel for the parties. 2 The petitioner is the original complainant. He had filed a complaint against three persons for the offence punishable under Section 500 of Indian Penal Code. According to the petitioner, he is in the employment of Larsen & Toubro Limited ( L & T) for last about 35 years and he has been taking up the case for the upliftment and benefit of workers of the company and therefore, the company has some grudge against him. Accused no.1 Stephen Misquitta is working as Machinist in the said company. Accused no.2 is the Joint Personnel Manager and accused no.3 is a Chairman & Managing Director of the said company. skt/- 2 25.wp.3115.09.sxw 3 On 17-01-2006, accused no.1 lodged a written complaint addressed to the Personnel Manager of the Company i.e. accused no.2, making allegation that appreciation letter dated 31-10-2005 issued to him by the company was taken by the present petitioner for reading and later on he misused the same by producing before some other authorities. According to him, this amounts to theft and misconduct on the part of the petitioner. By the said letter, accused no.1 requested accused no.2 to take appropriate action against the petitioner. On the basis of that letter, a show cause notice dated 17-01-2006 was issued by accused no.2 to the petitioner. After issuance of the show cause notice, the chargesheet was also served by accused no.2. According to the petitioner, all this was done as a result of collusion amoung accused nos. 1, 2 & 3 with the intention to defame the petitioner. The complaint filed by the petitioner was registered as Criminal Case no.3537/SS/2008 before the Metropolitan Magistrate, Andheri. The learned Magistrate issued process under Section 500 of I.P.C. against accused nos, 1 & 2 only. Accused no.2 challenged the issuance of process by filing a revision application bearing No.938 of 2009. That revision application was allowed and the order issuing process against accused no.2 came to be set aside. Therefore, the petitioner has filed present petition under Article 227 of the Constitution of India read with Section 482 of Cr.P.C. skt/- 3 25.wp.3115.09.sxw 4 At the outset, it may be stated that accused no.1 who had allegedly written a letter to accused no.2 has also filed a revision application No. 411/2009 challenging the issuance of process to them but that revision application was dismissed. The learned Additional Sessions Judge while allowing the revision application filed by accused no.2, noted that main allegation of connivance in giving such a defamatory show cause notice, was against accused no.3, Chairman & Managing Director of the Company but the Magistrate had refused to issue process against him. It was noted that accused no.2 issued the show cause notice to the complainant on the basis of the letter written by accused no.1 to him, wherein he had made certain allegations including that of theft against the petitioner and the show cause notice was issued to the petitioner himself and was not published and was not expected to be read by outsiders. 5 The learned counsel for the petitioner in support of his contention that issuance of show cause notice amounts to publication of defamatory matter, relied upon two cases. In the case of “Kundanlal v/s. Emperor, 45 Cr.L.J.1944 105”, a letter containing defamatory matter was written by the accused to the complainant knowing that the complainant could not read it and would be required to get it read by some third person. In view of this, Sindh Chief Court held that it amounted to publication of skt/- 4 25.wp.3115.09.sxw defamatory material. This authority is not applicable to the facts of the present case, because it is not the case of the petitioner that he is illiterate and that he could not read the show cause notice issued to him and that he would not required to get it read by some third person. Therefore, unless the petitioner himself would show it to somebody, there could be no publication of the same. It is not the case of the petitioner that the show cause notice given to him was published outside by accused no.2 by giving a copy of that letter to anybody or by putting it on the notice board of the company. 6 In “Sopullo Datta Naik Dessai v/s. Yeshwant Goving Dessai & Anr., 2010 All MR (Cri.) 151” the accused made certain allegations against the complainant in reply filed by him to the notice issued by Mamlatdar. It was held that the imputations made by the accused amounts to publication because it was available to be read by the others. In my considered opinion, this authority is also not applicable to the facts of the present case. It appears that the petitioner himself gave publicity to that show cause notice and the letter when he challenged the show cause notice before the Industrial Court. Till then, there was no publication to the same. Therefore accused no.2 cannot be held responsible for publication of the contents of that show cause notice. Accused no.2 did skt/- 5 25.wp.3115.09.sxw not make any imputation in that show cause notice on the basis of his personal knowledge. He simply quoted the allegations made by accused no.1 against the complainant in the letter addressed by accused no.1 to accused no.2 for taking action against the co-employee. 7 In view of the facts and circumstances of the case, there was no material to issue process against accused no.2. The learned Additional Sessions Judge was right in setting aside the order passed by the learned Magistrate for issuance of process against accused no.1. Therefore, I find no merit in the present petition. 8 For the aforesaid reasons, the petition stands dismissed. [ J.H. BHATIA, J.]