SONAM TOPGAY BHUTIA VS CHANDER PAL AND ANR

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SONAM TOPGAY BHUTIA VS CHANDER PAL AND ANR

CITATION: 2015 SCC ONLINE SIKK 108
COURT: SIKKIM HIGH COURT
BENCHS.P. WANGDI, J.
DATE OF JUDGEMENT: 19 TH MAY 2015
CASE TYPE : CRL. M.C. NO. 09 OF 2014
PETITIONER: SHRI SONAM TOPGAY BHUTIA, S/O LATE T. BHUTIA
RESPONDENT: SHRI CHANDER PAL, S/O LATE LEKH RAJ PAL (RESPONDENT NO. 1) STATE OF SIKKIM THROUGH THE CHIEF SECRETARY, GOVERNMENT OF SIKKIM (RESPONDENT NO. 2)
RELATED SECTION: SECTION 482 CrPC 1973SECTION 500 IPC 1860SECTIONS 34 AND 9 OF THE ACT OF 1996
FACT OF THE CASE:
This application was filed under Section 482 of CrPC, 1973 to quash the Private Complaint Case No 6 of 2014 filed by the Respondent No 1 against the Petitioner offence under Section 500 of IPC 1860 in the court of Chief Judicial Magistrate, East and North at Gangtok.
The Petitioner is a Class – I, Central Government Civil Contractor, who was awarded the contract work for construction of the Office building of the Accountant General, Sikkim at Deorali, Gangtok, East Sikkim, on a tender floated by the Chief Engineer (EZ) – I, CPWD, Kolkata, which he completed successfully on 15-04-2006.The work was carried out as per the contract agreement between the petitioner and chief engineer-1, CPWD, Kolkata of which respondent no 1 is a subordinate but the dispute arises between the between the parties and for the settlement of disputes and differences, one shri B K Biswas, a retired CPWD Engineer was appointed as a Sole Arbitrator. Eventually the arbitration award was passed by the sole arbitrator which was sent by him on 06/07/2011 through a speed post simultaneously to the Petitioner, CPWD, Gangtok Central Division, Sikkim which was headed by Respondent No 1 and the Chief Engineer-1, kolkata, which the petitioner received on 12/07/2011.After its receipt, the Petitioner filed the award in the Court of the District Judge, East and North Sikkim at Gangtok on 18-10-2011 for its execution registered as Civil Execution Case No. 27 of 2011. However The CPWD, Gangtok Central Division, Sikkim curiously chose to file the award in the Court of the Civil Judge, Senior Division, Siliguri, West Bengal, under Sections 34 and 9 of the Act of 1996,

where it was registered as Misc. Case (Arbitration) No. 66 of 2011. On 02/11/2011, CPWD, Gangtok Central Division, Sikkim put in their appearance through their counsel in Civil Execution Case No. 27 of 2011 in the Court of the District Judge, East and North Sikkim at Gangtok which then was listed on 24/11/2011. On the very date that is 02/11/2011 Misc. Case (Arbitration) No. 66 of 2011 filed by the CPWD, Gangtok Central Division, Sikkim was also listed for hearing on the point of maintainability. Again on 28/02/2012, the petitioner moved an application under order XXI Rule 41 read with section 151 of the Code of Civil Procedure, 1908 in Civil Execution Case No. 27 of 2011 to examine an officer of CPWD, Gangtok Central Division, Sikkim in order to determine as to whether judgement debtor had any means for satisfaction of the decree. Against this application, the CPWD, Gangtok Central Division, Sikkim, filed a written objection on 28-04-2012.On 18-06-2012, during the hearing of an application the Learned Counsel for CPWD, Gangtok Central Division, Sikkim, submitted that some records in support of his submissions were required to be placed and after getting permission supplementary affidavit filed by Respondent No 1 on 16-07-2012 and the matter was listed on 14-08-2012.In affidavit it was specifically pleaded in paragraph 4 by the Respondent No. 1 that the award passed by the Sole Arbitrator was received at his Office on 20-07-2011 which as per the Petitioner was a false statement. On 25-04-2013 the very Civil Execution Case No. 27 of 2011 was dismissed as being premature granting liberty to the Petitioner to execute the award afresh. But again on 14-05-2013, the Petitioner filed a fresh execution petition for execution of the arbitral award dated 06-07-2011 which was registered as Civil Execution Case No. 05 of 2013 and it was stayed on dated 25-06-2013 before the Principal District Judge at Gangtok being Civil Execution Case No. 05 of 2013. The petitioner also made an application under the RTI to ascertain the correctness of the statement made by the Respondent No. 1 in paragraph 4 of the supplementary affidavit referred to earlier, made an application under the Right to Information Act, 2005, before the Director, Postal Services, Sikkim State, Gangtok.On 17-05-2013, the Civil Judge, Senior Division, Siliguri, West Bengal, dismissed Misc. (Arbitration) Case No. 66 of 2011 filed by the CPWD, Gangtok Central Division, Sikkim, as well as a subsequent application under Order XLVII Rule 1 read with Section 151 CPC on 20-05-2013. Against this, the CPWD, Gangtok Central Division, Sikkim, moved the Hon’ble High Court, Calcutta. On 21-05-2013 the Director, Postal Services, Gangtok furnished the information related to postal delivery made to CPWD stating that no speed post articles were delivered to the Executive Engineer, CPWD, Gangtok, on 20-07-2011, as per their office record. This led the Petitioner to file an application before the Principal District Judge, East Sikkim at Gangtok under Section 340 Cr.P.C. against the Respondent No. 1 which was registered as Crl. Misc. Case No. 32 of 2013.On 25-11-2013 during the hearing the Petitioner reiterating his contention in the application under Section 340 Cr.P.C., submitted that the statement made by the Respondent No. 1 at paragraph 4 of his supplementary affidavit was false in view of the information received from the Director, Postal Services, Sikkim State, Gangtok. But on 29-11-2013 Principal District Judge, East Sikkim at Gangtok dismissed the Crl. Misc. Case No. 32 of 2013 filed by the Petitioner. Again on 29-11-2013, the CPWD filed an application under Section 250 read with Section 357 Cr.P.C. before the Principal Sessions Judge, East and Sikkim at Gangtok, against the Petitioner for seeking compensation for the accusation made against him in Crl. Misc. Case No. 32 of 2013 which was registered as Crl. Misc. Case No. 1 of 2014 but dismissed on 12-06-2014.Now on 01-03-2014, the Respondent No. 1 then filed Complaint Case No. 06 of 2014 against the Petitioner before the Chief Judicial Magistrate, East and North Sikkim at Gangtok, under Section 500 IPC and on dated 21-03-2014, the Chief Judicial Magistrate by his order took the cognizance of the complaint which is registered as Complaint Case No. 06 of 2014 and order dated on 24-08-2014

a process under section 204 CrPC was issued against him and against this the present petition has been filed. And the ground to assail the proceedings before the Chief Judicial Magistrate, East and North Sikkim at Gangtok is to show that the ingredients under section 499 (DEFAMATION) are not made at all.
ARGUMENTS:

LEARNED COUNSEL OF THE PETITIONER:
He submitted that it is necessary to file the application under section 340 of CrPC before the Principal District Judge in view of a false statement made by the Respondent No. 1 which is disclosed by the records submitted by the Director of Postal Service. But these are overlooked by the Principal District Judge while passing an order of dismissal of the application registered as Crl. Misc. Case No. 32 of 2013. It was urged that the order of dismissal did not alter the fact that a false statement had been made by the Respondent No. 1.He would submit the falsity of allegations made by the Respondent No 1 in support of his written objection to the application filed by petitioner under Order XXI Rule 41 read with 151 CPC stood established that undisputed information furnished by the Director , Postal Services, Sikkim State, Gangtok, which clearly revealed that no article under Speed/Registered Post was delivered to the Respondent No. 1 on 20-07-2011 as claimed by him.
LEARNED COUNSEL FOR THE RESPONDENT:
He contended that the proceedings instituted by the petitioner under Section 340 Cr.P.C. seeking to prosecute the Respondent No. 1 under Section 193 and other cognates of the IPC for allegedly making false statements in his supplementary affidavit and by this he had seriously impaired his estimation in his Organisation and in the eyes of the general public therefore he was liable under section 499 IPC. The case filed by the Respondent No 1 stood vindicated when the application under Section 340 Cr.P.C. moved by the Petitioner was dismissed by the Principal Sessions Judge on the ground that no offence had been committed by him necessitating an inquiry against him. JUDGEMENT: The case was filed by the petitioner under section 340 CrPC against the respondent because of filing false statements which were registered as Crl. Misc. Case No. 32 of 2013 dismissed by the Principal District Judge on 29-11-2013 Because Petitioner had failed to establish this, it was concluded that no case of deliberate falsehood was prima facie made out against the Respondent No. 1 on the charge thereby resulting in the dismissal of the application. So it was a consequence of such dismissal that led to file to institute the proceeding under Section 500 IPC against the Petitioner for allegedly having defamed him. It would appear from the order dated 29-11-2013 dismissing application under Section 340 Cr.P.C., that there is no finding at all as to whether or not the statement in paragraph 4 affirmed by the Respondent No. 1 that he had received the arbitral award on 20-07-2011, was false. Thus, the allegation remains unaltered. Even though the application under Section 340 Cr.P.C. was dismissed albeit on an erroneous premise for the reasons aforesaid, no case under Sections 499/500 IPC can be said to have been made out against the Petitioner. There is another aspect of the case that calls for consideration of this Court. The submission on behalf of the Learned Counsel for the Petitioner was that the case of the Respondent No. 1 fell within various Exceptions to Section 499 IPC. On a perusal of the provision, quite apparently the Petitioner’s case falls under the Eighth Exception which prescribes that “It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the

subject-matter of accusation”.From the earlier discussions, it has already been noted that the accusation made by the Petitioner against the Respondent No. 1 stands established and unaltered.As the said accusation was made before the lawful authority for action as per law the Petitioner would be protected under the Eighth Exception to Section 499 IPC and, therefore, even if the charge against the Petitioner is eventually proved at the trial, he will stand acquitted.The other aspect of the case that adds to its special feature is that the present complaint appears to be a counter-blast to the Petitioner having filed the application under Section 340 Cr.P.C. The records of the case, as discussed earlier, would reveal that as soon as the application under Section 340 Cr.P.C. filed by the Petitioner registered as Crl. Misc. Case No. 32 of 2013, was dismissed vide order dated 29-11-2013, the Respondent No. 1 on the very day had filed an application under Section 250 read with Section 357 CrPC registered as Crl. Misc. Case No. 1 of 2013 (Crl. Misc. Case No. 55A of 2013) against the Petitioner seeking compensation for the accusation made against him. When this application was dismissed, the Respondent No. 1 had preferred a revision in this Court being Crl. Rev.P. No. 14 of 2014 but that was also dismissed by order dated 25-11-2014. The Respondent No. 1 then filed the present complaint being Private Complaint Case No. 06 of 2014 before the Chief Judicial Magistrate, East and North Sikkim at Gangtok. The relentlessness in the manner in which proceedings were initiated against the Petitioner would lead one to reasonably conclude that those as well as the present proceeding have been preferred with the oblique purpose of seeking retribution against the Petitioner. The case of Vinay Rai (supra) disposed of by this Court by order dated 15-10-2014 are ones where the Petitioners were facing charges under Sections 406, 420, 467, 120B read with Section 34 IPC in the Court of the Chief Judicial Magistrate, South and West Sikkim at Namchi, on a charge-sheet filed by the Police. The application seeking to quash the proceedings was rejected as this Court found sufficient materials against the Petitioners to continue with the criminal prosecution against them in as much as they were prima facie found to be using the umbrella of the University to issue invalid degrees/diplomas/certificates to lakhs of students through distance mode after releasing huge amounts of money. The facts are, therefore, obviously distinguishable from those in the present case. For the aforesaid reasons, I am of the view that the cognizance of the complaint taken by the Chief Judicial Magistrate, East and North Sikkim at Gangtok, and the process issued thereby cannot be countenanced in the eyes of law as no offence under Section 500 IPC is made out in the facts and circumstances of the case. Consequently, the proceedings in Private Complaint Case No. 6 of 2014 pending before the Chief Judicial Magistrate, East and North Sikkim at Gangtok, deserve to be quashed and is hereby quashed..

THIS ARTICLE WRITTEN BY ALI MOHD SAMAD LEGAL INTERN AT LEGAL VIDHIYA.