Holding

The High Court erred in quashing the criminal proceedings; the magistrate’s issuance of summons was justified as a prima facie case existed, and the appeal is allowed.

Summary

M.N. Daman filed a private complaint under Section 500 of the IPC alleging that S.K. Sinha and others made false and malicious imputations against him in a bail application, thereby defaming him. The magistrate, after recording Daman's sworn statement, issued summons to the respondents, finding a prima facie case of defamation. The respondents sought quashing of the proceedings under Section 482 of the CrPC, and the Karnataka High Court granted the petition, also raising a fresh limitation plea. Daman appealed to the Supreme Court, contending that the High Court erred in quashing the case and that the limitation argument was not raised earlier. The Court held that the magistrate had correctly identified a prima facie case, that the High Court failed to apply the test under Section 482, and that the limitation issue could not be newly raised. Consequently, the Supreme Court set aside the High Court order, restored the magistrate's summons, and allowed the appeal.

Issues considered

Whether a prima facie case of defamation under Section 500 IPC existed warranting issuance of summons.
Whether the High Court was justified in exercising its power under Section 482 CrPC to quash the criminal proceedings.
Whether the limitation defence under Section 468 CrPC could be raised for the first time at the appellate stage.
Whether the alleged defamatory conduct constituted a continuing offence affecting limitation.

Legislation cited

Code of Criminal Procedure, 1973s. 251, s. 436, s. 468, s. 482
Indian Penal Code, 1860s. 468, s. 499, s. 500
Negotiable Instruments Act, 1881s. 138

Subjects

defamationSection 500 IPCSection 482 CrPCquashing of criminal proceedingslimitation defenceprima facie casecontinuing offencecriminal appeal

Judgment

... M.N. DAMAN!
-
A
v.
-"
S.K. SINHA AND ORS.

MAY 2, 2001

[D.P. MOHAPATRA AND SHIVARAJ V. PATIL, JI.] B

Code of Criminal Procedure, 1973-Section 482-Quashing of
Proceedings-Scope of-Complaint by A against B-Allegations of forgery,
threat and use offorce made by B against A in application for bail-A files

.. complaint for defamation-Proceedings quashed by the High Court-Held,
there was a prim a facie case-Quashing not justified-Indian Penal Code-
Section 500.

Constitution of India-Article 136-New plea-Complaint filed by A
c

against B-B raising plea of the complaint being barred by limitation for the
first time before this Court-Held, fresh plea cannot be raised. D

The RespondPnts were accused in a proceeding under Section 138 of
the Negotiable Instruments Act, 1881. The Respondents filed an application
for bail in the said proceedings and alleged therein that the Appellant had
forcibly broken open he drawer and removed the cheque book. The
E
Respondents further alleged that the Appellant forced the Respondents to
write and sign the cheque.

The Respondents were ultimately convicted for offence under Section
-1. 138 of the Negotiable Instruments Act The appeal filed by the Respondents
against their conviction was dismissed. F
The Appellant, thereafter, filed a private complaint against the
Respondents alleging commission of offence under Section 500 of the Indian
Penal Code. The Appellant alleged in the complaint that the Respondents had
made false and malicious allegations with intention or knowingly or having
reasons to believe that such imputations would harm his reputation. The G
Appellant further alleged that due to the imputations made by the Respondents,
the reputation of the Appellant was lowered in the eyes of his partners, the
:::·.L, staff and the workers.

On the basis of the complaint filed by the Appellant, the ·Magistrate
415
H
416 SUPREME COURT REPORTS [2001] 3 S.C.R.

A recorded the sworn statement of the Appellant and issued summons to the a,

Respondents for offence punishable under Section 500 of the Indian Penal )I~
Code.

The Respondents filed a petition under Section 482 of the Code of
Criminal Procedure praying for quashing the proceedings. The High Court
B allowed the petition filed by the Respondents and quashed the proceedings.

The Appellant filed a Special Leave Petition before this Court against
the order of the High Court. The Respondents, inter a/ia contended that the
complaint was barred by limitation. This plea was not raised before the lower
courts.
c Allowing the appeal, the Court

HELD : 1. On a plain reading of the order of the Magistrate, isSlling .~

summons to the respondents, keeping in view the allegations made in the '
complaint and sworn statement of the Appellant, it appears that a prima facie
case under Section 500 of the Indian Penal Code is made out. [420-D]
D
2. There are no special features in the case to say that it is not expedient
and not in the interest of justice to permit the prosecution to continue. y

(420-D]

3. Assuming that the imputations made could be covered by exception
E 9 of Section 499 Indian Penal Code, several questions still remain to be
examined-whether such imputations were made in good ~!,lith, in what
circumstances, with what intention etc. All these can be examined on the
basis of evidence in the trial. [420-F]
4-
Sewakram Sobhani v. R.K. Karanjia, Chief Editor, Weekly Blitz and
F Ors., [1981) 3 SCC 208; Shatrughna Prasad Sinha v. Rajbhau Surajmal
Rathi and Ors., [1996) 6 SCC 263; Madhavrao Jiwaji Rao Scindia and Am:
v. Sambhajirao Chandrojirao Angre and Ors. etc., AIR (1988) SC 709;
Manjaya v. Sesha Shetti, (1888) ILR 11 Mad. 477; Sayed Ally v. King Emperor,
AIR (1925) Rangoon 360; Anthoni Udayar and Ors. v. Velusami Thevar and
G Anr:, AIR 35 (1948) Madras 469 and Baboo Gunnesh Dutt Singh v. Mugneeram
Chowdry and Ors., (1872) WR 11 SC 283, referred to.

4. Since the question of limitation was not raised before the High Court
.·";;i
by the Respondents and further whether the offence is a continuing one or
not and whether the date of the commission of offence could be taken as the
H one mentioned in the complaint are not the matters to be examined at this
M.N. DAMAN! v. S.K. SINHA AND ORS. [PATIL, J.) 417

• stage. [422-H] A
_ .. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
596 of 2001.

From the Judgment and Order dated 22.2.2000 of the Karnataka High
Court in Crl. Petition No. 3668 of 1999. B
L. Nageswara Rao, Jayant Muthraj, Shambhu Nath Singh and D. Mahesh
Babu for the Appellant.

B.B. Singh for the Respondents.
c
... The Judgment of the Court was delivered by

SHIVARAJ V. PATIL, J. Leave granted.

The appellant filed a private complaint against the respondents alleging
that they made imputations against him in the application made under Section D
436 Cr.P.C. before the Xlth Additional Chief Metropolitan Magistrate, Mayo
Hall Court, Bangalore in C.C. No. 24877/96. The imputations made are to the
'<
following effect: -
•
"However Mr. M.N. Damani removed the cheque book at 9-30 by
forcibly breaking open the drawer and made the accused 2 and 4 to E
write and sign by forge/threat as mentioned in the correspondence."

"Mr. M.N. Damani had collected the cheques from us forcefully at 9-
30 p.m. by threatening to hit us by lifting the office chair and by
_)..
forcefully break opening the drawer of table containing the cheque
book which was locked by our Accountant while leaving the office F
for the day."

The Magistrate found these allegations as false and convicted the
respondents (accused) for the offence under Section 138 of the Negotiable
Instruments Act on 17 .12.1998. An appeal filed against the said order was
dismissed by the IV Additional Sessions Court, Bangalore on 30.7.1999.
G
According to the appellant the respondents made false and malicious
allegations with intention or knowingly or having reasons to believe that such
-::;-'· imputations would harm his reputation; due to these imputations made by
them, the reputation of the appellant has been lowered in the eyes of his
partners, the staff and the workers of factory at Vapi. Hence he prayed for H
418 SUPREME COURT REPORTS [2001] 3 S.C.R.

A punishing the respondents for the offence under· Section 500 IPC. The
Magistrate, on the complaint, after taking cognizance of the offence, recorded
the sworn statement of the complainant (appellant herein). The Magistrate in
his order stated thus: -

"From the sworn statement of the complainant and also from the
B documents produced by him, it is clear that the accused persons have
made imputation against the complainant intending to harm or knowing
or having reasons to believe, that such imputation will harm the
reputation of the complainant. In my opinion, there are sufficient
grounds to proceed the case against the accused persons for the
c offence punishable under section 500 of the I.P. C."

Hence he issued summons to respondents 1 to 3 for the offence
punishable under Section 500 IPC.

The respondents filed a criminal petition before the High Court under
D Section 482 Cr.P.C. praying for quashing the proceedings in C.C. No. 25353/
99 arising out of PCR 559/99, pending on the file of the Xlth Additional Chief
Metropolitan Magistrate, Mayo Hall Court, Bangalore. After hearing the learned
counsel for the respondents and the appellant {party-in-person) the learned
single Judge of the High Court allowed the petition and quashed the
E proceedings in C.C. No. 25353/99. Hence this appeal is brought before this
Court assailing the order of the High Court.

Mr. L. Nageswara Rao, learned senior counsel for the appellant,
contended that the impugned order is, on the face of it, unsustainable.
According to him the High Court was not right in interfering with the order .J.-
F passed by the learned Magistrate issuing summons to the respondents prima
facie finding a case against them for proceeding with the complaint. In
support of his submissions he cited two decisions of this Court in Sewakram
Sobhani v. R.K Karanjia, Chief Editor, Weekly Blitz and others, [1981] 3 SCC
208 and Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi and others
G [1996] 6 sec 263.

Mr. B.B. Singh, learned counsel for the respondents, while making
submissions supporting the impugned order, raised a new contention that the
complaint filed by the appellant was barred by time and no cognizance of it ~
could have been taken by the Magistrate. This argument was made on the
H basis that similar statements were made in the letter dated 26.2.1996 and the
M.N. DAMAN! v. S.K. SINHA AND ORS. [PATIL, J.] 419

- same were repeated in the application filed by the respondents under Section A
436 Cr. P.C. seeking their discharge in CC No. 24877/96; the complaint was
filed on 13.8.1999; if 26.2.1996 is taken as the starting point for limitation the
complaint filed on 13.8.1999 was clearly barred and no cognizance of it could
be taken under Section 468 Cr.P.C. This argument was refuted contending that
this point of limitation was not raised before the Magistrate; the offence was B
continuing one having regard to its nature; the imputations made in the
application filed by the respondents on 26.9.1996 under Section 436 Cr.P.C,
seeking their discharge is considered as the date of commission of offence,
the complaint filed by the appellant is not hit by Section 468 Cr.P.C .. The
learned counsel for the respondents in support of his submissions relied on
decisions inManjaya against Sesha Shetti, (1888) ILR 11 Mad., 477; Sayed C
Ally v. King Emperor, AIR (1925) Rangoon 360; Anthoni Udayar and others
v. Velusami Thevar and another, AIR 35 (1948) Madras 469 and Baboo
Gunnesh Dutt Singh v. Mugneeram Chowdry and others, (1872) WR 11 SC
283.

We have considered the rival submissions. The High Court relying on D
para 7 of the judgment in Madhavrao Jiwaji Rao Scindia and another v.
Sambhajirao Chandrojirao Angre and others etc. AIR (1988) SC 709 exercising

.. jurisdiction under Section 482 quashed the proceedings. The learned Judge
did not bestow his attention to the facts of that case and the discussions
made in paras 6 and 8 of the said judgment. Jn that case the complaint was E
filed for offences punishable under Sections 406 and 407 read with Sections ·
34 and 120-B of the Penal Code. That was a case where the property was trust
property and one of the trustees was member of the family. The criminal
proceedings were quashed by the High Court in respect of two persons but
they were allowed to be continued against the rest. In para 6 of the same
judgment it is clearly stated that the court considered relevant documents F
including the trust deed as also the correspondence following the creation of
the tenancy and further took into consideration the natural relationship
between the settler and the son and his wife and the fall out. Para 8 of the
judgment reads: -
G

- "8. Mr. Jethmalani has submitted, as we have already noted, that a
case of breach of trust is both a civil wrong and a criminal offence.
There would be certain situations where it would predominantly be a
civil wrong and may or may not amount to a criminal offence. We are
of the view that this case is one of that type where, if at all, the facts
may constitute a civil wrong and the ingredients of the criminal H

...
d""

420 SUPREME COURT REPORTS [2001] 3 S.C.R.

A offences are wanting. Several decisions were cited before us in support
of the respective stands taken by counsel for the parties. It is
.....
_><-..
unnecessary to refer to them. In course of hearing of the appeals, Dr.
Singhvi made it clear that Madhavi does not claim any interest in the
tenancy. In the setting of the matter we are inclined to hold that the
criminal case should not be i;ontinued."
B
Thus, the said judgment was on the facts of that case, having regard to
various factors including the nature of offences, relationship between the
parties, the trust deed and correspondence following the creation of tenancy.
The ~gh Court has read para 7 in isolation. If para 7 is read carefully two
c aspects are to be satisfied: (1) whether the uncontroverted allegations, as
made in the complaint, prima facie establish the offence, and (2) whether it
is expedient and in the interest of justice to permit a prosecution to continue.
~
On plain reading of the order of the Magistrate, issuing summons to the
respondents keeping in view ~he allegations made in the complaint and sworn
D statement of the appellant it appears to us that a prima facie case is made out
at that stage. There are no special features in the case to say that it is not
expedient and not in the interest of justice to permit a prosecution to continue.
y
The learned Judge has failed to apply the tests indicated in para 7 of the
judgment on which he relied. The High Court could not say at that stage that
there was no reasonable prospect of conviction. resulting in the case after a •
E trial. The Magistrate had convicted the respondents for the offences under
Sections 138 of the Negotiable Instruments Act and the appeal filed by the
respondents was also dismissed by the learned Sessions Judge. Assuming
that the imputations made could be covered by exception 9 of Section 499
IPC, several questions still remain to be examined - whether such imputations ~

F were made in good faith, in what Circumstances, with what intention, etc. All
these can be examined on the basis of evidence in the trial. The decisions in
Manjaya against Sesha Shetti, (1888) ILR 11 Mad., 477, Sayed Ally v. King
Emperor, AIR 1925 Rangoon 360 and Anthoni Udayar and others v. Velusami
Thevar and another, AIR 35 (1948) Madras 469, cited by the learned counsel
for the respondents are the cases considered "after conviction" having regard
G to the facts of those cases and the evidence placed on record. The decision
in Baboo Gunnesh Dutt Singh v. Mugneeram Chowdry and others, (1872)
WR 11 SC 283 arose out of a suit for damages for defamation. These decisions,
in our view, are of no help to the respondents in examining whether the High ~
-
Court was justified and right in law quashing the criminal proceedings that
H too exercising its jurisdiction under Section 482 Cr.P.C.
M.N. DAMAN! v. S.K. SINHA AND ORS. [PATIL, J.] 421
Para 6 of the judgment in Sewakram s case (supra) reads: A
"6. The order recorded by the High Court quashing the prosecution
under Section 482 of the Code is wholly perverse and has resulted in
manifest miscarriage of justice. The High Court has prejudged the
whole issue without a trial of the accused persons. The matter was
at the stage of recording the plea of the accused persons under B
Section 251 of the Code. The requirements of Section 251 are still to
be complied with. The learned Magistrate had to ascertain whether the
respondent pleads guilty to the charge or demands to be tried. The
circumstances brought out clearly show that the respondent was
prima facie guilty of defamation punishable under Section 500 of the C
Code unless he pleads one of the exceptions to Section 499 of the

- Code."

xxx xxx xxx

"It is for the respondent to plead that he was protected under Ninth D
Exception to Section 499 of the Penal Code. The burden, such as it
is, to prove that his case would come within that exception is on him.
The ingredients of the Ninth Exception are that ( 1) the imputation
must be made in good faith, and (2) the imputation must be for the
protection of the interests of the person making it or of any other
person or for the public good." E
Again, in para 18 of the judgment dealing with the aspect of good faith in
relation to 9th Exception of Section 499, it is stated that several questions
_,_ arise for consideration if the 9th Exception is to be applied to the facts of the
case. Questions that may arise for consideration depending on the stand F
taken by the accused at the trial and how the complainant proposes to
demolish the defence and that stage for deciding these questions had not
arrived at the stage of issuing process. It is stated, "Answers to these
questions at this stage, even before the plea of the accused is recorded can
only be a priori conclusions. 'Good faith' and 'public good' are, as we said,
questions of fact and matters for evidence. So, the trial must go on." G
Para 13 of the judgment in Shatrughna Prasad Sinha s case (supra)
reads: -

"13. As regards the allegations made against the appellant in the
complaint filed in the Court of Judicial Magistrate, 1st Class, at Nasik, H
422 SUPREME COURT REPORTS [2001] 3 S.C.R.

A on a reading of the complaint we do not think that we will be justified
at this stage to quash that complaint. It is not the province of this
Court to appreciate at this stage the evidence or scope of and meaning
of the statement. Certain allegations came to be made but whether
these allegations do constitute defamation of the Marwari community
as a business class and whether the apJ)ellant had intention to cite
B
as an instance of general feeling among the community and whether
the context in which the said statement came to be made, as is sought
to be argued by the learned Senior Counsel for the appellant, are all
matters to be considered by the learned Magistrate at a later stage.
At this stage, we cannot embark upon weighing the evidence and
c come to any conclusion to hold, whether or not the allegations made
in the complaint constitute an offence punishable under section 500.
It is the settled legal position that a court has to read the complaint
as a whole and find out whether allegations disclosed constitute an
offence under Section 499 triable by the Magistrate. The Magistrate
-
D prima facie came to the conclusion that the allegations might come
within the definition of 'defamation' under Section 499 IPC and could
be taken cognizance of. But these are the facts to be established at
the trial. The case set up by the appellant are either defences open
to be taken or other steps of framing a charge at the trial at whatever
stage known to law: Prima facie we think that at this stage it is not
E a case warranting quashing of the complaint filed in the Court of
Judicial Magistrate, Ist Class at Nasik. To that extent, the High Court
w~s right in refusing to quash the complaint under s·ection 500 IPC."

Having regard to the facts of the instant case and in the light of the
F decisions in Sewakram Sobhani v. R.K. Karanjia, Chief Editor, Weekly Blitz
and others, [1981] 3 SCC 208 and Shatrughna Prasad Sinha v. Rajbhau
Surajmal Rathi, [1996] 6 SCC 263, we have no hesitation in holding that the
High Court committed a manifest error in quashing the criminal proceedings
exercising jurisdiction under Section 482 Cr.P. C.

G Since the question of limitation was not raised before the High Court
by the respondents and further whether the offence is continuing one or not
and whether the date of the commission of offence could be taken as the one
mentioned in the complaint are not the matters to be examined here at this 1

stage. In these circumstances we have to reverse the impugned order of the
H High Court and restore that of the Magistrate.
M.N. DAMAN! v. S.K. SINHA AND ORS. [PATIL, J.) 423
In the result for the reasons stated the impugned order of the High A
Court is set aside and that of the Magistrate is restored. The appeal is allowed
accordingly.

B.K.M Appeal allowed~