M.L. Mehta, J.@mdashThe present petition assails the summoning order dated 27.06.2005 passed by the Ld. MM in CC No. 297/1 titled "M/s Frankfinn Management Consultants v. Subhash Motwani & Anr".
2. The brief facts of the case are that the Complainant company is engaged in Basic Cabin Crew Training and job assistance to its trainees. It is alleged that the Petitioners started similar training courses in the name and style of M/s. Institute of Hotel Cargo and Tourism Management (IHCTM) wherein the Petitioner No. 1 is director. It is further alleged that both the petitioners are Editors of an in-house journal in the name of "Opportunities today". The petitioners wrote and published an article in the said journal in September 2001 issue titled as "Flight of Fancy Crash Courses of Crashing Hopes". The said article allegedly contained incorrect and defamatory content and provided a distorted picture of the complainant/respondent. The article contained material projecting the complainant/respondent No. 1 as making the students a scapegoat and thereafter extracting money from them. It is alleged that the article was published with a mala fide intent as the Petitioners and Complainant/ Respondent are competitors and was done to cause unlawful loss to the Complainant/ Respondent No. 1 and unlawful gain to the Petitioners. The Respondent No. 1 filed a Civil Suit No. 367 of 2002 for recovery of Rs. 25 lacs as damages against the Petitioner before this court on 20.08.2002. Thereafter criminal complaint dated 02.09.2003 was filed in the court of Ld. MM who after recording the pre-summing evidence summoned the Petitioners vide order dated 27.06.2005. The Complainant led pre-summoning evidence which revealed that several calls were received by the Complainant enquiring whether the contents of the article are true. The petitioner also filed a petition Crl.M.C. No. 2322 of 2006 u/s 482 CrPC for quashing of the complaint which was dismissed by this court vide order dated 27.02.2008. Thereafter, the civil suit filed by the respondent No.1 against the petitioners was dismissed vide order dated 12.09.2008. The Ld. MM vide his order dated 07.09.2009 framed notice u/s 251 CrPC against the petitioners u/s 500/34 IPC. This petition is filed for quashing of the said complaint.
3. Learned counsel for the petitioners submitted that the complaint against the petitioners was not maintainable since the civil suit No. 367/2002 filed by the respondent No.1 based on same averments and evidence has already been dismissed and has attained finality. It was submitted that since the suit was dismissed on the ground that the article in question was not defamatory, the present complaint based on the same article was not maintainable. Learned counsel relied upon the judgment in
4. On the other hand, learned counsel for the complainant/respondent submitted that the criminal proceedings are independent of the civil proceedings and finding of the facts recorded by the Civil Court do not have any bearing on the criminal case. Learned counsel submitted that the civil as well criminal proceedings are independent and there is no law to make finding of the Civil Court to be binding on the criminal proceedings. Learned counsel relied upon the judgment
5. I have heard the learned counsel for the parties and perused the record and also gone through the judgment of this court in Civil Suit being CS (OS) 367/2002 dated 12th September, 2008 and order dated 27th February, 2008.
6. Though it would not be desirable to comment upon the findings of the Civil Court as regard to whether the article in question was held to be defamatory or not, but from Para 28, 29, 30 & 32 of the said judgment, it can be prima facie seen that the portions of the articles referred to in the judgment are per se observed to be defamatory. This was in fact a triable issue as to whether the article was defamatory to the plaintiff''s reputation or not. However, it cannot be said that the Civil Court recorded finding of the fact that the article was not at all defamatory.
7. Admittedly, the petition that was earlier filed by the petitioners u/s 482 CrPC seeking quashing of this very complaint was dismissed by this court vide order dated 27th February, 2008. Observations made by this court in the said judgment also need not be noted or discussed. In that petition also, similar pleas were taken by the petitioners as regard to the bearing of the finding of the Civil Court on the criminal proceedings. At that time also, it was observed that both the proceedings could go simultaneously and the mere filing of the criminal complaint after the filing of the civil suit would not constitute an abuse of process of law. This court had categorically recorded that there was no ground made out for quashing of the complaint.
8. The learned M.M. has framed notice u/s 251 CrPC against the petitioners based on the allegations as stated in the complaint and also the complainant''s pre-summoning evidence. It is trite that at the stage of framing of notice, the meticulous consideration of evidence and the material on record, which on the face of it makes out the offence committed by the accused persons, is not required. It was not to be seen as to whether the said material would ultimately result in conviction or not. The material which was enough to raise grave suspicion about the commission of offences against the accused person was enough for framing of notice against him. The power of this court u/s 482 CrPC can be noted in the words of Supreme Court in the case of
(12) While exercising jurisdiction u/s 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge/Court. It is true that Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, other wise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without full-fledged enquiry. Though High Court may exercise its power relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice, the power should be exercised sparingly. For example, where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused or allegations in the FIR do not disclose a cognizable offence or do not disclose commission of any offence and make out a case against the accused or where there is express legal bar provided in any of the provisions of the Code or in any other enactment under which a criminal proceeding is initiated or sufficient material to show that the criminal proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused due to private and personal grudge, the High Court may step in. Though the powers possessed by the High Court u/s 482 are wide, however, such power requires care/caution in its exercise. The interference must be on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution. We make it clear that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of inherent powers u/s 482.
9. In the case of K.M. Mathew v K.A. Abraham & Others [2002(3) JCC 1523], the Hon''ble Supreme Court held that when a Magistrate before issuing process has come to the conclusion that the complaint prima facie makes out the offence, the High Court shall be reluctant in exercising its inherent powers to quash the proceedings. Undisputedly, powers u/s 482 Cr.P.C has to be used sparingly and with great caution and only in those cases where this Court comes to the conclusion that there was manifest injustice or there was abuse of process of the court. In
.......So far as the order of cognizance by Magistrate is concerned, the inherent power can be exercised when the allegation in the "first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage, it is not open either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out.
10. In
11. Having regard to the above facts and circumstances, I do not see any illegality or infirmity in the impugned order. The petition is hereby dismissed.
