REKHA Vs. VINODAN T S

JUDGEMENT

(1.) Petitioners are accused in CC 2085/2008 on the file of Judicial First Class Magistrate, Thrissur. First respondent is the complainant. First petitioner is the Secretary and second petitioner the Branch Manager and third petitioner the Peon of Cherpu Service Cooperative Bank, Perumbillisherry. Admittedly first respondent availed a loan from Cherpu Service Cooperative Bank on 07/01/2004. For realisation of that amount arbitration case was filed on 13/04/2007. An arbitration award was passed on 28/06/2007. First respondent subsequently admittedly discharged the entire debt. Annexure C lawyer notice was sent by first respondent on 27/02/2007 to the petitioners alleging that on 24/02/2007 at 5 p.m petitioners trespassed into his house and spoken abusive words and hearing the sound neighbours gathered there and to the hearing of the neighbours petitioners disclosed that respondent cannot be believed and they are persons of black money and he is a person who is not returning the amount borrowed. It is contended that by the said words reputation of first respondent has been effected and petitioners thereby committed an offence under S.500 of Indian Penal Code and if they are not be prosecuted they have to tender apology. Annexure B complaint was thereafter filed before Judicial First Class Magistrate, Thrissur alleging that petitioners committed offence under S.499 punishable under S.500 of Indian Penal Code. Learned Magistrate after recording Annexure D sworn statement of the first respondent and Annexure F swarn statement of a witness took cognizance of the offence. This petition is filed under S.482 of Code of Criminal Procedure to quash the proceedings.

(2.) Learned counsel appearing for petitioners and learned counsel appearing for first respondent were heard.

(3.) Learned counsel appearing for the petitioners argued that Annexure A complaint is maliciously instituted and it is only an abuse of process of Court and is to be quashed. It is pointed out that when in Annexure B notice alleged defamatory words were spoken to by petitioners to the neighbours who gathered there. What is alleged in paragraph 4 of the complaint is that the alleged defamatory words were spoken to the neighbours as well as pedestrians who gathered there at the time of incident and the case in Annexure D sworn statement was that it was disclosed to his friends whose name was not disclosed who came to his house and asked to first petitioner and the case of the witness, as is clear from, Annexure F sworn statement, is that hearing the sound being an neighbour he came to the house of first respondent and then it was told to the witness that first respondent is a person who is not repaying loan and a person of black money who cannot be believed and a contrary case is disclosed in the complaint to foist a false case. It was also argued that even if the allegations raised is accepted, in the absence of a case in the complaint disclosing the ingredients of an offence under S.499, learned Magistrate should not have taken cognizance of the offence. It is argued that there is no allegation in the complaint that the alleged words were spoken with the intention to defame or with the knowledge that it would result in defamation and in the absence of such a case, the case can only be quashed. Learned counsel also pointed out that even though the complaint is filed against three persons, there is no allegation with regard to respective words spoken to by each of them and it cannot be believed that all the three persons would repeat the same words like parrot and therefore on the facts, learned Magistrate should not have taken cognizance. It is finally pointed out that as instructed in Annexure G circular issued by the Co perative Departments, being employees of Cooperative Societies petitioners are bound to collect the amount due to the society and that too without initiating attachment proceedings and therefore petitioners approached first respondent only for realising the amount due and not for committing any defamation and the allegation in the complaint itself is that petitioners went there and spoken the words to compel first respondent to pay the amount due to the society and if that be so, under S.106 of Cooperative Societies Act when the Act allegedly committed by the petitioners were for realisation of the amount due to the society, they are protected and no prosecution will lie and hence it is to be quashed. Learned counsel also relied on the decisions in State of Haryana v. Bhajan Lal, 1992 KHC 600 : 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : AIR 1992 SC 604 : 1992 CriLJ 527, Punjab National Bank and Others v. Surendra Prasad Sinha, 1992 KHC 232 : 1993 Supp (1) SCC 499 : 1992 (1) KLT SN 61 : JT 1992 (2) SC 46 : AIR 1992 SC 1815 and Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others, 1998 KHC 1055 : 1998 (5) SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC 128 : 1998 CriLJ 1.