Allowed

Kirit Kantilal Shah and Ors. v. Dnyaneshwar Narain Nikam and Anr.

Bombay HC26 Jul 2013WP/85/2013

Case brief

AI extract

What is this about?

The High Court of Bombay in criminal writ petition allowed the petitioner's challenge against a prosecution under Section 500 IPC. The court held that the reply was a confidential communication to a trust address and unlawful circulation by a clerk did not make the accused liable, sustaining only broad retorts to the complainant's conduct.

What did the court decide?

Writ petition allowed; order made absolute quashing the process for defamation.

Kirit Kantilal Shah and Ors. Vs Dnyaneshwar Narain Nikam… — Cheating and Forgery | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 85 OF 2013.

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Mr.Kirit Kantilal Shah & Ors. …Petitioners

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versus D.N.Nikam & Ors. ...Respondents ---

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Mr.Ashutosh Kulkarni Petitioners.

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Mr.M.A.Khan for the Respondent no.1.

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Mr.D.R.More, APP for the State-Respondent No.2.

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CORAM : K.U.CHANDIWAL, J.

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DATED : 26^th July, 2013

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P.C. :

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Rule. Rule made returnable forthwith.

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Heard finally. This matter was heard on 23.7.2013. During course of submission, the reply to notice dated 25.8.2011 was produced before this Court. However, it was not the same reply which gave cause for prosecution against the applicant vide Criminal Complaint No.1347/SS/2012. This court noticed that there were mess of facts tried to be confused by the writ petitioners during the course of

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submission and recorded that the litigant coming with a falsehood should not be heard. No sooner, the order was dictated, Mr. Kulkarni, in presence of Mr. Khan approached this Court imploring regrets for mistake if any having taken place. According to him, since there were two complaints of identical nature by other trustees, the mistake has crept. Today, he has, with compilation tendered complaint petition and the reply to the notice dated 25.8.2011 which was the root cause for filing the complaint under Section 500 of I.P.C.

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The cause for prosecution under Section 500 I.P.C. is a reply notice sent by applicant, which original complainant felt to be defamatory. Learned Counsel for the original complainant (respondent no.1) says the reply was sent to the address of the trust, though was in a close cover, was received by its clerk, who communicated the text thereof on phone to some of the trustees. The staff members also learnt of such a reply which was defamatory, attributed malice to the affairs of the trust, alleging the trust was indulged in illegal activity.

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The imputations to which reference is made in marathi is reflected in para 6 and 7 of the complaint petition. There is no contest between the parties. Barring these statements or imputations there is no other cause left to be prosecuted by the complainant while dealing with the

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reply dated 25.8.2011.

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The statements which are branded as imputations, as a prelude between the parties. A notice was despatched by the complainant or a trustee on 3.8.2011, the applicant (Original accused) and others in the capacity as attorney of other owners of the property, replied by commenting parawise assertions therein. Since in the notice, the complainant stated their status to be conducting/ imparting education and ensure such imparting education to the pupil in the country and abroad, of a standard, this was retorted to in the reply, questioning it. The reply which is felt to be imputation is “ The noble educational profession to which you have referred in the notice is false as the manner in which you are collecting fees from the students, carrying illegal activities and collecting additional amount from parents/guardians and the manner in which the trustees communicate with the owners of their property, developers or the persons who are in contact with them, making malicious prosecution and behave improperly, demonstrates that the trustees have a commercial tendency to activate”. The other assertion is “ whatever illegalities the trustees have done, whatever concealment and deception they have done, in the manner they have looted the people in the society would be exposed at appropriate time before the court.”

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The text of the above writing in reply, was a confidential communication to the trustees (complainant) sent at the address of the trust. If it was open by any clerk, who was unauthorize, the petitioner, as a accused cannot be blamed. It is apparent, in order to add spice to a petition for attracting provisions of Section 500 of I.P.C., fact of clerk of the institution opening the packet or circulating it to other staff members is projected. This could not be sending a blend to attract venturing of a publication in the manner the complainant feels.

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Sweeping statements and sentences made by the applicant as an accused were while retorting to the stand projected by the complainant of imparting or carrying noble activities. The other facets naturally the accused /applicant desire to establish in proper form. In the fact situation, issuance of process for offence under Section 500 of IPC calls for interference as it does not amount to any imputation nor create any enemity, hatred, ill-will or send any message to staff of the complainant.

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Writ petition is allowed. Rule made absolute.

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(K.U.CHANDIWAL, J.)

Kirit Kantilal Shah and Ors. v. Dnyaneshwar Narain Nikam and Anr.

Case brief

What is this about?

What did the court decide?

Kirit Kantilal Shah and Ors. v. Dnyaneshwar Narain Nikam and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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