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2018 Supreme(Bom) 533
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRAKASH D. NAIK, J.
Rajendra Kumar Shahani - Petitioner
Versus
State of Maharashtra & Others - Respondents
Criminal Revision Application No. 179 of 2014
Decided On : 13-04-2018
For the Petitioner:Robin Jaisinghani I/b Jacinta D'Silva, Advocates.
For the Respondents:Arif Y. Bookwala, Sr. Counsel a/w Filji Frederick a/w M/s. Prateeti Thakur I/b Ff & Associates, Advocates, R.M. Gadhavi APP.
Headnote:
Constitution of India,1860 - Article 134(1)(c) - Indian Penal Code,1860 - Section 500 – Criminal Procedure Code,1973 - Section 397 – Appointment as sole executor - Allegations - Court applicant challenges passed by Additional Sessions Judge Greater Bombay in Criminal Revision Application said Revision Application was allowed and order of issuance of process passed by learned Additional Chief Metropolitan Magistrate 8th Court Esplanade at Mumbai in against Respondent was set aside who was brother of husband of expired - Accused filed a petition in Bombay High Court for revocation of probate granted in favour of complainant by Bombay High Court in which Accused made false and defamatory allegations against complainant intending to harm and/or knowing and/or having reason to believe that such imputations will harm reputation of complainant advocate of Accused who has filed aforesaid petition on behalf of Accused is proprietor and Co- He has acted with express malice in making false and defamatory statements and allegations contained in petition filed in Bombay High Court against complainant- In petition it was stated that petition has been drawn by have conspired with Accused defame complainant –Held, Case of Pereira- It was also observed that it is a settled principle of law that a lawyer conducting a case on behalf of his client enjoys certain privileges and latitudes and presumption will be that he has acted in good faith unless contrary is alleged or established- An advocate will come within Exception to Section and it will be presumed that he acted in good faith and in interest of protection of apparent on face of record- Merely because complainant has averred in complaint that there was express malice it cannot be said that prima facie case was made out against Respondent - Petition was verified by Respondent - In each and every paragraph it has been specifically stated that “Petitioner submits- It is apparent that entire averments found in Petition have been made on instructions of Petitioner- There is no malice and even otherwise he has acted in good faith and would be protected by Exception - He cannot be subjected to face ordeal of trial when prima facie case is not made out to prosecute him- There is no evidence of malice or on part of Respondent - In factual matrix and in light of ratio laid down in several decisions prosecution of Respondent would clearly be abuse of process of Court and it would not be in interest of Justice- Time and again it is emphasized that trial Courts would be well advised to be cautious while entertaining complaints against legal practitioners- It is only where privileges have been abused they shall be prosecuted- Although point involved was very short Court was required to write laboured judgment in view of quantity of submissions and precedents cited by parties- In facts and circumstances in this case and for all reasons stated hereinabove Court do not find that learned Sessions Judge has committed any error in passing impugned order - Order accordingly
1. Heard both the sides. In accordance with earlier order and with consent of both the parties, Application was heard for final disposal.
2. The applicant has invoked the revisional jurisdiction of this Court under Sections 397 and 401 of Criminal Procedure Code, 1973. The applicant challenges the impugned order dated 11th October, 2013 passed by the learned Additional Sessions Judge, Greater Bombay in Criminal Revision Application No. 913 of 2012. The said Revision Application was allowed and the order of issuance of process passed by the learned Additional Chief Metropolitan Magistrate, 8th Court, Esplanade at Mumbai in C.C. No. 0800735/SS/2012 against the Respondent No. 2 was set aside.
3. The Revision applicant herein is the original complainant in the aforesaid complaint. The said complaint was filed alleging offence under Section 500 of I.P.C. against the Respondent No. 1 to 3. 4. The brief facts as alleged in the complaint are as follows:
(a) The complainant is the son of Arjun Gurdassingh Shahani. The building Gurdasmal Mansion belonged to Ruki Gurdassmal Mirchandani who was the sister of complainant's father Arjun G. Shahani. The complainant is the nephew of Ruki G. Mirchandani who expired on 20th March, 1993. After Ruki's death, the complainant has been looking after and running the guest house business.
(b) The Accused Nos. 1 and 2 are the daughters of one late Hasmatrai Mirchandani, who was the brother of Gurdassmal Mirchandani, the husband of Ruki G. Mirchandani. Gurdassmal Mirchandani expired on 1st February, 1965. Accused Nos. 1 and 2 filed a petition in the Bombay High Court for revocation of probate granted in favour of the complainant by the Bombay High Court in which the Accused made false and defamatory allegations against the complainant intending to harm and/or knowing and/or having reason to believe that such imputations will harm the reputation of the complainant.
(c) Accused No. 3 (Respondent No. 2) is the advocate of Accused No. 1 and 2 who has filed the aforesaid petition on behalf of Accused Nos. 1 and 2. Accused No. 3 is the proprietor of Ranjit and Co. He has acted with express malice in making false and defamatory statements and allegations contained in the petition filed in the Bombay High Court against the complainant. In the petition, it was stated that, the petition has been drawn by “Ranjit and Co.” Accused Nos. 1 and 2 have conspired with Accused No. 3 to defame the complainant.
(d) Ruki G. Mirchandani expired on 20th March, 1993 leaving behind her Last Will and Testament dated 7th December, 1988. The complainant was informed by Police that Postmortem was conducted and the report indicates that, Ruki might not have died natural death. Last rites and all rituals were performed. Complainant was arrested and granted bail, but no charge-sheet was filed against him. The said will was registered with the Sub-Registrar of Assurances at Bandra, Mumbai. By the said Last Will and Testament, the complainant was appointed as the sole executor and the building Gurdassmal Mansion and the plot of land on which the building stands was bequeathed to the complainant and Ruki G. Mirchandani's other nephew Pradeep Manek Shahani in equal shares.
(e) The complainant filed a Testamentary Petition in the Bombay High Court and obtained a Probate of Last Will and Testament of Ruki G. Mirchandani. Public notices about filing of the Petition for Probate were issued in the newspapers. One Mahesh Mirchandani and Nanik Mirchandani, the real brothers of Accused Nos. 1 and 2, filed their Caveat in the said Probate Petition. Similarly, Caveats were also filed by Shanta M. Joukani, Chandrakanta Agarwal and Anita Advani claiming to be the daughters of Ruki's sisters. In pursuant to that, the said Testamentary Petition was converted into a Suit. The Caveats filed by Shanta M. Joukani, Chandrakanta Agarwal and Anita Advani were discharged by the High Court in an appeal preferred by the complainant. The Court also discharged
