JUDGMENT :

R.D. KOTHARI, J.

1. What is defamation? Complainant alleges that notice given by petitioners advocate contains defamatory statement and hence, the complaint. Petitioner prays to quash the complaint.

2. Few relevant facts are, thus:

Petitioner is a Chairman of Sachin Udyognagar Sahakari Mandali Limited. Complainant claims to be the power of attorney holder of his son. Complainants son is a member of said Sachin Udyognagar Sahakari Mandali Limited. Some of the members of the society have formed committee called "Sabhasad Hitrakask Samiti." It is claimed that to expose illegal activities of the office bearers of the co-operative society, this Samiti is formed. It is the say of the complainant that to intimidate, threaten and blackmail the members of the said committee, a notice in question was given by the petitioners advocate. It is dated 16.5.2007. Alleged defamatory allegation made in the notice, in substance, are as under:

(i) That you are the accused in the complaint bearing I.C.R. No. 87/2003 registered at Gondal Police Station for murder of one Vikramsinh Rana.

(ii) That in murder of one Tulsi Bhagat of Jasdan Taluka, you are also the accused.

(iii) That in your native, you were involved in serious criminal activities and upon police pressure mounting, you have left the native and shifted to Surat. However, it appears that you have not given up your criminal mentality.

(iv) That you have come at Surat after committing two murders. That you have come to threaten and terrorise the members of the society. That you have formed assembly of anti-social elements, who have criminal background.

(v) That there is a documentary evidence of cheating and forgery in connection with sale of plot.

3. It is the say of the complainant that by issuing the notice with above-referred contents and giving a copy of the notice to six police officers - who are referred to at the end of the notice - the impression is created that complainant is an criminal and intention is, police officer may take criminal action against the complainant.

4. Complainant filed the complaint before the JMFC court, Surat alleging that by issuing notice with above-referred contents, the petitioner has committed an offence under Section 500 of IPC. The learned trial court has sent the complaint for inquiry. Upon receiving of police report, the learned trial court has passed the order under challenge below Exh.1.

5. Heard learned Senior Advocate Mr. R.S. Sanjanwala assisted by learned advocate Mr. A.V. Thakkar on behalf of petitioner and learned APP Mr. K.P. Raval for respondent No. 1-State of Gujarat. Complaint, though duly served, has not engaged any advocate and has remained absent.

6. Learned Senior Advocate Mr. R.S. Sanjanwala apprises the Court to the facts of the case and has referred to the relevant material on record. It was submitted that there is no case of offence of defamation even prima facie. It was submitted that giving of notice by an advocate on behalf of his client, does not amount to making or publishing. Shri Sanjanwala has drawn attention to a decision of this Court in the case of Varshaben Devendrabhai Patel vs. State of Gujarat, 2007 Cri. L.J. 2877 (Guj.) and also to a decision of the Supreme Court in the case of K. Khushboo vs. Kanniammal and Another, 2010 (2) GLH 334.

7. In Varshaben Devendrabhai Patels case (supra), the complainant was a teacher. The petitioners before this Court were trustees and office bearers of the school. The complaint of the complainant was two fold; firstly, the defamation is made in oral and secondly, it is in the form of letter of termination of services. As to the former, it was the say of the complainant that petitioners were saying in presence of others that complainant did not know anything and she is very harsh to the young students. It was alleged that such a derogatory statements were made in presence of other teachers and parents of the students. In letter of termination, it was alleged that complainant is not beha