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2020 Supreme(P&H) 36
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Harnaresh Singh Gill, J.
Icici Bank Ltd - Appellant
Versus
Kusum Aggarwal - Respondent
Criminal Miscellaneous (M) No. 43748 of 2015, 41174 of 2015
Decided On : 13-01-2020
Sandeep Suri, Advocate, Harjot Kaur, Advocate, Rose Gupta, Advocate
Mens rea is a mandatory prerequisite for the offence of defamation, and careful scrutiny of evidence is essential before summoning the accused in a criminal case.
Headnote:
Defamation - Criminal Complaint - Negotiable Instruments Act, 1881 - Sections 138, 139 - IPC Sections 499, 500
Fact of the Case:
The respondent availed a loan facility from the bank, and after the dismissal of the complaint under Section 138 of the Negotiable Instruments Act, filed a complaint under Section 499/500 IPC against the petitioners, alleging loss of reputation due to criminal proceedings initiated by the bank.
Finding of the Court:
The court found that the petitioners could not be held guilty of defamation as mens rea was lacking, and the image or reputation of the respondent was not tarnished. The court also highlighted the need for careful scrutiny of evidence before summoning the accused in a criminal case.
Issues: The issues involved the dismissal of the complaint under Section 138 of the Act, the filing of a complaint under Section 499/500 IPC, and the alleged loss of reputation by the respondent.
Ratio Decidendi: The court emphasized the absence of mens rea for the offence of defamation and the need for careful scrutiny of evidence before summoning the accused in a criminal case.
Final Decision: The court allowed the petitions and quashed the criminal complaint and summoning order.
JUDGMENT
Harnaresh Singh Gill, J. - This order shall dispose of the above noted two petitions as the common questions of law and facts are involved therein. For the facility of reference, the facts are taken from CRM-M-43748-2015.
2. The above-noted two petitions have been filed with a prayer for quashing of complaint (Annexure P.3) filed on 3.12.2014 under Section 499/500 IPC and the summoning order dated 11.09.2015 (Annexure P.1).
3. In the present case, respondent-Kusum Aggarwal availed loan facility from the bank and on account of nonpayment thereof, the bank had instituted a complaint under the provisions of Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act'). The complaint was instituted through Collection Manager, Shri Dinesh Kumar.
4. The said complaint was dismissed by the learned Judicial Magistrate Ist Class, on 12.02.2014 (Annexure P.2) holding that the cheque in question was a security cheque, so presumption under Section 139 of the Act stood rebutted and the ingredients of Section 138 of the Act had not been attracted.
5. After the dismissal of the complaint filed under Section 138 of the Act, on 12.02.2014, the respondent filed a complaint under Section 499/500 IPC against the petitioners with the averments that she had suffered a huge loss of image, glory reputation in the eyes of all concerned and also raised the claim of Rs.5.00 lacs and the petitioner along with Munish Kumar were summoned to face the trial vide order dated 11.09.2015 (Annexure P.1).
6. Even the Bank had been ordered to be summoned through its the then Managing Director Shri K.V. Kamath, who served in the Bank upto 1.5.1996 and had no role to play.
7. On behalf of the respondent-Kusum Aggarwal, Mr. Rose Gupta, Advocate, appeared in CRM-M-43748-2015 on 9.8.2016, but did not file any reply. Today, on behalf of Mr. Rose Gupta, Ms. Harjot Kaur, addressed the argument, in both the cases.
8. I have heard learned counsel for the parties and with their able assistance, have also gone through the case files.
9. While dismissing the complaint under Section 138 of the Act, the trial Magistrate had drawn a conclusion that the cheque in question was nothing but a security cheque which was clear from the fact that it bore the rubber stamp of the Bank and also that once the hypothecated agreement was terminated, the borrower/accused cannot be held liable for the offence under Section 138 of the Act.
10. In the complaint filed under Section 499/500 IPC by the respondent (who was accused in the complaint under Section 138 of the Act) it was alleged that she had suffered a huge loss of image, glory and reputation in the eyes of all concerned, including the relatives, because of the initiation of the criminal proceedings by the Bank.
11. The case of the petitioners is that merely deposing as a witness(es) for and on behalf of the employer based on the available official records, of which one of the petitioners i.e. Munish Kumar, was authorized representative, cannot, in any manner be considered to mean that if complaint was dismissed and accused acquitted, offence under Section 499/500 IPC has been committed.
12. Before proceeding further, it would be appropriate to extract here-under the provisions of Sections 499 and 500 IPC:-
"499. Defamation
Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
Explanation 1- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2- It may amount to defamation to make an imputation concerning a company or an association or collection o
