Anurag Soni vs Rakesh Vishwakarma

R.C. Mishra, J.

With consent the matter is finally heard.

This is a petition for quashing of the proceedings pending as Criminal Case No, 123 7/2011 in the Court of CJM, Balaghat. In that case, cognizance of the offence u/s 500 of the IPC has been taken upon a complaint made by the respondent against the petitioner, who is the Director of British School of English, an Institution imparting education to learners of English language at Jabalpur. Subject matter of the complaint is the Public Notice (Annexure A/4), published by the petitioner in a local newspaper in Vernacular,

(a) depicting photograph of the respondent;

(b) warning the public at large against dealing with the respondent, describing him as franchisee to the School involved in cheating and criminal breach of trust in respect of money collected as fees and Royalty on behalf of the Institution and materials used for the specialized coaching, and;

(c) informing further that a criminal case had already been registered against the respondent, who was still absconding, upon the FIR lodged by the petitioner.

Learned counsel for the petitioner has submitted that his prosecution for the offence is an abuse of the process of the Court as he, in good faith, had cautioned the public not to enter into any transaction with the respondent under the impression that he being the franchisee was authorized to act for and on behalf of the School. According to him, the act in question is squarely covered by Exception 1 and 10 of Section 499 of the IPC.

In reply, learned counsel for the respondent, while placing reliance on decision of the Apex Court in Jeffrey J. Diermeier and Another Vs. State of West Bengal and Another, , has submitted that "good faith" and "public good" are questions of fact to be decided on the basis of evidence. In that case "Word of Caution" published by the appellant had formed basis of the prosecution for the offence of defamation and the decline to quash the complaint was affirmed by the Supreme Court.

The proposition that the question as to protection under any of the exceptions to Section 499 of the IPC can not be examined for quashing of the complaint u/s 482 of the Code is well settled. The leading decision on the point is one delivered by the Apex Court in Sewakram Sobhani Vs. R.K. Karanjia Chief Editor, Weekly Blitz and Others, that was followed in all subsequent decisions including M.N. Damani Vs. S.K. Sinha and Others, . Accordingly, it is for the accused/petitioner to plead and prove that his case would come within any one of the exceptions to Section 499 of the IPC.

This apart, the inherent powers, u/s 482 of the Code are to be exercised ex debito justitiae to prevent abuse of the process of the Court but not to stifle a legitimate prosecution, when the issue involved, whether factual or legal, can not be decided without sufficient material.

In this view of the matter, no interference, under the inherent powers, is called for.

The petition, therefore, stands dismissed. As an obvious consequence, interim stay granted on 10/10/11 stands vacated. Trial Court be informed accordingly.