Final Order 7

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 11Ct Cases2325/2023
VINAYAN CONSULTING AND SERVICES PVT LTD Vs. MS
EXPERIO TECH PVT LTD & ORS
(Parliament Street)
01.06.2024
Order on Summoning
1. The present complaint is filed for offences punishable
under Section 500 IPC. PSE was closed on 31.10.2023.
Arguments on the point of summoning were heard on 08.12.2023
& 18.01.2024. Certain clarifications have been taken today as
well.
2. It is the case of the complainant that the proposed accused
persons are Directors of the company M/s. Experio Tech Pvt.
Ltd. having its registered office at Dwarka and the complainant is
also a company having its registered office at Dwarka. It has
further been submitted that the complainant company has been
carrying on the business of Safety and Security Traffic
Equipments and is having a good reputation in the market. It has
been alleged that the accused had filed a false complaint to the
Government e-market Place (GeM) with false and defamatory
remarks against the complainant company due to which GeM had
issued many show cause notices to the complainant. It has further
been alleged that the defamatory remarks made against the
complainant were pertaining to – i. use of benami/fake identity or
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credentials on GeM portal, ii. brand and trademark infringement
and iii. listing the products or services not in the relevant
category and/or listing the same with vague/conflicting product
specification/details or irrelevant product image. It has been
submitted that due to the aforesaid false allegations so levelled
by the proposed accused, the GeM temporarily issued show
cause to the complainant six times to stop their business activities
and not to upload new product or services on their portal. Further,
the complainant’s right to participate in upcoming bids were also
suspended. It has also been submitted that the complainant
replied to the legal notices sent to it by the concerned authority
wherein it was informed that the complainant is the true holder of
the concerned trademark and original manufacturer of the
product “TURESPEED” and therefore, there is no substance in
the allegations levelled by the proposed accused persons.
3. It has been argued on behalf of the complainant that the
accused persons have wrongfully asserted false facts and
committed defamation as the same was communicated to third
parties which include the clients of the complainant, officials of
the GeM and a US based company. Reliance has also been placed
upon the judgment titled as Mr. Atul Kumar and Mr.
Abhimanyu Sharma, Advocates vs. Tarsem Singh & Ors.
(2018) SCC OnLine Del 9978), to argue that since
communication to third party has already been made, the offence
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of defamation has been committed.
4. The complainant has prayed to summon the accused
persons for offences punishable U/s. 500 IPC.
5. Arguments heard. Record perused and considered.
6. Section 499 of the IPC defines defamation. As per the
same, the essential ingredients in order to establish the
commission of the said offence are:-
A. False Statement: The statement in question must be
false, implying that it is not based on truth or reality.
B. Harm to Reputation:The false statement should have
the potential to harm the reputation of the person it refers
to. Reputation includes the opinions others hold about an
individual, affecting their social, professional, or personal
relationships.
C. Publication: The false statement must be
communicated to at least one person other than the person
making the statement and the one being defamed.
D. Intent or Knowledge: The person making the false
statement must have either the intention to harm the
reputation of the individual or knowledge that the
statement is false or likely to harm their reputation.
There are 10 exceptions carved out to the abovesaid
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offence in the IPC which provide absolute defence to the
accused. There are also 4 explanations appended to the
section defining criminal defamation.
7. In the judgment of the Hon’ble Supreme court of India
titled as M/S Iveco Magirus Brandschutztechnik Gmbh V.
Nirmal Kishore Bhartiya & Anr 2023 LiveLaw (SC)860 it has
been held that a Magistrate can dismiss a defamation complaint
by applying the exceptions under section 499 of the Indian Penal
Code, 1860 even before even summoning the accused. It has also
been held that at the stage of issuance of process or dismissal of
complaint, the Magistrate needs to apply judicial mind regarding
the substance of the complaint and statements of witnesses
recorded. Following discussion has been made in this regard-
“44.…….However, there can be no gainsaying that at the stage
the Magistrate decides to pass an order summoning the accused,
examination of the nature referred to above ought not to be
intended for forming an opinion as to whether the materials are
sufficient for a ‘conviction’; instead, he is required to form an
opinion whether the materials are sufficient for ‘proceeding’ as
the title of the relevant 41 chapter would indicate. Since the
accused does not enter the arena at that stage, question of the
accused raising a defence to thwart issuance of process does not
arise. Nonetheless, the fact that the accused is not before the
Magistrate does not mean that the Magistrate need not apply his
judicial mind. Nothing in the applicable law prevents the
Magistrate from applying his judicial mind to other provisions of
law and to ascertain whether, prima facie, an “offence”, as
defined in section 2(n) of the Cr. PC is made out. Without such
opinion being formed, question of “proceeding” as in section 204
does not arise. What the law imposes on the Magistrate as a
requirement is that he is bound to consider only such of the
materials that are brought before him in terms of sections 200
and 202 as well as any applicable provision of a statute, and
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what is imposed as a restriction by law on him is that he is
precluded from considering any material not brought on the
record in a manner permitted by the legal process. As a logical
corollary to the above proposition, what follows is that the
Magistrate while deciding whether to issue process is entitled to
form a view looking into the materials before him. If, however,
such materials themselves disclose a complete defence under any
of the Exceptions, nothing prevents the Magistrate upon
application of judicial mind to accord the benefit of such
Exception to prevent a frivolous complaint from triggering an
unnecessary trial. Since initiation of prosecution is a serious
matter, we are 42 minded to say that it would be the duty of the
Magistrate to prevent false and frivolous complaints eating up
precious judicial time. If the complaint warrants dismissal, the
Magistrate is statutorily mandated to record his brief reasons. On
the contrary, if from such materials a prima facie satisfaction is
reached upon application of judicial mind of an “offence” having
been committed and there being sufficient ground for proceeding,
the Magistrate is under no other fetter from issuing process.”
8. Having discussed the law on summoning of accused for an
offence of defamation, this court shall now examine if the
complaint and pre-summoning evidence recorded in support
thereof, offers sufficient grounds for proceeding further in the
present case. The complainant has only relied upon his own
statement recorded before the court as CW1 in support of the
allegations made in the complaint. In the entire pre-summoning
evidence, the complainant has not relied upon any document to
point out the exact defamatory material that has formed the basis
of the present complaint. A screen-shot of the GeM portal has
been placed on record and there is no clarity on the relevance of
the same. Further, the copy of the reply made to the GeM, NTPC
and the US company M/s. Holland & Hart has been placed on
record. However, the show cause notice or the notices sent by the
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concerned authorities has not been filed with the complaint nor
relied upon during pre-summoning evidence in order to buttress
the contention that the accused persons caused sufficient harm of
reputation to the complainant. It is pertinent to note that
explanation 4 to the Section 499 IPC is an essential ingredient of
the offence of the defamation which lays down that an imputation
cannot be said to harm a persons reputation unless it lowers the
moral or intellectual character of that person or lowers his credit
in the estimation of others. In the entire complaint or the pre-
summoning evidence, the complainant has failed to bring on
record any material which could show or demonstrate the actual
loss of reputation suffered by the complainant in the estimation
of general public. The complainant has submitted in his pre-
summoning evidence that his company suffered monetary loss
due to the imputations made by the proposed accused persons.
However, the complainant has failed to produce any document in
support of the aforesaid claim. In this regard, the requirement of
explanation 4 to the section 499 IPC (which is essential
ingredient to even prima facie establish the offence of
defamation) has not been satisfied by the complainant.
9. From the aforesaid discussion, it can be safely concluded
that the complainant has not brought forth the nature of
defamatory content, its publication/circulation in general public
and the manner in which the said content allegedly lowered the
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image of his company in the estimation of others. The Director of
the complainant company is the sole witness who has been
examined during pre-summoning evidence and there is no other
witness who could give a testimony upon loss of reputation
allegedly suffered by the complainant. Even at the stage of
summoning, an accused U/s. 204 Cr.PC, the court needs to have a
satisfaction that at least a prima facie case is made out against the
accused sought to be summoned. In this regard, all the essential
ingredient of the alleged offence need to be made out even upon
cursory reading of the complaint. As already discussed above, the
facts as laid down by the complainant in the present complaint,
do not satisfy all the essential ingredients required to establish a
prima facie case of defamation against the accused persons.
10. The Hon’ble Supreme Court of India in the case of Pepsi
Foods Limited & Anr. Vs. Special Judicial Magistrate & Ors
(1998) 5 SCC 749 while discussing the matter related to
summoning of an accused in a criminal case has observed as
under:
“28. Summoning of an accused in a criminal case
is a serious matter. Criminal law cannot be set into motion as a
matter of course. It is not that the complainant has to bring only
two witnesses to support his allegations in the complaint to have
the criminal law set into motion. The order of the Magistrate
summoning the accused must reflect that he has applied his mind
to the facts of the case and the law applicable thereto”.
11. Further in Mehmood Ul Rehman vs. Khazir Mohammad
Tunda and Ors (2015) 12 SCC 420, the Hon’ble Supreme Court
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has explained the duty of a Magistrate at the time of issuing
process against the accused as under:
“20. The extensive references to the case law would
clearly shows that cognizance of an offence on complaint is taken
for the purpose of issuing process to the accused. Since it is a
process of taking judicial notice of certain facts which constitute
an offence, there has to be an application of mind as to whether
the allegations in the complaint, when considered along with the
statements recorded or the inquiry conducted thereon, would
constitute violation of law so as to call a person to appear before
the criminal court”.
12. Also, in the recent judgment titled as “Yogesh Jagiya vs.
Jindal Biochem Pvt. Ltd.” 2022 LiveLaw (Del) 562 dated
10.06.2022, the Hon’ble Delhi High Court has observed that
summoning of an accused in a criminal case is a serious matter
and cannot be considered lightly. It is settled proposition of law
that before summoning an accused in a complaint case the entire
material on record as well as the pre-summoning evidence should
be scrutinized and the same should alteast prima facie disclose
the commission of the alleged offence. As discussed above, none
of the materials even prima facie satisfy the ingredients of the
offence punishable under Section 500 IPC.
13. As no offence is disclosed in light of the above discussion,
the present complaint is dismissed under Section 203 Cr.P.C.
File be consigned to Record Room, after due compliance if
any.
(Anamika)
MM-06/PHC/ND/01.06.2024
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