JUDGMENT
K.S. Lodha, J.
1. This revision has been filed by Mahendra Kumar against the order of the learned Chief Judicial Magistrate, Pali dated 21-7-1984 by which cognizance of offences Under Sections 504 and 167 IPC has been taken against him on the complaint made by Shri Ganga Singh.
2. The facts giving rise to this revision briefly stated are that the complainant Ganga Singh Singh was selected under the Educated Unemployed Youth Scheme on 27-2-1984 by the Joint Director of the District Industrial Centre, Pali and was recommended for a loan of Rs. 25,000/- setting up a diary, to the State Bank of India, Pali whose Branch Manager is the present petitioner Shri Mahendra Kumar Jain. The complainant was called by the Bank for completing the papers for the loan. It appears that the complainant went to the Bank a number of times but the formalities could not be completed for one reason or the other and the complainant was of the view that the accused was putting obstacles in his way and was delaying the sanction of the loan. He thereupon made complaint against him to the higher authorities. It is alleged that on account of this complaint, the petitioner was annoyed with the complainant and when complainant met him, he abused him in foul language and told him that he was the person who would grant him loan and as he was making complaint against him, he will see that no loan is sanctioned to him. The complainant further stated that on account of these abuses, he felt insulted but, however, he maintained his claim and did not allow any breach of peace to occur.
3. The case of the complainant further is that the accused-petitioner had sent a registered letter to the complainant on 17-5-1984 in which he referred to an earlier letter No. BM 29/84 dated 25-1-1984 which was alleged to have been sent by the accused to the complainant asking him to contact him but as a matter of fact no such letter was written to him because he had not even been selected under the aforesaid Scheme on 25-1-84 but the reference of this letter was purposely given so that the complainant may be put to financial as well as mental loss and also for the purpose that the higher authorities may be misled and may not take into account the complaints made against the accused.
4. Similarly it was further alleged that in the letter No. BM 126/84 dt. 22.5.84 addressed to the Director of the District Industries, the accused had wrongly mentioned that the complainant had applied for a loan of Rs. 31,000 whereas the complainant had only applied for a loan of Rs. 25,000/-. It was further mentioned that these documents have wrongly been prepared in order to put obstacles in the way of the petitioner in obtaining the loan and thus to cause him financial loss. This complaint was filed on 7.7.84 in the Court of the Chief Judicial Magistrate, Pali. The learned Magistrate examined the complaint Ganga Singh Under Section 210 Cr. P.C. on 10 7.84 and the complainant produced two more witnesses Kishan Chand and Arjun Singh in his support Under Section 202 Cr. P.C. Some documents were also produced by the complainant to support his story. 21.7.84 after hearing the parties, the learned Magistrate took cognizance of the offences Under Section 504 and 167 IPC against the accused. This order is now under challenge before me.
5. I have heard the learned counsel for the parties and have gone through the record.
6. It is urged by the learned counsel for the petitioner that the learned Magistrate has taken the cognizance of the aforesaid offences without applying his mind to the material on record & has acted merely in a mechanical manner. He pointed out that so far as the offence Under Section 504 IPC is concerned even the date when the abuses are said to have been hurled at the complainant are not mentioned in the complaint and later when the complainant was examined Under Section 200 after three days, he has managed to conveniently put this i.e. date as 17.5.84 on which the accused had written a letter to the complainant with a view to ensure that on that day the accused was in the office. He urges that if such an incident had taken place, the petitioner would not have missed the date of the incident in the complaint itself. He further pointed out that the alleged incident has been alleged to have occurred on 17.5.84 but the complaint was made on 7.7.84 after the delay of about 1-1/2 months but no explanation at all has been given for this inordinate delay in filing the complaint either in the complaint or in the statement Under Section 200 Cr. PC by the complainant but the learned Magistrate has not at all taken into consideration these most important circumstances.
7. So far as the offence Under Section 167 IPC is concerned, it was urged by the learned counsel that on the face of it, it appears that in the letter No. 122/84 dated 17.2.84, the date of the previous letter referred to therein is an accidental mistake because there could not have been any occasion for the accused to have written such a letter to the complainant on 25.1.84 as he had not been selected under the Scheme by that day. He further pointed out there was nothing on the record to point out that the accused had referred to this earlier letter with any intention to cause or knowing it to be likely that the complainant may suffer some injury. It was a purely accidental mistake and on the basis of such a mistake, offence Under Section 167 IPC cannot be deemed to have made out.
8. He also urged that the second grounds for the offence Under Section 167 IPC is said to be the letter said to have been written by the accused to the District Director of Industries, Pali on 22-5-84 in which the accused is alleged to have written that the complainant had applied for a loan of Rs. 31,000 although the complainant had asked for a loan of Rs. 25,000 only but this letter has not been produced at all to substantiate even prima facie the accusation brought against the accused and the mere hearsay evidence of the complainant in this respect could have been made out such an offence against the petitioner.
9. On the other hand, the learned counsel for the complainant has supported the order of the learned Magistrate and states that there was enough material on record to support the order of the learned Magistrate for taking cognizance of the aforesaid offences. He pointed out that the absence of the date on which the accused is alleged to have given an abuse to the complainant cannot be fatal when that date has been stated by the complainant in his statement Under Section 200 Cr. PC so far as the offence Under Section 167 IPC is concerned, he reiterated that the reference to the earlier letter in the letter dated 17.6.84 was mischievious with the intention of causing injury to the petitioner and that although the later letter dated 22-5-84 has not been produced, the relevant facts have been stated in the complaint and in the statement of the complainant and, therefore, the learned Magistrate could have taken cognizance of this offence Under Section 167 IPC.
10. I have given my careful consideration to the rival contentions. I shall first take up the offence Under Section 167 IPC for which cognizance has been taken by the learned Magistrate. It may straight away be stated that the learned Magistrate does not appear to have at all applied his mind to the facts of the case as well as the requirements of law in respect of this offence .Now in para 4 of the complaint, the complainant has stated that the accused had written a letter to the complainant on 17-5-1984 in which he referred to the earlier letter No. BM 29/84 dated 25-1-1984 which according to the complainant had never been sent to him. The mere statement of the complainant that such a letter had not been sent to him could not by any stretch of imagination be taken to be sufficient to hold that no such letter was at all despatched by the office of the accused. The accused may have committed some mistake in referring the date of the letter but that does not mean that that mistake would go to show that no letter intended to be referred to in the letter dated 17-5-1984 had ever been despatched from his office. It is pertinent to note that in the letter dated 17-5-1984 the reference is to the earlier letter No. BM 99/84 dated 25-1-1984 but in para 4 of the complaint, this earlier letter has been referred to as hearing No. 29/84 dated 25-1-1984. Thus the complainant himself has mentioned a wrong number of the letter referred to in the letter dated 17-5-1984, can be he held guilty of forgery merely because he mentioned a wrong number of the letter in para 4 of complaint? The same standard should be applicable to the accused also and it would clearly appear that he had committed accidential slips or clerical mistake in mentioning the number of the letter or the date of the letter because as would be clear from what has been stated above, the date 25-1-1984 of letter No. 99/84 referred to in the letter dated 17-5-1984 by the accused is clearly an accidental slip because by 25-1-1984 the complainant had not even been selected under the scheme and there was no occasion for him to have written any letter to the complainant in respect of any loan. It cannot be envisaged that the petitioner to whom the offence Under Section 167 IPC is attributed would refer to a letter of the date even prior to the selection of the petitioner under the Scheme, if he really intended to show that the complainant him self had failed to comply with the requirements for the grant of loan. In the second place, it cannot be said to be improbable if the reference to the letter No. BM 99/84 dated 25-1-1984 was in fact a reference to an earlier letter No. 99 dated 19-3-1984 which had admittedly been sent by the accused to the complainant and is on the record Ex. P 1A. Therefore, merely on the basis of this wrong reference, the accused could not have been held even prima facie to be guilty Under Section 167 IPC on the basis of this letter.
11. As regard the other ground for the offence Under Section 167 IPC I am in agreement with the learned counsel for the petitioner that when the letter dated 22-5-1984 has not been produced before the Court. There was no ground for the Court to hold that as a matter of fact in that letter, the accused had wrongly mentioned that the complainant had applied for a loan of Rs. 25,000/- whereas as a matter of fact, he had applied for a loan of Rs. 25,000/- only. Unless the contents of the letter were placed before the Court, the Court could not have come to such a conclusion nor could it have concluded that this fact had wrongly been mentioned in the letter with the intention as envisaged Under Section 167 IPC to which I have already referred to above and, therefore, on this count also, the learned Magistrate could not have taken cognizance of the offence Under Section 167 IPC against the accused.
12. This brings me to the offence Under Section 504 IPC from what has been stated above, it does appear that the learned Magistrate had been acting only mechanically and proceeded to take cognizance of the offence against the accused without properly applying his mind to the material on record and this statement of fact appears to be true as so far as the offence Under Section 504 IPC also goes. The learned counsel for the petitioner cannot be said to be wrong when he urges that the date of this occurrence, namely, when the accused is said to have hurled four abuses upon the complainant was a very material fact and could not have been missed in the complaint. The complainant has not mentioned this date in the complaint and there is no explanation for its absence. Further I also find force in the contention that the delay in filing of the complaint was also a very material consideration which has failed to attract the attention of the learned Magistrate. No explanation of this delay has been put forward either in the complaint or in the statement Under Section 200 Cr. PC. The matter does not rest there. It further appears that there is no material on record to show that the accused had intentionally given these abuses in order to provoke the complainant, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence. The circumstances of the case clearly point out that as a matter of fact, it was the complainant himself who had provoked the accused to have abused him. The complainant himself had sent a complaint to the Joint Director, District Industries Centre Pali on 17-4-1984 copy of this is on the record marked Ex. P 3A. In para 2 of this complaint, he has mentioned:
izkFkhZ Jheku czkap eSustj ls yxkrkj lEidZ fd;s gqos gS A oLrq dHkh eSustj lkgkc dks vR;Ur O;Lrrk ¼ fnukad 3&4&1973 ½ dHkh eSustj lkgc dks Loa; vodk’k ij jguk fnukad ¼12&4&1984½
dHkh lkewfgd vodk’k ¼cSsd deZpkfj;ks dk fnukkad 12&4&1984½ vkSj vc Jheku eSustj cSd dh Vsªfux dh yEch NqV~Vh ¼fnukad 16&4&1984½ ds dkj.k izkFkhZ dks _.k lqfo/kk miyC/k ugh gS A
This goes to show that the complainant had been accusing the accused for causing obstacles in the way of the sanction of the loan although from what has been stated by him in this Ex. P 3A itself, clearly appears that the accused was not at fault. Then it further appears that the accused had pointed his offence only on 17-5-1984 after completing his training referred to in Ex. P. 3 and on that very day the complainant is alleged to have approached him in connection with the sanction of the loan and it does not appear to be improbable that he himself may have reiterated the charges against the accused which had been made by him vide Ex. P 3 and that may have annoyed the accused & thus he may have provoked him to set in little indecent manner but such an act in the circumstances cannot be said to have been done with the intent of insulting the complainant by giving him provocation knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence.
13. Again, after this the complainant also kept silent for all this time and it was only on 7-7-1984 that he made the complaint. In these circumstances, I am clearly of the opinion that even if it be held that the accused gave the abuses they were with the requisite intention Under Section 504 IPC and thus the material on record could not have justified the taking of cognizance Under Section 504 IPC also. It is not to be forgotten that the petitioner-accused is holding a responsible post in nationalised Bank and before taking cognizance against such a person for offence Under Section 504, the trial court should have tried to satisfy that there were reasonable grounds before it to proceed with the matter and could not take the matter lightly as the career and prestige of an officer was at stake.
14. For the reasons stated above, I accept this revision and set aside the order of the learned Chief Judicial Magistrate, Pali dated 21-7-1984 and quash the proceedings.
