M.K. Chawla, J.
(1) The petitioner, S. Mohinder Singh Saluja is the owner/landlord of the property no. 6/6 W.E.A. Karol Bagh, New Delhi. M/s Vanson Shoes, a registered partnership firm, to start with, was the tenant of the part of the ground floor of the said premises but in the year 1971, they became the tenant of the whole of the ground floor, including the mezzanine floor at a consolidated rent of Rs 435.00 per mensem Subsequently the rent was increased to Rs. 515.00 including the water charges. The rent has since been paid to the landlord till the tiling of the present complaint u/s 200 of the Code of Criminal Procedure.
(2) The case set up by the tenant in brief is that at the time of the creation of the tenancy, it was agreed between the parties that the respondent landlord will carry out the white wash and minor repairs of the tenancy premises. In spite of the repealed requests and reminders, the landlord failed to get the premises in good shape as per the terms of the rent note. Aggrieved from the behavior of the landlord, the tenants got a notice dated 15-7-83 served on him through their counsel. In reply dated 21-10-83, the landlord while denying the averments also made the following allegations against the complainant-tenant:
'YOUR client with his bad intentions set on fire the premises after removing the valuable goods, boxes, etc. and illegally and by playing fraud, etc. your client extracted money from the Insurance company after damaging the premises.'. It is the case of the complainant-tenant that this statement amounts to defamation of the complainant and its partners which prima facie : (a) is false to the knowledge of the accused himself; (b) the imputation has been made to defame the partners of the complainant and cause harm to them in reputation and business; (e) the imputation lowers the character, moral and reputation of the partners of the complainant. The imputation on the face of it is disgraceful ; (d) The accused made the imputations knowingly that the same would cause harm to the complainant and its partners and to their business. The accused was not required by Jaw cr otherwise to make any such imputation ; and (e) the defamatory statement made in the above said reply amounts to its publication.
The complainant further goes on to state that no doubt there was a fire in the godown which is situated in the tenancy premises but the said fire was accidental and occurred at the dead of the night when none of the partners of the complainant of its employees were present. At that time, the accused himself who resides on the first floor of the premises informed the police, the Fire Brigade and also the partners of the complainant. But to this minor fire, goods of the complainant were destroyed but no loss was caused to the premises. Later or, the cause of the fire was investigated by the Police, the fire brigade authorities and the Insurance company. All were satisfied that the fire was accidental and was caused by short circuit and it was under these circumstances that the claim of the claimant was paid by the Insurance-company.
(3) The imputation now made by the accused-landlord is after 3 years of the incident when the accused had no occasion for the same except to defame and coerce the complainant to agree in the increase or rent of the premises. These very defamatory allegations have been again repeated in the reply sent by Counsel on behalf of the landlord on 16-9-83. The said reply has been read by the staff and employees of the complainant, which has lowered their reputation and image in the eye of the employees and other persons.
(4) The complainant has also alleged that in spite of the use of the repeated defamatory allegations in the replies to the notices of the complainant, the accused has again followed these very observations in his petition for eviction which is pending in the court of Addl. Rent Controller, Delhi. The only intention of the accused in continuing and repeating and publication of the false allegations is to pressurise the complainant to vacate the premises. These averments have caused great bar to the reputation of the partners of the complainant firm for which the accused is liable to be punished suitably in accordance with law.
(5) In support of this complaint, Sh. Rajpal Sethi, a partner of the complainant firm appeared as one of the witnesses and corroborated the version given in the complaint itself with documentary evidence. The learned lower court on consideration of the material on record, came to the conclusion that the complainant on prima facie made out a case for the summoning of the accused for having committed an offence punishable u/s 500 Indian Penal Code . it is against this order of summoning, the present revision petition has been preferred by the landlord Mohinder Singh Saluja.
(6) The contention of the learned counsel for the petitioner before this court is that the complainant his already filed a Suit for damages against the petitioner for the aforesaid alleged defamatory statement which is still pending. Unless and until the said suit is decided, one way or the other, the present proceedings, should be stayed. His next submission is that the sending of the communication by the petitioner to the tenant under registered cover containing the imputations does not constitute publication within the meaning of section 499 Indian Penal Code . The communication had to be a stranger or a third party which in this case is lacking. Lastly, his submission is that the alleged sentence containing imputation simplicities without proof of requisite intention. knowledge or belief, is not sufficient to attract the penalty u/s 500 IPC. None of these submissions find favor with the learned Counsel for the complainant and his submission in this behalf is that once the learned Lower Court has come to a definite conclusion that the accused has committed an offence punishable u/s 500 of the Indian Penal Code. The order of summoning of the accused cannot bs interfered with in tie present revision petition. His further submission is that even though the reply was sent under registered A.D. cover, but it was through his counsel and its reply was also sent through the complainant's Counsel which, by itself, is a communication to a third person. Further more, this aspect can be gone into only after the complainant is allowed to lead evidence of the witnesses who have come to know of the intention of the accused in making and repeating the offending part of the defamatory statement.
(7) After hearing learned counsel for the parties at length, I am in entire agreement with the submissions of the learned counsel for the complainant. The learned Lower court on consideration of the material on record has come to the conclusion that the allegations reproduced above in the reply to the notice dated 21-7-82 are per se defamatory, which, if unrebutted, will certainly lower the character and reputation of the partners of the complainant company. Once having reached such a conclusion, will this court be competent to quash the proceedings. The only answer to this query is in the negative. This conclusion is also based on the well-settled proposition of law laid down in Khacheru Singh v. State of U.P. and another : 1982CriLJ629 (2). While interpreting the provisions of Sections 204 and 307 of the Code of Criminal Procedure, it was held as under :
'WE do not see any justification, though we are not expressing any opinion on the merits of the case, fur the order passed by the learned Additional Sessions Judge, Meerut in Criminal Revision No. 83 of [979 which was affirmed by the High Court of Allahabad by its order dated 7-5-80. All that the learned Magistrate had done was to issue a summons to respondent No. 2 Satyavir Singh. if eventually, the learned Magistrate comes to the conclusion that no offence was made out against Satyavir Singh, it will be open to him to discharge or acquit him, as the case may be. But it is difficult to appreciate why the order issuing 'summons' to the accused should be quashed we, thereforee, set aside the orders passed by the Sessions Court and the High Court, restore that of the learned Special Judicial Magistrate First Class, Meerut, dated February 2, 1979 and remit the matter to the trial court for disposal in accordance with law.'.
Further more, the learned lower court was not required to write down the detailed reasons to come to such a conclusion as to whether prima facie the case for summoning of the accused is made out or not. It has been so held in a Judgment reported as Amrik Singh v. State . During the course of the judgment, on this aspect, it was observed as under :
'HELDfurther, that in view of the phraseology of the provision of section 204(1) it is quite clear that before the Magistrate proceeds to issue process for the attendance of the accused, he has to form an opinion that prima facie there is sufficient ground for proceeding but he does not have to write down his reasons in so many words for adopting that course. The purpose of the law will be quite satisfied if it can be gathered from the record of the case that he applied his mind to the material contemplated by the section 200 or section 202 of the Criminal Procedure Code (1898) as the case may be, and formed and opinion as to the existence of sufficient ground for proceeding on its basis. There is no requirement of the law for a speaking order analysing the evidence adduced by the complainant or making evident how his mind worked so as to lead him to issue of process.'
On these short grounds, the present revision petition is liable to be dismissed.
(8) Learned Counsel for the petitioner then submitted that the sending of the reply to the notice by registered A.D. post will not be considered as an communication to a third party, and unless and untill these is a communication of the alleged defamatory imputation, the present complaint is liable to be dismissed, in support of his submissions, the learned counsel placed a reliance on the Judgment reported as T.J. Ponnen v, M-C. V arghese, : AIR1967Ker228 wherein the communication between the husband and the wife containing defamatory statements was held to be a privileged document and not meant for publication. According to learned counsel, the word 'makes' in Section 499 has been used in its etymological sense as connoting 'to make public' or 'to make known to people in general' Publication implies communication to at least one person other than the person defamed. I he ingredient, according to learned counsel, is missing in the present case. I do not agree with this contention. The complainant is a registered partnership firm of which there are number of partners. I he defamatory passage contained in the reply in fact was meant to be conveyed to each of the partners and the employees of concern. It is the case of the complainant that this reply was not only read by its employees but the accused also continued repeating these defamatory sentences to the various other persons of the locality/market, the names of whom have been mentioned for being produced as their witnesses, even otherwise, the person making libellous statement in communication to his wife is not absolutely protected in a criminal proceedings for defamation for, under the Eighth exception and illustration to section 499, the statements are privileged only when they are made in good faith. In determining the criminality of an act under the Indian Penal Code, the courts will not extend the scope of special exception by resorting to the rule peculiar to English Common Law that the husband and wile are regarded as one : 1970CriLJ1651 This statement also is devoid of substance and needs no further elaboration.
(9) I also do not find any substance in the last submission of the learned counsel for the petitioner that during the pendency of the civil suit, claiming damiges, for the use of the defamatory language, the proceedings in the criminal court should not be allowed to continue. There is no denying the fact that the complainant has already instituted a suit for damages against the accused for the publication of the defamatory imputations. I he said suit is still pending. It is at the stage of recording of the plaintiff's evidence. The contention of the learned counsel for the petitioner is that in the said suit, one of the issues is as to whether the allegations made in the defendants (petitioner's reply dated 21-7-82 amounts to defamation. The controversy according to the learned counsel revolves round this very letter and no useful purpose will be served to continue with the criminal proceedings if the matter is to be finally disposed of in the civil litigation. Simultaneous prosecution of the present criminal proceedings and the Civil Suit will embarrass the accused. Reliance was also placed on the Judgment reported as Misri Lal v. Tota Ram 1984 RLR 125 wherein a possible solution was found out keeping in view the compelling circumstances and characteristics of the case to keep the complaint pending till the disposal of a Civil suit which will determine the rights between the parties and put an end to the controversy. Support was also sought from the judgment reported as Trilok Singh and others v. Satya Deo Tripathi. : 1980CriLJ822 , wherein in a dispute on the purchase of a truck under hire purchase agreement the launching of criminal proceedings by the purchaser against the financier were quashed on the grounds that the disputes raised by them were purely of a civil nature.