application under section 156 (3) Criminal Procedure Code 1973

 

In the Court of the Learned Additional Chief Judicial Magistrate, at Alipore, South 24 Parganas

 

Complaint Case No.                 of 2023

 

                                                          In the matter of ;

An application under Section 156(3) of the Criminal Procedure Code, 1973;

 

AND

Kasba Police Station

In the matter of ;

Sri Prithijeet Das, Son of Nirmalendu Das, aged about 40 years, working for Gain as Zonal Legal Head, at M/s. Tata Motors Finance Solutions Limited, (formerly Tata Motors Finance Limited) having its Office at Wing A, 6^th Floor, Rene Tower, Plot AA-1, 1842, Rajdanga Main Road, Kolkata – 700107, Police Station Kasba, District South 24 Parganas, Mobile Number : 9734357722, Email : Prithijeet2.Das@tmf.co.in

          _________Complainant

 

-      Versus –

 

Sariful Sardar, Son of Iyachin Sardar, residing at Ghoshpara Laugachhi, Bhangore – 743502, District – North 24 Parganas, Mobile Number : 9734332272;        _____________Accused

 

The humble petition of the above named Complainant, most respectfully;

Sheweth as under;

 

1.   That the Petitioner is a peace loving and law abiding Citizen of this Country, working for gain at the Company & address given in the cause title of this application. The Petitioner is a Zonal Legal Head and a person of integrity.

 

2.   That the Complainant’s Company M/s. Tata Motors Finance Solutions Limited (formerly Tata Motors Finance Limited), is a Non-Banking Finance Company, and is governed by the Regulations of the RBI. The Core business of the Company is financing and includes providing loan facility to the intending customers for the purchase of vehicles for both personal and commercial uses.

 

3.   That the accused approached the Complainant’s office for purchasing vehicle under the Loan transaction scheme offered by the complainant. Acting upon the documentary proof and representations of the accused as true and genuine the complainant has let financial assistance for the purchase of said vehicle for sum of Rs. 19,72,800/- (Rupees Nineteen Lakhs Seventy Two Thousand and Eight Hundred) only, on Loan basis after entering into a Loan Agreement no. 8000156742.

 

4.   That as per the agreement the accused cannot create any third-party charge over the asset until his liability to the complainant is discharged. He is also bound to repay the Loan with interest on monthly installment basis to the Complainant without fail. As per the agreement the accused is prevented / prohibited from using the asset for any illegal or unlawful purposes. Further until the loan is discharged, the accused has no right to sell/ dispose of the asset. He is bound to produce the asset for the inspection of the officials of the Complainant Company as and when demanded by the officials of the Complainant Company.

 

5.   That the accused started defaulting monthly installment and failed and neglected to pay the installments in spite of repeated personal and telephonic follow up, resulting accumulation of huge amount as overdue amounting to Rs.5,09,350/- (Rupees Five Lakhs Nine Thousand and Three Hundred Fifty) only, apart from late payment charge. This was done by the accused with sole intention of cheating the Complainant Company by inducing to disburse the loan amount in accused favour resulting in wrongful loss to the Complainant Company and wrongful gain to the accused.

 

6.   That due to the fraud played upon the complainant, the complainant company has suffered huge loss amounting to Rs.5,98,203.66/- (Rupees Five Lakhs Ninety Eight Thousand Two Hundred Three and paise Sixty Six) only, on this transaction till date excluding future EMIs. By the act of the accused the purpose of the very Loan has been defeated, besides the huge loss suffered by the complainant severe damage has been caused to the complainant.

 

7.   That due to this negligent on part of the accused person the officials of the complainant have investigated the matter and the complainant came to know that accused confirmed that he had taken a different vehicle and not the proposed vehicle and did not inform anyone of the complainant company that he had taken different vehicle. He further stated that he himself will pay the EMI and did not cooperate to discuss further. The accused did not disclose the RC no. & asset details of the vehicle he purchased with the help of the complainant disbursement amount.

 

8.   That the act of the accused clearly attracts the ingredients of Criminal Breach of Trust, cheating and thereby dishonestly inducing delivery of financed property. It is therefore requested to enquire the matter and do necessary action to punish the accused person.

 

9.   That on 10/07/2023, such facts has been lodged with the Kasba Police Station, by way of written Complaint, though the said Kasba Police Station did not adhere to proceed with any investigation and did not even register such facts as an FIR. Thereafter the Complainant requested the Commissioner of Police, by way of written complaint dated 21^st day of July’ 2023, served through Courier services; But no result yield yet.

 

10.                That as the Police did not do anything, and did not even answer anything on the written complaint of your petitioner. Such inaction of Police given due indulgence to the accused for his continuous unlawful performance and shelter to his guilty conscious.

 

11.                That even after acknowledgment of facts to the Police authority concern, the Police did not register any FIR and did not cause any necessary investigation against the accused person. The Police inaction of the concerned Police authority given due indulgence to the accused person to be continued in such acts and omission, violating the Law and the rights of the complainant.

 

12.                That Your Complainant submits that unless there is an Order from Your Honour directing the concerned Police Station to investigate into the matter, Your Complainant will suffer irreparable loss and injury and will be seriously prejudiced.

 

13.                That your petitioner is a victim of the offences committed by the said accused person and also by the Police for inaction. The accused person has committed offences punishable under Indian Penal Code, 1860.

 

14.                That on the expiry of considerable period, your petitioner realized that the Police will not cause any investigation against the accused persons, as such the accused person is an influential, your petitioner came before the Learned Court to get justice as to fair investigation in accordance with the Criminal Procedure Code’ 1973, is desirable.

 

15.                That your Petitioner crave leaves to produce relevant documents and / or papers at the time of investigation, or as and when asked for by the Investigating Authority.

 

16.                That the application is made bona fide and for the interests of Justice.

Under the aforesaid circumstances, Your Complainant most humbly pray that Your Honour may graciously be pleased to send the petition in complaint to the Officer-in-Charge, Kasba Police Station as per provisions under Section 156(3) of the Code of Criminal Procedure’ 1973, for causing investigation on treating the petition of complaint as First Information Report and/or to pass such other further necessary Order/Orders as Your Honour may deem, fit, and proper for the end of Justice.

 

And for this act of kindness, Your Complainant as in duty bound shall ever pray.

 

Verification

 

I, Prithijeet Das, being the complainant herein named above, made this instant application under section 156 (3) of the Criminal Procedure Code’ 1973, and whereas the material facts and circumstances as mentioned herein above in the forgoing paragraphs are true to the knowledge and belief. I verified this instant application as on …….…the day of August’ 2023, at the Alipore Criminal Court Premises.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Affidavit

I, Sri Prithijeet Das, Son of Nirmalendu Das, aged about 40 years, working for Gain as Zonal Legal Head, at M/s. Tata Motors Finance Solutions Limited, (formerly Tata Motors Finance Limited) having its Office at Wing A, 6^th Floor, Rene Tower, Plot AA-1, 1842, Rajdanga Main Road, Kolkata – 700107, Police Station Kasba, District South 24 Parganas, do hereby solemnly affirm and says as follows :

 

1.           That I am representative & Authorized Signatory of the complainant in the above referred application under Section 156 (3) of Criminal Procedure Code’ 1973, and I am competent to swear this affidavit.

 

2.           That I say that the Kasba Police Station did not lodge any F.I.R. on this facts as stated in my application under Section 156 (3 ) of Cr.P.C., and did not cause any enquiry and or investigation into the matter of facts as stated in my application  under Section 156 (3 ) of Cr.P.C.

 

3.           That no case and or F.I.R. has ever been lodged and initiated on the facts and allegations as made out by me in my application under Section 156 (3 ) of Cr.P.C. by any Police Station in state of West Bengal, so far my knowledge is concern.

 

4.           That this is the first time and or occasion, when I approach the Learned Court to get justice, on the facts and allegations as made out by me in my application under Section 156 (3) of the Code of Criminal Procedure’ 1973.

 

5.           That the statements made in the aforesaid application under Section 156 (3) of the Code of Criminal Procedure’ 1973, are true to my knowledge and belief.

 

That the above statements are true to my knowledge and belief.

 

 

 

 

Deponent

Identified by me,

 

 

                                                                             Advocate.

Prepared in my Chamber,

 

Advocate.

Dated : _______ _________________2023.

Place : Alipore Criminal Court, South 24 Parganas.

N O T A R Y

 

 

 

 

 

VAKALATNAMA

District : South 24 Parganas

In the Court of Learned Additional Chief Judicial Magistrate, at Alipore, South 24 Parganas.

 

                                                Complaint Case no……………..of 2023.

 

          Prithijeet Das,                                    ………..Complainant.

-            Versus -

          SAriful Sardar                                   ….……..Accused.

 

KNOW ALL MEN by these presents that I / We Sri Prithijeet Das, Son of Nirmalendu Das, aged about 40 years, working for Gain as Zonal Legal Head, at M/s. Tata Motors Finance Solutions Limited, (formerly Tata Motors Finance Limited) having its Office at Wing A, 6^th Floor, Rene Tower, Plot AA-1, 1842, Rajdanga Main Road, Kolkata – 700107, Police Station Kasba, District South 24 Parganas, do hereby constitute and appoint the under mentioned Advocate, Pleader, Vakils, jointly and each of them severally to be pleader of take such steps and proceedings as may be necessary on my / our behalf and for that purpose to make sign, verify and present all necessary petitions, plaints, written statements and other documents and do nominate and appoint or retain senior counsels, vakil, advocates and other persons, lodge and deposits moneys and documents and other papers in the Ld. Court and the same again withdraw and to take out of Court and to obtain or grant as the case may be effectual receipts and discharge for the same and for all moneys which may be payable to me / us in the premises. To enter into compromise with my / our approval and withdraw, all moneys from the court AND GENERALLY  to act in the premises and proceedings arising there out whether by way of execution, review, appeal, or otherwise or in any manner contested there with as effectually and to all intents and purpose as I / We could act if personally present and such substitution and as pleasure to revoke I / We hereby ratifying and agreeing to confirm whatever may be lawfully done by virtue hereof.

In witness whereof this Vakalatnama has been executed by me / us.

This the …………………day of ………………2023

 

Shri Ashok Kumar Singh, Advocate, High Court Bar Association Room No. 15, High Court Calcutta, Mobile Number 9883070666 / 9836829666, Email : aksinghadvocate@rediffmail.com

 

Shri Pritam Das, Advocate. Shri Biplab Some, Advocate. Miss Suchitra Chakraborty, Advocate. Madhusudan Sardar, Advocate.

 

District : South 24 Parganas

In the Court of the Learned Additional Chief Judicial Magistrate, at Alipore, South 24 Parganas

 

                                                Complaint Case No.                      of 2023

 

                                                In the matter of :

Prithijeet Das,

                             ________Complainant

-      Versus –

 

Sariful Sardar,

____________Accused

FIRISHTI

{Enclosure}

 

1.   Written Complaint to Kasba Police Station dated 10-07-2023, and the written Complaint dated 21-07-2023 to the Commissioner of Police, with Courier receipts and track report;

 

2.   Loan cum Hypothecation cum Guarantee Agreement No. 8000156742;

 

3.   Account Statement up-till 07-07-2023;

 

 

 

Exceptions to Section 499 IPC

First Exception: Imputation of truth which public good requires to be made or published

• It is not defamation to imply anything that is true about another person if the imputation is made or published for the public benefit. It is an issue of fact, whether it is for the public interest or not.
• To qualify for this exception, the accused must demonstrate that the statement he made was truthful in both substance and effect, not only in part. To prove that the statement was published for the public good or not, an investigation must be conducted into whether the publication aimed to provide any benefit to the whole or part of the public.
• In Rajendra Vishwanath Chaudhary Versus Nayantara Durgadas Vasudeo (2012), there was a civil dispute between the parties over the property where the complainant’s school is located and managed. While the dispute was underway in civil court, the accused’s warning to the parents to enrol their children at their own risk in the summer program could not be regarded as defamatory or damaging to the complainant’s reputation. So, the aforesaid caution notice may not be regarded as imputations actionable under Section 499 of the IPC, 1860.

Second Exception: Public conduct of public servants 

• It is not defamation to state in good faith any view about a public servant’s conduct in the performance of his official responsibilities, or about his character, to the extent that his character shows in that conduct, and no further.
• Every person has the right to speak on public officials’ actions that affect him as a citizen of the country, as long as their comments are not wrapped in hatred. In order for a comment to be fair,
  • It should be based on the true facts.  
  • It should not impute corrupt or dishonest motives to the person whose conduct or work is being criticised unless such imputations are justified by the facts.
  • It must be an honest and fair observation of the writer’s true perspective.
  • It must be for the common good.
• In Radhelal Mangalal Jaiswal Versus Sheshrao Anandrao Lad (2011), the Bombay High Court stated that any comment voiced in good faith by a government servant while engaging in the execution of his responsibilities would not be considered defamation. This suit focuses on a comment made by a Panchayat member. A member of the Panchayat helping a court of justice is included in the term of “public servant” under Clause 5 of Section 21, of the Indian Penal Code, 1860. As a result, members of the Panchayat’s view, given in good faith to help the Court of Justice, does not constitute defamation.

Third Exception: Conduct of any person touching any public question

• It is not defamation to express in good faith any view on any person’s conduct in respect to any public issue, and to respect his character only to the extent that his character is revealed in that conduct. Publicists who participate in politics or other problems affecting the public might be criticised in good faith.
• Comparative advertisement: A commercial advertisement is a type of speech, and “commercial speech” is protected by Article 19(1)(a) of the Constitution as part of the right to freedom of speech and expression. Comparative advertising is a form of advertising in which one party promotes his or her goods or services by contrasting them with those of another. The marketer has the right to brag about its technological superiority over the competitor’s goods. He cannot, however, degrade the competitor’s goods while doing so. Negative marketing is not permitted if the advertisement is a suggestive campaign against a competitor’s goods.
• In Nippon Sheet Glass Co., Limited - Versus - Raman Fibre Sciences Private Limited (2011), the claim was that an advertisement by the petitioner and associated traders disparaged the respondents’ company. The associated traders confirmed that they carried out the supposed advertising on their own and that the petitioner company had no involvement. The petitioner is not charged with a crime under Section 500 of the Indian Penal Code (1860).

Fourth Exception: Publishing reports of court proceedings

• Publication of a substantially true report of a Court of Justice’s proceedings, or the result of any such proceedings, is not defamation.
• When judicial proceedings take place in an open court before a legally constituted judicial panel, the publishing, without malice, of a fair and accurate report of what happens before that tribunal is privileged.
• In Maksud Saiyed Versus State of Gujarat & Others (2007), the appellant had business with the respondent company. Dena Bank had given the appellant a loan. As the loans were not recovered, an initial application was brought against him before the Ahmedabad Debts Recovery Tribunal for the recovery of Rs. 120.13 lakhs. Meanwhile, based on the pending suit, the respondent firm brought claims against the appellant business’s Managing Director. The Supreme Court concluded the statement that the issue was pending before the Debts Recovery Tribunal instead of the City Civil Court in Ahmedabad, could not be considered defamatory in and of itself, given the fact that a suit was pending.

Fifth Exception: Merits of the case decided in Court or conduct of witnesses and others concerned

• It is not defamation to express in good faith any opinion about the merits of any case, civil or criminal, that has been decided by a Court of Justice, or about the conduct of any person as a party, witness, or agent in any such case, or about the character of such person, to the extent that his character appears in that conduct, and no further.
• The court’s decision, the jury’s verdict, and the conduct of the parties and witnesses can all be made open to public debate. However, critique must be expressed in good faith and in a fair manner.
• In Harbans Singh - Versus - State of Rajasthan (1998), the topic of whether the word “shatir” was defamatory was considered. According to the Rajasthan High Court, the term “shatir” may be offensive and disagreeable, but it is not always defamatory. The court’s decision to dismiss the case was upheld.

Sixth Exception: Merits of public performance 

• It is not defamation to express in good faith any view on the merits of any performance that its author has presented to the public’s judgement, or about the author’s character, so far as it is shown in such performance, and no further.
• The purpose of this exception is to allow the public to be assisted in its evaluation of the public performance under review. All types of public performances can be legitimately criticised as long as the criticisms are presented in good faith and in a fair manner. Under this exception, good faith does not require logical infallibility, but rather proper care and attention.
• In Ranganayakamma - Versus - K Venugopala Rao (1987), the appellant criticised the complainant’s preface to a book. In his defence, the appellant used exceptions 6 and 9 of Section 499. The Andhra High Court noted that the section of the petitioner’s critique that uses two defamatory terms has nothing to do with the substance of the complainant’s ‘Preface.’ The defamatory statements cannot be deemed to have been made in the public interest. As a result, the court determined that the petitioner was not protected under either the sixth or ninth exceptions.

Seventh Exception: Censure passed in good faith by a person having lawful authority over another

• It is not defamation for a person who has power over another, whether given by law or growing out of a legitimate contract, to pass in good faith any criticism of the other person’s behaviour on issues to which such valid authority pertains.
• This exception authorises a person under whose control others have been put, either by their own accord or by law, to criticise, in good faith, those who have been placed under his authority, inasmuch as that authority relates to the situation at hand. However, if this privilege is abused in any manner, the crime will be constituted.
• Even if a man makes a good faith report to a servant’s master about the servant’s behaviour, he is not secure if he publishes the complaint in a newspaper.
• A spiritual superior may be guarded by privilege when reciting and publishing a sentence of expulsion as long as the publication is limited to what is necessary to accomplish the purpose for which the privilege is granted, such as the censure of a member in religious matters or the communication of a sentence he is authorised to pronounce to those who are to be guided by it. 
• In ADM Stubbings - Versus - Shella Muthu, (1972), the plaintiff was dismissed from service after a full domestic inquiry in which the plaintiff was given the chance to protect himself. The result of such a domestic inquiry saying that the allegation was true could not form the basis of a defamation case because it is fully protected by exceptions 7 and 8 of Section 499, IPC, 1860. Holding otherwise would result in the administration of justice being hindered.

Eighth Exception: Accusation preferred in good faith to an authorised person

• It is not defamation to make in good faith an accusation against someone to anybody who has authorised jurisdiction over that person in relation to the subject matter of the charge.
• In order to establish a defence under this exception, the accused would have to show that the person who lodged the complaint had legal authority over the person who was being charged in the situation at hand. Besides, in a criminal defamation case, even defamatory allegations stated in a plaint are not completely protected.
• In Yadav Motiram Patil - Versus - Rajiv G Ghodankar (2010), the accused No. 1 and other members of the society reached out to the police because the message they received contained some indecent images and defamatory statements against the accused No. 1’s daughter, and they expected assistance, which could include necessary action against the criminal. The issue is clearly protected by exception 8, and no case under Section 500 of the Indian Penal Code, 1860, could be brought out.
• To be eligible for this exception, the charge must be made to a person in power over the person accused, and it must be made in good faith.

Ninth Exception: Imputation made in good faith by a person for the protection of his or others’ interests

• Making an imputation on the character of the other person is not defamatory if the imputation is made in good faith to defend the interests of the person making the imputation, or anybody else, or for the public good.
• According to this exception, the party to whom the information is communicated has an interest in safeguarding the person making the accusation. Apart from the maker’s bona fides, the person to whom the imputation is communicated must share a shared interest with the imputation maker that is served by the communication.
• This exception applies to any imputation made in good faith, whereas the first exception only applies to genuine imputation for the public benefit. The accused must show that he responded in good faith.
• In Vedurumudi Rama Rao - Versus - Chennuri Venkat Rao, (1997), a bank’s regional manager sent a private circular to his region’s branch managers, instructing them to exercise caution when dealing with people on the list, including the complainant. In the public interest and on orders from the Central Office, he published the directive in his executive capacity. According to the Court, the circular was protected under Exception 9. As a result, even if the accusations in the complaint were true, no violation of Section 500 would be established.

Section 499 IPC / Defamation

 

Section 499 IPC / Defamation;

• According to Section 499, defamation can take place through words spoken or intended to be read, signs, and visible representations published or spoken about a person with the intent of damaging that person’s reputation, or with the sufficient knowledge to believe that the imputation will affect his reputation.
• Illustration: ‘A’ is questioned about who took B’s watch. ‘A’ makes a gesture toward ‘Z’, implying that ‘Z’ has stolen B’s watch. Unless one of the exceptions applies, this constitutes defamation.
• The words “makes or publishes” are highlighted in this section. The essence of the offence is the spreading of injurious imputation. When a defamatory remark is published, not only the publisher but also the maker is held liable. It is essential that the imputation be transmitted to a third party in order to establish the offence, because the purpose is to incite hatred of others.

Essential ingredients of Section 499 IPC

Reference to an aggrieved party

• An imputation about a specific person or individual whose identity may be ascertained must be included in the remarks. It is not necessary for the person to be a single individual.
• In CL Sagar Versus Mayawati (2003), the accusation was that the vice president of a political party defamed the complainant by saying in a public assembly that the party’s member with a lengthy mustache was a corrupt person. The complaint was unable to demonstrate that he was the only party member with a lengthy mustache. There was no such statement in the meeting’s press report. So, there was no offence. 

Intention;

• The words, signs, and imputations made by the person must either be intended to injure the reputation of an individual, or the accused must rationally know that his or her behaviour might cause such injury to constitute defamation.
• In S Khushboo Versus Kanniammal (2010), since the appellant’s statement in the news magazine was a rather general acknowledgment of pre-marital sex and her comments were not directed at any individual or even a corporation, an association, or a collection of persons, it was held that it could not be construed as a personal attack on anyone’s reputation. 

The statement must be defamatory 

• Whether a remark is defamatory or not is determined by how right-thinking people in the community interpret it. It is no defence to claim that the comment was not intended to be defamatory if the foreseeable impact was an injury to the plaintiff’s reputation. For example, the statement that ‘X’ is an honest man who has never stolen my watch in a sarcastic tone may be defamatory if the people who hear that, so believe that ‘X’ is a dishonest man who has stolen the watch.
• In Goutam Sahu Versus State of Orissa (1999),  the appellant married the plaintiff in a temple by exchanging garlands. He stayed with her for several days before demanding money and describing her as an unchaste woman with bad looks. According to the Orissa High Court, the components of Section 500, were prima facie established, and the accused was consequently subject to prosecution.

Forms of defamation

• Such an imputation must have been made by

1. Words, uttered or intended to be read; 
2. Signs/gestures; or 
3. Visible representations

• In Jacob Mathew Versus Manikantan, (2013), the complainant claimed that four images of an event were published in a newspaper, one of which revealed the complainant more or less undressed, causing defamation and injury to him. As the images were taken spontaneously to cover the event and not aimed to cover any particular person, it can never be said that the images were published in the newspaper with the intent, knowledge, or cause to think that they would hurt the complainant’s reputation. Proceedings are liable to be quashed.

Making or publishing any imputation;

• The term “publication” refers to making the defamatory matter known to someone other than the individual who has been defamed. Imputations on a charge sheet delivered to the employee, for example, do not constitute publishing. Furthermore, communicating an imputation merely to the individual who has been defamed is not the same as publishing.
• In Sukhdeo Versus State (1932), the president of the Municipal Committee sent a letter under a Municipal Act to a specific person, who responded with defamatory claims against the president. The president filed this response in the official file, and the members of the committee reviewed it. It was determined that the defamation had been published. The President’s placement of the reply on the official file was not a spontaneous or voluntary act on his behalf; it was his responsibility, and the accused knew or must have known that the contents of his reply would be disclosed to committee members.

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