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IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

Before:

The Hon’ble Justice Ananda Kumar Mukherjee

C.R.R. 1114 of 2010

Malancha Mohinta

-Vs-

Dipak Mohinta

For the Petitioners: Mrs. Subhasree Patel, Adv.

Mr. Rupraj Banerjee, Adv.

For the Opposite Party: Mr. Jayanta Narayan Chatterjee, Adv.

Mr. Apalak Basu, Adv.

Ms. Moumita Pandit, Adv.

Mr. Supreem Naskar, Adv.

Ms. Jayashree Patra, Adv.

Ms. Subhadeep Koley, Adv.

Heard on : 15.02.2022 .

Judgment on: 23.03.2022.

Ananda Kumar Mukherjee, J. :-

1. This revisional application under section 482 of the Code of Criminal

Procedure, 1973 is a fall out of a matrimonial discord between the petitioner

and the opposite party. The petitioner/wife by filling this application under

section 482 has sought for quashing of the proceeding in Case No. AC 968 of

2009 (TR No. 225 of 2009) under section 500 of the Indian Penal Code, filed by

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the opposite party against the petitioner, now pending before learned Judicial

Magistrate 9th Court, Alipore, South 24 Parganas.

2. A synoptical resume of petitioner’s case is that, the petitioner got married

to the opposite party on 29.11.1990 according to Hindu Rights and Customs.

Soon after the marriage the opposite party subjected the petitioner to physical

and mental torture on the demand of dowry from her paternal house. On

15.11.1994 petitioner gave birth to a female child. She made constant effort to

adjust with the opposite party to maintain a peaceful conjugal life but the

opposite party continued to torture her and on 25.04.1997 the petitioner along

with her minor child were driven out from her matrimonial home on being

abused and assaulted by the opposite party and his elder brother.

3. The petitioner lodged a written complaint on 25.04.1997 before the

Office-in-Charge at Behala Police Station which was registered as Behala Police

Station Case No. 248 (4) 1997, under section 498A of the Indian Penal Code. In

connection with the said case opposite party was arrested on 27.04.1997. On

completion of investigation police submitted charge sheet No. 105 dated

04.06.1997 against the opposite party/husband and his elder brother. Learned

Sub Divisional Judicial Magistrate at Alipore took cognizance of the offence and

transferred the case to the learned Judicial Magistrate 9th Court, Alipore.

4. In the meantime, the opposite party filed a suit against the petitioner

under section 9 of the Hindu Marriage Act, praying for a decree of restitution of

conjugal rights. Subsequently, opposite party amended the prayer and sought

for a decree of divorce against the petitioner under section 13(1)(ia) and

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13(1)(ib) of the Hindu Marriage Act, pending before learned Additional District

Judge, 1st Track Court to South 24 Parganas. It is the further case of the

petitioner that on 16.04.2007 the Matrimonial Suit No. 18 of 2006 was

dismissed with an observation that the opposite party cannot be permitted to

take advantage of his own wrong, causing serious disruption in the

matrimonial relationship and was not entitled to a decree of divorce.

5. The actual dispute in this revisional application stems from a letter dated

14.05.1997, written by the petitioner to the Manager, Indian Overseas Bank,

195/4, Rash Behari Avenue, Kolkata-700029, to intimate him that the

petitioner, a legally married wife of the opposite party who is an Assistant

Manager of Overseas Bank at Ballygunge Branch has tortured her and driven

her out from the matrimonial home and furthermore a criminal case has been

initiated against the opposite party in which the opposite party had been

arrested and subsequently released on bail. The petitioner requested the

Manager to take necessary action in this matter.

6. In the criminal case under section 498A of the Indian Penal Code,

bearing BGR No. 1641 of 1997 the petitioner, accused opposite party and his

brother filed a joint petition on 16.06.2008 wherein she stated that she was

willing to withdraw the aforesaid case against the opposite party and his

brother due to intervention of common friends, relatives and well wishers and

in the interest and welfare of the minor daughter. In the criminal proceeding

learned Judicial Magistrate examined the petitioner and passed a judgment on

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18.09.2008 finding the accused persons not guilty of the offence punishable

under section 498A of the Indian Penal Code and acquitted them.

7. After disposal of the criminal case, leading to the acquittal on the basis

of such impression created by the petitioner, opposite party issued a letter

through his advocate dated 23.02.2009 requesting the petitioner to withdraw

the letter written by her to the Manager, Indian Overseas Bank dated

24.05.1997 within 15 days from receipt of the letter. On 09.03.2009 the

petitioner replied to the advocate’s letter through a letter issued by her

advocate denying and disputing the averment made by the opposite party in

his letter dated 23.02.2009. The opposite party then filed a complaint under

section 200 of the Code of Criminal Procedure against the petitioner, alleging

that by such letter the petitioner defamed him and committed an offence

punishable under section 500 of the Indian Penal Code. The complaint was

registered as AC Case No. 968 of 2009. Learned Chief Judicial Magistrate,

Alipore transferred the case to the learned Judicial Magistrate, 9th Court,

Alipore. In his complaint the opposite party has contended that the letter

issued by the petitioner addressed to the Manager of Overseas Bank underwent

wide circulation at his place of work and the opposite party has suffered

substantially in his career and was denied departmental examination for

promotion to higher posts and the same has injured his reputation due to the

aspersions thrown on his character and thereby lowered his status in the

esteem of the society, though the opposite party was found not guilty of the

offence.

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8. According to the petitioner the opposite party and one witness have been

examined under section 200 of the Cr. P.C in the impugned proceeding and

after taking cognizance, on 24.12.2009 learned Magistrate has issued process

against the petitioner for offence under section 500 of the Indian Penal Code,

directing her to appear before the Court.

9. Being aggrieved and dissatisfied with the impugned proceeding, the

present application has been filed, praying for quashing of the same on the

grounds inter alia, that learned Magistrate has illegally taken cognizance of the

offence, permitting continuance of the proceedings which is barred by

limitation under section 468 of the Code of Criminal Procedure. It is the further

case of the petitioner that learned Magistrate exceeded his jurisdiction by

taking cognizance of the offence and issuing process against her in respect of

an alleged offence more than 12 years prior to the date to the taking

cognizance, though it is barred under section 468 (2)(c) of the Code of Criminal

Procedure. Other relevant grounds assailing the proceeding are that any

imputation made in good faith by person to any of those persons who have

lawful authority over the person with respect to the subject matter of

accusation or for protection of his or her other interest does not constitute the

offence. The petitioner asserted that apart from being barred by limitation, the

5th, 8th, and 9th exception to section 499 of the Indian Penal Code if taken into

consideration, would not justify continuance of a criminal proceeding against

the petitioner under section 500 of the Indian Penal Code. On such grounds

the petitioner has prayed for quashing the impugned proceeding.

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10. Learned advocate for the petitioner argued that the petitioner was

subjected to physical and mental torture by the opposite party and her brother

and was finally driven out from her matrimonial home along with her minor

daughter. Due to such torture and demand of dowry the petitioner was

compelled to lodge an FIR against the opposite party and his brother before

Behala Police Station. The said case was subsequently disposed of on the basis

of a joint petition for withdrawing the case, resulting in acquittal of the

opposite party and his brother who received the benefit of doubt. It is urged

that the complaint case filed by the opposite party against the petitioner twelve

years after issuance of the letter to his superior officer is barred by limitation.

Further contention of the petitioner is that communication made by the

petitioner in the impugned letter was in good faith and such imputations

cannot attract the offence under section 500 of the Indian Penal Code. Learned

advocate for the petitioner in support of her argument relied upon a decision in

the case of Surinder Mohan Vikal Vs. Ascharaj Lal Chopra; 1978 Supreme

Court Cases (Cri) 215, wherein the Hon’ble Supreme Court held, “According to

the complaint, the offence under section 500 IPC was committed on March 15,

1972, which was the date of offence within the meaning of section 469 (1)(a) of

the Code, and the period of three year’s limitation would be calculated with

reference to the date for purposes of the bar provided by section 468. But the

complaint under section 500 IPC was filed on February 11, 1976, much after

the expiry of that period. It was therefore not permissible for the court of the

Magistrate to take cognizance of the offence after expiry of the period of