These Criminal Original Petitions are filed to call for the records in MP.NO.5113/2005 on the file of the learned VII Metropolitan Magistrate, G.T. Chennai and to quash the same.
2. The brief facts, which are essential for the disposal of these Criminal Original Petitions, are as follows:-
The Petitioner D.Nagendiran in Cr.OP.No.25598/2005 and the Petitioner N.Sathya in Cr.OP.No.24604/2005 are the husband and wife. D.Nagendiran and the Respondent were the partners of a Firm by name M/s.ACE India Exports and his wife Sathya and the Respondent's wife Rajeswari were the partners of a Firm by name M/s.Micro Fab, a sister concern of M/s.ACE India Exports, which was dealing in manufacturing and marketing automotive spare parts both in India and foreign countries. Due to certain indifferences, the Petitioners decided to dissolve the said partnership firms and accordingly issued a notice and with effect from 23.3.2004, the respective firms were dissolved. After dissolution of the firms, the Petitioners took out applications under
Section 9 of the Arbitration and Conciliation Act 1996 (herein after referred to as the Act) for appointment of an Advocate Commissioner in OA.Nos.1296 and 1398/2004 respectively to take inventory of the materials and machineries in the premises of respective companies. Applications were also filed in OA.Nos.273 and 274/2004 respectively for an order of interim injunction restraining the Respondent and his wife from dealing with the affairs of the Companies. This court had granted an order of interim injunction by order dated 26.3.2004 and also an Advocate Commissioner was appointed to seal the business premises of the respective companies.
3. In the said applications, the Petitioners have made certain allegations against the Respondent. In the mean while, the Respondent has filed an application to vacate the order of interim injunction, however the order of interim injunction was not vacated, but the Respondent was given permission to export the finished products of the Firm M/s.ACE India Exports by order dated 8.4.2004, as against which the Petitioners have filed an appeal in OSA.No.76/2004 and the same seems to be pending.
4. It appears that the Respondent has filed a suit in OS.No.1889/2004 on the file of the I Assistant Judge, City Civil Court, Madras and obtained an order of interim injunction on 22.4.2004. According to the Petitioners, the Respondent has suppressed the facts before the I Assistant Judge, City Civil Court, Madras and when the attention of the said court was drawn to the order passed by this Court, the application is said to have been rejected and the revision filed by the Respondent before this court in CRP.No.991`/2004 was also dismissed confirming the order passed by the I Assistant Judge, City Civil Court, Madras.
5. It is submitted by the Petitioners in both the petitions that in order to wreck vengeance as his attempts to frustrate the business activities of the Petitioners proved futile, the Respondent filed a private complaint against the Petitioners in both the petitions making false and frivolous allegations for offences punishable under
Sections 403,416,417,418 and
420 of IPC. The learned XI Metropolitan Magistrate, Saidapet, Chennai is said to have dismissed the said complaint, finding no prima facie case made out against the Petitioners.
6. In the meanwhile, the Petitioner Nagendiran had filed a suit in OS.No.2473/2005 for permanent injunction against the Respondent and the same is pending on the file of the VI Assistant City Civil Court, Madras.
7. While the factual matrix are as such, the Petitioner Nagendiran had received summons on 31.8.2005 in CC.NO.5113/2005 directing him to appear before the VII Metropolitan Magistrate, G.T. Chennai for an offence punishable under Section 138 of the Negotiable Instruments Act. Immediately, the Petitioner verified the records in the concerned court with his counsel and had come to know that process had been issued to both the Petitioners on 11.8.2005 in MP.No.5113/2005 for an offence under
Section 499 of IPC punishable under
Section 500 of IPC. They had come to know that the Respondent has preferred a complaint against the Petitioners making certain allegations and the said complaint has been taken on file and process had been issued by the learned VII Metropolitan Magistrate, G.T. Chennai. Aggrieved over the same, the Petitioners have filed these Criminal Original Petitions to quash the said proceedings.
8. Mr.S.Sadasharam, the learned counsel for the Petitioners would submit that there is no prima facie case for an offence under
Section 499 of IPC and the allegations contained in the complaint are referable to the allegations made by the Petitioners in the proceedings filed before the High Court at Madras under
Section 9 of the Act and those allegations made in the affidavit squarely come under the Exception 8 to
Section 499 of IPC. He would submit that the learned Magistrate failed to find that the allegations made in the complaint and in the sworn statement do not prima facie make out a case for an offence under
Section 499 of IPC and the vital ingredients contemplated under
Section 499 of IPC including publication have not been made out and therefore, the proceedings are liable to be quashed.
9. The learned counsel for the Petitioners would further argue that the averments and the allegations made in the affidavit filed in support of the petitions before this court under
Section 9 of the Act are to be read as a whole and those allegations were made in good faith to protect the interest of the Petitioners before the court of a law which had lawful authority to grant the relief and the same were not intended to harm the reputations of the Respondent, but only to emphasise the issue raised in the petition. In support of his submissions, reliance was placed on the decision of the Honourable Supreme Court rendered in the case of Rajendra Kumar Sitaram Pande and others Vs. Uttam and another [AIR-1999-SC-1028], wherein the Honourable Supreme Court in a similar situation has held that Exception 8 to
Section 499 of IPC clearly indicated that it is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject matter of accusation.
10. In the case of Dr.P.Sharma Vs. P.S.Popli and another [2002-1-Crimes-783], the Delhi High Court has shared the similar view holding that accusation made in good faith to those who have lawful authority over person so accused is protected by Exception 8 to
Section 499 of IPC.
11. The learned counsel for the Petitioners made a reference to the decision of this court rendered in the case of Krishnasamy Vs. K.Arunan and another [2007-1-MLJ-Crl-934] wherein it is held that if an imputation is made in good faith by a person for protection of his or others' interest, then it will not be construed as an offence of defamation.
12. On the other hand, Mr.M.Ravikumar, the learned counsel for the Respondent contended that a person casting aspersions on another can claim to have acted in good faith only if before doing so, he has made a genuine and in depth enquiry as to the facts and referred to the decision of the Honourable Supreme Court rendered in the case of S.K.Sundaram [2001-2-SCC-171], in support of his submission wherein suo-motu contempt petition was taken against the said Petitioner.
13. Law with regard to quashing of the criminal proceedings is well settled by the Honourable Supreme Court in the decision rendered in the case of State of Haryana Vs. Bhajan Lal [AIR-1992-SC-604] and in several subsequent decision reiterating the view that the criminal proceedings can be quashed only where allegation made in the complaint taken on their face value and accepted in entirety do not prima facie constitute any offence as alleged against the accused.
14. The question for consideration in this case is as to whether the Exception 8 to
Section 499 of IPC clearly applies to the facts of the case on hand and consequently in such a case, calling upon the Petitioners to face trial would be a travesty of justice.
15.
Section 500 of IPC provides for punishment for the offence of defamation which is defined in
Section 499 of IPC. It reads thus:-
"499. Defamation: Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the considering the above said arguments of the learned counsel on either side, hereinafter excepted to defame that person.
Explanation: 1 4 xxxx First Exception to Tenth Exception xxxx"
16. The Offence of defamation consists of three essential ingredients, namely, (i) making or publishing any imputation concerning any person, (ii) such imputation must have been made by words either spoken or by visible representations, and (iii) such imputation must be made with the intention, to cause harm or with the knowledge or having reasons to believe that it will harm reputation of the person concerned. Therefore, the intention or knowledge to cause harm are the essential ingredients to constitute the offence under
Section 499 IPC. Exception 8 provides that it is 'not' defamation to prefer, in good faith an accusation against any person to any of those who has lawful authority over that person, with respect to the subject matter of accusation. The illustration to this Exception makes it absolutely clear.
"Illustration:- If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z's master; if A in good faith complains of the conduct of Z, a child, to Z's father is within this exception."
Thus accusation made in good faith to those who have lawful authority over the person so accused is protected by the exception.
17. Reference in this regard can be made to the law laid down by the Supreme Court in Rajendra Kumar Sitaram Pande Vs. Uttam [AIR-1999-SC-1028], wherein it was held:-
"The question for consideration is whether the allegations in the complaint read with the report of the Magistrate make out the offence under Section 500 or not
Section 499 of the IPC defines the offence of defamation and Section 500 provides the punishment for such offence. Exception 8 to
Section 499 clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject matter of accusation. The report of the Treasury Officer clearly indicates that pursuant to the report made by the accused persons against the complaint, a departmental inquiry had been initiated that the complainant was found to be guilty. Under such circumstances the fact that the accused persons had made a report to the superior officer of the complainant alleging that he had abused to the Treasury Officer in a drunken state which is the gravamen of the present complaint ad nothing more, would be covered by exception 8 to
Section 499 of IPC. By perusing the allegations made in the complaint petition, we are also satisfied that no case of defamation has been made out.:
18. To obtain the protection given by this Exception 8 to
Section 499 of IPC, (1) the accusation must be made to a person in authority over the party accused and (2) the accusation must be preferred in good faith. So, it is clear that if without express malice, a person makes a defamation charge, which he bona fide believes to be true, against one whose conduct has caused him injury, to one whose duty is to enquire into and redress such injury, the occasion is privileged, because the person making the charge has an interest in its subject matter and the person to whom the communication is made has, on hearing it, a duty to discharge in respect of it.
19. In order to come within the Exception 8 to
Section 499 of IPC, the Petitioners are not bound to prove that the allegations made by them are true. It is sufficient if they prove that on reasonable grounds he believed the allegations to be true and in that belief they bona fide made the accusation to the lawful authority.
20. In the present case, on going through the allegations made by the Petitioners which has been extracted in the complaint petition, it is clearly seen that the Petitioners have made those allegations for the purpose of getting some relief as their intention in filing the petition was to protect their own interest. In fact, the Respondent has also filed a petition to vacate the interim injunction granted by this court making certain allegations against the 1st Petitioner.
21. It is apparent that the imputation was preferred in good faith by the Petitioners to get the reliefs of interim injunction and appointment of Advocate Commissioner in this court. In the said view of the matter, the imputation cannot be said to have been made with the intention or knowledge to cause harm to the reputation of the Respondent. The accusation have been made before this court which undoubtedly had authority over the subject matter in dispute. Therefore, the Petitioners are entitled to the protection of Exception 8 to
Section 499 of IPC.
22. In the present case, the learned Magistrate has recorded the sworn statement on 20.7.2005 and the process has been issued on 11.8.2005. There is nothing to indicate that the learned Magistrate has conducted an enquiry into the matter to find out as to whether there is any reasonable ground for issuing process. That apart, the process has not been issued in a calendar case namely private complaint under
Section 200 Code of Criminal Procedure, but in MP.No.5113/2005 which is not in accordance with the provision of
Section 200 of Code of Criminal Procedure.
23. At this juncture, it is relevant to refer to the observations made by this court in the case of Kalyanam Vs. Ramesh [2003-1-CTC-467] whereby it has cautioned the Magisterial Court that the judicial process should not be used as an instrument of oppression or needless harassment. It observed as follows:-
"17. It is salutary to note that the judicial process should not be an instrument of oppression or needless harassment. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the person, then only process would be issued. At that stage, the court would circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process, otherwise it would be an instrument in the hands of the private complaint as vendetta to harass the person needlessly. Vindication of majesty of justice and maintenance of law and order in the Society are the prime objects of criminal justice but it should not be allowed to use those means to wreak personal vengeance."
24. On behalf of the Petitioners, reliance has been placed on the decision of the Honourable Supreme Court rendered in the case of Pepsi Foods Limited and another Vs. Special Judicial Magistrate and others [1998-Cri.LJ-1]. In the said said decision, the Honourable Supreme Court has observed thus:-
"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. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
25. One of the basic legal requirements of
Section 499 of IPC is that the imputation should be either made directly to the knowledge of third parties or the same should be published to the knowledge of third parties. In this case, even as per the allegations made in the complaint, it is not as if the imputation said to have been made by the Petitioners was published either directly or indirectly. Thus, in my considered view, the act of the Petitioners does not satisfy the requirement of
Section 499 of IPC so as to attract the offence punishable under
Section 500 of IPC.
26. In the result, these Criminal Original Petitions are allowed and the impugned proceedings in MP.NO.5113/2005 on the file of the learned VII Metropolitan Magistrate, G.T. Chennai are quashed. Consequently, the connected MPs are closed.
Srcm To:
1.The VII Metropolitan Magistrate, G.T. Chennai
2.The Public Prosecutor, High Court, Madras