IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.7413/2016 BETWEEN:
Sri M.Nagesh S/o Late K.Koragappa Aged about 68 years Suvarna Builders and Developers Nattil House, Maroli Mangalore, D.K-575 001 …Petitioner (By Sri I.Tharanath Poojary, Advocate - Absent) AND:
Sri K.V.Chandrakanth Shenoy S/o Late K Vasudeva Shenoy R/a Flat No.104, 1st Floor “C” Wing, Suvarna Residency Maroli Village Mangaluru Taluk, D.K.-575 001 ...Respondent (By Sri Giridhar H., Advocate - Absent) This Criminal Petition is filed under Section 482 of Cr.P.C., praying to quash the order dated 13.04.2016 passed by the Principal Sessions Judge, D.K., Mangalore in Crl.R.P.No.16/2016 and consequently restore the order passed by the JMFC (III Court), Mangalore in P.C.No.198/2015.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R The learned counsel for petitioner and the learned counsel for respondent are absent.
2. Petitioner has called in question the correctness of the order dated 13.04.2016 passed by the Principal Sessions Judge, Dakshina Kannada, Mangaluru in Crl.R.P.No.16/2016 whereby the order passed by the Judicial Magistrate First Class, (III Court), Mangaluru in P.C.No198/2015 has been set-aside.
3. The respondent herein filed a complaint before the Consumer Disputes Redressal Forum, Dakshina Kannada, Mangaluru complaining of certain deficiencies in the apartment constructed by the petitioner and one Sri.Kamalaksha Suvarna. In Paragraph No.7 of the said complaint, the respondent made certain statements which according to the petitioner were scurrilous and defamatory.
The relevant Paragraph No.7 of the said complaint is extracted herein below:
7. The complainant further submits that, he had purchased the schedule mentioned apartment for his own use and occupation but within few months of the purchase, the complainant had realized the fact that, the apartment purchased by him is not fit for human dwelling. That, at the time of the purchase of the apartment, the complainant and his family members had great expectation that, they can posses and enjoy and independent apartment, defect free and with all amenities and facilities at least for a period of next 20 to 25 years. That, within few months of the purchase of the apartment, the complainant had realized that, the opposite parties who are might and strong Builders Mafia have deliberately cheated the complainant in providing the totally defective apartment.”
4. Aggrieved by the alleged statements, the petitioner herein filed a complaint under Section 200 Cr.P.C seeking action against the respondent for the offence punishable under Section 500 IPC. The learned Magistrate took cognizance of the offence and issued summons to the respondent. The respondent challenged the said order before the Principal Sessions Judge, Dakshina Kannada, Mangaluru and by the impugned order dated 13.04.2016 in Crl.R.P.No.16/2016, the revision petition was allowed and the order dated 15.12.2015 passed by the learned Magistrate issuing summons to the respondent for the offence punishable under Section 500 IPC has been set-aside.
5. The petitioner has urged two fold contentions:
Firstly, it is a contended that the order passed by the learned Magistrate was interlocutory in nature and therefore the learned Sessions Judge had no jurisdiction to entertain the revision petition under Section 397 Cr.P.C.
Secondly, the allegations made against the petitioner were perse defamatory and the reasons assigned by the learned Sessions Judge are contrary to the settled principles of law. By calling the petitioner herein as ‘Builders mafia’, respondent has defamed the petitioner. The petitioner is a respectable person running a hotel and other wholesale business in Mangaluru. He is the President of Marikamba Temple Trust. Since the imputations made in the complaint have a tendency to malign the petitioner, the impugned order is liable to be set-aside.
6. Considered the submissions and perused the records.
7. It is not in dispute that the alleged statements were made by the respondent in the complaint lodged by him under Sections 12 and 13 of Consumer Protection Act before the Consumer Disputes Redressal Forum. In the complaint he has narrated the various defects noticed in the building constructed by the petitioner and one Sri.K.Kamalaksha Suvarna. It is in this context, it is alleged that at the time of purchase of the apartment the respondent and his family members had great expectation that they can possess and enjoy an independent apartment, defect free and with all amenities and facilities atleast for a period of 20 to 25 years. But, within few months of purchase of the apartment, complainant realized that the opposite parties “who are might and strong Builders Mafia have deliberately cheated the complainant in providing totally defective apartment”.
8. The argument of the learned counsel for the petitioner is that use of words “builders mafia” amounts to defamation within the meaning of Section 499 of IPC. Having gone through the entire complaint filed by the respondent before the consumer forum, I do not find that the alleged expression was used with an intention to tarnish the image of the petitioner or to bring disrepute to the petitioner. As rightly observed by the learned sessions Judge, the said expression has to be understood in the context in which it was made and has to read as a whole and not in isolation.
9. First and foremost the complaint was lodged against two persons namely, the petitioner and one Sri.Kamalaksha Suvarna. The petitioner herein was shown as opposite party No.2. Opposite party No.1 is not aggrieved by the said statement, which itself is indicative of the fact that the assertions made in the complaint were perse not defamatory.
10. Secondly there was no publication of alleged imputations. Undeniably, these statements were made in the complaint filed before the Consumer Forum with a view to take appropriate action and not to tarnish the image of the petitioner.
11. Eighth Exception of Section 499 of IPC reads as under:
“Eighth Exception.—Accusation preferred in good faith to authorised person.—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 respect to the subject-matter of accusation”.
12. Dealing with the said provision, the Hon’ble Supreme Court in Rajendra Kumar Sitaram Pande and Others Vs. Uttam and Another reported in (1999) 3 SCC 134 at paragraph No.7 held as under:
“The next question that arises for consideration is whether reading the complaint and the report of the Treasury Officer which was obtained pursuant to the Order of the Magistrate under sub-section (1) of Section 201, can it be said that a prima facie case exists for trial or Exception 8 to Section 400 clearly applies and consequently in such a case, calling upon the accused to face trial would be a travesty of justice. The gravamen of the allegations in the complaint petition is that the accused persons made a complaint to the Treasury Officer, Amravati, containing false imputations to the effect that the complainant had come to the office in a drunken state and abused the Treasury Officer, Additional Treasury Officer and the Collector and circulated in the office in the filthy language and such imputations had been made with the intention to cause damage to the reputation and services of the complainant. In order to decide the correctness of this averment, the Magistrate instead of issuing process had called upon the Treasury Officer to hold an enquiry and submit a report and the said Treasury Officer did submit a report to the Magistrate. 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 Indian Penal Code 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 complainant, a departmental inquiry had been initiated and 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 and nothing more, would be covered by Exception 8 to Section 499 of the Indian Penal Code. By perusing the allegations made in the complaint petition, we are also satisfied that no case of defamation has been made out. In this view of the matter, requiring the accused persons to face trial or even to approach the Magistrate afresh for reconsideration of the question of issuance of process would not be in the interest of justice. On the other hand in our considered opinion, this is a fit case for quashing the order of issuance of process and the proceedings itself. We, therefore, set aside the impugned order of the High Court and confirm the order of the learned Sessions Judge and quash the criminal proceeding itself. This appeal is allowed”.
In view of the above factual and legal position, the contention urged by learned counsel for petitioner in this regard is rejected.
13. Insofar as maintainability of the revision petition under section 397 Cr.P.C. before the Sessions Court is concerned, since the impugned order, if reversed, had the effect of acquittal of the accused resulting in a final order, in view of the proposition of law laid down in GIRISH KUMAR SUNEJA vs. CBI, 2017 SCC Online SC 766, the said contention is also rejected.
Consequently, the petition is dismissed.
Sd/- JUDGE Np/-