Bombay High Court
Shahed Kamal And Anr vs M/S A. Surti Developers Pvt Ltd. And Anr on 10 June, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:22806-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CRIMINAL JURISDICTION
WRIT PETITION NO.2099 OF 2021
Shahed Kamal and Others ...Petitioners
VISHAL vs.
SUBHASH M/s. A. Surti Developers Private Limited and Anr. ...Respondents
PAREKAR
Digitally signed by
VISHAL SUBHASH
PAREKAR
Mr. Rajiv Chavan, Senior Advocate a/w. Mr. Suhail Shariff, Ms.
Date: 2024.06.10
20:10:07 +0530
Manpreet Kaur, Ms. Poorva Patel, Mr. Ajay Panicker i/b. Ajay Law
Associates, for the petitioners.
Mr. Abad Ponda, Senior Advocate a/w. Mr. Firoz Bharucha, Mr.
Sushrut Desai, Ms. Ayesha Pinto & Chittesh Dalmia i/b. Saamya
Partners, for Respondent No. 1.
Mrs. Ranjana Humane, APP for the State.
CORAM : N. J. JAMADAR, J.
RESERVED ON : MARCH 5, 2024
PRONOUNCED ON : JUNE 10, 2024
JUDGMENT :
1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, heard finally.
2. This petition under Articles 226 and 227 of the Constitution of India and section 482 of the Code of Criminal Procedure, 1973 assails the legality, propriety and correctness of the judgment and order dated 10th February, 2021 passed by learned Additional Session Judge at Borivali Division, Mumbai in Criminal Revision Application No. 345 of 2016 whereby the learned Additional Session Judge dismissed the Revision Application affirming an order dated Vishal Parekar ...1 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 14:08:44 ::: wp-2099-2021.doc 4th October, 2016 passed by the learned Metropolitan Magistrate, 26th Court, Borivali in CC No. 2042/SS/2016 issuing process against the petitioners No. 1 to 7/ accused for an offence punishable under section 500 read with 34 of the Indian Penal Code, 1860 (the Penal Code).
3. The background facts leading to this petition can be stated as under:-
M/s. A Surti Developers Private Limited, the respondent No. 1/complainant (the developer) is a private limited company. It is engaged in the business of development of real estate. The complainant had constructed the residential building 'Universal Garden No. 1' at Jogeshwari (w), Mumbai. The MMRDA owed leasehold plot admeasuring 6912 sq. mtr. The petitioners/accused are the allottees of the residential flats in the said building.
Occupation certificate was issued on 21st February, 2014. The flat purchasers were put in possession of the respective flats in the year 2014-15. A completion certificate came to be issued on 27 th May, 2015. It seems, disputes arose between the developer and the flat purchasers over the completion of the project in accordance with the terms of the contract between the developer and the purchasers. In the wake of the dispute, several allegations and Vishal Parekar ...2 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 14:08:44 ::: wp-2099-2021.doc counter allegations were made. The developer alleged that the accused Nos. 1 to 7 formed a body under the name and style of "Universal Garden No. 1 Cooperative Housing Society" (proposed), illegally and in contravention of the provisions of Maharashtra Cooperative Societies Act, 1960 and the governing rules. A false dispute was raised about the maintenance bills. The bills were allegedly fraudulently collected from of the office of complainant.
The accused, in connivance with other flat owners, illegally collected payment from the occupants of the flats. Efforts were made to spread disharmony amongst occupants of the flat and create a rift between the flat purchasers and the developer.
4. The accused Nos. 1 to 7, on the other hand, alleged that several defects were noticed in the construction carried out by the complainant. Numerous letters were addressed to the developer- complainant regarding various faulty and incomplete works and non- formation of the society of the flat purchasers. Despite repeated promises, the complainant failed to rectify the defects and form the society. Various acts of commission and omission were attributed to the developer.
5. The complainant claimed, it had fully discharged its obligation Vishal Parekar ...3 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 14:08:44 ::: wp-2099-2021.doc under the terms of the contract between the parties. Accused Nos. 1 to 7 and other flat purchasers were insisting for the amenities which were beyond terms of the contract between the parties. In order to coerce the complainant to accede to the unlawful and unjustifiable demands of the accused, on 10 th August, 2015 the accused erected the banners/boards in Hindi and English, visible to public at large, containing false, frivolous and defamatory statements, as under:
6. The complainant alleges the said boards were erected with a deliberate intention to defame the complainant and harm reputation and goodwill of the complainant. The complainant addressed notice on 26th February, 2016 calling upon the accused to tender an unconditional apology. Accused Nos. 1 to 7 gave reply to Vishal Parekar ...4 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 14:08:44 ::: wp-2099-2021.doc the said notice and defiantly refused to tender an apology. The complainant was thus constrained to lodge the complaint for defamation.
7. In the complaint it is, inter alia, alleged that the boards erected by accused Nos. 1 to 7 caused irreparable injury and loss of reputation to the complainant. Many persons inquired with the complainant about the said imputations. Resultantly, the complainant suffered immense prejudice and loss of goodwill, standing in the general public and prospective flat purchasers in respect of another ongoing project. Hence, the accused be proceeded against for the offence punishable under section 500 of the Penal Code.
8. The learned Metropolitan Magistrate, upon perusal of the complaint and the verification statement of the complainant and documents, recorded a prima facie finding that the imputations in the boards erected by the accused were defamatory in nature and thus there was sufficient ground to proceed against the accused for an offence punishable under section 500 of the Penal Code. Thus, process was issued by an order dated 4th October, 2016.
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9. Being aggrieved, the petitioners preferred Revision
Application before the Sessions Judge, Greater Bombay. By the impugned order dated 10th February, 2021, the learned Additional Sessions Judge was persuaded to dismiss the Revision Application opining, inter alia, that the accused had erected the board visible to the public at large with intent to defame and cause damage to reputation and image of the complainant in the esteem of the members of the society and thereby also caused monetary loss to the complainant. Hence, no interference was warranted in exercise of the revisional jurisdiction in the order passed by the learned Magistrate in issuing process against the accused.
10. Being further aggrieved, the petitioners have invoked the writ and inherent jurisdiction of this Court.
11. I have heard Mr. Rajiv Chavan, learned senior advocate for the petitioners, Mr. Abad Ponda, learned senior advocate, for respondent No. 1, and Mrs. Ranjana Humane, learned APP for the State. With the assistance of the learned counsel, I have also perused the pleadings and material on record.
12. Mr. Chavan, the learned senior counsel would urge that the Vishal Parekar ...6 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 14:08:44 ::: wp-2099-2021.doc impugned orders passed by both the learned Additional Session Judge and the learned Metropolitan Magistrate suffer from the vice of non-application of mind. At the stage of issuance of process, the learned Magistrate, did not at all consider the question as to whether the imputation attributed to the accused, would fall within any of the Exceptions to section 499 of the Penal Code. In the facts of the case where innocent flat purchasers are made to run from pillar to post by the developer, the learned Magistrate ought to have considered whether the alleged imputations fall within the ambit of any of the Exceptions to section 499 of the Penal Code.
13. The learned Additional Session Judge, according to Mr. Chavan, was also in error in declining to exercise the jurisdiction despite having noted that there were several problems which the flat purchasers were made to encounter. The learned Additional Sessions Judge lost sight of the fact that the flat purchasers were constrained to erect the boards as the developer did not pay heed to the repeated requests of the flat purchasers. Both the Courts were in error in construing the afore-extracted imputation as defamatory. Raising grievances regarding quality of the construction and/or inaction on the part of developer to remedy the situation, can never be said to be defamatory, urged Mr. Chavan.
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14. In any event, according to Mr. Chavan, the complainant had not suffered any damage. The complaint is conspicuously silent about the damage suffered by the complainant on account of alleged defamation.
15. At any rate, Mr. Chavan urged, the publication in question falls within the ambit of first and third Exception to section 499 of the Penal Code. Firstly, the imputations are statements of fact, pure and simple. Secondly, those statements of facts have been published to advance the cause of public good. Thirdly, the manner in which the developer rendered services to the flat purchasers assumed the character of public significance. Therefore, the aforesaid imputation cannot be said to be defamatory.
16. Mr. Chavan would urge that, by a catena of decisions, it has been enunciated that the question as to whether in a case for defamation, allegedly defamatory imputation falls within the ambit of any of the Exceptions is a matter which can be examined at a stage prior to the trial. A fair comment and criticism regarding services rendered by the developer does not constitute defamation. The instant prosecution for defamation is, therefore, an abuse of the process of law and has been resorted to coerce the accused and Vishal Parekar ...8 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 14:08:44 ::: wp-2099-2021.doc other flat purchasers to forgo their rights. Therefore, the prosecution deserves to be quashed and set aside.
17. To buttress these submissions, Mr. Chavan placed reliance on the decision of the Supreme Court in the case of Aroon Purie v. State of NCT of Delhi and Ors.1 and decisions of Bombay High Court in the cases of Lodha Developers Limited v. Krishnaraj Rao and Ors.2 and Ramachandra Venkataramanan v. Shapoorji Pallonji & Company Ltd. And Another3. Reliance was also placed on a decision of a learned single Judge of this Court in the case of A.H.Ghaswala & Ors. v. Rajendra J. Shah & Anr. 4, wherein the matter of putting up a notice showing the complainant therein as defaulter was held to be not defamatory in nature.
18. Per contra, Mr. Ponda, learned senior advocate for respondent No. 1/ the complainant, would submit that the fact that the petitioners/ accused had invoked revisional jurisdiction and the said revision came to be dismissed by the Court of Session, constricts the scope of interference in the orders passed by the learned Metropolitan Magistrate and Additional Session Judge in 1 2022 SCC OnLine SC 1491.
2 2019 SCC OnLine Bom 13120.
3 2019 SCC OnLine Bom 524.
4 2000 ALL MR (Cri) 481.American Typewriter
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exercise of writ and inherent jurisdiction. Placing reliance on the decision of the Supreme Court in the case of Rajinder Prasad v. Bashir and Others5; Nupur Talwar v. Central Bureau of Investigation and Anr.6, it was submitted that jurisdiction under section 482 of the Code cannot be resorted to unless there is a failure of judicial mechanism or the case appears to be one of rarest of rare cases.
19. Secondly, the submission on behalf of the petitioners that there are no averments in the complaint that the complainant suffered damage on account of the aforesaid imputation is factually incorrect. Taking the Court through the complaint, Mr. Ponda would urge that there are sufficient averments in the complaint to indicate the enormous damage and loss of reputation and consequently loss of business, suffered by the complainant. In any event, the resultant loss on account of defamatory imputation is not a sine qua non for an offence punishable under section 500 of the Penal code. What has to be looked into is, whether the imputation was made with an intent or knowledge to harm the reputation of the complainant. In the case at hand, the act of the accused of erecting the banners containing false and wild allegations was actuated by a design to 5 (2001) 8 SCC 522.
6 (2012) 11 Supreme Court Cases 465.
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harm the reputation and goodwill of the complainant.
20. To bolster up these submission, Mr. Ponda placed reliance on the decisions of the Supreme Court in the cases of -
(1) Arundhati Roy, In Re7 (2) Jeffrey J. Diermeier and Another v. State of West Bengal and Another8.
(3) John Thomas vs. Dr. K. Jagadeesan9.
(4) Subramanian Swamy vs. Union of India10
21. Thirdly, Mr. Ponda would urge the endeavour of the accused to assail the impugned orders on the ground that the applicability of the Exceptions to section 499 of the Penal Code was not examined by the trial Court and the revisional Court, is halfhearted, if not a creature of an afterthought. Before the revisional Court, an endeavour was made to justify the imputation by asserting that the case would fall within the ambit of Explanation (4) to Section 499 of the Penal Code, on the premise that the imputation does not lower the moral or intellectual character of the complainant. Before this Court, in the petition no specific Exception has been specifically 7 (2002) 3 Supreme Court Cases 343.
8 (2010) 6 Supreme Court Cases 243.
9 (2001) 6 Supreme Court Cases 30.
10 (2016) 7 Supreme Court Cases 221.
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pleaded. However, an endeavour was made to take benefit of the first and third Exception to Section 499 of the Penal Code.
22. Mr. Ponda would urge that irrespective of the inconsistent stand of the petitioners, the question as to whether the imputation would fall within the ambit of any of the Exceptions to section 499, is a matter for trial and the burden of proof would lay on the accused to show that imputation in question falls within the ambit of any of the Exceptions to Section 499 of the Penal Code.
23. To lend support to this submission, reliance was placed on a number of decisions, including the judgments in the case of Balraj Khanna and Others vs. Moti Ram 11 and Sewakram Sobhani vs. R.K. Karanjia, Chief Editor, Weekly Blitz and Others12.
24. Generally, the offence and penal provisions under the Penal Code are to be construed subject to the General Exceptions and the specific Exception in the definition, wherever provided. Section 6 of the Penal Code declares that every definition of an offence, every penal provision, and every illustration of every such definition or penal provision, shall be understood subject to the Exceptions 11 1971 (3) Supreme Court Cases 399.
12 (1981) 3 Supreme Court Cases 208.
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contained in the Chapter entitled "General Exceptions".
25. Section 499 of the Penal Code which defines the offence of defamation incorporates the Exceptions in the definition itself. Section 499 of the Penal Code thus declares that, "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 cases hereinafter excepted, to defame that person." In all 10 Exceptions are enumerated in section 499 of the Penal Code.
26. The first submission canvassed by Mr. Chavan was that, the learned Magistrate ought to have examined whether the alleged imputation falls within any of the Exceptions to Section 499 of the Penal Code as the imputation not falling within any of the Exceptions to Section 499 is an essential condition to make out an offence punishable under section 500 of the Penal Code. On this count, the impugned order deserves to be interfered with.
27. In contrast, Mr. Ponda would urge that there is a long line of Vishal Parekar ...13 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 14:08:44 ::: wp-2099-2021.doc decisions which holds that the aspect as to whether the imputation falls within any of the Exceptions to Section 499 is a matter for adjudication at the trial and cannot be considered at the stage of issue of process.
28. In view of a recent pronouncement of the Supreme Court in the case of Iveco Magirus Brandschutztechnik Gmbh vs. Nirmal Kishore Bhartiya and Anr.13, I do not consider it appropriate to delve deep into this aspect of the matter, with reference to the decisions relied upon by Mr. Ponda in support of the above submission. It would be suffice to refer to the decision of the Supreme Court in the case of Aroon Purie (supra), on which reliance placed by Mr. Chavan and, thereafter, refer to the decision in the case of Iveco Gmbh (supra) as the legal position has been extensively analyzed on the touchstone of binding efficacy of precedents.
29. In the case of Aroon Purie (supra), the Supreme Court, inter alia, considered the following question:-
"Whether the benefit of any of the Exceptions to Section 499 of the IPC can be availed of and on the strength of such Exceptions, the proceedings can be quashed at the stage when an application moved under section 482 of the Code is considered ? "
13 (2024) 3 Supreme Court Cases 86.
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30. Referring to the decision in the cases of Jawaharlal Darda v. Manoharrao Ganpatrao Kapsikar14 and Rajendra Kumar Sitaram Pande vs. Uttam15, the Supreme Court held that, in a given case, if the facts so justified the benefit of Exceptions to Section 499 of Penal Code, has been extended and it is not taken to be a rigid principle that the benefit of Exceptions can only be afforded at the stage of trial.
31. In the case of Iveco Magirus (supra) the Supreme Court, inter alia, considered the following question :-
"21.1(i) Whether, while considering a private complaint alleging defamation, the Magistrate before summoning the accused ought to confine himself to the allegations forming part of the petition only or he may, applying his judicial mind to the Exceptions to Section 499 IPC, dismiss the complaint holding that the facts alleged do not make out a case of defamation?
21.2(ii) Whether and, if at all, to what extent, is it open to the High Courts to exercise inherent power saved by section 482, Cr.PC to quash proceedings for defamation by setting aside the summoning order upon extending the benefit of any of the Exceptions to Section 499 IPC ? "
32. After adverting to the judgments including the decisions in the case of Balraj Khanna (supra) and Sewakram Sobhani (supra) and Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi 16, relied upon by Mr. Ponda and Aroon Purie (supra), relied upon by Mr. 14 1998(4) SCC 112.
15 1999 (3) SCC 134.
16 (1996) 6 SCC 263.
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Chavan, the Supreme Court reconciled the position in law in the face of two lines of decisions in the following words:-
54] Undoubtedly, the decisions of this Court proceed on two lines. While there are several decisions where this Court has consistently laid down the law in one particular line that it is for the Magistrate to consider the Exceptions to section 499, IPC for extension of benefit thereof at the trial when a defence is pleaded by the party seeking to avail the same and upon the burden of proof being (2013) 2 SCC 488 discharged by him and that such Magistrate while deciding the question purely from the point of view of the complainant may not advert to the possible defence of the accused at the time of exercising power under section 202, the other line of decisions seem to proceed on the premise that there is no bar in considering the Exceptions if the accused, even without appearing before the Magistrate in response to the summoning order, lays a challenge thereto under section 482, Cr. PC and satisfies the relevant High Court, by referring to the complaint itself and the statements of the complainant and his witness, that the facts alleged (even if deemed to be true) do not constitute an offence and hence, there was no sufficient ground for proceeding. In fact, Aroon Purie (supra) has observed that there is no rigid principle that the Exceptions can only be considered at the pre-trial stage; in other words, at the stage of consideration of a petition for quashing, it can be so extended in a given case, and the Court would be empowered to quash the proceedings if extension of such benefit is justified on facts.
... ....
62] In the context of a complaint of defamation, at the stage the Magistrate proceeds to issue process, he has to form his opinion based on the allegations in the complaint and other material (obtained through the process referred to in section 200/ section 202) as to whether 'sufficient ground for proceeding' exists as distinguished from 'sufficient ground for conviction', which has to be left for determination at the trial and not at the stage when process is issued. Although there is nothing in the law which in express terms mandates the Magistrate to consider whether any of the Exceptions to section 499, IPC is attracted, there is no bar either. After all, what is 'excepted' cannot amount to defamation on the very terms of the provision. We do realize that more often than not, it would be difficult to form an opinion that an Exception is attracted at that juncture because neither a complaint for defamation (which is not a regular phenomenon in the criminal courts) is likely to be drafted with contents, nor Vishal Parekar ...16 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 14:08:44 ::: wp-2099-2021.doc are statements likely to be made on oath and evidence adduced, giving an escape route to the accused at the threshold. However, we hasten to reiterate that it is not the law that the Magistrate is in any manner precluded from considering if at all any of the Exceptions is attracted in a given case; the Magistrate is under no fetter from so considering, more so because being someone who is legally trained, it is expected that while issuing process he would have a clear idea of what constitutes defamation. If, in the unlikely event, the contents of the complaint and the supporting statements on oath as well as reports of investigation/inquiry reveal a complete defence under any of the Exceptions to section 499, IPC, the Magistrate, upon due application of judicial mind, would be justified to dismiss the complaint on such ground and it would not amount to an act in excess of jurisdiction if such dismissal has the support of reasons.
63] Adverting to the aspect of exercise of jurisdiction by the High Courts under section 482, Cr. PC, in a case where the offence of defamation is claimed by the accused to have not been committed based on any of the Exceptions and a prayer for quashing is made, law seems to be well settled that the High Courts can go no further and enlarge the scope of inquiry if the accused seeks to rely on materials which were not there before the Magistrate. This is based on the simple proposition that what the Magistrate could not do, the High Courts may not do. We may not be understood to undermine the High Courts' powers saved by section 482, Cr. PC; such powers are always available to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone the High Courts exist. However, the tests laid down for quashing an F.I.R. or criminal proceedings arising from a police report by the High Courts in exercise of jurisdiction under section 482, Cr. PC not being substantially different from the tests laid down for quashing of a process issued under section 204 read with section 200, the High Courts on recording due satisfaction are empowered to interfere if on a reading of the complaint, the substance of statements on oath of the complainant and the witness, if any, and documentary evidence as produced, no offence is made out and that proceedings, if allowed to continue, would amount to an abuse of the legal process. This too, would be impermissible, if the justice of a given case does not overwhelmingly so demand.
64] Based on our understanding of the law and the reasoning that we have adopted, issue of process under section 204 read with section 200, Cr. PC does not ipso facto stand vitiated for non-consideration of the Exceptions to section 499, IPC unless, of course, before the High Court Vishal Parekar ...17 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 14:08:44 ::: wp-2099-2021.doc it is convincingly demonstrated that even on the basis of the complaint and the materials that the Magistrate had before him and without there being anything more, the facts alleged do not prima facie make out the offence of defamation and that consequently, the proceedings need to be closed.
(emphasis supplied)
33. It would be contextually relevant to note that with regard to the observations in the case of Aroon Purie (supra), the Supreme Court observed that conscious of the legal position, the Supreme Court in Aroon Purie (supra) cautiously proceeded to hold that it is not taken to be a rigid principle that the benefit of Exception can only be afforded at the stage of trial. Ultimately the Supreme Court in the case of Iveco Gmbh (supra) concluded that issue of process under section 204 read with section 200 Cr. PC does not ipso facto stand vitiated for non-consideration of the Exceptions to section 499 IPC unless convincingly demonstrated before the High Court that even on the basis of the complaint and the materials that the Magistrate had before him and without there being anything more, the facts alleged do not prima facie make out the offence of defamation.
34. The aforesaid enunciation of law, affords an answer to the submission sought to be canvassed on behalf of the accused that the order passed by the Magistrate in the instant case is infirm for non Vishal Parekar ...18 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 14:08:44 ::: wp-2099-2021.doc consideration of the aspect as to whether the imputation would fall within any of the Exceptions to section 499 of the Penal Code. It is also imperative to note that it is one thing to say that the Magistrate must examine whether the imputation falls within the ambit of any of the Exceptions to section 499 and another to hold that the benefit of an Exception can be afforded at a stage anterior to the trial. In a given case, if the applicability of any of the Exceptions to Section 499 of the Penal Code is self-evident, the High Court would be justified in interdicting the prosecution for defamation, even where the learned Magistrate had not adverted to the said aspect of the matter or appreciated the matter in a patently incorrect manner.
35. This takes me to the thrust of the submission on behalf of the petitioners/ accused that the contents of the board and banner, which the complainant alleges to be defamatory are, in fact, statement of facts. The flat purchasers who have genuine grievances regarding deficiency in the services rendered by the developer have highlighted those deficiencies and inaction on the part of the developer. The aggrieved flat purchasers, therefore, cannot be imputed with necessary mens rea, urged Mr. Chavan.
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36. An endeavour was also made to draw home the point that none of the afore-extracted grievances of the flat purchasers either singly or collectively can be said to be per se defamatory. Therefore, the prosecution of the flat purchasers, who feel short changed amounts to abuse of the process of the Court.
37. Mr. Chavan placed a very strong reliance on the observations of this Court in the case of Lodha Developers (supra). In the said case, the developer had initiated an action in damages for defamation and by way of Notice of Motion prayed for injunctive reliefs against the defendants. This Court refused to grant a restraint order. It was observed that calling of someone with fair comment and justification is not defamation. The flat purchasers (who were the defendants No. 2 and 3 therein) were entitled to make a fair comment about the condition and nature of the flat they purchased. No restraint can be put on their right to comment. Since the Court found the statements made in the publication therein bonafide and having being made with reasonable precaution, the Court held that the defendants were concerned about the quality of their flats and the Court had no manner of doubt that all that was in the public interest.
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38. In the case of Ramachandra Venkataramanan (supra) the complainant therein had taken umbrage at the 'Press Note' which stated that all allegations of wrong doing or illegality against the petitioners were baseless. Those motivated allegations were part of the smear campaign run to discredit the petitioners and the work being done by the Tata Trusts. In the aforesaid factual backdrop, this Court quashed the summoning order observing, inter alia, as under:-
48] Coming to the press note, the allegedly offending words stated in it are 'motivated', 'baseless' and 'smear campaign'. Smear means damaging the reputation by false accusation. These words are required to be read in the entire context. The petitioner has made this statement with the reference to earlier disputes. As mentioned in the beginning, the matter carries a baggage of accusations, denials, claims and disclaimer. Both the parties are from the business world. Though they initially worked together, today, they are at loggerheads. Their disputes are discussed publicly by the media and the people. When two persons are fighting, they are bound to make some allegations against each other. If these allegations are abusive, they create an impression of hatred, contempt and ridicule against the person who is attacked. I am of the view that these words do not constitute defamation. One has to be careful in choosing the words while expressing his feelings. To express and speak is an invaluable fundamental right of an individual guaranteed under Articles 19 and 21 of the Constitution of India to all the citizens which is the soul of democracy. The law of defamation is one of legally acceptable reasonable restrictions in the Indian legal system. To oppose, deny, reject, defend, etc. are the ways of expression. It manifests emotional status and thinking process. However, it should not lead to harm, damage, which is a rider to the freedom of expression. Thus, one can disclaim, refuse, deny, reject certain charges or allegations made against him or her publicly with restrained words. Ultimately, it is a choice of words which may constitute the offence of defamation.
... .....
50] The Court has to be guarded and should have an eye to Vishal Parekar ...21 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 14:08:44 ::: wp-2099-2021.doc read between the lines when the complaint of defamation is filed. To call a particular statement defamation is subjectively easy and, therefore, it is necessary to see whether the complainant is using this process of law as a weapon against the other person to settle a score or some other dues. Undoubtedly, to stand before a Criminal Court is a humiliation and a matter of extreme stress and harassment and, therefore, the Court is required to find out the real issue in such a matter especially when the parties like the complainant and the accused are fighting various business battles on various battle fields.
51] Thus, in this case, I am of the view that the words which are used in the press note are not at all defamatory. They are moderate and temperate. They do not invite contempt, ridicule or hatred against the persons mentioned in the press note and muchless the complainant. Certain statements, if found incorrect, can be corrected without labelling them defamatory. The words used and the statement made in the press note can not be perceived as defamatory.
39. Applying the aforesaid test to the alleged defamatory imputation in the case at hand, according to Mr. Chavan, by no stretch of imagination, can it be said that the act of raising of grievances of deficiencies in the services would constitute criminal defamation.
40. Mr. Ponda joined the issue by canvassing a submission that the reliance on the aforesaid decisions is of no avail to the petitioners. Those decisions turn on their peculiar facts. It is trite that a decision is an authority for what it decides and not what logically flows from it. Mr. Ponda further urged that it is not a requirement of the offence of defamation that the imputation should Vishal Parekar ...22 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 14:08:44 ::: wp-2099-2021.doc be per se defamatory. A deliberate false statement, with intent to harm the reputation of a party, though couched in the form of a grievance can fall within the dragnet of Section 499 of the Penal Code.
41. Mr. Ponda, placed a very strong reliance on the decision of the Supreme Court in the cases of Jeffrey Diermeier (supra), wherein the following observations were made:-
29] To constitute "defamation" under Section 499 of the IPC, there must be an imputation and such imputation must have been made with intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged.
(emphasis supplied)
42. In the case of John Thomas (supra), the Supreme Court postulated that an accused may not be entitled to be discharged on the ground that imputations were not per se defamatory. The relevant observations in the said case read as under:-
10] .... ......The only effect of an imputation being per se defamatory is that it would relieve the complainant of the burden to establish that the publication of such imputations has lowered him in the estimation of the right thinking members of the public. However, even if the imputation is not per se defamatory, that by itself would not go to the advantage of the publisher, for, the complaining person can establish on evidence that the publication has in fact amounted to defamation even in Vishal Parekar ...23 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 14:08:44 ::: wp-2099-2021.doc spite of the apparent deficiency. So the appellant cannot contend, at this stage, that he is entitled to discharge on the ground that the imputations in the extracted publication were not per se defamatory.
(emphasis supplied)
43. Mr. Ponda further submitted that, in the facts of the case, the imputation made by the accused are not only false but also against judicial determination. A Division Bench of this Court has held in the case of Shahed Kamal and Ors. vs. Pagarani Universal Infrastructure Pvt. Ltd.17 between the flat purchasers and the developer that the provisions of MOFA do not apply as the land is owned by MMRDA. The Division Bench has further held that the appellants/flat purchasers' insistence that the owner/respondent No. 1 is duty bound to form society and convey its title to the society of flat purchasers as per MOFA, is misconceived and unsustainable given that MOFA is not applicable to such lands.
44. Despite the said determination, the accused continued to proclaim that the developer has committed default in formation of society. Such brazen stand of the accused further exacerbates the situation, urged Mr. Ponda.
45. From the text of section 499 of the Penal Code, extracted above, to constitute an offence of defamation, there has to be an
17 Appeal (L) No. 8104/2020 in IAL No. 3986/2020 Dt.17/03/2022.
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imputation and such imputation should have been made in the manner provided by the said section, with the intention of causing harm or knowing or having reason to believe that such imputation will harm the reputation of the person about whom it is made. Causing harm to the reputation of the person is the linchpin of the offence of defamation. It has to be shown that the accused had made the imputation with intent or knowledge or having reason to believe that such imputation would harm the reputation of the complainant. It would be contextually relevant to note that under section 44 of the Penal Code, the word, "injury" denotes any harm whatever caused to any person in body, mind, reputation or property.
46. Reputation has received recognition as a facet of personal right. In the case of Umeshkumar vs. State Andhra Pradesh 18, it was enunciated that personal right of a human being includes the right of reputation. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property and it has been held to be a necessary element with the right to life under Article 21 of the Constitution.
18 2013(10) SCC 591.
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47. In the case of Subramanian Swamy (supra), wherein the constitutional validity of section 499 of the Penal Code was challenged, the Supreme Court observed, inter alia, as under:-
144] .... ....We are in respectful agreement with the aforesaid enunciation of law. Reputation being an inherent component of Article 21, we do not think it should be allowed to be sullied solely because another individual can have its freedom. It is not a restriction that has an inevitable consequence which impairs circulation of thought and ideas. In fact, it is control regard being had to another person's right to go to Court and state that he has been wronged and abused. He can take recourse to a procedure recognized and accepted in law to retrieve and redeem his reputation. Therefore, the balance between the two rights needs to be struck. "Reputation" of one cannot be allowed to be crucified at the altar of the other's right of free speech. The legislature in its wisdom has not thought it appropriate to abolish criminality of defamation in the obtaining social climate.
(emphasis supplied)
48. In the context of the factual setting of the matter at hand, it may be necessary to note that Explanation- 2 to Section 499, states that, "it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such". Under section 11 of the Penal Code, the word, "Person" includes any Company or Association or body of persons, whether incorporated or not. On a plain construction, where the imputation has the effect of impairing the reputation of a company, in the sense that, the imputation would cause harm to the reputation of the company and affect its standing as a corporate entity in the Vishal Parekar ...26 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 14:08:44 ::: wp-2099-2021.doc enterprise it ventures into, a case of defamation of a company can be said to have been made out.
49. Mr. Chavan would urge that, in the facts of the case at hand, the aforesaid alleged imputation is in the nature of statements of facts. It reflects a true state of affairs. Therefore, it would not amount to defamation as such and, in any event, it would fall within the ambit of the First and Third Exception.
50. The context in which the boards have been erected is required to be kept in view. The material on record indicates that there is a dispute between the parties over the exploitation of FSI and erection of additional structures on the said plot. Construction of another building by the developer with a view to sell the flats therein brings in its trail the element of corporate reputation of the developer. It is the case of the complainant that the boards have been erected with a view to damage the reputation of complainant in the esteem of the general public as well as the prospective purchasers by making false allegations regarding services and inaction on the part of complainant. Prima facie, the afore- extracted imputation has the propensity to cause a dent in the reputation of the complainant.
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51. The submission on behalf of the accused that the flat purchasers are raising their genuine grievances appears attractive at the first blush. However it does not carry conviction as the accused can be attributed with knowledge or belief, if not intention, that the imputation has the propensity to cause harm to the reputation of the complainant. Prima facie, the afore-extracted imputation, in the context in which it has been made, falls within the dragnet of the main part of section 499 of the Penal Code.
52. The second limb of the submission of Mr. Chavan, that the statements made in the afore-extracted imputation represent statements of facts, in its very nature, merits factual inquiry. Two questions would crop up for consideration. One, was it the duty of the developer to provide the facilities in respect of which the flat purchasers have the grievances. Two, whether the facilities and amenities which have been made available are not of the standard quality. These issues which are rooted in facts can only be adjudicated at the trial.
53. The First Exception to section 499 provides that "it is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be Vishal Parekar ...28 ::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 14:08:44 ::: wp-2099-2021.doc made or published. Whether or not it is for the public good is a question of fact."
54. In the case of Chaman Lal vs. The State of Punjab 19 the Supreme Court held that in order to come within the first Exception to Section 499 of the Penal Code, it has to be established that what has been imputed concerning the complainant is true and the publication of the imputation is for the public good. The onus of proof of these two ingredients, namely, truth of imputation and the publication of the imputation for the public good, is on the accused.
55. This being the position in law, I am afraid, at this stage, and in this proceedings, it would be permissible to venture to record a finding about the truthfulness of the imputation.
56. Reliance on the Third Exception also does not seem to advance the cause of the submission on behalf of the accused. The Third Exception to Section 499 of the Penal Code provides that "It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further."
19 1970 (1) Supreme Court Cases 590.
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57. Evidently, the Third Exception requires good faith. An accused would be entitled to the benefit of the Third Exception if the allegedly defamatory remark was made in good faith. It implies that the defamatory imputation should have been made after due care and attention. That again brings in the arena of determination, whether the accused had taken due care and attention and made the imputation in good faith. Ex facie, it warrants a fact finding exercise.
58. In the context of the dispute between the parties, the accused may also urge the Ninth and Tenth Exception to section 499 of the Penal Code. Ninth Exception states that "it is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. Tenth Exception states that "it is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good." Under both the Exceptions, the element of good faith and public good are questions of fact.
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59. The aforesaid being the construct of the Exceptions, the benefit of which the accused seek to derive, at this stage, it would be difficult to accede to the submission on behalf of the accused that the instant prosecution is an abuse of the process of the Court.
60. The reliance by Mr. Chavan on the judgment in the case of Lodha Developers (supra), in my considered view, does not advance the cause of the accused as in the said case the Court had specifically recorded that the defendants therein had taken reasonable precaution before circulating the material. There was photographic material. It was sent in advance to the developer before circulating the same. Further, their allegations were partly borne out by the independent Court Commissioners' report. The Court found all that was in the public interest. That is not the case at hand.
61. In the aforesaid view of the matter, the challenge to the impugned orders does not merit acceptance. The petition, therefore, deserves to be dismissed.
Hence, the following order.
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ORDER
1] The petition stands dismissed.
2] Rule discharged.
3] No costs.
(N. J. JAMADAR, J.)
59. At this stage, the learned counsel for the petitioners seeks continuation of ad-interim relief dated 18th July, 2023.
60. Having regard to the issue raised in the petition, the ad- interim relief dated 18th July, 2023 is continued for a period of four weeks.
(N. J. JAMADAR, J.)
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