Calcutta High Court
S.S. Sanyal And Anr. vs K.V.R. Nair And Ors. on 13 March, 1986
Equivalent citations: 1987CRILJ2074
ORDER S.S. Ganguly, J.
1. By this application the accused petitioners want the quashing of the proceeding being case No. C/991/83 under Sections 500 and 506 of the Penal Code pending before the learned Metropolitan Magistrate, 5th Court, Calcutta. The facts leading to the present revisional application may be summarised as follows :
2. The present petitioners together with 7 others are President and other persons in-charge of India Foils Ltd. The Opposite party complainant is the Vice-President of India Foils Staff Association. Admittedly the Association was in exclusive possession of a room in the Company's office at 4, Mango Lane with a steel cup-board in it. The Association was asked to handover the possession of this room together with the steel cup-board on or about 4/2/1983. On 5/2/83 in the presence of three representatives. from the side of the Company (accused Nos. 6, 7 and 8), the contents of the steel cup-board were being removed when the presence of certain duplicate copies and/or Xerox copies of circulars and/or pay sheets and/or sales list etc. were found in it. Those papers were handed-over to the said three representatives on a receipt. It is urged from the side of the opposite party that on 7/2/83 the complainant-opposite party was called to the chamber of the accused petitioner No. 1 in presence of others when the accused petitioner No. 1 threatened the complainant-opposite party with dire consequences and even went to the extent of saying that the complainant-opposite party's days were numbered.
3. Thereafter on 8/2/83 the complainant-opposite party was served with a charge-sheet alleging that he along with other office-bearers of the Staff Association had removed surreptitiously and dishonestly the aforementioned vital and confidential documents of the Company and had concealed them unauthorisedly for wrongful gain and motives. Alleging that the statements made in the charge-sheet accused him of stealing the papers mentioned above thus lowering down his prestige in the estimations of the other employees of the Company, the complainant-opposite party lodged complaint against the present petitioners and several others under Sections 500, 504 and 506 read with Section 120B of the Penal Code considering the materials on record the learned Magistrate issued process against the present two accused petitioners only. Hence, this revisional application alleging that the statements of the charge-sheet were not defamatory and further that there was no publications of defamation, if any in this case.
4. In this case the relevant facts are more or less admitted. Thus it is admitted that copies of certain confidential papers, which should not have been in the possession of the Association, were actually found with the papers of the Association lying in the cupboard. After incorporating these facts in the first two paras, the charge-sheet alleges in third para that these papers which were in unauthorised possession of the Association were being removed surreptitiously by the opposite party-petitioner and some other members of the Association. Then follows a list of the papers in question. The next para which sums up the feeling of the Company with regard to this incident may be reproduced below :
The seizure of the aforesaid documents reveal that you and other office bearers of the Association jointly and/or severally were engaged in dishonest, surreptitious and fraudulent procurement storage and possession of copies of vital and confidential documents of the Company, for wrongful gains and in motives. Such possession of copies of Company's documents and their attempted surreptitious removal also constitute acts on your part severally and jointly with other office bearers of the Association, grossly subversive of Company's discipline by not acting and discharging faithfully and by resorting to a conspiracy to illegally and dishonestly procure, store in concealed manner, utilise and cause removal of the said documents to the serious prejudice of Company's interest, goodwill and reputation. These acts have also caused serious erosion of confidence vested in you in terms of normal employer/employee relations and conditions of service. Accordingly, these acts on your part, severally and jointly with others, if proved to be true, will constitute serious and major misconducts on your part, warranting necessary disciplinary action.
5. It will be seen that the above imputation if they can be described as such, have an admitted factual basis. The papers in question were actually found with the papers of the Association lying inside the cupboard (vide receipt Annex. A). That these were amongst the confidential papers of the Company is admitted. It also seems to be admitted that the Association had no use for these papers for the business of the Association. In the circumstances stated the Company's conclusion to the effect that these papers were obtained and kept in the custody of some of the office-bearers of the Association unauthorisedly with the sole purpose of creating trouble for the Company does not appear to be unreasonable. The Company, therefore, had every right to react in the way it did for the protection of its own interest. The situation will very certainly be covered by the Ninth Exception to Section 499 of the Penal Code which lays down unequivocally that imputation made in good faith for protection of one's own interest is not defamation. The Seventh Exception according to which censure passed in good faith by person having lawful authority over another is not defamation also applies, since in this case the charge-sheet was nothing but an attempt on the part of a master to pull up a servant found wanting in devotion and faithfulness towards his master (vide especially the fifth illustration below Seventh Exception). The relevant facts which are admitted in this case clearly show that there is no want of good faith in this case.
6. It is urged from the side of the opposite party that it cannot be ascertained if any of the Exceptions to Section 499 applies in this case unless evidence has been gone into. There may be cases where it cannot be ascertained without going into evidence whether an Exception applies or not. But that does not hold good when the very facts forming the basis of the complaint attract application of an Exception. Reference may be made in this connection to K. R. Gopal Krishna v. P. Raman Namboodiri 1985 Cri LJ1035 (Ker), where V. Bhaskaran Nambiar J. of the Hon'ble Kerala High Court has also arrived at a similar decision on facts slightly different from the facts here. In the case in hand the facts recorded in the complaint very clearly established the circumstances under which the Exceptions 7 and 9 become applicable. In that view of the matter there is no reason why it should not be held that these Exceptions actually apply to the facts of the case even without going into the evidence.
7. There is also another point to consider. The learned Advocate for the petitioner contends that there was no actionable defamation in this case if there was any defamation at all since the imputation was not published by the petitioners. He contends that the documents relied upon by the complainant-opposite party was a charge-sheet which was meant for the complainant opposite party alone. If this charge-sheet received any publication that was due to the complainant-opposite party himself and for which the accused petitioners cannot be held responsible. Reference is made in this connection to T. J. Ponnel v. M. C. Varghese .
8. There is a lot of strength in the argument made by the learned Advocate for the accused petitioner. Indeed in this case the imputation had no reason to get publicity unless it was given publicity by the complainant opposite party himself. The charge-sheet was meant for his eyes only. It was for him to look into it and send a reply to it if he considered that to be necessary. If he really stuck to that then there was no reason why the charge-sheet in question should have obtained due or undue publicity in this case. In the circumstances, stated if the charge-sheet in question received any publicity it was solely due to the complainant-opposite party and not the accused petitioners. For his own fault in this regard the complainant opposite party cannot reap any benefit. That has also been held in the decision cited above.
9. Considering all the circumstances, I am inclined to hold therefore that the contents of the charge-sheet in question do not amount to any defamatory statement and that in any case there was no publication thereof from the side of the accused petitioners. In that view of the matter it is to be concluded that, there is no material in this case on the basis of which the case under Section 500 of the Penal Code may proceed against the accused petitioners.
10. As for the allegation under Section 506 of the Penal Code, it is alleged that on 7/2/83 when the complainant opposite party was called to the Chamber of the accused petitioner 1, the latter threatened him by saying "your days are numbered". The words are to be understood in the context of the circumstances in which they were uttered. Interpreted in that way the words meant if they were used at all that the service of the complainant opposite party under the Company might be terminated. There was therefore no criminal intimidation in this case either.
11. Since there is no material in this case on the basis of which a prosecution could proceed under Section 500 or 506 of the Penal Code, I am of the view that the proceeding pending before the learned Magistrate under the said sections should be brought to a close. The proceeding being case No. C/991/83 pending before the learned Metropolitan Magistrate, 5th Court, Calcutta is, therefore, hereby quashed.
The rule is made absolute accordingly.