Kerala High Court
C.H. Kadar And Anr. vs Munnilakkath Valappil Fousia on 6 September, 1989
Equivalent citations: 1990CRILJ2356, I(1990)DMC83
JUDGMENT K. Sreedharan, J.
1. First petitioner is the father of the second petitioner. Respondent is the wife of the second petitioner. On account of difference of opinion respondent is living away from the petitioners. She sent lawyer notice to the petitioners claiming return of the gold ornaments taken from her and maintenance. On receipt of this notice by the petitioners they caused to sent a reply notice to the respondent's counsel. In that notice it was stated as follows :
"My clients say that after the marriage your client was living at her house as well as at my clients' house. After six months of their marriage disregarding all her conjugal duties your client came into a contact with one Asheraf, who is her neighbour at the connivance of your client's mother. My clients state that she is still having an illicit sexual laison with him. The said Asheraf is a regular visitor of your client's house. My clients say that they are having all the evidences to prove your client's sexual contacts with the said Asheraf. Your client's mother was trying to obtain divorce from my client Basheer by resorting any means. Your notice itself is also caused to be sent as a device to obtain divorce from my client attributing false allegations against my clients. There is no scintillia of truth in those allegations,,"
The above contents of the notice is defamatory to the respondent. Hence she filed a private complaint before the Judicial First Class Magistrate Court. In support of the complaint she gave sworn statement. On the basis of the averments in the complaint and the sworn statement learned Magistrate took cognizance of the complaint for offence under Section 500 of the Penal Code. Summons was issued to the petitioners. They have come up praying for quashing the proceedings in exercise of the power under Section 482 of the Code of Criminal Procedure.
2. The main argument advanced by the learned counsel representing the petitioners is that the ingredients of Section 499 IPC are not brought out in the case. In the sense that petitioners have not published any defamatory material. Bringing down the reputation of the respondent. Publication, if at all was made, was by the respondent complainant herself. On account of such publication if her reputation has been lowered in the estimation of others she alone is responsible for it and petitioners cannot be made liable under Section 500 of the Penal Code.
3. Complainant issued notice through her counsel to the petitioners demanding return of her gold ornaments alleged to have been taken by them. In that notice it was further stated that she has no sufficient means for her sustainence. So she claimed payment of maintenance. On receipt of that notice, petitioner in their turn caused a reply to be sent through their counsel. Petitioner's counsel sent the reply, a copy of which is marked as Annexure F, to the complainant's counsel. From the counsel complainant got the reply notice. Thereafter she showed it to others and consequently others came to know of its contents. Reply notice sent by petitioners' counsel to the counsel who sent notice on behalf of the complainant can be taken as a notice to the complainant herself. This is a communication from the petitioners to the complainant. Communication from accused to complainant directly cannot be treated as constituting publication falling within the purview of Section 499 of the Penal Code. Complainant could have come to know of the contents of the notice from her counsel. Communication between counsel and client cannot amount to publication. So, if the complainant's Advocate had translated the reply NOTICE sent by petitioners for the benefit of the complainant and the complaint came to know of the contents from her counsel there could not have been any publication of the contents of the reply notice. Complainant after getting the reply notice from her counsel took it to third parties and gave them chance to read the same. The action of the complainant amounted to publication of the notice. But for such publication ingredients of Section 499 could not have been satisfied. Since that publication was not the act- of the petitioners they cannot be penalised for the same.
4. Counsel representing the respondent brought to my notice the decision in M.C. Varghese v. T.J Ponnan (AIR 1970 SC 1876) to contend that a communication from the husband to the wife is publication. According to the counsel, if the communication of a libellous statement by the husband to the wife is publication, communication from counsel to client should also be taken as publication. The learned counsel proceeds to state that the reply notice sent by the petitioners to the complainant's counsel was handed over to the complainant and that handing over will amount to publication. In the above case Ponnan, husband of Rathi, sent certain letters to Rathi. Those letters contained defamatory imputations concerning Rathi's father, Mr. Varghese. When Varghese initiated proceedings to prosecute Ponnan for offence under Section 500 of the Penal Code their Lordships took the view that the communication from Ponnan to Rathi was publication of the defamatory imputations as fas as Mr. Varghese is concerned. 'This statement of law cannot be pressed into service in the instant case because the defamatory imputation was in the communication sent by petitioners' counsel to the complainant's counsel. Communication from complainant's counsel to the complainant cannot in any way be considered as publication because of the intimate relationship between the client and counsel. The counsel has no separate existence as compared with the client in matters relating to the legal duties. Communication to the counsel is communication to the client. Viewed in this manner the decision cannot be taken as one helping the complainant in this case.
5. Learned counsel representing the complainant tried to sustain the proceedings before the court below relying on the decision in Rev. Fr. Bernad v. Ramachandran Pillai (1986 KLT 1240). The facts of that case are, in short, as follows : Complainant was denied employment by the accused. Complainant then sent a lawyer notice to the accused. In reply the accused caused a lawyer notice sent to the complainant's counsel. In that notice it was mentioned that the complainant bad misappropriated a sum of Rs 90/- from the amount given to him by the accused to purchase diesel. Complainant took serious note of the said averment and filed a complaint alleging that the imputation in the notice is libellour to him. That complaint was sought to be quashed in exercise of the powers under Section 482 of the Code. This Court refused to quash proceedings. According to counsel, the facts is on all fours to the one in this case. Since this court refused to quash the complaint their learned counsel wants this petition also to be dismissed. I find it difficult to accept this argument. In that case this court proceeded on the basis that the complaint clearly brought out offence under Section 499 of the Penal Code. In other words, this court proceeded as if there was due publication of the libellous material. This court was then concerned with the question whether the accused was entitled to the benefit of 9th exemption to Section 499. This is clear from the observation in that judgment that "the petitioner (accused) has spread a scandal in the locality that the respondent (Complainant) had committed pilferage in diesel." Thus the said decision has to be distinguished on facts. In the instant case there is no such allegation that the petitioner spread the scandal in the locality that the respondent is having illicit connection with sheriff.
6. In Ramakrishnan v. Subbarama Sasthigal (1986 KLT 1361) this court took the view that send log of a communication to an advocate on behalf of his client is virtually a communication made to the client himself. As such there is no publication of the imputation concerning the client. I am in respectful agreement with this statement of law. The reply notice sent by counsel representing the petitioners to the complainant's counsel can never be taken as publication of the imputation concerning the complainant because that communication was to the complainant herself. She should not have taken it to others and made it public. Publication, if at all was effected, was done by the complainant. Petitioners never published the alleged libellous material to any one. Unless the imputation was made public and the complainant's reputation was brought down in the estimation of others by the petitioners they cannot be proceeded against for offence under Section 500 of the Code.
7. As stated earlier, petitioners never published the so called libellous material. Since there was no publication by the petitioners ingredients of Section 499 are not brought out against the petitioners. As the complaint does not bring out the ingredients of the offence, the proceedings before the court below have to be quashed. Otherwise, it will result in abuse of process of law.
8. In view of what has been stated above I allow this petition and quash the proceedings initiated by the complainant.