Karnataka High Court
Chirashree Das Gupta vs Amitabh Das S/O Late Punyanand Das on 21 August, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.2113 OF 2012
BETWEEN:
CHIRASHREE DAS GUPTA
D/O DEBSHISH DAS GUPTA
AGED ABOUT 40 YEARS,
OCC:SERVICE
R/A GANGA VILLAGE APARTMENT
3RD FLOOR, B.M.DAS ROAD,
P.S.PIRBAHORE, TOWN & DIST PATNA,
BIHAR STATE.
... PETITIONER
(BY SRI: N.KHETTY, ADVOCATE FOR
SMT: AKKAMAHADEVI HIREMATH, ADVOCATE)
AND
AMITABH DAS
S/O LATE PUNYANAND DAS
AGED ABOUT 40 YEARS,
FOUNDER AND CEO VATI CONSULTING PVT LTD
INFOMART TECH PARK,
NO.99, 1ST FLOOR, 5TH CROSS,
5TH BLOCK, KORAMANGALA,
BENGALURU -95.
... RESPONDENT
(BY SRI: SHARATH MULIA, ADVOCATE)
2
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED 05.03.2011 IN C.C.NO.8002/2011
AND QUASH THE PROCEEDINGS PENDING ON THE FILE OF THE
VIII A.C.M.M., BANGALORE.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
The petitioner is accused No.1. She has been summoned to appear before the VIII Additional Chief Metropolitan Magistrate at Bengaluru in C.C. No.8002/2011 to answer the charges under Sections 499 and 500 of the Indian Penal Code. The petitioner has sought to quash the said proceedings in exercise of the powers under Section 482 of Cr.P.C.
2. Heard learned counsel for the petitioner and the learned counsel appearing for the respondent.
3. The learned counsel for the petitioner submits that the only allegation made against the petitioner is that she issued a notice through her counsel accused No.2. There are no allegations that she intended to malign the name of 3 the complainant. According to the complainant, the said notice was addressed to his office address. There are no averments in the private complaint that the said letter has been read by any one other than the complainant. Even in his sworn statement no such allegation was made. The complainant did not examine any independent witness to show that the contents of the registered notices were read or circulated or published to any outsiders so as to constitute the offences punishable under Sections 499 and 500 of the Indian Penal Code. Without considering any of these aspects, merely on the basis of a self serving statement of the complainant, the learned Magistrate has issued summons to the petitioner to face trial for the alleged offences.
4. The learned counsel further submits that undisputedly the petitioner is a resident of Patna, Bihar. The trial Court has not conducted any enquiry as contemplated under Section 202 of the Cr.P.C. before issuance of the summons. Therefore, on this count also the 4 impugned proceedings are vitiated and are liable to set aside. He further submitted that no list of witness were enclosed to the private complaint indicating that the contents of the notice were not published or had not come to the knowledge of any third party. As such, the constituents of the alleged offences were not made out and hence the issuance of the summons and the consequent proceedings initiated against the petitioner is an abuse of the process of Court and is liable to be quashed at the hands of this Court.
5. In support of his argument, the learned counsel has placed reliance on the decision of the Bombay High Court in Sukhdeo Vithal Pansare vs. The State of Maharashtra,(1974) 76 BOMLR 507.
6. Refuting the above contentions, the learned counsel for the respondent submits that the complainant was a CEO of a reputed company and the impugned notices were addressed to the official address of the complainant. 5 Since they were addressed to the office address of the complainant, they were meant to be opened by the employees, and as such, the contents of the notice were deliberately made known by the petitioner by sending the notice to the official address of the complainant. Further he submits that inspite of knowing that the complainant is not involved in the affairs of his employees, he was dragged into the alleged controversy making false and baseless allegation that he was harbouring the employee which amounts to defamation within the meaning of Section 499 IPC and therefore the trial Court has rightly taken cognizance of the said offence and issued summons to the petitioner. Hence he seeks for dismissal of the petition.
7. In support of his argument, the learned counsel for the respondent has placed reliance on the decision of the Hon'ble Supreme Court in the case of Shatrughna Prasad Sinha vs. Rajbhau Surajmal Rathi and others reported in (1996) 6 SCC 263 and M N Damani vs. S K Sinha and others reported in (2001) 5 SCC 156. 6
8. Considered the submissions. Perused the impugned order in the context of the averments made in the private complaint and the proposition of law laid down in the decisions cited at the bar.
9. The complainant claims to be a highly qualified and well reputed professional entrepreneur enjoying tremendous goodwill in society and in the global I.T. and I.T.E.S. fraternity worldwide. According to the complainant, he is the founder and CEO of the company which he set up and established in the year 2003 with a mission to provide customized, end-to-end hiring solutions to organizations. The grievance of the complainant as disclosed in the private complaint at para 10 reads as under:
"The accused are fully aware that the complainant or his company are in no way concerned or involved with the personal disputes inter-se between the accused No.1 and her ex- husband, the said Sayan Jyoti Gupta. However, with malafide intent and with a view to 7 intimidate and defame the complainant and his company, the accused No.1 caused to be issued through accused No.2 a series of notice(s) / rejoinder(s) / reply(ies) to the complainant with his official designation as CEO of the company at the office address with the only intention to lower the complainant and his company's reputation in the estimation of the company's employees."
(underlining supplied)
10. In his sworn statement, the complainant has reiterated the above allegations and has stated thus:
" Then in the month of October, 2010, I got a legal notice from accused No.1 and accused No.2 who is a lawyer of accused No.1 intimating me that I am harbouring an offender in whose name there is a case pending in Patna court. I ignored that letter and advised my employee to handle these personal affairs. Subsequently in December 22nd of 2010 my employee was arrested from the office and he was taken to the police station. I went to the police station with an advocate to enquire about what happened.8
Subsequently my employee was released on bail by Patna court in 7.1.2010. On 17.01.2010 accused No.1 and her lawyer sent me another legal notice stating that not only I am harbouring offender, for which various criminal cases can be instituted against me, but I am also assisting him, because I went to the police station at the time of his arrest. In that letter it was also mentioned that I need to take action against my employee, otherwise they will file cases against me in Patna and various courts. My advocate replied that this is a personal matter of my employee and as a social responsibility, I went to the police station to enquire about the my employee, no where I am harbouring offender. The very fact that you are communicating with my employee in my official address and arresting him in December 2010 means that you were aware that where he was, just because I do not heed your intimidation and firing my employee, you are causing mental stress to me which is hampering my business, you are defaming me in the eyes of my employees and the business, because all the communication is sent to me as CEO and founder of my company and to my 9 official address, which can be opened by anybody in the company. All these repeated legal notices and rejoinder and replies have now become a point of discussion among my employees and the business people whoever got to know about it. I would also like to state that as a company policy we do not interfere in any employees personal matters and especially when there is something sub-judis".
(underlining supplied)
11. The question for consideration is, "Whether the aforesaid contents of the legal notice issued by the petitioner constitute the offence of defamation under Section 499 of IPC?"
12. Section 499 of the IPC reads as under:
"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 cases hereinafter expected, to defame that person.10
Explanation 1.--It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2.--It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3.--An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4.--No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful."
13. The essence of Section 499 of IPC is the publication of imputations concerning any person with the intention to harm, knowing or having reason to believe that such imputations will harm the reputation of the person and they must be made or published to any person other than the person concerning to whom it is written or made. 11
14. "Publication" has been explained by the Bombay High Court in the above decision cited by the learned counsel for the petitioner and it is stated therein -
"What is publication? Making a defamatory matter known after it has been written to some person other than the person for whom it is written is a publication in its legal sense. A defamatory matter must, therefore, be communicated to some person other than the person concerning whom it is written.
Communicating a defamatory matter to the person concerned only cannot be said to be a publication."
15. What can be gathered from the above averments is that the grievance insofar as the present petitioner is concerned is that she sent the notices through accused No.2, to the office address of the complainant with a view to damage the reputation of the complainant. 12
16. It is not the case of the complainant that the contents of the legal notice sent by the petitioner were "published" by her to any person other than the complainant. According to the complainant, the notices were sent through post to his registered address. It has to be presumed that when a registered notice is sent to the last known address, it is meant to be opened and read by the person concerned and not by any other person. In the absence of any allegation that such letters were in fact opened and read by the employees or any other persons other than the addressee, the complainant cannot contend that the petitioner had any intention to make a "publication" of the said contents of the notice to any outsiders. The complainant has not even examined any of his employees to show that the letter sent by the petitioner were opened by any of his employees and they had read the contents thereof. As a result, there was no "communication" or "publication" of the contents of the said 13 notices/complaints within the meaning of Section 499 of IPC.
17. Even with regard to the contents of the notice, I do not find anything offending therein, in so far as the petitioner is concerned so as to attract the offence under Section 499 of the Indian Penal Code. Going by the assertions made by the complainant, the allegation made in the said notice that the petitioner was "harbouring offender in whose name there is a case pending in Patna High Court"
is defamatory in nature. Of course, no material is produced before this Court or before the trial Court to show that the said statement is a false statement. Even assuming that the complainant was not harbouring any of the person, or any of his employee as alleged in the notice, yet in the absence of any material to show that the said statement was made with an intention to defame the petitioner, in my view the rigors of Section 499 do not get attracted.
Furthermore, the case of the complainant is that the 14 petitioner herein has made the said statement on behalf of his employee viz., Sayan Jyothi Gupta, ex-husband of petitioner/accused No.1 and therefore the said imputations cannot be personally attributed to the complainant.
Therefore, viewed from any angle, I am of the view that the averments made in the private complaint and the statements made in the sworn statement of the complainant do not make out the ingredient of the offences under Sections 499 and 500 of the Indian Penal Code in so far as the petitioner is concerned.
18. It is also necessary to note that the petitioner is a resident of Bihar State. Section 202 of Cr.P.C. cast a mandatory duty on the Court to hold an enquiry before issuance of process, when the accused is residing at a place beyond the area in which the Court exercises its jurisdiction. There is nothing in the impugned order to indicate that the learned Magistrate has conducted any enquiry as contemplated under Section 202 of the Cr.P.C. In any case, the complainant himself having failed to make 15 out that the allegations contained in the legal notice issued by the petitioner were defamatory in nature and that they were made/published with an intent to harm reputation of the complainant, in my, view the prosecution of the petitioner is wholly illegal and cannot be sustained. In the above circumstances, continuation of the proceedings against the petitioner is an abuse of the process of law and therefore liable to be quashed. Accordingly the petition is allowed. The proceedings in C.C. No.8002/2011 in so far as the petitioner is concerned are hereby quashed.
Sd/-
JUDGE *mn/-