Bangalore District Court
Ashwathanarayana Gowda vs K.N.Jagadesh Kumar on 10 September, 2018
IN THE COURT OF THE CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Dated this the 10th day of September 2018
Present:
Sri S.Nataraj, B.A.L., L L.B.,
Chief Metropolitan Magistrate,
Bengaluru
C.C. No.15186/2012
Complainant : Ashwathanarayana Gowda
S/o Gowdappa, Aged about
37 yrs, Member BBMP,
Ward No.8, R/at No.E-104,
Kodigehalli, Bengaluru-92.
(By C.H.Hanumantharaya and Associates)
-V/s-
Accused : K.N.Jagadesh Kumar
S/o Late B.Narayana Swamy,
R/o No.530, Sai Nilaya,
Kodigehalli, Sahakarnagar
Post, Bengaluru-92.
(In person)
Date of offence : Since February 2011
2 CC No.15186/2012
Offences : U/S 500, 501, 502 of IPC
Plea of the accused : Accused pleaded not
guilty
Final order : Accused Acquitted
Date of Judgment : 10-09-2018
*****
-: J U D G M E N T U/S 355 of Cr.P.C. :-
The complainant Ashwathanarayanagowda has
filed this private complaint under Section 200 and 190
of Cr.P.C. to take action against accused for the
offences punishable under Section 500, 501, 502 of
IPC.
2. The brief facts of the case of complainant are
that he is a public personality and engaged in public
welfare duties and was chosen by the BJP National
Party as a candidate for the BBMP Election of 2010
and working as Sitting Councilor of BBMP Ward
No.8, Kodigehalli, Bengaluru. That on 18.02.2011,
when the accused caused huge scuffle in Ward No.9,
the local authorities had gone there to lay sewage lines
3 CC No.15186/2012
and that the accused having maintained revenge
against the complainant, started making baseless, bald
and defamatory allegations against the complainant in
every available forum and institutions including
Lokayukta, published defamatory article on the
website in his personal blogspace hosted on
blogspot.com, wherein the said article was titled as -
"Its Shame to Talk-Crime to Express, Life threat from
DCP Ravikanthe Gowda & Ward 8 Corporater
Ashwathanarayana Gowda" and also made bald
allegations against the BBMP, in order to damage the
image of complainant in the society. Thereby, the
accused committed the alleged offences.
3. Accused is on bail. After furnishing
complaint copies, on the basis of materials placed
before the court, plea for the alleged offences was
read over and explained in the language known to
him. The accused pleaded not guilty and claimed to be
tried.
4. The complainant in order to prove his case
examined in all two witnesses as PW1, 2 and
produced documents as per Ex.P1 to 15. The
statement of accused, as required U/S.313 of Cr.P.C.
4 CC No.15186/2012
was recorded, wherein he has denied the incriminating
evidence and stated that this case would attract double
jeopardy. Thereafter, the accused examined himself as
DW1 and produced documents as per Ex.D1 to 10.
5. Heard arguments on both sides.
6. The points that arise for my consideration are-
1) Whether the complainant
proves beyond all reasonable
doubt that the accused
committed the offences
punishable under Section 500,
501 and 502 of IPC?
2) What order?
7. My answer to the above points are as under.
Point No-1 : In the Negative
Point No-2 : As per final order
REASONS
Point No-1:
8. The complainant case is that the accused had
made baseless and bald defamatory allegations against
him and published in his personal blogspace hosted on
blogspot.com titled as "Its shame to talk - crime to
express, life threat from DCP Ravikanthegowda and
Ward 8 Corporater Aswathnarayana Gowda", only
5 CC No.15186/2012
with an intention to cause harm to the reputation of
complainant without any reasonable grounds or truth.
The said defamatory statements and imputations are
made with an intention to damage his image and his
political career, which caused great embarrassment to
the complainant in the eyes of his family and friends.
As such the complaint is filed against the accused.
9. The complainant in his examination in chief
before the court has repeated the complaint averments
and deposed regarding other defamatory allegations
by the accused made before various public authorities,
which are false and vexatious, with an intention to
damage his image among his friends and family
members.
10. The complainant has been cross-examined
by the accused himself and denied the case of
complainant, muchless the article published in the
blogspot.com.
11. PW2 Hanumanthaiah is the witness on
behalf of complainant. He deposed that the accused
with enemity to damage the image of complainant has
posted defamatory articles over the internet. After
reading the articles, the public asked him about the
6 CC No.15186/2012
complainant, as a result of which, the image of
complainant has been lowered in the society. The
accused has also lodged complaints before the
Lokayuktha, Governor, Chief Secretary and BBMP
Commissioner, by making allegations of scandals
against the complainant. Because of those complaints,
the reputation of complainant lowered.
12. PW2 was also cross-examined by the
accused himself. It is elicited that himself and
complainant belongs to same place, he is not in
talking terms with the accused, the accused has also
lodged complaint against him. It is also elicited that he
has not read the internet articles since it is in English,
it was read by his daughter and he cannot say as to the
IP address of the computer, he does not know as to
how many pages the article was posted in internet and
what date the article was posted.
13. The accused in his evidence has deposed
about lodging of complaints against the persons who
are involved in corruption. But he has not admitted the
publication of articles in the internet. The learned
counsel for complainant has cross-examined the
accused at length in respect of various instances and
7 CC No.15186/2012
complaints. The accused has got marked documents at
Ex.D1 to 10 on his behalf.
14. I have carefully considered submissions of
both sides. The complainant first of all to bring home
the guilt of accused has to establish the essential
ingredients of Section 499 IPC, which are as follows -
1) making or publishing any imputation
concerning any person,
2) such imputations must have been made by
words either spoken or intended to be read
or by signs or by visible representations,
and
3) the said imputation must have been made
with an intention to harm or with
knowledge or having reason to believe that
it will harm the reputation of person
concerned.
Therefore, the intention to cause harm is the most
essential 'sine qua non' of an offence under Section
499 IPC. Once the accused admits or it is proved that
he is responsible for defamatory statement, the burden
of bringing the case under exception lies on the
accused. Where an accused pleads an exception, he
must justify his plea on the basis of preponderance of
probabilities.
8 CC No.15186/2012
15. In the present case, the accused has not
admitted the publication of articles on blogspot.com
titled as "Its Shame to Talk-Crime to Express, Life
threat from DCP Ravikanthe Gowda & Ward 8
Corporater Ashwathanarayana Gowda". In the
complaint, the alleged defamatory article is extracted
at para 7(a) to 7(h). Therefore, it is incumbent upon
the complainant to establish that the accused was
responsible for posting of said defamatory articles
against him.
16. Ex.P7 is the alleged defamatory article
posted in internet, in which certain allegations are
made against the complainant. Admittedly, the
accused and complainant were earlier friends,
thereafter they were separated. It is also an admitted
fact that the complainant is a political leader
belonging to BJP, who represented Ward No.8 of
Kodigehalli as a Corporater. But no material evidence
is placed before the court to show that accused had
only posted the alleged defamatory articles over
internet. That apart, in the cross-examination of DW1,
he denied Ex.P5 complaint allegations against the
complainant. Therefore, it cannot be said that the
9 CC No.15186/2012
accused either posted or responsible for the disputed
defamatory articles against the complainant at Ex.P7.
17. Merely because the accused had made
several complaints against complainant before
different forums, would not be presumed that the
accused is responsible for the defamatory articles
posted in Ex.P7.
18. Ex.P11 is the FIR in Crime No.248/2011,
which was registered against accused under Section
66A of IT Act, for having published the defamatory
article in blogspot.com. Ex.P12 is the true copy of
forensic report dated 28-03-2013, which was
submitted in the said case. Admittedly the said case
was ended in acquittal and there is no material to
establish that the accused has made article in
blogspot.com. Ex.P12 report is not proved by
examining the person who has issued it. Mere
marking of document as an exhibit by itself does not
prove the contents of document.
19. It is to be noted here that, the complainant
has also averred in the complaint at para 6 the
defamatory letter dated 18-10-2011 written by the
accused and its circulation, which is marked at Ex.P5.
10 CC No.15186/2012
In the cross-examination of DW1, he has denied the
same. In the absence of cogent evidence on record
from the complainant to establish that the accused has
posted defamatory article in blogspot.com at Ex.P7, it
cannot be said that the accused has committed an
offence under Section 500 IPC.
20. If at all the accused had admitted the posting
of defamatory article in blogspot.com, in that
circumstances the onus would be on the accused to
show that those articles would come within any one of
the Exceptions First to Ninth of Section 499 IPC.
Thus, the complainant failed to prove the offence
under Section 500 IPC.
21. It is also alleged by the complainant that the
accused has committed the offence of Section 501
IPC, the accused knowing fully well that the Ex.P7
articles are defamatory had posted them. But there is
no cogent material on record to show that the accused
had only posted the defamatory articles over internet.
First of all posting of defamatory article is not
established. Even otherwise, the question of printing,
engraving any matter knowing or having good reason
to believe that such matter is defamatory of any
11 CC No.15186/2012
person is not attracted to the accused, so as to punish
him for the offence of Section 501 IPC.
22. It is also the allegation against accused for
the offence under Section 502 IPC. The essential
ingredients of said Section are that-
(i) selling or offering for sale any printed or
engraved substance,
(ii) knowing that such substance contains
defamatory matter,
Therefore, the prosecution has to prove that the Ex.P7
material is defamatory, that the posted material was
either printed or engraved and that the accused knew
that such a matter contained defamatory imputation
and the accused sold or offered for sale of the
defamatory matter.
23. PW1 and 2 in their evidence deposed that
accused posted the defamatory articles. But it is not
their case that the accused has sold or offered for sale
of defamatory articles to the public. Even then there is
no cogent evidence that the accused has posted the
alleged Ex.P7 over internet. PW1 and 2 are interested
witnesses, no other person who read the defamatory
articles over internet are made as witnesses or
12 CC No.15186/2012
examined before the court. Thus, the offence of
Section 502 IPC is also not proved by prosecution.
24. That apart in respect of posting of articles
over internet, the case in Crime No.247/11 and 248/11
were registered and the same appears to have ended in
acquittal. Moreover in respect of same posting of
defamatory article over internet, the complainant has
filed another complaint in CC No.14652/2012 on the
file of this court and the same has also ended in
acquittal. Again in this case for the posting of
defamatory article over internet, the complainant has
preferred this complaint, which would be contrary to
Section 300 of Cr.P.C. Therefore, I hold that the
complainant has not established its case beyond all
reasonable doubt and the accused is entitled for
benefit of doubt. In the result, I answer Point No-1 in
the Negative.
Point No-2:
25. In view of my finding to Point No-1 as
above, I proceed to pass the following-
ORDER
Acting under Section 255(1) of Cr.P.C., accused is acquitted of 13 CC No.15186/2012 the offences punishable under Section 500, 501 and 502 of IPC.
The bail bonds of accused shall stand canceled and he is set at liberty.
(Dictated to the Stenographer on Computer. The computerized print out taken by steno is revised, corrected and then pronounced by me in the open court on this day i.e., 10-09-2018) (S.Nataraj), Chief Metropolitan Magistrate, BENGALURU.
ANNEXURE
1. List of Witnesses examined on behalf of the prosecution:-
PW1 : Aswathanarayanagowda PW2 : Hanumanthaiah
2. List of Documents marked on behalf of the prosecution:-
Ex.P1 to 4 : Certified Copies of FIR, Complaint, Charge Sheet and Deposition in Crime No.26/2011 of Kodigehalli P.S. Ex.P5 : Certified copy of complaint lodged by accused Ex.P6 : Letter of BBMP Ex.P7 : Defamatory article on the website in the personal blogspace of accused 14 CC No.15186/2012 Ex.P8 : Certified Copy of Criminal Case Register Extract Ex.P9, 10 : Memos Ex.P11 : Charge Sheet in Crime No.248/2011 (true copy) Ex.P12 : FSL Report (true copy) Ex.P13 : Notice of Karnataka Lokayuktha Ex.P14 : Complaint given by accused to Lokayuktha Ex.P15 : Memo
3. List of Material objects produced:-
NIL
4. List of Witnesses examined & documents marked on behalf of the defence:
Witnesses:
DW1 : Jagadish
Documents:
Ex.D1 : Notarized Copy of Complaint
given to Karnataka Lokayuktha Ex.D2 : Records in PCR No.17214/ 2013 (certified copies) Ex.D3 to 7 : Photographs Ex.D8 : Newspaper publication Ex.D9 : Records in CC No.4141/2015 (certified copies) Ex.D10 : Judgment in CC No.25314/2011 (certified copy) C.M.M., BENGALURU.15 CC No.15186/2012
10-09-2018 Judgment pronounced vide separate sheets.
ORDER Acting under Section 255(1) of Cr.P.C., accused is acquitted of the offences punishable under Section 500, 501 and 502 of IPC.
The bail bonds of accused shall stand canceled and he is set at liberty.
Chief Metropolitan Magistrate, Bengaluru.