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.14652/2012
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.14652/2012
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.14652/2012
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 the accused got
published two defamatory articles in the Weekly
Kannada Tabloid 'Agni' on 03-03-2011 and 10-03-
2011, in which false and bald allegations are made
against him, 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 CC No.14652/2012
4. The complainant in order to prove his case
examined in all 3 witnesses as PW1, 2, 3 and
produced documents as per Ex.P1 to 7. The statement
of accused, as required U/S.313 of Cr.P.C. was
recorded, wherein he has denied the incriminating
evidence. Thereafter, the accused examined himself as
DW1 and produced documents as per Ex.D1 to 8.
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
5 CC No.14652/2012
blogspot.com titled as "Its shame to talk - crime to
express, life threat from DCP Ravikanthegowda and
Ward 8 Corporater Aswathnarayana Gowda" and also
published two defamatory articles in Agni Weekly
Kannada Magazine, only 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 also improved his version regarding alleged
defamatory allegations by the accused made before
various public authorities and also published in his
personal blog and publication of articles in the Agni
Kannada Weekly Magazine on 03-03-2011 and 10-03-
2011, which are false and vexatious, with an intention
to damage his image among his friends and family
members.
6 CC No.14652/2012
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 and also two articles dated 03-03-2011
and 10-03-2011 published in Kannada Agni Weekly
Magazine.
11. PW2 Hanumanthaiah is the witness on
behalf of complainant. He deposed that the accused
with enemity to damage the image of complainant has
made publications in Agni Newspaper at Ex.P1 and 2.
The same was distributed by the accused to him. After
reading the articles, he has informed to the
complainant. After publishing the articles, the image
of complainant has been lowered in the society.
Because of that reason, he has defeated in the
elections. The complainant did nothing as published in
Ex.P1 and 2 articles. He further deposed that the said
publications were distributed by accused to other
persons and also through website.
12. PW2 was also cross-examined by the
accused himself. It is elicited that the accused is not
running Agni Newspaper, he does not know as to who
is the owner of said newspaper. He also admits that
7 CC No.14652/2012
there is no document to show that the accused has
published the Ex.P1 and 2 articles, except photo of
accused in the said article. He has read the disputed
article. He does not know as to in which edition, he
has read. Except front page, he has not read the article.
13. PW3 Mohanraju is another witness in
support of the complainant. He speaks regarding the
image of complainant in the public and his reputation
in the society. Because of dispute arose with the
complainant, when the BBMP tried to clean the
drainage in front of house of accused, the accused
made false publications in the Agni Newspaper on 03-
03-2011, 10-03-2011 and also in the Face Book as
well as Website. According to this witness, the
accused, his brother and others have distributed the
magazine to the houses at Kodigehalli,
Vidyaranyapura Ward. After reading the articles, the
people asked him, thereafter the image of complainant
in the eye of public has been lowered. PW3 is also
cross-examined by the accused in person.
14. 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
8 CC No.14652/2012
publication of articles in the internet as well as Agni
Magazine. The learned counsel for complainant has
cross-examined the accused at length in respect of
various instances and complaints. The accused has got
marked documents at Ex.D1 to 8 on his behalf.
15. 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
9 CC No.14652/2012
must justify his plea on the basis of preponderance of
probabilities.
16. 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" and also
alleged publication of defamatory articles in the
Kannada Weekly Tabloid 'Agni' on 03-03-2011 and
10-03-2011. Therefore, it is incumbent upon the
complainant to establish that the accused was
responsible and made above said defamatory articles
against him.
17. Ex.P1 and 2 are the alleged Kannada Weekly
Tabloid 'Agni' dated 03-03-2011 and 10-03-2011
respectively, in which the complainant and accused
photo were published along with alleged imputations
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. On perusal of Ex.P1 and 2, alleged
10 CC No.14652/2012
defamatory articles, it is mentioned that one
Guruprasad.B.S. is shown as reporter. The said
Guruprasad - reporter, editor and publisher are not
arraigned as accused or examined as witnesses to
show that the accused has supplied material to them to
publish defamatory articles against the complainant.
Therefore, in the absence of material evidence, it
cannot be said that the accused either published or
responsible for the disputed defamatory articles
against the complainant at Ex.P1 and 2 in Kannada
'Agni' Weekly Tabloid.
18. The complainant has withheld the material
evidence of reporter, editor and publisher of Kannada
'Agni' Weekly Tabloid, for the best reasons known to
him. Merely because the photo of accused is published
in the said articles and accused had made several com-
plaints against complainant before different forums, wou-
ld not be presumed that the accused is responsible for
the imputations in the publications at Ex.P1 and 2.
19. Ex.P3 is the FIR in Crime No.247/2011,
which was registered against accused under Section
66A of IT Act, for having published the defamatory
article in blogspot.com. Ex.P4 is the true copy
11 CC No.14652/2012
of forensic report dated 11-12-2013, 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.P4 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.
20. The complainant has produced Ex.P5 and 6
stated to be the newspaper articles by name Yuva
published by the accused. But there is no pleading in
the complaint about these two documents. In the
cross-examination of DW1, the complainant has asked
about various complaints filed by accused against the
complainant and that the same was closed due to the
non-appearance of accused before the concerned
authority. He has also averred in the complaint at para
6 the defamatory letter dated 18-10-2011 written by
the accused and its circulation. But no materials are
marked before the court. In the absence of cogent
evidence on record from the complainant to establish
that the accused has posted defamatory article in
blogspot.com and that the accused is responsible for
12 CC No.14652/2012
report, publication of defamatory articles against the
complainant in Kannada Weekly Tabloid 'Agni' at
Ex.P1 and 2, it cannot be said that the accused has
committed an offence under Section 500 IPC.
21. If at all the accused had admitted the posting
of defamatory article in blogspot.com and in Kannada
Weekly Tabloid 'Agni' at Ex.P1 and 2, 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.
22. 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.P1
and 2 articles are defamatory had printed them. The
accused is admittedly not the printer of 'Agni' Weekly
Kannada Tabloid. Moreover neither he is a reporter,
publisher nor editor of said magazine. As such the
question of printing, engraving any matter knowing or
having good reason to believe that such matter is
defamatory of any person is not attracted to the
13 CC No.14652/2012
accused, so as to punish him for the offence of Section
501 IPC.
23. 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.P1
and 2 material are defamatory, that the published
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.
24. PW1 to 3 in their evidence deposed that
accused distributed 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
distributed the alleged Ex.P1 and 2 to the public. PW1
to 3 are interested witnesses, no other person who
received the defamatory articles from the accused of
14 CC No.14652/2012
Kodigehalli or Vidyaranyapura Ward are made as
witnesses or examined before the court. Thus, the
offence of Section 502 IPC is also not proved by
prosecution. 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 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.
15 CC No.14652/2012ANNEXURE
1. List of Witnesses examined on behalf of the prosecution:-
PW1 : Aswathanarayanagowda PW2 : Hanumanthaiah PW3 : A.Mohan Raju
2. List of Documents marked on behalf of the prosecution:-
Ex.P1, 2 : Publications in Agni Newspapers Ex.P3 : True copy of FIR No.247/11 of Kodgiehalli PS. Ex.P4 : FSL Report (true copy) Ex.P5,6 : Yuva Weekly Newspapers Ex.P7 : 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 Witness
summons given by Karnataka Lokayuktha 16 CC No.14652/2012 Ex.D2 : Judgment in CC No.25314/2011 (certified copy) Ex.D3 : Charge sheet in CC No.25314/11 (certified copy) Ex.D4 to 6 : Photographs Ex.D7 : Records in CC No.4141/15 (certified copies) Ex.D8 : Newspaper publication C.M.M., BENGALURU.17 CC No.14652/2012
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.