Delhi District Court
Manish Kandpal vs Sangeeta Pokhriyal on 6 November, 2023
1
IN THE COURT OF MS. AISHWARYA SHARMA,
METROPOLITAN MAGISTRATE01, DWARKA COURTS, DELHI
CNR No. : 35925/2019
Date of Institution : 26.09.2019
Name of the Complainant : Sh. Manish Kandpal
S/o Sh. Jagdish Chander
R/o 10D, PktI, Sector 7, Dwarka,
New Delhi110075
Name and address of accused : Smt.Sangeeta Pokhriyal,
W/O Sh. Manish Kandpal
D/O Sh. Ganesh Prasad Pokhriyal
R/o 10D, PktI, Sector 7, Dwarka,
New Delhi110075
Also at
Kairos Property Managers Pvt.
Ltd. Candor Tech Space, Ist Floor,
I.T/ I.T.E.S. SEZ, Tikri, Sector 48,
Gurugram122018, Haryana.
Charge framed against accused : U/S 500 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of reserve for orders : 27.10.2023
Date for announcing the orders : 06.11.2023
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The accused is facing prosecution U/S 499/500 Indian Penal
Code, 1860 (here in short called as 'IPC') pursuant to the complaint filed by
Manish Kandpal vs. Sangeeta Pokhriyal
CC No. 35925/ 2019
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the complainant U/S 200 Criminal Procedure Code, 1973 (here in short called
as 'Cr.P.C').
2. In the present complaint, complainant alleged that he got
married to the accused on 10.03.2015 as per Hindu Rites and Ceremonies,
however, since the beginning of their marriage, the accused started
dominating the family of the complainant and misbehaved with the
complainant and his parents, as she was earning much more than the
complainant and was also paying installments of her father's loan. It is further
stated that the accused used to make issues on small matters and create scenes
in their house and also told the complainant to tell his parents to leave their
house immediately, thus, the behavior of the accused forced the complainant
to file petition U/S 13(1)(ia) of Hindu Marriage Act on the ground of cruelty
and various other grounds. It is further the case of the complainant that
subsequent to filing of the aforesaid divorce petition, accused started creating
scenes and made a defamatory, derogatory and malicious complaint dated
22.06.2019 against the complainant to Sh. L Gurumurthy, Returning Officer
of the Institute of Cost Accounts of India (ICAI) at CMA Bhawan 12, Sudder
Street, Kolkata700 016 and also at the Delhi address i.e. CMA Bhawan
Lodhi Road, Institutional Area, Delhi110003. It is further stated that the
accused even wanted to get the membership of the complainant canceled. It is
also stated that the complainant was shocked that the accused in letter dated
22.06.2019 even called him 'mentally unstable, seeks dowry, blackmail
people for personal gain and commits violence against women and supports
female feticide'. It is further stated that the said false, defamatory, derogatory
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and malicious imputation were made by the accused with the intention that
the same would hamper the election prospects of the complainant in his
institute and further the sole motive of the accused was to defame, humiliate
and disgrace the complainant and even the complainant was forced to receive
some uncalled for and derogatory comments on 26.06.2020 and 27.06.2020,
subsequent to the circulation of the letter dated 22.06.2020, from some
members of the institute who did not want the complainant to contest the
election and they started calling the complainant by obnoxious and
humiliating names. It is stated that such type of comments were made by the
members of the institute at the instigation of the accused which has seriously
damaged and tarnished the image of the complainant before the members of
his institute and also hampered his future career prospects. It is stated that the
sole and exclusive intention of the accused is to destroy and defame the
reputation of the complainant and tarnish his good image before the public at
large and the accused has published the said imputation knowingly and
intentionally just to harm the reputation of the complainant and to lower his
image in the eyes of the people and defame him in the society at large. With
these allegations present complaint has been filed with the prayer that the
accused Ms. Sangeeta be summoned, tried and punished for offence
punishable U/S 500 IPC.
PRESUMMONING EVIDENCE
3. The complainant has examined only himself in pre
summoning evidence. After considering the pre summoning evidence,
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accused was summoned to face the trial for the offence U/S 499/500 IPC
vide order dated 15.10.2020. It is pertinent to point out that the accused had
assailed the summoning order even before Hon'ble High Court admitting that
she had sent complaint/letter dated 22/06/2019 against the accused to the
returning officer L Gurumurty through Email but it's contents are not
defamatory or derogatory and Hon'ble High court vide order dated
17.08.2021 upheld the summoning order.
NOTICE FRAMED U/S 251 Cr.P.C.
4. Upon appearance of the accused, the copy of complaint and
documents were supplied to the accused. Thereafter, notice under section 251
Cr.PC was served upon the accused vide order dated 18.05.2022 U/S 500 IPC,
to which the accused pleaded not guilty and claimed trial. Thereafter, the
matter was listed for postnotice complainant's evidence.
POST NOTICE COMPLAINANT'S EVIDENCE
5. In his post notice evidence, the complainant stepped into the witness
box as CW1 and deposed that he is a Cost Accountant registered with
Institute of Cost Accounts of India (ICAlKolkata), which is having regional
office in Delhi and Head Office in Kolkata). He deposed that he got married
to the accused in the year 2015 and he was contesting the election of Northern
India Regional Council of the Institute of Cost Accounts of India in the year
2019, which was scheduled to take place on 28.06.2019 and on 22.06.2019,
Accused Sangeeta (his wife) filed a complaint dated 22.06.2019 Ex. CW1/A
in Delhi office as well as Kolkata office of ICAI simultaneously. He deposed
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that accused Sangeeta wrote this letter to ICAI at Delhi as well as Kolkata
primarily to defame him in the eyes of his colleagues, seniors and members of
the profession and on 26.06.2019 and 27.06.2019, it was also circulated
through WhatsApp, Gmail as well as other modes of social media, record of
which is Ex.CW1/B (colly). He further deposed that the basic contents
written in the letter dated 22.06.2019 Ex. CW1/A by the accused was that "I
am a person of unsound mind, mentally unstable and promote female
feticide". He further deposed that thereafter, he received telephonic calls
continuously from member of his profession, they started making fun of him
and that really hampered his career and image in the society at large. He also
stated that subsequently, the members started sending messages regarding
boycott of his candidature for the Regional Council Members of the election
of his Institute after reading this complaint Ex.CW1/A in the WhatsApp group
of members of the profession, which is having approximately 200 members.
He additionally deposed that even till date whenever he visits his clients, he is
subjected to questioning about the defamatory letter dated 22.06.19 sent by
the accused to his Institute and when he visited one of his clients in August'
2019, he questioned him about letter Ex. CW1/A and further asked him that
"if he could not manage my personal life, how could he be able to complete
the professional assignments". He stated that the accused wanted him to be
unemployed and also wanted his membership No. 33796 to be cancelled from
the roll of Institute of Cost Accountants of India and she also wanted his
nomination bearing Ballot No. 9 in the election to be cancelled. He also stated
that prior to the elections, accused called many of his friends stating that the
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complainant has been demanding dowry from the accused and his family is
also harassing the accused and she also told his friend namely Mahesh Giri
that if Ex. CW1/A as well as Ex.CW1/B was circulated earlier, it would have
given more impact. Thereafter, CW1 was crossexamined by the accused at
length.
6. During his crossexamination, CW1 stated that he had completed his
course of Cost Accountant in August 2010 and is doing independent practice
from March, 2013. He admitted that before filing of the present complaint, he
had filed for divorce petition before Ld. Family Court, Dwarka Court. This
witness admitted that in his deposition dated 24.08.2022, he has mentioned
that whenever he visited his clients professionally, he was questioned about
defamatory letter dated 22.06.2019 (Ex.CW1/A), but he has not mentioned
this fact in his complaint and he further also stated that he is still facing
humiliation at his professional work place. He also admitted that though he
had deposed in post notice evidence that accused Sangeeta had written letter
Ex. CW1/A to defame him in the eyes of his colleagues, seniors and member
of profession, however, he has not mentioned this fact in his complaint. He
also admitted that the fact that in August, 2019, he was told by his client with
reference to letter Ex. CW1/A that if he could not manage his personal life, he
could not be able to complete the professional assignments, as deposed in post
notice evidence, is not mentioned in the complaint. He also admitted that this
fact is also not mentioned in his complaint that accused called her friends and
told them that he has been demanding dowry and his family is harassing him
Manish Kandpal vs. Sangeeta Pokhriyal
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though it has been deposed by him in post notice evidence. He denied the
suggestion that he had made improvements in his testimony to fill up the
lacunas. He admitted that Mr. Mahesh Giri is associated with him in M/S MM
& Associates, and also stated that he is common friend of complainant and
accused. He also admitted that he had won the election but he stated that he
cannot tell whether he had won the election by convincing margin. He
admitted that he had not disclosed this fact in his complaint, however, he
denied that he deliberately did not disclose it to falsely implicate the accused
in this case. He admitted that his name and details of the complaint dated
22.06.2019 are not mentioned in the print out of one email filed along with
the complaint case i.e. Ex.C1/DA. He also stated that he got to know about
the complaint Ex.CW1/A on 22.06.2019 or 23.06.2019 through one of the
member namely Mr. Suraj Nathani (CMA), however, he admitted that he had
not mentioned this fact in present complaint. He also stated that Mr. Suraj
Nathani had telephonically informed him that accused Sangeeta had called
him and informed that she had lodged a complaint against him and also stated
that after 22.06.2019, she called to many of his known members of the CMA
profession that she has filed complaint against him. He further stated that he
got the information about the complaint Ex. CW1/A through his friend Suraj
Nathani as well as through social media i.e. What's App. He admitted that in
his complaint, there is no mention as to how he had obtained the printout of
complaint Ex.CW 1/A through social media i.e. What's App. He stated that
during June 2019, there were approximately 200 members in a What's App
group by the name of East Delhi Study Circle and he was also member to this
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group and further stated that he got the print out of Ex. CW1/A from his own
mobile.
7. This witness was also shown one pen drive Ex.CW1/X, however, it's
production was objected on the mode of proof and the objection was accepted
by Ld. Predecessor and thereafter, the contents /documents of pen drive were
shown to the witness wherein he admitted that one video Ex. CW1/XA is the
same video which he has filed in his divorce petition and it has been shot in
his bed room. He also admitted that he can be seen in Photographs Ex.
CW1/XB, however, stated that he cannot admit or deny if this photograph has
been taken from their bed room or not. He denied that in photographs Ex.
CW1/XB, one CCTV Camera can be seen on the wall of the room. He
admitted that he is visible in video Ex. CW1/XA and this video is one of the
three bed rooms in his house. He also admitted that he can be seen in video
saved in Pen Drive Ex. CW1/X as 3_video_devi.avi. He admitted that around
June, 2019 there were CCTV Cameras installed in their house, however, he
denied that CCTV Camera was installed in his bed room. He also denied
having knowledge of login and password credentials of phone numbers, LIC
Policy and HDFC Bank account of accused since 14.03.2016.
8. He further deposed that he received soft copy of complaint
Ex.CW1/A through social media on 26.06.2019. He admitted that he had not
obtained the screen shot showing the soft copy of complaint Ex.CW1/A
through his mobile nor he had filed such screen shot along with his complaint.
He also admitted that he was connected with the WhatsApp group namely
Manish Kandpal vs. Sangeeta Pokhriyal
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East Delhi Study Circle much prior to 22.06.2019 but he had not filed the
screen shots of such WhatsApp group before 27.06.2019. He also stated that
he is not aware, if any conversations were being exchanged amongst the
group members from 22.06.2019 till 27.06.2019. He also stated that he does
not know whether the accused was member of both the abovementioned
WhatsApp groups viz. East Delhi Study Circle and CMA Power Gam. He
admitted that he and the accused have different degrees of qualification, as he
is Cost Accountant and the accused is Company Secretary. He also admitted
that both of them have registered from different institutions. He denied the
suggestion that that the screen shots Ex.CW1/B (colly) and Ex.CW1/XD
have not been taken from his mobile. He admitted that in the month of June
2019, the Head Office of his institute was situated at Kolkata. He stated that
the complaint Ex.CW1/A was filed at Delhi office as well as Kolkata office
be he is not aware whether the Returning Officer of the Institute was having
his office at Kolkata or at Delhi. He admitted that during June'2019, the
accused was staying with him at her matrimonial home. He denied that he
had insisted the accused to inform him about the login ID details as well as
password of her bank Account, LIC, Mobile which was conveyed to her
through e mail Ex. CW1/XE. He admitted that he had not received the
complaint Ex. CW1/A officially from any source. The complainant was also
shown bank statement of the accused i.e. Ex. CW1/XF and he admitted that
the complainant had transferred some amount to his sister, his mother and the
complainant and stated that since they were residing together they were
making transaction with each other. He denied the suggestion that the
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contents of letter Ex. CW1/A is not defamatory and he has wrongly mis
interpretated the same for filing this complaint. He also denied the suggestion
that he has filed this complaint to pressurize the accused to give divorce by
mutual consent. He further denied the suggestion that letter Ex. CW1/A was
not circulated by the accused to public at large.
9. No other witness was examined by the complainant at the stage of
post notice evidence, accordingly, the complainant's evidence was closed on
04.08.2023 vide separate statement of the complainant recorded regarding
closure of CE.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.
10. Statement of accused Sangeeta Pokhriyal U/S 313 Cr.P.C. was
recorded on 24.08.2023 in which all incriminating circumstances appearing in
evidence were put to her wherein she admitted that she had written letter Ex.
CW1/A dated 22.06.2019 to RO, ICAI Kolkata and sent the same through e
mail, however, she denied that she circulated this letter on whatsapp group of
East Delhi Study Circle and whatsapp group of CMA Power, GAM,
screenshots of which are Ex. CW1/A (Colly) & Ex.CW1/XD (Colly). She
also denied that she had circulated this letter through e mail ID imbhasin19@
gmail.com to other members of CMA on 26.06.2019, print out of which is
Ex.CW1/DA. She also stated that her husband was aware that she was going
to file such complaint against him and she has filed the same on Email ID of
ICAI Kolkata, but she is not aware as to how this complaint got circulated.
She also stated that complainant has filed this complaint against her as she is
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contesting the divorce petition filed by him. Accused opted not to lead
defence evidence.
FINAL ARGUMENTS
11. Ld. Counsel for the complainant ambitiously argued that the
complainant has successfully proved his case against the accused as
admittedly the accused had filed the complaint with ICAI Kolkata through E
mail and the same amounts to publication and the contents of the complaint
itself discloses that it was defamatory and accused has done so with the
knowledge that imputation made by her in the complaint will harm the
reputation of the complainant and further, her case is not covered under any
of the exceptions. Ld. Counsel for the complainant concluded his arguments
stating that the complainant has successfully established all the ingredients of
section 499 Cr.P.C, hence, the accused is liable to be convicted U/S 500 IPC.
In support of his submissions, Ld. Counsel for complainant has also relied
upon case titled as 1) Dixon v Holden, 1869 (Vol.VII) 2) Harnold v.King
Empror, 1914 Law Suit (Privy Council L.B) 3) Kanwar Lal v State of
Punjab, AIR 1962 Supreme Court 1317 4) G. Chandra Shekhar Pillai v K.
Karthekeyan, 1964 (2) Crl. L.J. 549 Kerala High Court 5) Chaman Lal v
State of Punjab (1970) 3 SCR & 6) Sanjay Mishra Vs. Govt. of NCT of Delhi
189 (2012) DLT.
12. On the contrary, Ld. Counsel for accused clamored for her acquittal
on the ground that complainant has miserably failed to establish the essential
ingredients of the offence U/S 499 IPC as he has failed to establish that there
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was any publication of the complaint Ex.CW1/A by the accused and the
factum of filing of this complaint with ICAI is also not established as
requisite certificate U/S 65 B of Indian Evidence Act is not annexed with the
screen shots filed on record. He also argued that the contents of Ex. CW1/A
are not defamatory and it is covered under exception 1 st and 8th under Section
499 IPC as the contents of the complaint Ex. CW1/A are true as the accused
was subjected to domestic violence and was blackmailed by taking her
intimate pictures by a camera installed in her bed room and she was
physically and mentally tortured to transfer a part of her salary to complainant
and to his mother's account and the complaint was made against the Accused
to his Lawful Authority. At last, Ld. Counsel for accused has argued that there
are material improvements in the testimony of CW1, thus, the same is liable
to be rejected as whole and cannot be made ground for convicting the
accused. In support of his submissions Ld. Counsel for accused has relied
upon one judgment of Hon'ble Apex Court in case titled Subramaniam
Swamy v Union of India (2016) 7SCC 221.
FINDINGS:
13. I have bestowed my thoughtful consideration to the rival
submissions made before me and have perused the record carefully. The
accused has been indicted for the offence U/S 499/500 IPC.
14. The offence of defamation is defined under section 499 of the IPC,
which provides as follows:
Manish Kandpal vs. Sangeeta Pokhriyal
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"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.
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"
15. Punishment for the offence of defamation is provided under
Section 500 IPC as follows:
"500. Punishment for defamationWhoever defames another shall be
punished with simple imprisonment for a term which may extend to two
years, or with fine, or with both"
16. The offence of defamation consists of three essential ingredients,
namely,
(1). Making or publishing an imputation concerning a person,
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(2). such imputation 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 the intention of harming
or with the knowledge or having reason to believe that it will harm the
reputation of the person concerned.
17. The onus to prove these ingredients was upon the complainant as it is
the duty of the prosecution to stand on it's own legs and to prove the case
against the accused beyond any reasonable doubt as the original onus never
shifts unless exception is pleaded as held by Hon'ble Apex Court in
Harbhajan v State of Punjab, AIR 1966 SC 97.
18. The sinequanon for the offence of defamation is "harm to
Reputation". The term reputation was defined in the case titled as Kiran Bedi
v. Committee of Inquiry, (1989) 1 SCC 494, by the Hon'ble Apex Court of
India in the following manner:
"...It is stated in the definition that legally the term "person"
includes not only the physical body and members, but also every
bodily sense and personal attribute, among which is the
reputation a man has acquired. Blackstone in his Commentaries
classifies and distinguishes those fights which are annexed to the
person, jura personarum, and acquired fights in external objects,
jura rerum; and in the former he includes personal security,
which consists in a person's legal and uninterrupted enjoyment
of his life, his limbs, his body, his health, and his reputation. And
he makes the corresponding classification of remedies. The idea
expressed is that a man's reputation is a part of himself, as his
body and limbs are, and reputation is a sort of fight to enjoy the
goods opinion of others, and it is capable of growth and real
existence, as an arm or leg. Reputation is, therefore, a personal
fight, and the right to reputation is put among those absolute
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personal fights equal in dignity and importance to security from
violence. According to Chancellor Kent, as a part of the rights of
personal security, the preservation of every person's good name
from the vile arts of detraction is justly included. The laws of the
ancients, no less than those of modern nations, made private
reputation one of the objects of their protection..."
19. The significance of reputation has also been emphasized by the
Hon'ble Supreme Court of India in Subramanian Swamy v.Union of India,
(2016) 7 SCC 221, in the following words:
"34. The reference to international covenants has a
definitive purpose. They reflect the purpose and concern and
recognise reputation as an inseparable right of an individual.
They juxtapose the right to freedom of speech and expression
and the right of reputation thereby accepting restrictions, albeit
as per law and necessity. That apart, they explicate that the
individual honour and reputation is of great value to human
existence being attached to dignity and all constitute an
inalienable part of a complete human being. To put it differently,
sans these values, no person or individual can conceive the idea
of a real person, for absence of these aspects in life makes a
person a nonperson and an individual to be an entity only in
existence perceived without individuality...."
"...195 Right to free speech cannot mean that a citizen can
defame the other. Protection of reputation is a fundamental
right. It is also a human right. Cumulatively it serves the social
interest. Thus, we are unable to accept that provisions relating to
criminal defamation are not saved by doctrine of
proportionality because it determines a limit which is not
impermissible within the criterion of reasonable restriction. It
has been held in D.C. Saxena v. Chief Justice of India, (1996) 5
SCC 216], though in a different context, that if maintenance of
democracy is the foundation for free speech, society equally is
entitled to regulate freedom of speech or expression by
democratic action. The reason is obvious viz. that society accepts
free speech and expression and also puts limits on the right of
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the majority. Interest of the people involved in the acts of
expression should be looked at not only from the perspective of
the speaker but also the place at which he speaks, the scenario,
the audience, the reaction of the publication, the purpose of the
speech and the place and the forum in which the citizen exercises
his freedom of speech and expression. The Court had further
observed that the State has legitimate interest, therefore, to
regulate the freedom of speech and expression which liberty
represents the limits of the duty of restraint on speech or
expression not to utter defamatory or libellous speech or
expression. There is a correlative duty not to interfere with the
liberty of others. Each is entitled to dignity of person and of
reputation. Nobody has a right to denigrate others' right to
person or reputation. (Emphasis Added)..."
20. Therefore, as observed by the Hon'ble Supreme Court, protection
of reputation has been held to be a fundamental right, and that the same is
universally recognized to be an integral and important aspect of dignity of
every individual. The right to preservation of one's reputation is acknowledged
as a right in rem, a right good against all the world. Reference drawn from
Shobhana Bhartia & Ors v NCT of Delhi, reported in AD (CR) (2007) 5 229.
21. Moving on, the ingredients of the offense of defamation were
discussed by the Hon'ble Supreme Court of India in Subramanian Swamy
(supra):
"...168. For the aforesaid purpose, it is imperative to analyse
in detail what constitutes the offence of "defamation" as provided
under Section 499 IPC. To constitute the offence, there has to be
imputation and it must have been made in the manner as
provided in the provision with the intention of causing harm or
having reason to believe that such imputation will harm the
reputation of the person about whom it is made. Causing harm to
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the reputation of a person is the basis on which the offence is
founded and mens rea is a condition precedent to constitute the
said offence. The complainant has to show that the accused had
intended or known or had reason to believe that the imputation
made by him would harm the reputation of the complainant. The
criminal offence emphasises on the intention or harm. Section 44
IPC defines "injury". It denotes any harm whatever illegally
caused to any person, in body, mind, reputation or property.
Thus, the word "injury" encapsulates harm caused to the
reputation of any person. It also takes into account the harm
caused to a person's body and mind.
Section 499 provides for harm caused to the reputation of a
person, that is, the complainant..."
22. Further, in Google India (P) Ltd. v Visaka Industries, (2020) 4 SCC
162, it was held that:
"...105. Under the said provision, the lawgiver has made the
making or publishing of any imputation with a requisite intention
or knowledge or reason to believe, as provided therein, that the
imputation will harm the reputation of any person, the essential
ingredients of the offence of defamation. What is the meaning to
be attached to the words "making of an imputation" and
"publishing of an imputation"? This question has been set out
with clarity in a recent judgment which is reported in Mohd.
Abdulla Khan v. Prakash K. (2018) 1 SCC 615 : (2018) 1 SCC
(Cri) 255] It was held as follows :
"10. An analysis of the above reveals that to constitute an
offence of defamation it requires a person to make some
imputation concerning any other person;
(i) Such imputation must be made either
(a) With intention, or
(b) Knowledge, or
(c) Having a reason to believe that such an imputation will
harm the reputation of the person against whom the imputation
is made.
(ii) Imputation could be, by
(a) Words, either spoken or written, or
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(b) By making signs, or
(c) Visible representations
(iii) Imputation could be either made or published.
The difference between making of an imputation and
publishing the same is:
If 'X' tells 'Y' that 'Y' is a criminal 'X' makes an
imputation. If 'X' tells 'Z' that 'Y' is a criminal 'X' publishes the
imputation.
The essence of publication in the context of Section 499 is
the communication of defamatory imputation to persons other
than the persons against whom the imputation is made. [Khima
Nand v. Emperor, 1936 SCC OnLine All 307 : 1937 Cri LJ 806;
Amar Singh v. K.S. Badalia, 1964 SCC OnLine Pat 186 :
(1965) 2 CriLJ 693] "
"107. In the light of this discussion, we may only reiterate
that the criminal offence of defamation under Section 499 IPC is
committed when a person makes a defamatory imputation which,
as explained in Mohd. Abdulla Khan v. Prakash K., (2018) 1
SCC 615: (2018) 1 SCC (Cri) 255, would consist of the
imputation being conveyed to the person about whom the
imputation is made. A publication, on the other hand, is made
when the imputation is communicated to persons other than the
persons about whom the defamatory imputation is conveyed. A
person, who makes the defamatory imputation, could also
publish the imputation and thus could be the maker and the
publisher of a defamatory imputation. On the other hand, a
person may be liable though he may not have made the statement
but he publishes it..."
23. In light of the aforesaid decisions, the following twofold
ingredients of the offence of defamation can be culled out:
(i) An imputation must be made or published by the accused concerning the
complainant.
(ii) Such imputation must be made/ published either
Manish Kandpal vs. Sangeeta Pokhriyal
CC No. 35925/ 2019
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(a) with intention, or
(b) with knowledge, or
(c) having a reason to believe, that such an imputation will harm the reputation
of the person against whom the imputation is made.
It is further pertinent to note that the parameter to judge as to whether a
particular statement or imputation has harmed the reputation of a person or not,
as encoded in Explanation 4 to Section 499 IPC, is whether the imputation,
directly or indirectly, in the estimation of others, lowers the character or credit
of that person or causes it to be believed that the person is in a loathsome or
disgraceful state.
24. In the present case, the accused has primarily argued that there
was no publication or circulation of any amputation made by the accused
against the complainant as the copy of complaint and screen shots of whatsapp
messages filed & relied upon by the complainant have not been proved in
accordance with law as requisite certificate U/S 65 B of Indian Evidence Act is
not annexed with the same and though, the accused stated that he was member
of those whatsapp groups and has taken screenshot of the same from his own
mobile, however, he has not annexed any prior screen shots to prove this fact
that he was actually member of those whatsapp groups and admittedly in his
complaint also he has not mentioned as to how he got the print out of
complaint Ex. CW1/A through social media and admittedly, he has not
mentioned this fact in his complaint as to when and how he obtained
knowledge of complaint Ex. CW1/A from his friend Sh. Suraj Nathani.
Manish Kandpal vs. Sangeeta Pokhriyal
CC No. 35925/ 2019
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I. PUBLICATION Complaint made to lawful authority amounts to
publication
25. In view of this defence taken by the accused the first question that
needs determination is whether any defamatory imputation has been made by
the accused against the complainant and whether it has been published by the
accused or not. In the present case, primarily the allegation of the complainant
is that the accused has made defamatory imputation against him in complaint
Ex. CW1/A, made by her to RO, ICAI. Though the accused has tried to
dispute this fact of making the complaint during final arguments, however,
during her statement U/S 313 Cr.P.C recorded on 24.08.2023, the accused
while answering Question NO.1 & Question NO.6, has admitted that she had
written the letter/complaint in question to RO, ICAI, Kolkata and sent the same
through e mail on e mail id of ICAI Kolkata and further that her husband was
aware about the fact that she was going to file this complaint against him,
however, she has denied of circulating the same in whatsapp group and
through e mail, screen shot of which are annexed Ex. CW1/B (Colly) & Ex.
CW1/XD and Ex. CW1/DA. It is also important to note that during cross
examination of the complainant, the accused side had given him suggestion
that he had wrongly interpreted the content of letter EX. CW1/A and it is not
defamatory and that it has not been circulated by the accused to public at large,
however, no suggestion has been given that no such complaint/letter was sent
by the accused to RO, ICAI Kolkata. Omission of such suggestion and the
suggestion given above clearly shows admission of the accused regarding
writing the letter in question to RO, ICAI Kolkata. Further, it is pertinent to
note that even while assailing the summoning order before Hon'ble High
Manish Kandpal vs. Sangeeta Pokhriyal
CC No. 35925/ 2019
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Court, the accused has admitted writing the letter in question to RO, ICAI
Kolkata. At this stage, it is relevant to refer to Section 58 of Indian evidence
Act, which says that an admitted fact is not required to be proved. In the
present case, since the accused has admitted this fact during her statement
recorded U/S 313 Cr. P.C, that she had sent the complaint EX. CW1/A to RO
ICAI Kolkata against the accused and further while assailing the cognizance
order dated 15.10.2020 passed by Ld. Predecessor of this court before Hon'ble
High Court also she has not disputed making complaint Ex. CW1/A to RO,
ICAI, Kolkata, thus, the fact that such complaint was made by complainant
against the accused stands proved in view of admission of the accused.
26. The accused has also claimed that making of such complaint to
Superior/lawful Authority of the accused would not amount to publication for
the purposes of Section 499 / 500 IPC and Ld. Counsel for complainant has
argued otherwise. I humbly agree with the submission of the complainant side.
The scope of 'publication' in criminal law is broader than civil law, as held in
Sanjay Mishra v NCT of Delhi, 2012 SCConLine Del 1779. Further, it is a
settled position of law that a publication to an institution which has authority
over the person against whom the imputations are made would amount to
publication. In this regard, reliance can be placed upon the decision in
Madhuri Mukund Chitnis v Mukund Martand Chitnis, 1990 SCC OnLine
Bom 410, in which the Hon'ble High Court of Bombay has held that:
"13...In the present case the imputations are made in a
proceeding which is filed in Court and therefore publication is
definitely clear. Even a publication to an authority over the
person against whom the imputations are made must be held to
be sufficient publication which falls within the purview of the
said Section 499 of the Penal Code, 1860..."
Manish Kandpal vs. Sangeeta Pokhriyal
CC No. 35925/ 2019
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27. The Hon'ble Madras High Court, in Thangavelu Chettiar v.
Ponnammal, 1965 SCC Online Mad 248, has also held that:
"4... But in this case, the defamatory matter contained in the
plaint was admittedly signed and filed by the petitioner. There
can be no doubt that there was publication of the defamatory
matter..."
28. Therefore, it is evident that publication includes pleadings,
complaints, and affidavits made before a lawful authority. In the present case,
the accused has made a complaint before RO, ICAI, Kolkata against the
complainant who is a CA. Therefore, the first ingredient (i.e. making/
publication of an imputation) of the offence of defamation stands proved in the
present case.
II. INTENTION/ KNOWLEDGE/REASON TO BELIEVE TO CAUSE
HARM TO THE REPUTATION
29. Now let us discuss the second ingredient i.e. Intention /
knowledge/reason to believe to cause harm to reputation. Once publication of
an imputation has been proved, the next ingredient which requires satisfaction
is that defamatory imputation was made by the accused intending to harm or
knowing or having reason to believe that such imputation will harm the
reputation of the complainant. The said ingredient is required to be read
together with Explanation 4 to Section 499 IPC, which requires that the
imputation, directly or indirectly, in the estimation of others, lowers the
character or credit of that person or causes it to be believed that the person is in
a loathsome or disgraceful state. Therefore, the onus on the complainant is to
prove that (i) the accused had an intention/ knowledge/ reason to believe to
Manish Kandpal vs. Sangeeta Pokhriyal
CC No. 35925/ 2019
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cause harm to the reputation of the complainant; and (ii) the imputation made
by the accused actually caused harm to the reputation of the complainant.
30. In the present case, Ld. Counsel for accused argued that the
complainant has not examined any other person apart from himself who could
depose that the imputation made by the accused has actually harmed the
reputation of the complainant. He further argued that the complainant has not
even examined his friend Mr. Suraj Nathani, from whom he received
information about making of such complaint by the accused against him, or his
client who passed remarks in August, 2019 about complaint Ex. CW1/A and
asked him if "he could not manage my personal life, how could he be able to
complete professional assignments". Further, the complainant also did not
disclose this fact before this court that he has actually won elections, thus, he
has failed to establish that the imputation made by complainant has actually
harmed his reputation, thus, the second ingredient is not satisfied. I am not in
agreement with this argument advanced by Ld. Counsel for the accused for the
reasons mentioned below:
1. In case of a per se defamatory statement, burden to prove harm to
reputation stands discharged
31. It is pertinent to note that the standard of proof is different in the case
of a per se defamatory imputation as opposed to any other imputation. The said
distinction has been succinctly explained by the Hon'ble Supreme Court of
India in the case of John Thomas v K. Jagadeesan, (2001) 6 SCC 30:
"...10. Shri Sivasubramaniam, learned Senior Counsel for the
appellant contended that the imputations contained in the
Manish Kandpal vs. Sangeeta Pokhriyal
CC No. 35925/ 2019
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publication complained of are not per se defamatory. After reading
the imputations we have no doubt that they are prima facie
libellous. The only effect of an imputation being per se defamatory
is that it would relieve the complainant of the burden to establish
that the publication of such imputations has lowered him in the
estimation of the rightthinking members of the public. However,
even if the imputation is not per se defamatory, that by itself would
not go to the advantage of the publisher, for, the complaining
person can establish on evidence that the publication has in fact
amounted to defamation even in spite of the apparent deficiency. So
the appellant cannot contend, at this stage, that he is entitled to
discharge on the ground that the imputations in the extracted
publication were not per se defamatory.
32. Therefore, once a statement is held to be per se defamatory, the
complainant is not required to prove loss to his reputation separately and he/
she stands discharged of the said burden. This position of law was first laid
down by the Hon'ble Allahabad High Court way back in 1887 in the case of
Queen Empress v. McCarthy (ILR 9 All 420):
"...The explanation does not apply where the words used and
forming the basis of a charge are per se defamatory. When an
expression used verbally or in writing, is doubtful as to it's
significance and some evidence is necessary to decide what the
effect of that expression will be and whether it is calculated to harm
a particular person's reputation, it is possible that the principle
enunciated in Explanation IV of Sec. 499 might, and would with
propriety, be applied. But in this case, there is no question as to
the significance or meaning of the words written. They are
distinctly defamatory within the meaning of Sec. 499 and as such
whether they were written in haste or in anger, the respondent is
clearly responsible and unless she can show that her case falls within any of the exceptions to the section it was and is impossible for her to resist a verdict of guilty..."
Manish Kandpal vs. Sangeeta Pokhriyal CC No. 35925/ 2019 25
33. The aforesaid position of law has also been reiterated by the Hon'ble Bombay High Court in the case of Sopullo Datta Naik Dessai v. Yeshwant Govind Dessai, 2009 SCC OnLine Bom 1400, wherein the imputation made by the accused referred to the complainant as a person who does things under influence of liquor and as a person who was locked up because of "goondagiri" during a drama festival. These imputations were held to be per se or distinctly defamatory and the complainant was discharged of the burden to prove loss/ harm to reputation. Similarly, the Hon'ble Gujarat High Court in Rohini Singh v. State of Gujarat, 2018 SCC online Guj 209 has agreed with the position of law that in case of a per se defamatory statement, harm to reputation is not required to be proved.
2. In case of a per se defamatory statement, burden to prove intention/ knowledge to cause harm stands discharged.
34. In addition to the aforesaid, it is pertinent to note that in case of a per se defamatory statement, necessary mensrea/ knowledge to cause harm is also required to be presumed. The said position of law has been specifically laid down by the Hon'ble Gujarat High Court in the case of Narottamdas L. Shah v. Patel Maganbhai Revabhai, 1984 SCC OnLine Guj 100:
"...31. If the imputation is defamatory per se, necessary mens rea will be presumed. No resultant harm may be proved, if the expression itself is defamatory per se. The maker of the statement must know that it will harm the reputation of one concerning whom the same is made. Explanation 1 includes even a dead person. We are not concerned with this explanation. Explanation 2 embraces imputation concerning a company or association or collection of Manish Kandpal vs. Sangeeta Pokhriyal CC No. 35925/ 2019 26 persons as such. The gist of the offence is dissemination of harmful imputation concerning a person. It is not necessary to refer to other explanations for our purposes..."
35. Therefore, the twinfold burden upon the complainant (i.e., to prove that (i) the accused had necessary intention to cause harm or had knowledge or reason to believe that such imputation will harm the reputation of the complainant; and (ii) harm to reputation was actually caused due to the imputation made by the accused stands discharged in case the imputation is held to be defamatory per se.
3. Parameters of a per se defamatory statement
36. The definition of the phrase "defamatory per se" has been explained in the case of Rohini Singh v State of Gujarat, 2018 SCC Online Guj 209. In this case, Hon'ble Justice, J.B. Pardiwala, Single Judge, Hon'ble Gujarat High Court, has relied upon the book 'Clerk and Lindsell on Torts (Tenth Edition)' to define the said phrase:
12.2 The meaning of the words "defamatory per se" and their definition, scope and effect have been copiously discussed in Clerk and Lindsell on Torts (Tenth Edition). At page 711 of the said book, it is stated that:
Language is defamatory on the face of it, either when the defamatory meaning is the only possible meaning, or when it is the only natural and obvious meaning.
37. Therefore, it has to be seen whether the defamatory meaning is the only possible meaning from the imputation made by the accused. The relevant Manish Kandpal vs. Sangeeta Pokhriyal CC No. 35925/ 2019 27 portion of the letter Ex.CW1/A dated 22.06.2019, made by the complainant to RO, ICAI, Kolkata, as well as Delhi Office, is as under:
"...No institute should in any manner be represented by a person who is mentally unstable, seeks dowry, blackmails people for personal gains and commits violence against female and supports female foeticide..."
38. The complainant has nowhere admitted the abovementioned allegations. Language/ content of the letter, as mentioned above, is defamatory on the face of it and it's natural and obvious meaning is defamatory. I am of the considered view that the only possible meaning of the said statement is that the complainant has been projected as someone who cannot discharge his professional duties being of unsound mind and habitually indulges in illegal and immoral activities such as domestic violence, female foeticide and extortion. There is no other meaning that can be attributed to the said contents. This imputation undoubtedly is calculated to lower in the estimation of others the character of the complainant and it would definitely harm the professional reputation of the complainant in the estimation of the rightthinking members of the society. There can be no doubt that such a statement is per se defamatory.
39. Since the statement of the complainant is per se defamatory, the complainant is discharged of the burden to prove mens rea and harm to the reputation. Accordingly, the second ingredient also stands proved in the present case.
Manish Kandpal vs. Sangeeta Pokhriyal CC No. 35925/ 2019 28 III. Defence of the accused Whether the present case is covered within the scope of Exception 1 & 8 to section 499 IPC?
40. Since both the ingredients of the offence of defamation have been proved, the only means by which the accused can escape conviction is by proving that her case is covered within any of the exceptions to section 499 IPC. Though the accused tried to argue that the allegation levelled by her against the complainant are covered within the exception 1 of Section 499 IPC as from cross examination of complainant, it has become apparent that he had installed video camera in their bed rooms and he even had information of bank Account, LIC, e mail ID and passwords of the accused and has got transferred amount from the account of accused in his account as well as in the accounts of his mother and sister which in turn establishes that he actually seeks dowry and commits violence against female. I am not in agreement with thisarguments, as for being covered under exception I, first of all it has to be establish by the accused that the imputation made are completely true and secondly, that the imputation were made for public good. In entire cross examination of the complainant the accused has not given the single suggestion that she had made imputation against the accused in public good and even during arguments, no submissions were made by Ld. Counsel for accused, as to how the imputation made by the complainant were for public good. Further, for being covered under first exception, all the imputations made by the complainant have to be true and it cannot be considered, if only some of the imputations are true and some imputations are not true. From the cross examination of complainant, it has only become apparent that there were some Manish Kandpal vs. Sangeeta Pokhriyal CC No. 35925/ 2019 29 financial transactions between the complainant and accused and family members of the complainant, however, the same do not in any manner establishes any demand of dowry by the complainant and his family members, specifically when no suggestion with respect to any such demand were put to the complainant during his crossexamination. Further, the accused has not even lead any evidence to establish that the imputation made by her against the complainant are true, thus, imputation made by her are not covered under first exception.
41. Learned counsel for the accused has taken the defence that the present case is covered within the scope of Exception 8 to section 499 IPC. The said exception is reproduced hereunder:
"...Eighth ExceptionAccusation preferred in good faith to authorised personIt is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation..."
Illustration If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z's master; if A in good faith complains of the conduct of Z, a child, to Z's fatherA is within this exception.
42. It has been contended that ICAI Kolkata has lawful authority over the complainant and since a complaint was filed to the said lawful authority by the accused, the accused enjoys complete immunity in the present case in terms of the eighth exception since a statement made to a person, who has lawful authority over the person against whom defamatory statement has been made, enjoys absolute privilege.
Manish Kandpal vs. Sangeeta Pokhriyal CC No. 35925/ 2019 30
43. The parameters of the eighth exception were explained by the Hon'ble Supreme Court of India in the case of Subramanian Swamy v. Union of India, (2016) 7 SCC 221:
"...188. Again in M.C. Verghese v. T.J. Poonan, (1969) 1 SCC 37, it has been ruled that a person making libellous statements in his complaint filed in court is not absolutely protected in a criminal proceeding for defamation, for under the Eighth Exception and the illustration to Section 499 the statements are privileged only when they are made in good faith. . .
189. In Chaman Lal v. State of Punjab, (1970) 1 SCC 590 : 1970 SCC (Cri) 253 the Court has opined that good faith requires care and caution and prudence in the background of context and circumstances. The position of the persons making the imputation will regulate the standard of care and caution. In M.A. Rumugam v. Kittu, (2009) 1 SCC 101 : (2009) 1 SCC (Civ) 35, it has been held that for the purpose of bringing the case within the purview of the Eighth and the Ninth Exceptions appended to Section 499 of the Penal Code, it would be necessary for the accused to prove good faith for the protection of the interests of the person making it or of any other person or for the public good..."
44. Further, in the case of Chaman Lal v State of Punjab, (1970) 1 SCC 590, it was held that:
"...Good faith requires care and caution and prudence in the background of context and circumstances. The position of the persons making the imputation will regulate the standard of care and caution. Under the Eighth Exception statement is made by a person to another who has authority to deal with the subjectmatter of the complaint whereas the Ninth Exception deals with the statement for the protection of the interest of the person making it. Interest of the person has to be real and legitimate when Manish Kandpal vs. Sangeeta Pokhriyal CC No. 35925/ 2019 31 communication is made in protection of the interest of the person making it..."
45. Further, in the case of M.C. Verghese v. T.J. Poonan, (1969) 1 SCC 37, it was observed that:
"...11. In Tiruvengadda Mudali v. Tripurasundari Ammal [ILR 49 Mad 728] a Full Bench of the Madras High Court observed that the exceptions to Section 499 IPC, must be regarded as exhaustive as to the cases which they purport to cover and recourse can be had to the English common law to add new grounds of exception to those contained in the statute. A person making libellous statements in his complaint filed in Court is not absolutely protected in a criminal proceeding for defamation, for under the Eighth Exception and the illustration to Section 499 the statements are privileged only when they are made in good faith. There is therefore authority for the proposition that in determining the criminality of an act under the Penal Code, 1860 the Courts will not extend the scope of special exceptions by resorting to the rule peculiar to English common law that the husband and wife are regarded as one..."
46. Therefore, there is no absolute privilege granted to complaints/ statements made to a lawful authority. It is required to be proved that the said statement was made in good faith. The word "good faith" has been defined in Section 52 of the IPC to mean:
52. 'Good faith'Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention.
47. Therefore, the eighth exception shall only apply when it is proved that the complaint made to the lawful authority was made with due care and attention. The onus to prove that the statement was made with due care and Manish Kandpal vs. Sangeeta Pokhriyal CC No. 35925/ 2019 32 attention was on the accused. In this regard, reliance can be placed upon M.A. Rumugam v. Kittu, (2009) 1 SCC 101:
"...19. For the purpose of bringing his case within the purview of the Eighth and the Ninth Exception appended to Section 499 of the Penal Code, it would be necessary for the appellant to prove good faith for the protection of the interests of the person making it or of any other person or for the public good.
20. It is now a wellsettled principle of law that those who plead exception must prove it. The burden of proof that his action was bona fide would, thus, be on the appellant alone..."
48. Therefore, the onus to prove the existence of eighth exception is upon the accused. However, the accused has not lead evidence to establish the same, even on the scale of preponderance of probabilities. The accused has failed to give any reasonable explanation behind making the concerned accusation against the complainant. There is no evidence (oral or documentary) to show that the accused made the said imputation against the complainant after exercising due care and attention, thus, the accused has failed to establish that her case is covered under 8th Exception.
49. Now coming to the last argument of Ld. Counsel for accused that there are material improvements in the testimony of CW1, thus, the same is liable to be rejected as whole and cannot be made ground for convicting the accused, I am not in agreement with this submission as the accused has coherently deposed the fact that the complainant has sent defamatory letter against him to RO, ICAI Kolkata with intention to harm his reputation, which are essential ingredients of the offence U/S 500 IPC. Though, the complainant made some improvements regarding how he obtained information about this letter and how Manish Kandpal vs. Sangeeta Pokhriyal CC No. 35925/ 2019 33 he obtained it's print out from social media and how his client made comments to him about his professional competence referring to this letter, which facts don't find any mention in the complaint, however, it is not necessary that every minutest details should be stated in the complaint. It is sufficient if a broad picture is mentioned therein. On this point, reference can be drawn from Bhag Singh and another v State of Punjab (1997) 7 SCC 712, wherein Hon'ble Supreme Court observed that ''...It is a general handicap attached to all eyewitnesses, if they fail to speak with precision their evidence would be assailed as vague and evasive, on the contrary if they speak to all the events very well and correctly their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden scales, but with cogent standards...''
50. The improvements on which the Ld. counsel for accused tends to harp upon are minor in nature and are not relevant for adjudication of the present matter in view admission of the accused herself regarding the factum of making the complaint in question with RO/ICAI, Kolkata. Thus, the testimony of the complainant cannot be discarded on the basis of the same.
FINAL ORDER
51. To recapitulate the above discussion, the complainant has been successful in establishing his case beyond reasonable doubt. The accused has failed to rebut the case of the complainant by raising a probable defence. The defence of the accused that her case is covered within the scope of First & Manish Kandpal vs. Sangeeta Pokhriyal CC No. 35925/ 2019 34 Eighth exception to section 499 IPC is not proved, even on the standard of preponderance of probabilities.
52. Resultantly, the complaint of the complainant is allowed, and the accused Mrs. Sangeeta Pokhriyal is hereby convicted of the offence under Section 500 of the Indian Penal Code, 1872. Let the convict be heard separately on quantum of sentence.
53. A copy of this judgment be given free of cost to the convict.
Announced in the open court on (Aishwarya Sharma)
this day i.e. 6th November, 2023 MM01 South West District, Dwarka,
New Delhi
It is certified that this judgment contains 34 pages and each page bears my signatures.
(Aishwarya Sharma) MM01 South West District, Dwarka, New Delhi Manish Kandpal vs. Sangeeta Pokhriyal CC No. 35925/ 2019