Bangalore District Court
To Leave His Parents And Home ... vs No.1 Used The Corporate Resources Of ... on 21 September, 2022
1 C.C.No.27620/2018
KABC030748642018
Presented on : 10-10-2018
Registered on : 10-10-2018
Decided on : 21-09-2022
Duration : 3 years, 11 months, 11 days
IN THE COURT OF THE II ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated this 21st day of September 2022
PRESENT : SRI.VEDAMOORTHY B.S. B.A.(L), LL.B.
II Additional Chief Metropolitan Magistrate, Bengaluru City
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
1. Sl. No. of the case C.C.No.27620/2018
Date of commission of the
2. 30.04.2016
offence (As per F.I.R.)
Mohammed Mustaq G.K.
S/o Khader Hussain Saheb,
Aged about 36 years,
R/at "Ovais House",
3. Name of the complainant 1st Cross, Jayanagara 1st Block,
Bengaluru - 11.
(By Sri.Rajendra Desai,
Advocate)
4. Name of the accused 1. Chaman Sharieff,
S/o Noor Sab Moulana Saheb,
2 C.C.No.27620/2018
Aged about 41 years,
R/at No.24/1, 1st Cross,
Kausar Nagar, R.T.Nagar Post,
Bengaluru - 560 032.
2. Mrs.Rehana Banu,
D/o Noor Sab Moulana Saheb,
Aged about 43 years,
R/at Harihar,
Correspondent Present address
No.24/1, 1st Cross, Kausar Nagar, R.T.Nagar Post, Bengaluru - 560 032.
(By Sri.Nayeem Pasha S., Advocate) The offences complained Sections 109 and 500 of the
5. of Indian Penal Code.
6. Plea of the accused Pleaded not guilty Accused No.1 is convicted for the offence punishable under Section 500 of the Indian Penal Code, accused No.1 is acquitted for the offence punishable
7. Final order under Section 109 of the Indian Penal Code and accused No.2 is acquitted for the offences punishable under Sections 109 and 500 of the Indian Penal Code
8. Date of order 21.07.2022 The above named complainant filed the Private Complaint under Section 200 of the Code of Criminal Procedure alleging 3 C.C.No.27620/2018 that the accused persons have committed the offences punishable under Sections 109, 120B, 500, 504 and 506 of the Indian Penal Code.
2. The allegations of the complainant in his complaint constituting the offences alleged in brief are that he is holding a highly respectable position as Senior Project Manager working for past 15 plus years with Honeywell International, a globally reputed and well respectable MNC. His marriage was solemnized with the sister of the accused persons by name Ayesha Banu on 30.04.2009. Hence, he is the brother-in-law of the accused persons in relationship. The accused persons from the date of his marriage with Ayesha Banu have made immense efforts to ruin his happy married life by adversely influencing Ayesha Banu by defaming the image of the complainant and his family members in the eyes of the society to meet their unlawful desires. When Ayesha Banu was pregnant, in the year 2012-13, she went to her maternal home and child was born on 01.08.2013. She stayed there for 6 th months and refused to come back. She put certain conditions with the complainant to 4 C.C.No.27620/2018 come back with the provocation of the accused persons for which, the complainant agreed. Inspite of the same, the accused persons provoked Ayesha Banu for new and independent house closer to her maternal house. As he took up job assignment in USA, he left along with his wife and child believing that henceforth, the accused persons may have deficient influence on his wife and he could live with his family pecefully. But, it went in vain as they force Ayesha Banu to make stay at "Deer Vally Apartments", Bengaluru till came back from USA. Accused No.1 was using Ayesha Banu to fetch money from the complainant and he was getting financial support from the complainant. The complainant decided to celebrate second birthday of his son with his family at a resort in Bandipur. Therefore, he reserved two rooms for them and their parents. Ayesha Banu under the influence of the accused persons picked up quarrel with the complainant that he should not take their parents with them. The complainant obliged the said demand of Ayesha Banu and the birthday of their child was celebrated without the blessings of his parents. Such 5 C.C.No.27620/2018 influences of the accused persons on Ayesha Banu was continued and the life of the complainant became miserable. Provoked Ayesha Banu picked up a fight and called the mother of the complainant, abused her, argued with her and told that she made entire trip a waste of time and money. On 04.08.2015, the complainant arranged another birthday celebration of his child along with his parents, family, relatives and well-wishers. On 08.08.2015, Ayesha Banu left her matrimonial home on the pretext of visiting her maternal home to sort out the rental matter of accused No.1 and informed that she will come on the next day. On 09.08.2015, accused No.1 called on telephone and threatened the complainant with divorce/alimony and implicating him with false criminal cases quoting Bandipur incident reason. Since then, the accused No.1 is sending innumerable E-Mails, SMS and WhatsApp massages containing such threats. After Ayesha Banu left her matrimonial home, accused No.1 was calling and sending massages to the complainant continuously to come alone to meet him promising that the accused persons will not further 6 C.C.No.27620/2018 interfere with the matrimonial life of the complainant and with the pretext of getting the complainant an opportunity to meet his son there. When the complainant went to meet wife and son, accused No.1 played with his emotions, financially blackmailing the complainant, threatened him in implicating with false criminal cases and defame him in the society if he fails to divorce his wife, transfer his salary and family assets to her. WhatsApp massage dated 12.09.2015 is evidence for it. The accused persons were openly blackmailing the complainant through telephone calls, E-Mails and SMS quoting to save his marriage succumb to their demands if not, threatened him to break his matrimonial life. Accused No.1 sent a list of absurd conditions through E-Mail dated 10.04.2016 demanding the complainant to leave his parents and home permanently and make a new home next to him and legally sign an affidavit giving full control on his matrimonial life to him and his family to the extent that the complainant shall take his permission on everything doing in his life including his travel. Used to make threatening and blackmailing calls and sending SMS to the 7 C.C.No.27620/2018 complainant and his family members during abnormal hours including midnight from their cell numbers and also by using unknown numbers to force the complainant to sign their demands by giving time line to him if not threatening to take severe action against him. In the interest of the wife and the son, the complainant considered in making a house as per their condition and communicated with his wife through e-mail dated 22.04.2016. Thereafter, the complainant came to know from his wife that he agreed to make a house and fearing that the accused persons may get unsuccessful in breaking the marriage and they may fail to extort money from the complainant in the name of alimony. The accused persons crossed the limits. Accused No.1 sent abusing and threatening mail to the complainant on 30.04.2016 with highly derogatory, completely outrageous, egregiously false and wholly indefensible statements and openly threatened and challenged to harm the complainant and defame him and his family members. After receipt of the said e-mail, the complainant immediately informed his family and in turn, the family 8 C.C.No.27620/2018 members called up the uncle of the complainant, family members and friends in the house of the complainant. The situation was brought under control by the parents of the complainant stating that they will handle the incident legally. Accused No.1 used the corporate resources of Identity Investments where, he was employed and e-mailed from his registered e-mail. He sent the e-mail to the complainant through the corporate administered server of the company of the complainant. The said e-mail severely hurted the sentiments of the complainant by the intentional insult and the allegations made by accused No.1 with grave remarks even on his gender raising the questions on the fidelity of the complainant and his wife. The accused persons purposefully imputing the statements defaming the complainant and his family members in the society, relatives and friends since 2015. Their defaming actions have severely increased in recent months crossing all the limits to an unbearable humiliation and depression. Irreparable damages to the reputation, character and credibility of the complainant are caused. The accused 9 C.C.No.27620/2018 persons with deliberate intention and malicious motive to degrade the complainant, indulged in slander, transgressing the limits of their professional decency, making telephonic calls to the relatives of the complainant at his maternal native at Sakaleshpur and Hassan and friends. Accused No.1 called from 3 mobiles to Syed Hafeez and accused No.2 called family of Ruhi Banu and made malicious allegations tarnishing the reputation of the complainant and his family members. The family members and friends of the complainant have informed the complainant and mentioned the statements of imputation made by the accused persons on him. This spoiled his reputation. They have also made allegations such as trans- gender, womanizer, rapist, dowry seeker and many more grossest callous allegations as mentioned in the e-mail. The call details are captured along with related incidents. The accused persons have thrust to defame the complainant and family members by provoking his wife for filing of Suit for Dissolution of Marriage on false and baseless grounds with claim of crores of rupees as alimony on the file of the Hon'ble Family Court, 10 C.C.No.27620/2018 Bengaluru in O.S.No.154/2016. Even during mediation proceedings of the said case at Bengaluru Mediation Center, the accused person used abusive languages towards the complainant by tarnishing his reputation in front of his family, Rishi Ruia, Kusuma D., and Project Trainees who were present there. They instigated the wife of the complainant and threatening him with malicious intention. The complainant is innocent in whole act and the imputations made by the accused persons are so malicious, disgraceful and loathsome. It caused immense damages to the complainant and his family members. The society is asking them on the basis of the said malicious allegations. It also damaged the reputation and the health of his parents. The complainant lost his project opportunities in abroad. Hence, the complainant filed he complaint before this Court seeking an order to take cognizance of the offences punishable under Sections 109, 120B, 500, 504 and 506 of the Indian Penal Code and to punish the accused persons in accordance with law.
11 C.C.No.27620/2018
3. After registering the Private Complaint in P.C.R.No.2246/2018 was registered, the Sworn Statement of the complainant is recorded as CW1. Vide order dated 06.10.2018, the cognizance was taken for the offences punishable under Sections 109 and 500 of the Indian Penal Code, ordered to register the Criminal Case against the accused persons in Register No.III and to issue process to the accused persons. The accused persons on service of process have appeared before this Court and enlarged in bail. The copies of the complaint and the documents are furnished to the accused persons under section 207 of Cr.P.C. Substance of accusation is prepared and read over to them in Kannada language. They have pleaded not guilty and claims to be tried.
4. To prove the accusation made against the accused persons, the complainant has produced the oral evidences of himself as PW1, Janarshan as PW2, Neeru as PW3, Roohi Bhanu as PW4 and Prajaktha Gotke as PW5. The complainanr has also produced the documentary evidences Ex.P1 to Ex.P16, Ex.P17(a) to Ex.P17(f), Ex.P18 to Ex.P25. During cross- 12 C.C.No.27620/2018 examination of PW1 and PW4, Ex.D1 to Ex.D25 are marked on behalf of the accused persons.
5. After completion of the prosecution evidences, for the purpose of enabling accused persons personally to explain any circumstances appearing in the evidences of the complainant against them, examined the accused persons under Section 313 of Cr.P.C. Their answers recorded accordingly. The accused persons have submitted that they have no defense evidence.
6. The learned counsels for the complainant and the accused persons have filed their written arguments. They have also made oral submissions. The learned counsel for the complainant has relied the following judgments.
i) The judgment of the Hon'ble Bombay High Court in the case between Smt.Madhuri Mukund Chitnis V/s Mukund Martand Chitnis and another (1990 Crl.L.J.2084).
ii) The judgment of the Hon'ble Delhi High Court in the case between Sanjay Mishra V/s NCT of Delhi (2012 SCC OnLine Del.1779).13 C.C.No.27620/2018
iii) The judgment of the Hon'ble High Court of Karnataka in the case between Boregowda and another V/s C.D.Devaiah [1999 (4) Kar.L.J. 496].
iv) The judgment of Hon'ble High Court of
Judicature Bombay, Nagpur Bench in Crl.
Application (Appeal) No.774/2017 dated
02.11.2018.
7. Perused the materials available on record.
8. The points for determination are;
1. Whether complainant has proved the offences charged against the accused persons for the offences punishable under Sections 109 and 500 of the Indian Penal Code beyond reasonable doubt?
2. What order or sentence?
9. My answers to the above points are as follows:
Point No.1 : Partly in the Affirmative, Point No.2 : As per final order for the following;
REASONS
10. POINT No.1 :- To prove the accusation made against the 14 C.C.No.27620/2018 accused persons, the complainant has produced his own oral evidences as PW1. He has deposed in his examination-in-chief that on 30.04.2016, accused No.1 sent E-Main to his office with abusive words, blackmailing him and threatened him by using his office mail; accused No.1 has made false allegation against his family in the E-Mail massage; accused No.1 told him that he is transgender and mentally ill person before his relatives and friends and damaged his reputation; accused No.1 has also told that he is sexist, he has forced several girls at UAE and India; during mediation, accused has also told in the presence of lawyers, mediator and his wife that he asked dowry; accused No.1 and 2 have told him that he is transgender; his son is not born to him; he is taking treatment for mental illness; he has assaulted his wife naked; he pushed his wife to sexuality and he is womanizer. He has also deposed that from the above statements of the accused persons, his reputation is lowered in the society.
11. The complainant has also prodcued the oral evidences of PW2 Janardhan who has made authentication of the E-Mail 15 C.C.No.27620/2018 Massage dated 01.09.2017 and gave his opinion that the said E-Mail massage was received from genuine E-Mail ID to the complainant. He has deposed in his examination-in-chief that he has made authentication of the E-Mail Massage dated 01.09.2017 received at 12.49 a.m. from E-Mail ID [email protected] to the E-Mail ID of the complainant, he opened the E-Mail ID of the complainant through the password given by him, accessed his E-Mail Account, extracted e-mail contents as PDF, downloaded four attachments and gave his opinion that the said E-Mail massage was received from genuine E-Mail ID to the complainant. His Opinion is marked as Ex.P22. He has also deposed in his examination-in-chief that based on the written path SPF authentication and examination of massage ID and content type, he gave his opinion.
12. PW3 - Neeru is the witness who made authentication of three audio records containing in the memory card of the Mobile Phone and gave opinion that the records are authentic and printout of the transcript. She has deposed in her examination-in-chief that on 20.09.2019, the complainant gave 16 C.C.No.27620/2018 a mobile phone (without SIM) along with memory card requesting for authentication of 3 audio records containing in the memory card, he has also forwarded soft copy of transcript shot for verification; the audio recording found in a folder in memory card; she examined the records by means of file signature and file property analysis, technical specifications, acoustic analysis and audio authentication; she found the recording are authentic; she examined the transcript by means of critical listing and found its contents to be matching with Q1. PW3 has also deposed in her examination-in-chief that she gave her report along with printout of transcript as Ex.P23 and Ex.P24 is the copy of the recording given in CD.
13. PW4 - Ruhi Bhani is the family friend of the complainant. She is the witness with whom accused No.2 spoken in mobile. She has deposed in her examination-in-chief that on 06.07.2017, accused No.2 called her over telephone; she went to patch-up Ayesha and the complainant; at that time, accused No.2 told her that the complainant was beating her by removing her cloths and the complainant was telling Ayesha to bring 17 C.C.No.27620/2018 money by sleeping with others; accused No.2 spoken with her for 9 minutes with her mobile No.8971009844 from 3 last mobile numbers 718; she recorded the said call and gave her voice.
14. PW5 - Prajaktha Ghotke is the witness who extracted the PDF of E-Mail massages along with its attachments and examined that whether they are genuine or not. She has deposed in her examination-in-chief that the complainant came to Truth Lab, Bengaluru to register as case to authentic E-Mail; he submitted three E-Mail massages along with attachment documents; with the help of credential supplied by the complainant, she was able to login the E-Mail ID; she extracted the PDF of E-Mail Massages along with its attachments for further examination; she analyzed the headers of E-Mail with the help of MS-Tool Box; she analyzed the E-Mail whether it is genuine or not; she opined that the said three massages sent through E-Mail are genuine and the sender and the receiver both active at the time of examination. She identified her Report as Ex.P25.
18 C.C.No.27620/2018
15. The complainant has also produced the documentary evidences Ex.P1 to Ex.P16, Ex.P17(a) to Ex.P17(f) and Ex.P18 to Ex.P25. Among them, Ex.P1 is the copy of the Massages in the WhatsApp of RT Shariff, Ex.P2 is the copy of the SMS in the Mobile Phone of RT Shariff, Ex.P3 and Ex.P4 are the E-Mail Massages sent by accused No.1 to the complainant, Ex.P5 is the E-Mail Massage sent by the wife of the complainant to the complainant, Ex.P6 is the E-Mail Massage sent by Darevesh S. to the complainant, Ex.P7 is the Postal Receipt, Ex.P8 is the Mobile Phone Logs, Ex.P9 is the Birth Certificate of the child of the complainant and his wife Ayesha Banu, Ex.P10 is the certified copy of Plaint in O.S.No.8743/2017, Ex.P11 is the certified copy of the Written Statement of accused No.1 in the said suit, Ex.P12 is the certified copy of Order in PCR No.6839/2018 dated 18.11.2019, Ex.P13 and Ex.P14 are the certified copies of Depositions of Ayesha Banu in O.S.No.154/2016, Ex.P15 is the certified copy of Medical Records of the father of the complainant, Ex.P16 is the certified copy of Discharge Summary of Jahan Are, Ex.P17(a) to (f) are 19 C.C.No.27620/2018 the certified copies of E-Mail Massages received by the complainant, Ex.P18 is the Mobile Phone Massage of Ayesha RT, Ex.P19 is the certified copy of Police Report/Charge Sheet in Crime No.18/2018 of R.T.Nagara Police Station, Ex.P20 and Ex.P21 are the certified copies of the Applications filed in Crim.Misc.No.53/2017, Ex.P22 is the Opinion Report give by PW2, Ex.P23 is the certified copy of the Opinion Report given by PW3, Ex.P24 is the Compact Disk and Ex.P25 is the certified copy of Opinion Report given by PW5.
16. The above oral evidences of PW1 to PW5 and the documentary evidences produced by the are testified through cross-examination by the accused persons. During cross- examination of PW1, Ex.D1 to Ex.D21 are marked as she has admitted the said documents. Among them, Ex.D1 and Ex.D2 are the marriage Photographs of the complainant and his second wife, Ex.D3 is the Copies of E-Mail Massages sent by Ayesha Banu to the complainant, complainant to Ayesha Banu and accused No.1 to the complainant, Ex.D4 is the certified copy of First Information Report in Crime No.18/2018 on the 20 C.C.No.27620/2018 file of RT Nagara Police Station, Ex.D5 is the certified copy of First Information in the said Crime, Ex.D6 is the certified copy of the Property Form, Ex.D7 is the certified copy of Mahazar, Ex.D8 is the certified copy of Affidavit of Darvesh Zuveriya, Ex.D9 is the certified copy of plaint in O.S.No.8743/2017, Ex.D10 is the certified copy of Order Sheet in O.S.No.154/2016, Ex.D11 is the certified copy of Judgment in O.S.No.154/2016, Ex.D11(a) is the certified copy of Decree in the said suit, Ex,.D12 is the certified copy of Complaint in C.C.No.29577/2018, Ex.D13 and Ex.D14 are the Photograph, Ex.D15 is the certified copy of Order Sheets in W & WC No.77/2017, Ex.D16 is the certified copy of the Order Sheets in W.P.No.16885/2021, Ex.D17 is the certified copy of Order dated 21.12.2021 in W.P.No.16885/2021, Ex.D18 and Ex.D19 are the Photographs, Ex.D20 is the certified copy of Application in Cri.Misc.No.53/2017 and Ex.D21 is the certified copy of Invitation Card of the complainant and Ayesha Banu. PW1 during his cross-examination has admitted the above photographs, contents of Massages and Court proceedings. 21 C.C.No.27620/2018 But, he has denied the assault made by him on his first wife while they were celebrating the birthday of their son at Bandipur. Except formal denial of the allegations made in the complaint, the E-Mail massage Ex.P4 sent by accused No.1 to the complainant and its contents are not denied by the accused persons during cross-examination of PW1.
17. During cross-examination of PW4, the Photographs are marked as Ex.D22 to Ex.D25 on admission. They are the photographs of the second marriage of the complainant. Nothing has been elicited in the cross-examination of PW2 to PW5 to disbelieve their evidences deposed in their examination- in-chief.
18. Accused No.1 during his examination under Section 313 of the Code of Criminal Procedure Code has submitted that he is accepting that he has sent the E-Mail to the complainant; the contents of the E-Mail are told by his sister to him; the contents of the E-Mail are what his sister had suffered for last 6 years; he has sent the said E-Mail only to the complainant and not to 22 C.C.No.27620/2018 anybody else; he has not exposed the said E-Mail to his family members, friends and colleagues.
19. Accused No.2 during her examination under Section 313 of the Code of Criminal Procedure Code has submitted that she does not know who is Ruhi Banu; she did not met her; during 2017, she started to come to her parents house and pressuring her sister; to stop that, she gave a call to her; in that call, she has not spoken any words defaming the complainant; she has only spoke for her sister's life protection; when she spoke about compromise, she agreed; from that date till now, she has not spoken with her and whatever the complainant deposed before the Court are false.
20. In the light of the provisions of Section 499 of the Indian Penal Code, I read the averments made in the complainant. Any allegations made by the complainant against the accused persons in the complaint, except the allegations expressing any remarks by the accused persons against the complainant in words, either spoken or intended to be read, or sign or by 23 C.C.No.27620/2018 visible representation are not covered under Section 499 of the Indian Penal Code. Because, the basic ingredient to constitute a crime of defamation is the imputation must have been made either by word, signs or visible representation. In the light of the said legal requirement, if the entire complainant averments are read, in Para 15 of the complaint, the complainant has narrated about the E-Mail massage sent on 30.04.2016 by accused No.1 to the complainant containing defamatory remarks. The said E-Mail Massage is produced by the complainant as Ex.P4. I read the said document in whole. The following imputations in the said E-Mail Massage are the remarks of accused No.1 in the nature of defamatory:
(i) "I knew from the beginning that you are a transgender/eunuch, though you are resemble like a man. The below email confirms just that!"
(ii) But, in reality, what they wouldn't know is that you are psycho and an animal in disguise."
(iii) "What a level of psycho you are."
(iv) "You are psycho"
24 C.C.No.27620/2018
(v) "will also take sufficient treatment for your psycho behavior."
21. In the judgment of Hon'ble High Court of Judicature Bombay, Nagpur Bench in Crl. Application (Appeal) No.774/2017 dated 02.11.2018 relied by the learned Counsel for the complainant, the Hon'ble High Court of Bombay held that the expression "Impotent person" reflects adversely upon the manhood of a person and therefore, use of such word and its publication would suffice to constitute the offence of defamation which is punishable under Section 500 of the Indian Penal Code. Though, in the present case, the word used in Ex.P4 is not "Impotent person", the words used therein are "transgender/eunuch, psycho". The publication of the said words are also adverse the personality of the person against whom such remarks are made. Therefore, the above statements of accused No.1 in Ex.P4 are in the nature of defamatory against the complainant.
22. As stated above, during cross-examination of PW1, the accused persons neither denied that accused accused No.1 sent 25 C.C.No.27620/2018 the said E-Mail massage nor its contents. Accused No.1 during his examination under Section 313 of Cr.P.C. has stated that he sent the said E-Mail massage to the complainant. Now, the question is whether the said imputations are defamatory statements of accused No.1 in view of the definition under Section 499 of the Indian Penal Code. As stated above, the above imputations are in reading words and it was intended to read by the complainant. As per the complaint averments, accused No.1 used the corporate resources of Fidelity Investments where he is employed and sent it from his registered E-Mail ID to the E-Mail ID of the complainant via the corporate administered server of the company of the complainant. But, there are no evidences either oral or documentary that accused No.1 sent E-Mail Massage Ex.P4 by using the corporate resources of Fidelity Investments and sent it from his registered E-Mail ID to the E-Mail ID of the complainant via the corporate administered server of the company of the complainant.
26 C.C.No.27620/2018
23. The arguments of the learned Counsel for the complainant in the written arguments filed before this Court are that as per Ex.P25, the E-Mail Massage was published from an official corporate server of "Fidelity Investments" from the E-Mail ID of accused No.1 where, he is employed to the organizational administrator monitored official server of Honeywell International Organization E-Mail ID of the complainant and it has become a permanent official record of Honeywell International since 30.04.2016 7.14 p.m.
24. One of the ingredients of defamation is that the imputation in writing concerning any person shall be published by a person and if such imputations are written to some other person other than the person to whom it is written, then only such imputation in writing become defamatory statement. If the statement is sent straight away to the person of whom it is written, there is no publication of it. If the letter is not communicated to any one but the person to whom it was written, there is no publication of it. In the present case on hand, the E-Mail massage dated 30.04.2016 i.e., Ex.P4 was 27 C.C.No.27620/2018 sent by accused No.1 from his E-Mail ID to the E-Mail ID of the complainant. In Ex.P25, PW5 has opined that the said E-Mail massage was sent from genuine E-Mail ID to the E-Mail ID of the complainant. PW5 has deposed the said fact in her examination-in-chief. But, either in Ex.P5 or in the oral evidences of PW5, there is no opinion as submitted by the learned Counsel for the complainant in his written arguments that the E-Mail Massage was published from an official corporate server of "Fidelity Investments" from the E-Mail ID of accused No.1 where, he is employed to the organizational administrator monitored official server of Honeywell International Organization E-Mail ID of the complainant and it has become a permanent official record of Honeywell International since 30.04.2016 7.14 p.m.
25. Normally, a E-Mail massage is end to end communication between two and the the sender and the recipient can only access the said communications as the user name of the E-Mail is protected with password. The said communication will be saved with the two server i.e., the server of the fmr.com and 28 C.C.No.27620/2018 honeywell.com. The persons who are having the access of the said servers can only read the said communications. The reading or access to read the E-Mail massages by the persons other than the sender and the recipient of the said massage are exceptions. The complainant shall prove such exceptions by producing the reliable and cogent evidences before the Court that the E-Mail massage Ex.P4 is read either by the persons who are having the control over the said servers or any other persons. Without proving such fact, it cannot say that the imputation made by accused No.1 against the complainant in Ex.P4 are published. The arguments of the learned counsel for the accused persons are that when there is no proof of publication of such imputations, the statement of accused No.1 in Ex.P1 cannot be considered as defamatory statement made by him against the accused.
26. In the judgment relied by the learned counsel for the complainant in the case between Sanjay Mishra V/s NCT of Delhi, the Hon'ble High Court of Delhi held that 29 C.C.No.27620/2018 "For criminal purpose 'publication' has a wider meaning that it has in civil law since it includes a communicate to a person defamed alone. The prosecution for defamation in criminal cases can be brought although the only publication is to the person defamed as it is very likely to provoke a breach between the persons involved."
27. In the judgment relied by the learned counsel for the complainant in Boregowda's case, the Hon'ble High Court of Karnataka relied Halsbury's Law of England, Fourth Edition Volume No.28 Paras No.60 as follows:-
"60. What amounts to publication. - For the purpose of a civil action for libel publication is the communication of defamatory matter to a third party. However, for the purpose of criminal proceedings publication to a person defamed is sufficient".
28. In view of the above judgments referred by the leaned counsel for the complainant, though, the publication of the above words stated in Ex.P4 are not read by any other third person except the complainant, it will amounts to defamation by accused No.1 against the complainant and therefore, it is 30 C.C.No.27620/2018 punishable under Section 500 of the Indian Penal Code. Though, the arguments of the learned counsel for the accused persons are that the statements made by accused No.1 in Ex.P4 are within Seventh Exception to Tenth Exception provided under Section 499 of the Indian Penal Code, the accused persons have not made out any grounds during trial that such statements in Ex.P4 are made against the complainant on good faith. Therefore, the defamatory statements made in Ex.P4 by accused No.1 against the complainant do not fall under any Exceptions provided under Section 499 of the Indian Penal Code. Under these circumstances, the complainant has proved the commission of the offence punishable under Section 500 of the Indian Penal Code by accused No.1.
29. In the written arguments filed by the learned Counsel for the complainant, he has contended that the following statements in Ex.P4 are also amounts to defamation.
i) The complainant and his mother before marriage demanded a car as dowry,
ii) The complainant demanded his marriage to be at an expensive marriage hall, 31 C.C.No.27620/2018
iii) His marriage strength was only 100 members and it shows how dis-reputed his family is in his own circle,
iv) He and his parents started to torture his then wife just after a week of marriage for money, dowry, standard of living, status and to satisfy his male ego,
v) He attempted to hang his then wife with one dupatta and said that he will tell folks that she did suicide for unknown reasons,
vi) The complainant in USA striped his then wife nakedly and beaten her mercilessly,
vii) The complainant in USA shown his then wife a group of cowboys standing near pavement and told her that he will leave her to them and ride away so that they can physically assault and rape her.
30. Though, there are such statements of accused No.1 in Ex.P4, they are not defamatory statements. They are only an allegations of commission of certain acts by the complainant and not the defamatory statements on him. It appears from the documentary evidences produced by the complainant and the documents admitted by PW1 during his cross-examination that civil and criminal cases are filed between the complainant and 32 C.C.No.27620/2018 his first wife Ayesha Banu about the said allegations and they are not decided holding that the allegations are not true.
31. It appears that the complainant has filed O.S.No.8743/2017 against the accused persons claiming damages for his defamation and such other reliefs. Ex.P10 is the certified copy of the plaint of the said suit. Ex.P11 is the written statement filed by accused No.1 herein. In the said written statement, accused No.1 has not admitted that he has published defamatory statement against the complainant. It appears from the contents of Ex.P14 that Ayesha Banu who is examined as PW1 in O.S.No.154/2016 has admitted that in Ex.D.11 (E-mail message Ex.P4 in the present case), her brother abused her husband as "Transgender" and "Eunich". This cannot be considered as an evidence against the accused persons because, they are not the parties to the said proceedings. The arguments of the learned counsel for the complainant are that the proceedings in C.C.No.26059/2018 are quashed by the Hon'ble High Court of Karnataka in C.C.No.721/2019 holding that the charge-sheet was filed on 33 C.C.No.27620/2018 the basis of omibus and general allegations and there is no plausible explanation offered for the delay in lodging the First Information and also without disclosing the fact that the suit was filed for divorce against the petitioner-accused No.1. In the said proceedings, the accused persons are not parties and it is not the observation of the Hon'ble High Court of Karnataka that in view of the instigations of the accused persons herein, the above criminal case was registered containing false allegations. Therefore, viewing from any angle, it cannot say that the statements of accused No.1 made in Ex.P4 communicated to the complainant through e-mail is published to the third person.
32. I heard the contents of Ex.P24. There are two conversations between PW4 and accused No.2. In none of the conversations, there are statements of accused No.2 that the complainant beaten his wife Ayesha Banu nakedly and he asked her to get money from sleeping with other persons. Though, the fact of the conversation between accused No.2 and PW4 over telephone are not denied during cross-examination of 34 C.C.No.27620/2018 PW1 and PW4 and accused No.2 during cross-examination has admitted the conversation between them, when there are no such conversations between PW4 and accused No.2 alleging that the complainant beaten his wife Ayesha Banu nakedly and he asked her to get money from sleeping with other persons, it cannot say that accused No.2 spoken defamatory words against the complainant and thereby, she has also committed the offence punishable under Section 500 of the Indian Penal Code.
33. It is also alleged that during Conciliation process in Mediation Center, the accused persons have made defamatory statements against the complainant before the Advocates of both parties and Mediators. Except the oral evidences of PW1, there are no other evidences in that regard.
34. It is also alleged by the complainant against the accused persons that they have abated each other to commit the offence punishable under Section 500 of the Indian Penal Code. There are no evidences from the complainant to prove such allegation of abatement. On the other hand, the allegation of commission 35 C.C.No.27620/2018 of the offence punishable under Section 500 of the Indian Penal Code by the accused persons are independent because, it is alleged by the complainant that accused No.1 made defamatory statements in Ex.P4 and there are no allegations against accused No.2 that she abated accused No.1 to make such allegations. Further, it is alleged by the complainant that accused No.2 spoken defamatory words against the complainant with PW4 over telephone and there are no allegations against accused No.1 that he abated accused No.2 to make such allegations. Therefore, the complainant has not proved the gult of accus No.1 and 2 for the offence punishable under Section 109 of the Indian Penal Code. Hence, I answer Point No.1 partly in the Affirmative.
35. POINT No.2 :- For the reasons stated in Point No.1, accused No.1 found guilty of the offence punishable under Section 500 of the Indian Penal Code, accused No.2 is not found guilty for the offence punishable under Section 500 of the Indian Penal Code and accused No.1 and 2 are not found guilty for the offence punishable under Section 109 of the Indian 36 C.C.No.27620/2018 Penal Code. Therefore, accused No.1 is liable to be convicted for the offence punishable under Section 500 of the Indian Penal Code, accused No.1 is liable to be acquitted for the offence punishable under Section 109 of the Indian Penal Code and accused No.2 is liable to be acquitted for the offences punishable under Sections 109 and 500 of the Indian Penal Code.
36. The offence under Section 500 of the Indian Penal Code is punishable with simple imprisonment for a term which may extend to 2 years, or with fine or with both. Keeping in view of the defamatory statements made by accused No.1 against the complainant in Ex.P4 and also the fact that except the complainant, the complainant has not proved that no other third person read the said defamatory statements made by accused No.1, it is not a fit case to keep accused No.1 behind the bars by sentencing him to undergo imprisonment. On the other hand, keeping in view of the above facts and circumstances, it is a fit case to sentence only fine. The said fine amount may be quantified by keeping in view of the above 37 C.C.No.27620/2018 circumstances as Rs.5,000/-. In the result, I proceed to pass the following;
ORDERS Under Section 255(2) of the Code of Criminal Procedure accused No.1 is hereby convicted for the offence punishable under Section 500 of the Indian Penal Code and sentenced to pay fine of Rs.5,000/-. In default of payment of fine, he shall undergo simple imprisonment for 1 month.
Out of the above fine amount, a sum of Rs.3,000/- to be paid to the complainant as compensation and Rs.2,000/- shall be paid to the State.
Under Section 255(1) of the Code of Criminal Procedure accused No.1 is hereby acquitted for the offence punishable under Section 109 of the Indian Penal Code and accused No.2 is acquitted for the offences punishable under Sections 109 and 500 of the Indian Penal Code.
38 C.C.No.27620/2018
Their bail bonds executed under Section 436 of Cr.P.C. and the cash surety furnished by them will be in force till completion of appeal period. Thereafter, it shall be stands canceled.
Furnish free copy of the judgment to accused No.1.
(Typed by the Stenographer in the Court Computer on my direct dictation, printout taken, corrected and then pronounced by me in the open court on 21.09.2022) (VEDAMOORTHY B.S.) II Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE Witnesses Examined on behalf of the Complainant :-
PW1 : Mohammed Mushtaq,
PW2 : Janardhan S.,
PW3 : Neeru,
PW4 : Roohi Bhanu,
PW5 : Prajaktha Gotke.
Documents marked on behalf of the Complainant :-
Ex.P1 : Copy of Whatsapp Massages.
39 C.C.No.27620/2018
Ex.P2 : Mobile Phone Massage,
Ex.P3 to 6 : E-Mail Massage,
Ex.P7 : Postal Receipt,
Ex.P8 : Mobile Phone Massage,
Ex.P9 : Birth Certificate,
Ex.P10 : Certified copy of Plaint,
Ex.P11 : Certified copy of Written Statement,
Ex.P12 : Certified copy of Order,
Ex.P13 & 14 : Certified copies of Depositions,
Ex.P15 : Certified copy of Medical Records,
Ex.P16 : Certified copy of Discharge Summary,
Ex.P17(a) to (f) : Certified copies of E-Mail Massages, Ex.P18 : Mobile Phone Massage, Ex.P19 : Certified copy of Police Report, Ex.P20 & 21 : Certified copies of Applications, Ex.P22 : Truth Labs Report, Ex.P22(a) : Signatures, Ex.P23 : Certified copy of Truth Labs Report, Ex.P24 : Compact Disk, Ex.P25 : Certified copy of Truth Labs Report, Ex.P25(a) : Signatures.
Material objects marked on behalf of the Complainant :-
NIL 40 C.C.No.27620/2018 Witnesses Examined on behalf of the accused :-
NIL Documents marked on behalf of the accused :-
Ex.D1 & 2 : Photographs,
Ex.D3 : Copies of E-Mail Massages,
Ex.D4 : Certified copy of FIR,
Ex.D5 : Certified copy of First Information,
Ex.D6 : Certified copy of PF,
Ex.D7 : Certified copy of Mahazar
Ex.D8 : Certified copy of Affidavit,
Ex.D9 : Certified copy of Plaint,
Ex.D10 : Certified copy of Order Sheet,
Ex.D11 : Certified copy of Judgment,
Ex.D11(a) : Certified copy of Decree,
Ex,.D12 : Certified copy of Complaint,
Ex.D13 & 14 : Photograph,
Ex.D15 & 16 : Certified copies of Order Sheets,
Ex.D17 : Certified copy of Order,
Ex.D18 & 19 : Photographs,
Ex.D20 : Certified copy of Application,
Ex.D21 : Certified copy of Invitation Card,
Ex.D22 to 25 : Photographs.
(VEDAMOORTHY B.S.)
II Addl. Chief Metropolitan Magistrate, Bengaluru City.41 C.C.No.27620/2018
21.09.2022 (Judgment pronounced in open Court vide separate order) ORDERS Under Section 255(2) of the Code of Criminal Procedure accused No.1 is hereby convicted for the offence punishable under 42 C.C.No.27620/2018 Section 500 of the Indian Penal Code and sentenced to pay fine of Rs.5,000/-. In default of payment of fine, he shall undergo simple imprisonment for 1 month.
Out of the above fine amount, a sum of Rs.3,000/- to be paid to the complainant as compensation and Rs.2,000/- shall be paid to the State.
Under Section 255(1) of the Code of Criminal Procedure accused No.1 is hereby acquitted for the offence punishable under Section 109 of the Indian Penal Code and accused No.2 is acquitted for the offences punishable under Sections 109 and 500 of the Indian Penal Code.
Their bail bonds executed under Section 436 of Cr.P.C. and the cash surety furnished by them will be in force till completion of appeal period. Thereafter, it shall be stands canceled.
Furnish free copy of the judgment to accused No.1.
43 C.C.No.27620/2018
(VEDAMOORTHY B.S.) II Addl. Chief Metropolitan Magistrate, Bengaluru City.