Delhi District Court
M/S Larsen & Toubro Limited vs The State on 11 January, 2022
IN THE COURT OF MS. NEENA BANSAL KRISHNA:
PRINCIPAL DISTRICT & SESSIONS JUDGE,
SOUTH EAST DISTT., SAKET COURTS, NEW DELHI
CR No. 735/2019
M/s Larsen & Toubro Limited
IFCI Tower, 14th Floor,
61, Nehru Place, New Delhi - 110019
Through its Authorised Representative
Sh. Sanjeev Sahijpal .... Revisionist/Complainant
Versus
1. The State
(Government of NCT of Delhi)
2. Mr. Koorapally Jojo Jithendran @ K. G. Jojo
S/o Mr. K. K. Jithendran
R/o: Sojalayam House, Andhakarahazhi,
PO Cherthala, Allapuzha,
Kerala - 688531
3. Mr. Souvik Sil Sharma
R/o: 301, Balagarh Road (South)
Post & District - Hooghly
West Bengal - 712103
4. M/s Google India Pvt. Ltd.
Address: Unitech Signature Tower-II,
Yower-B, Sector-15, Part-II,
Village Silokhera, ..... Respondents No. 2 to 4/
Gurgaon - 122001 (India) Accused persons
First date before this Court: 24.10.2019
Date of Decision: 11.01.2022
ORDER :
1. The Revision Petition under Section 397 Cr. P. C . has been filed by the Revisionist/Complainant against the Order CR No. 735/2019 Page No. 1 of 30 M/s Larsen & Tourbo Limited vs. The State & Others dated 27.07.2019, vide which the criminal complaint filed against the Respondents No. 2 to 4 has been dismissed.
2. The facts in brief are that Criminal Complaint No. 29883/2016 was filed by the Revisionist/Complainant in regard to an immensely defamatory, highly derogatory and inciting making and publication of a video movie made by the Respondent No. 2 Mr. K. G. Jojo. It is claimed that he tried to incite the workers of the Revisionist/Complainant Company to commit serious offences of violence and indiscipline against the Revisionist/Complainant Company. Respondent No. 3 Mr. Souvik Sil Sharma, was the videographer who prepared the video in question. The said highly insinuating video was uploaded on the social media platform of www.youtube.com/YouTube, which is managed by the Respondent No. 4 M/s Google India Pvt. Ltd. It is claimed that in furtherance of connivance and conspiracy, Respondent No. 2, the maker of speech along with the Respondent No. 3 the videographer published the video on social media managed by Respondent No. 4 and have succeeded in tarnishing the image of the Revisionist/ Complainant Company and its senior officials. Hence, the complaint under Sections 499/500/501/505 IPC was filed against the Respondents No. 2 to 4.
3. The Complainant in Pre-Summoning evidence examined CW-1 Sh. Rajeev Sahijpal, Authorized Representative of the Revisionist/Complainant Company and CW-2 Mrs. Charcha Sharma who deposed about the averments contained in the complaint.
CR No. 735/2019 Page No. 2 of 30M/s Larsen & Tourbo Limited vs. The State & Others
4. Ld. Metropolitan Magistrate vide order dated 27.07.2019 dismissed the complaint of the Revisionist/ Complainant Company. Aggrieved by the said Order dated 27.07.2019, the present Revision Petition has been filed.
5. It is submitted on behalf of the revisionist that Ld. Metropolitan Magistrate has failed to appreciate that the highly slanderous, derogatory and inflammatory speech had been delivered by Respondent No. 2, which was videographed by Respondent No. 3 and published by Respondent No. 4 on social site and their acts have resulted not only in tarnishing the image of the Revisionist/ Complainant Company but also its senior officials. Ld. Metropolitan Magistrate has failed to appreciate that in order to constitute the offence of defamation, the person who makes or publishes the imputation complained of should intend to harm, or know or have the reason to believe that the imputation will harm the reputation of the concerned person. The Revisionist/Complainant Company is one of the largest and most respected Company in India's Private Sector engaged in Technology, Engineering, Construction and Manufacturing activities in India and abroad and has maintained a reputation. Ld. Metropolitan Magistrate has incorrectly come to the conclusion that merely because some unspecified persons have been referred to as "persons who cut mutton" cannot be said to have tarnished the reputation of the Revisionist/Complainant Company. It is submitted that it is crystal clear that the speech delivered by the Respondent No. 2 came within the purview of defamation. It CR No. 735/2019 Page No. 3 of 30 M/s Larsen & Tourbo Limited vs. The State & Others has been wrongly held that the Respondent No. 2 being the Union Leader of the Revisionist/Complainant Company was merely raising concerns regarding the mismanagement and oppression of employees. The intention of the Respondent No. 2 is palpably to portray a sordid picture of Company indulging in suppression and other criminal and illegal activities. The essential ingredients for prosecution for the offences under Sections 499/501 IPC were consequently established and the complaint has been wrongly dismissed.
6. Respondents were duly served. No formal reply has been filed on behalf of the Respondent No. 1& 2.
7. Respondent No. 3 failed to appear despite service.
8. Respondent No 4 filed a reply wherein all the contentions raised in the Revision Petition were denied. It was claimed that the Revisionist/Complainant has intentionally bifurcated the facts pertaining to Respondent No. 4 to suit their partisan end and is therefore, guilty of suppression veri and suggestio falsi. The present petition is claimed to be an abuse of process of law. It is submitted that the impugned order has been made correctly on the basis of material brought on record by the witnesses of the Complainant/Revisionist Company. The ingredients of the alleged offence under Sections 499/500/501/505 IPC were not made out in the complaint and it was rightly dismissed.
9. It is further explained that the answering Respondent i.e. M/s Google India Pvt. Ltd. Is a Company within the meaning of the Companies Act, 2013 having its Registered Office in Bangalore. It is a subsidiary of Google LLC, a CR No. 735/2019 Page No. 4 of 30 M/s Larsen & Tourbo Limited vs. The State & Others Company incorporated under the laws of Delaware, United State of America, located at 1600-Amphitheater Parkway, Mountain View, CA 94042, USA, which is engaged in the business of Advertising, Marketing, Research and Development of software solutions/programmes in India for its parent entity and group Companies on Principal to Principal basis. The answering respondent is not an agent of Google LLC and does not provide the YouTube platform.
10. It is submitted that the Revisionist/Complainant Company is aggrieved by the alleged uploading of video on www.youtube.com and distribution of CDs of the speech in the office of the Revisionist/Complainant Company. It is claimed that the dispute is between the Revisionist/ Complainant Company and the Respondents No 2 & 3 and there is no occasion for the answering respondent to provide, run or manage the services on www.youtube.com and has been wrongly arrayed as respondent. It is claimed that the YouTube LLC is a separate and distinct entity from the Respondent No. 4. Revisionist/Complainant Company has wrongly claimed the Respondent No 4 as publisher i.e. the website, which is false and belied by the documents of the Revisionist/Complainant Company itself.
11. Notwithstanding, it is submitted that Google LLC and YouTube LLC are "intermediaries" as defined under Section 2 (1) (w) of the Information Technology Act, 2000 (hereinafter referred as I. T. Act ), the respondents are entitled to statutory exemption from liability for third party content in terms of Section 79 of the I. T. Act and as CR No. 735/2019 Page No. 5 of 30 M/s Larsen & Tourbo Limited vs. The State & Others intermediaries they are not the publishers of any content or videos and are merely service providers where third party users upload their contents and it has a limited role of providing a platform. Hon'ble Supreme Court of India in Shreya Singhal vs. Union of India, (2015) 5 SCC 1 had held that Section 79 of the I. T. Act was enacted keeping in mind the functioning of the intermediaries. It was clarified that the intermediary is only required to disable specifically identified links only on the basis of a Court Order. No order of appropriate Court about infringing the content has been brought to the knowledge of the intermediary. Respondent No. 4, therefore, has been wrongly impleaded as a party. Moreover, the intermediary by its very nature are neither expected nor are they required in law to act as arbiters of third party claims relating to content on their platform or actively monitor or filter the content uploaded by third party users on the platform.
12. The Revisionist/Complainant had described the answering Respondent No. 4 as "Google", "M/s Google India Inc." and "M/s Google Inc.". There are no entities of any of the three names and that the complaint is inherently contradictory, incoherent and defective.
13. Furthermore, the Revisionist/Complainant has alleged that an online complaint dated 03.11.2015 was made to the answering respondent, when in fact no such email has been received by the answering Respondent No. 4.
14. Moreover, it has been observed by Hon'ble Supreme Court of India in Ram Briksh Singh & Others vs. Ambika CR No. 735/2019 Page No. 6 of 30 M/s Larsen & Tourbo Limited vs. The State & Others Yadav & Another, (2004) 7 SCC 665 , that revisional powers are only conferred upon the Superior Courts of supervisory jurisdiction, which have to be exercised and cannot be invoked merely to correct wrong appreciation of evidence and it is only in the case of patent illegality resulting in gross miscarriage of justice that the revisional powers can be invoked. It is further submitted that none of the ingredients for bringing of the offence under Sections 499/500/501 IPC have been established and is not maintainable. The complaint has been rightly dismissed by the Ld. Metropolitan Magistrate.
15. I have heard the arguments and perused the record. My observations are as under:
16. For the offence of defamation as defined under Section 499 IPC, there are following essential ingredients:
(i) the complaint must be by the person aggrieved;
(ii) there has to be imputation made in the manner as provided in the provision i.e. there should be publication of imputation; and
(iii) it must be 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.
PERSON WHO IS AGGRIEVED:
17. Section 199(1) Cr. P. C. safeguards the freedom of speech by placing the burden on the complainant to pursue the criminal complaint without involving the State prosecution machinery. It mandates that the Magistrate can CR No. 735/2019 Page No. 7 of 30 M/s Larsen & Tourbo Limited vs. The State & Others take cognizance of the offence only upon receiving a complaint by a person who is aggrieved. This limitation on the power to take cognizance of defamation serves the purpose of discouraging filing of frivolous complaints which would otherwise clog the Magistrate's Courts. Under the aforesaid provision, the cognizance of an offence of defamation cannot be taken except upon a complaint made by "some person aggrieved by the offence". This Section carves out an exception to the general rule of criminal jurisprudence that any person can set the law in motion.
Under Section 199 Cr. P. C., a complaint can be filed only by "by some person aggrieved".
18. The offence has its own gravity and hence, the responsibility of misuse is more, especially at the time of issue of process. Before issuing a process, the Magistrate has to examine the complainant as has been held in Rajindra Nath Mahato vs. T. Ganguly, (1972) 1 SCC 38 and referred in Subramanian Swamy vs. Union of India, Ministry of Law (2016) 7 SCC 221 . In Punjab National Bank and others vs. Surendra Prasad Sinha it has been held that judicial process should not be an instrument of oppression or needless harassment. There lies a responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. In Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others (1998) 5 SCC 749 a Two-Judge Bench held that summoning of an accused in a criminal case is a serious matter and criminal law cannot CR No. 735/2019 Page No. 8 of 30 M/s Larsen & Tourbo Limited vs. The State & Others be set into motion as a matter of course. In the light of these observations, the merits of the case may be considered to ascertain if a case for summoning of respondents was prima facie made out.
WHETHER COMPANY CAN BE AN AGGRIEVED PERSON:
19. The first aspect to be considered is whether the Company has a locus as an aggrieved person to file the present complaint for defamation.
20. Section 11 of IPC defines "person" to mean a Company or an association or collection of persons as such or body of persons, whether incorporated or not. The inclusive nature of the definition indicates that juridical persons can come within its ambit.
21. A defamatory imputation against a collection of persons/ Company falls within Explanation 2 to Section 499 of IPC which reads as under:
Explanation 2.--It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
22. If a well-defined class is defamed, each and every member of that class can file a complaint. But this principle depends upon the determination of the number of persons of the class.
If the collection of persons is an indeterminate and indefinite collection of body, it could not be said that each and every member of that body could maintain an action under Section 500, unless the complainant was referred to as a person who had been defamed under the imputation. When there is CR No. 735/2019 Page No. 9 of 30 M/s Larsen & Tourbo Limited vs. The State & Others uncertainty as to whether the imputation would reflect either this man or that man, it could not be said that one particular man was meant in the imputation alleged. In order to constitute an imputation concerning an association or collection of persons as such, there must be some definite body of persons, capable of being identified and to the whole of whom, it can be asserted that the defamatory matter applies.
23. When an indefinite and indeterminate body of persons is defamed, it would not be safe to single out one person to say that he was the person defamed as was observed in Krishnaswami vs. C.H Kanaran 1971 KLT 145 . It was explained that if an indefinite and indeterminate body as the Marxist Communist Party or Marxists or Leftists as a collection of persons as such are defamed, from the fact that the collection of persons as such being an indeterminate and indefinite collection of body, it could not be said that each and every member of that body could maintain an action under Section 500, unless the complainant was referred to as a person, who had been defamed under the imputation.
24. In Government Advocate vs. Gopal Bandu AIR 1922 Patna 101 , it was held that however reprehensible and morally unjustifiable the words complained of may be against an Association or collection of persons jointly may be but to amount to defamation within the meaning of the S.499 IPC it must be an imputation capable of being brought home to a particular individual or collection of individuals as such whose identity can be established.
CR No. 735/2019 Page No. 10 of 30M/s Larsen & Tourbo Limited vs. The State & Others
25. In Achuthanandan vs. Varugheese 1993 (2) KLT 737 , it was held that the words "association or collection of persons" mentioned in Section 499 IPC have to be understood in conjunction with the expression "person aggrieved" in Section 199 of the Code of Criminal Procedure. If the collection of persons is indefinite and indeterminable or indeterminate, no complaint can be filed by an individual member, for the offence of defamation, unless he shows that the imputation refers to him in particular.
26. In G. Narasimhan, G Kasturi and K. Gopalan vs. T.V. Chokkappa (1972) 2 SCC 680 , the Apex Court held that in a case where Explanation 2 of Section 499 is resorted to, the identity of the Company or the Association or the collection of persons must be established so as to be relatable to the defamatory words or imputations. Where a writing in weighs against mankind in general, or against a particular order of men, e.g. men of gown, it is no libel. It must descend to particulars and individuals to make it a libel. If a well-defined class is defamed, every particular member of that class can file a complaint even if the defamatory imputation in question does not mention him by name. Thus, emphasis was laid on the concept of identifiability and definitiveness as regards collection of persons.
27. The Apex Court in Sahib Singh Mehra v. State of Uttar Pradesh 1965 SCR (2) 823 referred to Explanation 2 to Section 499 of IPC, and held that collection of persons must be identifiable in the sense that one could with certainty say CR No. 735/2019 Page No. 11 of 30 M/s Larsen & Tourbo Limited vs. The State & Others that this group of particular people has been defamed, as distinguished from the rest of the community. Similar observations were made in S. Khushboo vs. Kanniammal & Anr. JT 2010 (4) SC 478 .
28. Instances where a Reference to a class of people may not qualify under Explanation 2 was explained by V. Mitter in The Law of Defamation and Malicious Prosecution 4th Edition, 1965 page 8 which states thus:
"An action for defamation would not lie at the instance of unincorporated collection of individuals such as a political party or members' club. Such groups are merely classes of persons and there can be no libel on a class."
29. Likewise, in Eastwood vs. Hamles, (1858) IF. & F. 347 Willes, J. observed that in case the identity of the collection of persons is not established so as to be relatable to the defamatory words or imputations, the complaint is not maintainable. It was explained thus:
'"f a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual which is neither here nor there."
30. From the aforesaid enunciation of law stress is clearly on determinate and definite body. It lays emphasizes on identifiable body and identity of the collection of persons. It also significantly states about the test of precision so that the collection of persons have a distinction. The Court has to understand the concept and appositely apply the same. There is no ambiguity. The facts in hand may be considered thus.
The relevant part of the speech is reproduced as under:
CR No. 735/2019 Page No. 12 of 30M/s Larsen & Tourbo Limited vs. The State & Others "HR Walabhi hum logon jaisa employee hain. Woh HR wala, who bhi employee, hum bhi employee hain. Hamara Human Rights wala, mutton katnewala ko pakadke HR main baithadiya, who his company. Staff ke bare mein, staff ka welfare nahi dekhte. Udhar baithke, Calcutta mein baithke staff ka termination letter banana kar rahahain who log". "No one can take your job; Jagannathan Oleti and Bandana Khanna or any other HR Staff cannot take your job. HR is also an employee like us. Company has made a mistake that they have appointed Butcher (Mutton Katnewala) in the HR. They should only work in a butcher shop. They do not take care for staff welfare and sit at Kolkatta and prepare termination letter for the staff. If any HR personnel calls you please tell them to proceed through proper channel with CRS benefits".
31. Ld. Metropolitan Magistrate has rightly observed that in this paragraph of the speech the unspecified persons/ officials of the HR Department have been referred to as "Mutton Kaatnewala". It merely suggests that the people with a temperament and disposition of "Mutton Kaatnewala"
have been employed in HR Department who are insensitive to the woes of the workers. A generic reference to the people in HR Department cannot be held to be a reference to an identifiable and determinate individual. It is thus held that while the Company being a juristic person has the locus to maintain the Complaint but the requirement of allegations being against an identifiable person is not satisfied.CR No. 735/2019 Page No. 13 of 30
M/s Larsen & Tourbo Limited vs. The State & Others WHETHER THERE WAS MAKING OR PUBLICA- TION TO HARM THE REPUTATION OF THE COMPANY:
32. Section 499 IPC defines the offence of defamation with specificity and particularity and enumerates Ten Broad Exceptions when statements against a person will not be considered defamatory. It reads as under:
499. Defamation.--Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person. 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 CR No. 735/2019 Page No. 14 of 30 M/s Larsen & Tourbo Limited vs. The State & Others causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. Illustrations
(a)..................
(b).................
(c)................
First Exception.--Imputation of truth which public good requires to be made or published.--It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. Second Exception.--Public conduct of public servants.--It is not defamation to express in a good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
Third Exception.--Conduct of any person touching any public question.--It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
Illustration: It is not defamation in A to express in good faith any opinion whatever respecting Z's conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending a such meeting, in forming or joining any society which invites the CR No. 735/2019 Page No. 15 of 30 M/s Larsen & Tourbo Limited vs. The State & Others public support, in voting or canvassing for a particular candidate for any situation in the efficient discharges of the duties of which the public is interested.
Fourth Exception.--Publication of reports of proceedings of Courts.--.......
Explanation.--.......
Fifth Exception.--Merits of case decided in Court or conduct of witnesses and others concerned.--.... Illustrations
(a).....
(b).......
Sixth Exception.--Merits of public performance.--It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further.
Explanation.--A performance may be substituted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public.
Illustrations:
(a).............
(b)............
(c)............
(d)...........
(e)...........CR No. 735/2019 Page No. 16 of 30
M/s Larsen & Tourbo Limited vs. The State & Others Seventh Exception.--Censure passed in good faith by person having lawful authority over another.--.......
Eighth Exception.--Accusation preferred in good faith to authorised person.--It 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 accuse 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, and child, to Z's father--A is within this exception. Ninth Exception.--Imputation made in good faith by person for protection of his or other's interests.--It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. Illustrations
(a)........
Tenth Exception.--Caution intended for good of person to whom conveyed or for public good....
33. The law relating to defamation was enacted regard being had to the diversity in the society and it also acts as a reasonable restriction and fulfills the purpose behind Section 44 IPC. Causing harm to 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 CR No. 735/2019 Page No. 17 of 30 M/s Larsen & Tourbo Limited vs. The State & Others reason to believe that the imputation made by him would harm the reputation of the complainant. The criminal offence emphasizes on the intention or harm.
34. Section 44 of IPC defines "injury ".
44. Injury.--The word "injury" denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.
35. 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.
36. First, the concepts of "defamation" and "reputation" need to be expatiated to understand the controversy.
MEANING OF THE TERM "DEFAMATION"
37. According to Chambers Twentieth Century Dictionary, Defamation means to take away or destroy the good fame or reputation; to speak evil of; to charge falsely or to asperse.
38. Salmond & Heuston on the Law of Torts, 20th Edn.7 define a defamatory statement as under:-
"A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right thinking member of society..."CR No. 735/2019 Page No. 18 of 30
M/s Larsen & Tourbo Limited vs. The State & Others
39. Halsburys Laws of England, Fourth Edition, Vol. 28, defines 'defamatory statement' as under:-
"A defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of the society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling trade or business."
40.Justice Cave in the case of Scott vs. Sampson QBD1882 defined it as a "false statement about a man to his discredit." Also in Bata India Ltd. vs. A.M. Turaz & Ors. 2013 (53) PTC 586 ; Pandey Surindra Nath Sinha vs. Bageshwari Pd. AIR 1961 Pat. 164 (1882) QBD 491 .
CONCEPT OF REPUTATION:
41. Having dealt about "defamation", the intrinsic facets of "reputation" and what constitutes reputation may be considered. The Manisha Koirala vs. Shashi Lal Nair & Ors, 2003 (2) Bom CR 136 allusions would clearly exposit the innate universal value of "reputation" and how it is a cherished constituent of life and not limited or restricted by time. The description may be different, but the crucial base is the same.
42. William Shakespeare in Othello expressed his creative thoughts on character by the following expression:-
"Good name in man and woman, my dear lord, is the immediate jewel of their souls Who steals my purse steals trash; 'tis something, nothing; 'T was mine, 'tis his, and has been CR No. 735/2019 Page No. 19 of 30 M/s Larsen & Tourbo Limited vs. The State & Others slave to thousands; But he that filches from me my good name Robs me of that which not en- riches him, And makes me poor indeed,"
43. The famous Greek philosopher and thinker Socrates explained:-
"Regard your good name as the richest jewel you can possibly be possessed of - for credit is like fire; when once you have kindled it you may easily preserve it, but if you once extin- guish it, you will find it an arduous task to rekindle it again. The way to gain a good repu- tation is to endeavour to be what you desire to appear."
44. William Hazlitt explained the concept of reputation thus:-
"A man's reputation is not in his own keeping, but lies at the mercy of the profligacy of others. Calumny requires no proof. The throw- ing out of malicious imputations against any character leaves a stain, which no after-refuta- tion can wipe out. To create an unfavourable impression, it is not necessary that certain things should be true, but that they have been said. The imagination is of so delicate a texture that even words wound it."
45.Lord Denning succinctly explained the distinction between character and reputation in Plato Films Ltd. vs. Spiedel (1961) 1 All. E.R. 876 as under:
"A man's "character," it is sometimes said, is what he in fact is, whereas his "reputation" is what other people think he is. If this be the sense in which you are using the words, then a libel action is concerned only with a man's reputation, that is, with what people think of him: and it is for damage to his reputation, that is, to his esteem in the eyes of others, that CR No. 735/2019 Page No. 20 of 30 M/s Larsen & Tourbo Limited vs. The State & Others he can sue, and not for damage to his own per- sonality or disposition.
46.In Om Prakash Chautala vs. Kanwar Bhan and others (2014)5 SCC 417 Hon'ble Supreme Court held that reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on posterity. It is a nobility in itself for which a conscientious man would never barter it with all the tea of China or for that matter all the pearls of the sea. When reputation is hurt, a man is half-dead. It is an honour which deserves to be equally preserved by the downtrodden and the privileged. No one would like to have his reputation dented, and it is perceived as an honour rather than popularity.
47.In Vishwanath Agrawal vs. Saral Vishwanath Agrawal (2012) 7 SCC 288 Apex Court observed that reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is a revenue generator for the present as well as for the posterity.
48. In Umesh Kumar vs. State of Andhra Pradesh and another (2013) 10 SCC 591 the Supreme Court observed that good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property and as such it has been held to be a necessary element in regard to right to life of a citizen under Article 21 of the Constitution.
49.In Jeffrey J. Diermeier and another v. State of West Bengal and another (2010) 6 Supreme Court Cases 243 CR No. 735/2019 Page No. 21 of 30 M/s Larsen & Tourbo Limited vs. The State & Others while deliberating on the aspect as to what constitutes defamation under Section 499 of IPC, held that there must be an imputation and such imputation must have been made with the intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged.
50.Carter-Ruck on Libel and Slander, Fifth Edition have carved out some of the tests as under :--
(1) a statement concerning any person which exposes him to hatred, ridicule, or contempt, or which causes him to be shunned or avoided, or which has a tendency to injure him in his office, professional or trade.
(2) a false statement about a man to his dis-
credit.
(3) would the words tend to lower the plaintiff in the estimation of right thinking members of society generally?"
51.The main Section 499 along with its Four Explanations defines the scope of Defamation and its applicability and makes only such imputation punishable which lowers a person's reputation in the estimation of others, and if the imputation does not lower the moral or intellectual character CR No. 735/2019 Page No. 22 of 30 M/s Larsen & Tourbo Limited vs. The State & Others or a person's character in respect of his caste or calling or his credit, it would not be defamatory. The Nine Exceptions appended to it however, limit its applicability in various circumstances. The concepts of "in good faith" or "for the public good" are the mainstay of the Exceptions available to the accused, which if proved to the extent of preponderance of probability, enable him to avoid conviction. Section 52 IPC defines "good faith" as under:
"Good faith".--Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention.
52.Under the General Clauses Act, Good Faith is defined as "A thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not." The element of honesty which is introduced by the definition prescribed by the General Clauses Act is not introduced by the definition of the Code; and so, in considering the question as to whether the appellant acted in good faith in publishing his impugned statement, what is enquired to be considered is whether he acted with due care and attention.
53.Another aspect of this requirement has been pithily expressed by the Bombay High Court in the case of Emperor vs. Abdool Wadood I.L.R. 31 Bom. 293 "Good faith", it was observed "requires not indeed logical infallibility, but due care and attention. But how far erroneous actions or statements are to be imputed to want of due care and caution must, in each case, be considered with reference to the general circumstances and the capacity and intelligence of the person whose conduct is in question." "It CR No. 735/2019 Page No. 23 of 30 M/s Larsen & Tourbo Limited vs. The State & Others is only to be expected that the honest conclusions of a calm and philosophical mind may differ very largely from the honest conclusions of a person excited by sectarian zeal and untrained to habits of precise reasoning. At the same time, it must be borne in mind that good faith in the formation or expression of an opinion, can afford no protection to an imputation which does not purport to be based on that which is the legitimate subject of public comment."
54.The Revisionist has to first establish defamation as defined in S.499 and even if requisite conditions are satisfied the respondent may still be not liable if his case comes within any of the Nine Exceptions. The First Exception to Section 499 is available to an accused person if it is shown by him that the impugned statement was true and had been made public for the public good. The proof of truth which is one of the ingredients of the First Exception is not an ingredient of the Ninth Exception. What the Ninth Exception requires an accused person to prove is that he made the statement in good faith. In dealing with the claim of the accused under the Ninth Exception, it is not necessary and, in a way, immaterial, to consider whether he has strictly proved the truth of the allegations made by him.
55.In Sukra Mahto vs. Basdeo Kumar Mahto and another AIR 1971 SC 1567 166 the Supreme Court has opined that the ingredients of Ninth Exception are first that the imputation must be made in good faith; secondly, the imputation must be protection of the interest of the person making it or of any other person or for the public good. The CR No. 735/2019 Page No. 24 of 30 M/s Larsen & Tourbo Limited vs. The State & Others Court further opined that good faith and public good are questions of fact and emphasis has been laid on making enquiry in good faith and due care and attention for making the imputation.
56.A three-Judge Bench in Harbhajan Singh vs. State of Punjab and another AIR 1966 SC 97, 165 has observed that where the accused invokes Ninth Exception to Section 499 IPC, good faith and public good are both to be satisfied and the failure of the appellant to prove good faith would exclude the application of Ninth Exception in favour of the accused even if requirement of public good is satisfied.
57.Thus, in deciding whether an accused person acted in good faith under the Ninth Exception, it would be a question to be considered on the facts and circumstances of each case what is the nature of the imputation made; under what circumstances did it come to be made; what is the status of the person who makes the imputation; was there any malice in his mind when he made the said imputation; did he make any enquiry before he made it; are there reasons to accept his story that he acted with due care and attention and was satisfied that the imputation was true.
58.In John Thomas vs. Dr. K. Jagadeesan (2001) 6 S.C.C. 30 while dealing with "person aggrieved", the Court opined that the test is whether the complainant has reason to feel hurt on account of publication is a matter to be determined by the court depending upon the facts of each case.
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59.The facts of the case and the evidence adduced may thus be considered in order to ascertain whether defamatory and derogatory speech was delivered by Respondent No. 2, it would be pertinent to refer to the content of the complaint. The first derogatory aspect highlighted in the speech is that the Revisionist Company and the Management have been alleged to have indulged in corruption by unfair means by employing their own relatives on key-posts and by illegally removing/retrenching employees without following the due procedure of law. The relevant paragraph of the speech is as reproduced under:
"Number two, aap company mein chori karana chahiye, teen baar aap ko naam pe memo aana chahiya. Teen memo aap karega, tab hi aapko nikal sakta hain. Rape case mein bhi aisa hain, koi ladki aake boldiya kisaab ne rape kardiya, aapko nikal nahi sakta hain. Rape case mein FIR hone ka, ladki ko medical examin karega, prove hoga, tab hi aapko nikal sakta hain. In logyeh HR Department wala bolta haina, aap koi dariye mat".
60.Ld. Metropolitan Magistrate has rightly observed that Respondent No. 2 in this paragraph of speech was merely informing the employees that they cannot be terminated easily without following due process of law. If an employee has committed theft three Memos are required to be necessarily served before the service of an employee can be terminated. Even if it is a serious case of rape, unless the allegations are proved, the HR Department cannot terminate an employee.
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61.It has been rightly observed by the Ld. Metropolitan Magistrate that this speech being made by a Union Leader cannot be held to be highly derogatory or defamatory and intended to tarnish the reputation of the Revisionist/ Company or its senior officials. But it was only a speech delivered by the Union Leader informing the workers about their legal rights of continuing in the services of the Company and that they cannot be removed even for the alleged offence of rape or theft unless three Memos are issued and law is followed. The above reproduced paragraph in no way is derogatory and defamatory towards the reputation of the Revisionist/Complainant Company considering the context and the background in which it has been made.
62.Furthermore, under Section 500 IPC defamatory reputation must be with intention to cause harm and merely airing such grievance are not sufficient to establish harm to the Complainant/Revisionist especially when no evidence has been led by the Revisionist in this regard. In the present case, the requisite intent to cause harm has not been established. Whatever may have been intended in calling the employees in HR Department as "Mutton Kaatnewala", it definitely does not come within the definition of being derogatory or defamatory towards the HR Department of the Company as a whole. It cannot be said that it has tarnished the reputation of the Revisionist Company in any manner. It does not fit within the definition of Sections 499/501/505 IPC. Moreover, it cannot be overlooked that it was a speech given CR No. 735/2019 Page No. 27 of 30 M/s Larsen & Tourbo Limited vs. The State & Others by a Union Leader in Good Faith in the interest of the employees which is also protected by Exception 8 & 9 of Section 499.
PUBLICATION:
63.Another aspect for establishing an offence under section 499 are the words "makes or publishes any imputation". In Bilal Ahmed Kaloo vs. State of Andhra Pradesh, (1997) 7 Supreme Today 127 Supreme Court held that these words should be interpreted as words supplementing to each other. A maker of imputation without publication is not liable to be punished under that section.
64.The averments made in the complaint are that Respondent No. 2 Mr. K. G. Jojo, who was the Union Leader of the Revisionist/ Complainant Company gave speech to the workers/ engineers of the Revisionist/Complainant Company at its Project Office at Kalinga Nagar, Orrisa, in order to incite and harass the Revisionist/ Complainant with intent to blackmail and illegally extort money from the company. The speech was videographed by the Respondent No. 3 and video was uploaded on the social media by www.youtube.com. The contents of the video were downloaded vide CD Ex. CW-1/C and the Certificate under Section 65-B of the Indian Evidence Act as Ex. CW-1/D.
65.In order to prove the allegations, the Complainant had examined CW-1 Sh. Rajeev Sahijpal and CW-2 Mrs. Charcha Sharma who deposed that the speech was delivered by Respondent No. 2 Mr. K. G. Jojo and video was prepared and uploaded by Respondent No.3 Mr. Souvik Sil CR No. 735/2019 Page No. 28 of 30 M/s Larsen & Tourbo Limited vs. The State & Others Sharma. There is no averment in their respective testimony that they were present at the time when the speech was delivered. The date of giving the speech is missing from the entire complaint and documents. Both the witnesses i.e. CW-1 Sh. Rajeev Sahijpal and CW-2 Mrs. Charcha Sharma have also failed to disclose how it came to their knowledge that the video was uploaded by the Respondent No. 3. Even if the complaint and the testimony of CW-1 Sh. Rajeev Sahijpal and CW-2 Mrs. Charcha Sharma are accepted in toto, it does not establish a prima facie case against the Respondents No. 2 & 3.
66.Moreover, the averments that the video was distributed to the employees and uploaded on the YouTube Channel by the Respondents No. 2 & 3 have also not been proved by any cogent evidence. Except the testimony of CW-1 Sh. Rajeev Sahijpal and CW-2 Mrs. Charcha Sharma there is no other evidence in regard to publication of video on YouTube by the Respondents No. 2 & 3. None of the employees of the Revisionist/Complainant Company have been examined to establish that the video was distributed by the Respondents No. 2 & 3. The Revisionist/Complainant prima facie has failed to establish publication of the alleged defamatory material against the Respondents No. 2 & 3.
67.Respondent No. 4 has rightly pointed out that YouTube Channel is managed by Google LLC, which is independent entity of the Respondent No. 4, is in no way responsible for the alleged material available on You Tube. Moreover, it has been rightly ordered that the Respondent No. 4 even if CR No. 735/2019 Page No. 29 of 30 M/s Larsen & Tourbo Limited vs. The State & Others presumed to be the entity managing the YouTube, it is only an intermediary and being an intermediary it has no responsibility to monitor or edit the contents of any documents to be uploaded, which may be uploaded on the social media platform of www.youtube.com/YouTube. Being an intermediary, the respondent can remove the contents only if so directed by the competent authority or by the Court of competent jurisdiction. There is no order placed on record by the Revisionist/Complainant of the appropriate Authority for removing of the contents from YouTube. The Respondent No. 4 cannot be held responsible of having committed the offence, as alleged by the Revisionist/ Complainant.
CONCLUSION:
68.Ld. Metropolitan Magistrate vide detailed reasoned order has concluded that no offence, as claimed in the complaint, has been made out against the respondents and has dismissed the complaint.
69.In view of above, there is no infirmity or illegality in the impugned Order dated 27.07.2019 passed by the Ld. Metropolitan Magistrate. Hence, the present Revision Petition is hereby dismissed.
70.Trial Court Record be sent back along with a copy of this order.
71.Criminal Revision Petition be consigned to Record Room.
Announced in the open (NEENA BANSAL KRISHNA) Court on 11.01.2022 Principal District & Sessions Judge, (KSR) South East, Saket Courts, New Delhi CR No. 735/2019 Page No. 30 of 30 M/s Larsen & Tourbo Limited vs. The State & Others