Calcutta High Court (Appellete Side)
Asis Kumar Saha & Ors vs The State Of West Bengal And Another on 4 August, 2010
Author: Kalidas Mukherjee
Bench: Kalidas Mukherjee
1
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
PRESENT:
THE HON'BLE MR JUSTICE KALIDAS MUKHERJEE
CRR NO. 718 OF 2010
Asis Kumar Saha & Ors.
Vs.
The State of West Bengal and another.
For the Petitioners : Mr. Sudipto Moitra
Mr. Farhaduddin
For the O. P. No. 2: Mr. Y. Z. Dastoor
Ms. Debapriya Mitra
Mr. A. K. Gandhi
For the State: Mr. Swapan Kumar Mallick
Mr. P. Satpati
HEARD ON: 23.6.2010, 29.6.2010, 02.7.2010, 12.7.2010,
15.7.2010, 20.7.2010 & 26.7.2010.
JUDGMENT ON:04.8.2010.
KALIDAS MUKHERJEE, J.:
1. This is an application under Section 482 Cr.P.C. praying for quashing of the proceedings being case No. 50018 of 2009 under Section 500/120B of the Indian Penal Code pending before the learned Metropolitan Magistrate, 2 8th Court, Calcutta. The petitioners have also challenged the orders dated 09.11.2009, 04.01.2010, 08.01.2010, 15.01.2010 and 22.01.2010 passed by the learned Magistrate in the said case.
2. The case of the complainant, in short, is that he is a practising Advocate of the Hon'ble High Court at Calcutta and he is a member of the Bar Association of the High Court. He has been practising for 31 years. The complainant owns a flat being No. 1 on the 4th floor of the Chatterjee International Centre, 33A, Jawaharlal Nehru Road, Calcutta - 700 071. The complainant has his chamber at 8, Old Post Office Street, Calcutta - 700 001 and also in flat No. 3, on the 6th floor of the Chatterjee International Centre (hereinafter referred to as CIC). The complainant was one of the members of the Executive Committee of the CIC Society from 20th April, 2002 to 28th March, 2008. In the last election held for the members of the Executive Committee of the CIC Society on 28th March, 2008, the complainant did not contest the same, but, for his service rendered by him to the society and for the building, he was regularly invited as a special invitee to attend the Executive Committee meetings of the society for his advice. The accused Nos. 10 to 13 and/or their family members were having various disputes with the CIC society and/or its Executive Committee members which had resulted in various litigations in the City Civil Court at Calcutta, Hon'ble High Court at Calcutta. Arbitration proceedings and special leave petitions were filed in the Hon'ble Supreme 3 Court and the criminal cases were filed by the accused No. 10 to 13 against the members of the Executive Committee of the society, its officers and contractors. The said accused persons were aggrieved to the complainant, as they have an opinion that due to legal service rendered by the complainant to the society, the said accused persons did not succeed in achieving their unreasonable desire and aim inspite of various litigations. The accused No. 9 on behalf of his establishment has filed a suit against the society, which is being contested by the society. The society has taken occasional legal advice from the complainant for which the said accused is unhappy with the complainant.
3. The accused Nos. 4 and 5 and/or their family members are having some disputes with the society since the flat No. 7 on the sixth floor in which the office of the CIC society is situated has been purchased by the family of the said accused persons and they are aggrieved since the society has not vacated the said flat and some disputes between them and the society are existing. The aforesaid accused persons having some other disputes with the society have formed an alliance to defame the complainant. The aforesaid accused persons along with few others have sent and circulated a letter dated August 4, 2009 signed by the said accused persons for self and/or on behalf of their firms and/or establishment and the said letter has been addressed to Shri Gaurav Swarup, President of CIC Society. Copies of the said letter were also circulated, distributed and/or caused to 4 be circulated and distributed by the aforesaid accused persons to various owners and occupiers of CIC. The said letter contains various forms of defamatory and malicious statement against the complainant. The statements and allegations made against the complainant in the said letter are false to the knowledge of the accused persons and they have made such false allegations and imputations against the complainant out of malice and to wrongfully expose the complainant to contempt, redicule, hatred and to prejudice the complainant in the way of his profession and the reputation. The false and defamatory statements have been made in the said letter under the heading "Issues and Facts". It has been alleged in the letter that the sum of Rs.43,00,000/- was due from the properties held by the complainant in CIC. The accused persons are the signatories and the aforesaid letter contained false, untrue and defamatory allegations and imputations against the complainant. The accused persons have ill-will and malice towards the complainant and they have made the false allegations against the complainant not in good faith, and, without due care and caution, without verifying the truth of the allegations made against the complainant.
4. The complainant had sent legal notice to the aforesaid accused persons and other signatories of the letter through his Advocate Mr. A. K. Gandhi by his letter dated August 17, 2009 denying all the allegations made against him. The accused persons have not denied that they have written 5 and circulated the said letter. On the contrary, they are verbally threatening the complainant to withdraw the said legal notice or else the complainant would face dire consequences.
5. The signatory Nos. 17, 21, 27, 29, 30, 31 and 36 in reply to the said letter sent by the learned Advocate of the complainant have intimated that their signatures were obtained in a fraudulent manner and they were not given the copies of the letter in question and their signatures were obtained from the persons who are not authorised. It has been alleged that the accused persons have defamed the complainant in the esteem of others and lowered the moral and intellectual character of the complainant. Under the circumstances, the petition of complaint was filed before the learned Court below.
6. The learned Magistrate vide order dated 09.11.2009 examined the complainant and his witness. The learned Magistrate also perused the documents filed and after considering the materials on record held that there was sufficient reason to raise strong and reasonable complicity against the accused persons in the commission of the alleged offence under Section 500/120B of the Indian Penal Code.
7. Mr. Moitra the learned Counsel appearing for the petitioner submits that 54 members of the Society signed the letter and submitted it to the 6 President of the Society. It is contended that the complaint has been filed against 13 accused persons, although, 54 signatories signed the letter. It is thus contended that other signatories should have been included in the complaint with the petitioners.
8. Mr. Moitra contends that the letter was issued only making some queries for some matters which was for the benefit of all the flat owners. It is contended that there is no allegation in the complaint that the accused had joined together and drew out a plan to defame the complainant. It is submitted that no overt act on the part of the accused has been alleged. It is the contention of Mr. Moitra that there is no averment in the complaint that the complainant has been defamed in the esteem of others by the circulation of the letter.
9. It is contended by Mr. Moitra that so far as, the "imputation" is concerned, it must be actuated by preconceived malice or motive and there is no averment that the signatories had any such personal grudge. It is submitted by Mr. Moitra that by mere putting some queries it would not amount to imputation and no reply was given by the Secretary till date. 7
10. Mr. Moitra submits that President and the Secretary are the authorities of the association and in the letter there was no accusation against any particular person.
11. It is the contention of Mr. Moitra that since the letter was given to the person in authority it squarely comes within the purview of the exception to Section 499 I.P.C.
12. It is contended that nowhere it has been stated in the complaint that the accused persons will be benefited by the circulation of the letter. It is submitted that the letter was not circulated to any outsider. Mr. Moitra submits that collective conduct would not amount to defamation, otherwise there would be no democratic right of a citizen. Mr. Moitra submits that imputation must presuppose accusation and in the letter impugned there was no accusation either directly or indirectly. Mr. Moitra contends that nothing was stated in the letter touching the profession or trade of the complainant. It is submitted that as a member of the association, the conduct of the complainant was called in question and there was nothing to do with his profession or trade.
13. Mr. Moitra submits that there was no malice in law or in fact and only queries were raised. Mr. Moitra submits that by filing the petition of complaint the collective will, desire and action were going to be gagged. 8 Mr. Moitra submits that the letter was issued only to protect the collective interest and not personal. Mr. Moitra has referred to the exception 8 & 9 to Section 499 I.P.C. Mr. Moitra has referred to and cited the decisions reported in 2010(1) C.Cr.L.R. Cal 403 [Dipankar Bagchi Vs. State of West Bengal and Anr.]; 2005 Cr.L.J. 692 [S.P. Bobati and others Vs. Mahadev Virupaxappa Latti]; 1981 Cr.L.J. 1729 [ O. N. Khajuria Vs. The State of Maharashtra]; 1996 SCC (Cri) 1310 [Shatrughna Prasad Sinha Vs. Rajbhau Surajmal Rathi and others]; AIR (39) 1952 Cal 228 [Romesh Roy Vs. The King];
14. Mr. Moitra submits that the learned Magistrate did not apply judicial mind and only on the basis of the statement on S.A. of the complainant issued process. Mr. Moitra submits that Section 499 I.P.C. is to be read along with the explanation and if the learned Magistrate was satisfied with the explanation to Section 499 I.P.C., the Court ought not to have taken cognizance.
15. Mr. Dastoor appearing on behalf of the O.P./complainant submits that, although, 54 signatories appear to have signed the letter, a person having more than one flat signed more than once and only 13 persons signed the letter against whom the petition of complaint was filed. Mr. Dastoor submits that it is the absolute discretion of the complainant against whom he will proceed.
9
16. Mr. Dastoor submits that a letter was written to the learned Advocate of the accused persons and 8 persons in the reply denied their signatures. Mr. Dastoor contends that before issuing the impugned letter dated 04.8.2009, no verification was made and in absence of due care and caution it cannot be said that there was good faith on the part of the accused persons. It is the contention of Mr. Dastoor that the accused persons should have ascertained the facts and thereafter, could have asked the questions.
17. Mr. Dastoor submits that circulation of the impugned letter is not disputed. Mr. Dastoor contends that the letter was addressed to the President, but, it was circulated to all the flat owners with the intention of lowering the dignity of the complainant in the esteem of other flat owners. Mr. Dastoor contends that the allegation of dues to the tune of Rs. 43,00,000/- on the part of the complainant was not true, in as much as, the reply was given by the Officiating Executive Secretary stating that there was no dues.
18. Mr. Dastoor submits that as regards the point 'B' imputation was there alleging the 'Benami' property of the complainant. Mr. Dastoor contends that there was not a single sentence on the part of the accused persons that they have verified the facts/points and the circulation of the letter was 10 aimed at denigrating the complainant in the esteem of other flat owners. Mr. Dastoor contends that the letter was defamatory and it lowered the image of the complainant in the esteem of other flat owners. Mr. Dastoor contends that there was nothing to show that the accused persons made an enquiry on their own as to the points raised in the letter.
19. As to the decision cited by Mr. Dastoor, Mr. Moitra submits that the factual matrix of those cases being different, would not apply in the facts and circumstances of the instant case.
20. Mr. Satpati appearing for the State submits that State is not a material party in this case and in this case it is to be decided whether the order passed by the learned Magistrate suffers from any illegality and it is to be considered whether prima facie case has been made out or not.
21. Mr. Dastoor has referred to and cited the decisions reported in 1970(1) SCC 590 (Chaman Lal Vs. The State of Punjab]; 1971(1) SCC 885 [Sukra Mahto Vs. Basdeo Kumar Mahto & Anr.]; (1981) 3 SCC 208 [Sewakram Sobhani Vs. R. K. Karanjia, Chief Editor, Weekly Blitz & Ors.]; AIR 1971 SC 1389 [Shatrughna Prasad Sinha Vs. Rajbhau Surajmal Rathi & Ors.]; (2001)2 SCC 171 [S. K. Sundaram : In RE]; (2001)5 SCC 165 [M. N. Damani Vs. S. K. Sinha & Ors.]; 74 CWN 336 11 [Li Yun Chen Vs. Chang Chi Hua & Anr.]and AIR 1971 SC 1389 [Balraj Khanna and others Vs. Moti Ram]
22. From the decision cited by Mr. Moitra it appears that in the case of Dipankar Bagchi Vs. The State of West Bengal and another (Supra) it has been held in paragraph 12 as follows:
" 12. ...............therefore, there must be some prima facie evidence that in the estimation of the general public by such imputation the reputation of the complainant has been harmed and lowered down............."
23. In the case of S.P. Bobati and others Vs. Mahadev Virupaxappa Latti (Supra) it has been held that the imputation must be made with intention to harm the complainant. It has further been held that mere use of abusive word do not per se constitute defamation.
24. In the case of [ O. N. Khajuria Vs. The State of Maharashtra] (Supra) the Branch Manager of a bank on the basis of public notice issued by the bank Management intimated the public that complainant was believed to be involved in the criminal cases for defrauding the bank, that he had been 12 suspended and was no more authorised to deal in any way on behalf of the bank. It was held that on facts and circumstances issue of process was unwarranted and the public notice did not make out even prima facie case apart from the fact that notice was issued by management in public interest and for public good.
25. In the case of Shatrughna Prasad Sinha Vs. Rajbhau Surajmal Rathi and others (Supra) it was held that the complaint must disclose all necessary facts constituting offence alleged before taking cognizance of the offence. It was further held that when the Magistrate prima facie came to the conclusion that the allegations might come within the definition of 'defamation' under Section 499 I.P.C. and could be taken cognizance of, it was not a case warranting quashing of the complaint at that stage.
26. In the case of Romesh Roy Vs. The King (Supra) it was held that accused need not prove allegations to be true and it is enough if he shows that he has reasonable grounds to believe in allegations. It has further been held that in order to come within exception 8th accused person is not bound to prove that the allegations made by him are true. It is sufficient if he proves that on reasonable grounds he believed the allegations to be true and in that belief he bona fide made accusation before the lawful authority. 13
27. The learned Magistrate upon receipt of the complaint proceeded to examine the complainant and his witnesses on 09.11.2009. The learned Magistrate recorded by the said order that he examined the complainant and his witnesses, perused the documents filed and considered. Thereafter learned Magistrate observed that he found sufficient reason to raise strong and reasonable complicity against the 13 accused persons and issued process under Section 500/120B of the Indian Penal Code.
28. Apart from the complainant the witnesses were examined, namely, Mr. Gourav Swarup, the President of the Society who has stated that there was imputation in the letter on false allegations and the letter was circulated to the other flat owners of the building knowing fully well that the allegations were false. It has further been stated that it was done out of grudge raising false allegations deliberately. It has further been stated that some signatures in the said letter have been fabricated. He has further stated that by circulating the letter there was damage of reputation. Another witness Mr. Mahesh Prahaldka has stated that he is the Secretary of CIC and he knows Mr. Suraj Kumar Poddar. It is in his statement that after the receipt of the letter he was surprised and after perusal of the records he found that the allegations were all false. Thereafter, he stated that he had bad conception about Suraj Kumar Poddar.
14
29. In the case of Chaman Lal Vs. The State of Punjab (Supra) it has been held that what is public good is a question of fact and good faith has to be established as a fact. In paragraph 14 and 15 of the said decision it has been observed as follows:-
"14. The letter written by the appellant indicates that the appellant was setting his seal of approval to matters contained in that letter. There is no proof that the appellant made any enquiry about the matter before he wrote the letter. There is no evidence that the appellant acted with reasonable care. On the contrary, circumstances suggest that the appellant acted without any sense of responsibility and propriety. The appellant was a President of the Municipal Committee and therefore he was required to act with utmost prudence and caution.
15. In order to come within the First Exception to Section 499 of the Indian Penal Code it has to be established that what has been imputed concerning the respondent is true and the publication of the imputation is for the public good. The onus of proving these two ingredients, namely, truth of the imputation and the publication of the imputation for the public good is on the appellant. The appellant totally failed to establish these pleas. On the contrary, the evidence is that the imputation concerning the respondent is not true but is motivated by animus of the appellant against the respondent."
30. In the case of Sukra Mahato Vs. Basdeo Kumar Mahato and another (Supra) it has been observed in para 8 as follows:-
15
"8. The ingredients of the Ninth Exception are first that the imputation must be made in good faith; secondly, the imputation must be for protection of the interest of the person making it or of any other person or for the public good. Good faith is a question of fact. So is protection of the interest of the person making it. Public good is also a question of fact. This Court in Harbhajan Singh V. State of Punjab in dealing with the Ninth Exception to Section 499 of the Indian Penal Code said that it would have to be found out whether a person acted with due care and attention. This Court said there "Simple belief or actual belief by itself is not enough. The appellant must show that the belief in his impugned statement had a rational basis and was not just a blind simple belief. That is where the element of due care and attention plays an important role". The person alleging good faith has to establish as a fact that he made enquiry before he made the imputation and he has to give reasons and facts to indicate that he acted with due care and attention and was satisfied that the imputation was true. The proof of the truth of the statement is not an element of the Ninth Exception as of the first Exception to Section 499. In the Ninth Exception the person making the imputation has to substantiate that his 16 enquiry was attended with due care and attention and he was thus satisfied that the imputation was true. The accent is on the enquiry, care and objective and not subjective satisfaction."
31. In the case of Sewakram Sobhani Vs. R. K. Karanjia, Chief Editor, Weekly Blitz and others (Supra) it has been held that in respect of Section 499 I.P.C., Ninth Exception, whether the accused is protected under the Ninth Exception is a question of fact and the onus is on the accused to prove that he is so protected. It has further been held that 'good faith' and 'public good' are questions of fact and matters of evidence.
32. In case of Balraj Khanna and others Vs. Moti Ram (Supra) it has been held that the question as to applicability of the Exception to Section 499 can arise only after commencement of trial and at the stage of enquiry it is to be seen whether prima facie case is made out on the basis of the complaint. In paragraph 30 it has been observed as follows:-
"30. Before concluding the discussion, it is to be stated that the trial Magistrate has given an additional reason for dismissing the complaint. That reason is that the resolution passed by the Standing Committee on December 11, 1964 and the discussion preceding it by the members of the Standing Committee including the appellants is covered by the 17 Exceptions to Section 499, I.P.C. Unfortunately, the High Court also has touched upon this aspect and made certain observations. In our opinion, the question of the application of the Exceptions to Section 499 I.P.C. does not arise at this stage. Rejection of the complaint by the Magistrate on the second ground mentioned above cannot be sustained. It was also unnecessary for the High Court to have considered this aspect and differed from the trial Magistrate. It is needless to state that the question of applicability of the Exceptions to Section 499, I.P.C. as well as all other defences that may be available to the appellants will have to be gone into during the trial of the complaint."
33. In the case of S. K. Sundaram : In Re (Supra) it has been held in paragraph 28 as follows:-
"28. The expression "good faith" in criminal jurisprudence has a definite connotation. Its import is totally different from saying that the person concerned has honestly believed the truth of what is said. Good faith is defined in Section 52 of the Indian Penal Code thus:"18
"52. Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention".
34. Mr. Dastoor has drawn my attention to the letter dated 17.8.2009 written by the Officiating Executive Secretary to the complainant stating that there was no dues against the name of the complainant in respect of his flat No. 2 on the 4th floor or flat No. 3 on the sixth floor.
35. Mr. Moitra with reference to the letter dated 4th August, 2009 submits that the points raised in the said letter were not dealt with in the letter issued by the Officiating Executive Secretary on 17.8.2009.
36. Mr. Dastoor has also drawn my attention to the documents filed in support of the complaint in the learned Court below and contends that the allegations are all false. It is the contention of Mr. Dastoor that before issuing the impugned letter dated 4th August, 2009 the signatories ought to have verified the imputations made in the said letter and also ought to have taken due care and caution. It is contended that nowhere in the letter it has been mentioned that verification was made and after taking due care and caution the imputations were made. Mr. Dastoor contends that the imputation that over Rs.43,00,000/- were due from the complainant in respect of the properties held by him in the CIC Society is 19 quite false as it is evident from the letter issued by the Officiating Managing Secretary.
37. It is in the petition of complaint that the accused persons have ill-will and malice towards the complainant and without due care and caution they made the imputations which have caused harm to the complainant by spreading deliberate lies about the complainant and the same is an attempt of character assassination of the complainant. It has further been alleged in the complaint that in the estimation of others the circulation of the letter have lowered the moral and intellectual character of the complainant.
38. Having heard the submission of the learned Counsel of both sides and on perusal of the papers on record, I am of the considered view that the questions of good faith, public good as raised by Mr. Moitra being questions of fact are matters of evidence. The contention of Mr. Moitra that the points raised in the letter are mere queries and not of accusation, can only be decided after recording evidence at the time of trial. At this stage, when the learned Magistrate recorded his satisfaction as to the existence of prima facie case upon perusal of the initial statement of the complainant, his witnesses and the documents filed, I find that at this stage this Court should not scrutinise or appreciate the scope and meaning of the initial statement of the complainant and his witnesses. The points raised in the 20 letter dated 04.8.2009 cannot be interpreted at this stage without recording evidence. If it is done at this stage, it would amount to pre- judging the questions of law and facts involved in the case. It cannot be said that the facts complained of do not constitute the offence. At this initial stage I find that it is not a fit case for exercising the power under Section 482 Cr.P.C. for quashing of the proceedings. The application under Section 482 Cr.P.C. accordingly stands dismissed. Interim order, if any, stands vacated.
39. Let a copy of this order be sent to the learned Court below immediately.
40. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.
( Kalidas Mukherjee, J.) Later:
After the judgment is delivered, learned Counsel appearing for the petitioners has drawn my attention to paragraph 28 of the judgment wherein it has been mentioned that one witness Mr. Gourav Swarup, the President of the society was examined. It is submitted that Mr. Gourav Swarup was not examined and his 21 statement was not recorded in the learned Court below. Mr. Dastoor appears on behalf of O.P. No. 2 and submits that Mr. Swarup was not examined in the Court below. Mr. Dastoor submits that the papers relating to statement of witness have not been properly paginated. I make it clear that the statement in the name of Mr. Gourav Swarup as mentioned at the beginning of paragraph 28 of this judgment was the statement of the complainant Mr. Suraj Kumar Poddar. It is, therefore, recorded that the portion at the beginning of paragraph 28, namely, "Apart from the complainant the witnesses were examined, namely, Mr. Gourav Swarup, the President of the Society who" be treated as "The complainant Mr. Suraj Kumar Poddar".
(Kalidas Mukherjee, J.)