Madras High Court
Alli Rani Joseph Mathew vs P.Arun Kumar on 3 August, 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.08.2012 CORAM THE HON'BLE MR.JUSTICE S.NAGAMUTHU CRL.O.P.No.10481 OF 2012 and M.P.No.1 of 2012 1. Alli Rani Joseph Mathew 2. Dr.P.Anandha Geetha 3. Anu Velentina Krishnan @ Tina 4. P.Amarnath .. Petitioners .. Vs .. P.Arun Kumar .. Respondent Prayer:- Criminal Original Petitions filed under section 482 of the Code of Criminal Procedure, praying to call for the records in C.C.No.50/2012 on the file of the Judicial Magistrate No.VII, Coimbatore and quash the same. For Petitioners : Mr.A.Raghunathan, Senior Counsel for M.Mohammed Rafi For Respondent : Mr.C.D.Johnson - - - - - ORDER
The petitioners are accused in C.C.No.50/2012 on the file of the learned Judicial Magistrate No.VII, Coimbatore. The respondent is the complainant in the case. The respondent has filed the said private complaint alleging that the petitioners have committed an offence punishable under Section 500 of IPC. Seeking to quash the same, the petitioners have come up before this Court with this petition.
2. The facts of the case would be as follows:
The respondent is the eldest son to his parents, namely, Mr.P.Padmanabhan and Dr.Mrs.R.Krishnakumari Padmanabhan. They died on 08.12.1990 and 04.02.2008 respectively. The petitioners 1 to 3 herein are the sisters of the respondent and the 4th petitioner is his brother. According to the respondent, his mother Mrs.Dr.Krishnakumari Padmanabhan had left behind an unregistered Will in his favour in respect of the property in question. The respondent further claims that the said Will is the last Will of Krishnakumari under which she has bequeathed her property in question absolutely in his favour. He would also submit that the said Will dated 04.05.2005 has come into force after the demise of his mother on 04.02.2008. He would further state that by taking steps, he got the tenant vacated from the property in question and thereafter, he has been in occupation of the same.
3. The respondent has further alleged that on account of the above unregistered Will dated 04.05.2005, the petitioners herein have got no right whatsoever over the said property. But, on 15.07.2008, according to the respondent, a false complaint was made by one of the petitioners herein upon which a case was registered by the police and the same was finally closed as 'mistake of fact'. Thereafter, the petitioners have filed a suit in O.S.No.610/2009 before the learned I Additional District Judge, Coimbatore for partition. According to the respondent, in the plaint in O.S.No.610/2009, the petitioners herein have made lot of defamatory imputations making out a clear offence punishable under Section 500 of IPC. With these allegations, the respondent has filed the instant private complaint. After having made appearance before the lower court, the petitioners, who are accused 1 to 4 have come up before this Court seeking to quash the entire proceedings.
4. The imputations as extracted in the complaint, are reproduced below:-
"1st defendant being one among the two sons of their parents, has been leading an irresponsible life. He failed in his UG degree due to his truant behaviour. Then on was roaming around uselessly to the dismay of the elders at home. His father chased him out of the house on many occasions. But he always crawled back and forced himself in the house. He never cared for the family and he has been continuing his life as he likes by spending money lavishly".
He used to beg money from his mother by troubling her and even sometimes, he used to blackmail and coerce her also towards giving money. Thus, the 1st defendant herein always was causing troubles to everyone of the family and the 1st defendant was also not in any position to help in running the family. He never cared for any family problems or for the betterment of family but often put them in corners. The plaintiff's father always used to advise the 1st defendant to lead a life without spoiling the reputation of the family which the 1st defendant did not at all care for. After his debacle at college, he refused to go to work preferring to live of his parents. He whiled away more time pretending to do post graduation (which he never completed) squandering the parents' money again. The parents, when he demanded money for staring a business lent him a huge amount, nevertheless, he caused all sorts of worries to the family. He continued being irresponsible and indisciplined. Till his retirement the father was leading a demanding career. But when he experienced 1st defendants bad behaviour, his heart broke. In utter dismay, father passed away soon after. Finally, his business had to be wound up. Despite plaintiff's mother asking him to return her money, he refused to do so. After marriage circa 1993, the 1st defendant continued harassing his elders more. Unable to tolerate his ill-treatment, his mother's health took a turn for the worse. She ordered him out threatening to go to the police otherwise. From then on, the plaintiffs alone have been looking after the family by serving their mother and grandmothers. However, even after being thrown out of the house, he continued coming to her for money for expenses. Since her health was fragile and wanting to avoid ugly scene, she continued providing for him. Hence, under these circumstances, the plaintiff's mother thought of executing a WILL so that the plaintiff's interest could be safeguarded.
"that she did not trust 1st defendant, despite being the eldest son".
"The main intention of the executants was that if at all any property given certainly the 1st defendant would alienate the same to lead his extravagant life and also he was not in good terms with mother and on several occasion he physically abused her."
"She hated the 1st defendant herein due to his malicious and crue attitude. The 1st defendant at no point of time thought of involving himself in doing good job or profession, but always greedy for money and he used to extort money from his parents and thus father and mother disliked the 1st defendant. The plaintiffs submit that their parents did not at all have any faith on 1st defendant and he never cared for the parents. After marriage, he was separated from the family and he was lenient towards his in-laws. Whenever he needed money, he used to beg or threaten his mother and thereby in the habit of collecting money".
"it is pertinent to note here that the 1st defendant used to visit the house under the guise of seeing the sick mother and during such times in absence of plaintiffs, the 1st defendant used to collect her signature on blank papers saying he was representing her for usage of domestic affairs i.e. To carry out building repairing work in connection with employment, banking purpose etc. He also used to obtain thumb impression of mother, but the plaintiffs were not serious about it at that time because their priority was the health of elders in the family".
"At this juncture, the 1st defendant approached the 2nd plaintiff and thereby sought permission to occupy a portion of 1st item of suit property namely the house property 'Padmam'. The 2nd plaintiff also without knowing the evil intent of the 1st defendant herein permitted him to occupy the front portion of the house property temporarily believing his representation that he would move out as soon as he finds an alternative accommodation".
"Whereas, on receipt of those papers, the plaintiffs came to know that the 1st defendant created an unregistered WILL dated 04.05.2005 as if the first item of suit property was bequeathed to him by his mother".
"The plaintiff submit that the 1st defendant played fraud on the plaintiffs and thereby the plaintiffs have been put to great loss and hardship."
"The plaintiff submit that their mother did not at all execute any power of attorney dated 04.05.2005 and the alleged notary attested power of attorney is either fabricated for the reasons that the 1st defendant used to obtain the thumb impression of the mother Krishnakumari and signatures in blank papers while she was not in conscious mind. The plaintiffs submit that the 1st defendant used to come home in the absence of the plaintiff as if visiting the mother partial to see her and taking advantage of her ill-health and dementia he used to obtain thumb impressions and signatures on blank papers. The plaintiffs also noted pad ink in the LT of mother Krishnakumari but they did not think that the 1st defendant might have misused the same to this extent. The 1st defendant had prepared the alleged WILL using the signature and thumb impression of the mother, obtained while mother was ill. The plaintiffs submit that the 1st defendant had prepared the alleged WILL dated 04.05.2005 which is false and alleged Power of Attorney 04.05.2005 was also fabricated likewise. The plaintiffs submit that the plaintiff's mother did not at all execute the said WILL dated 04.05.2005 and Power of Attorney dated 04.05.2005 of her own volition. It is well known that a person cannot sell the immovable property except by a a registered power of attorney. While so, the 1st defendant and the defendants 4 and 5 hand in glove, created the alleged Sale Deeds which are sham and nominal and created only to defeat the right of plaintiffs in claiming title over the same. The plaintiffs submit that the alleged sale deeds are null and void and not binding on the plaintiffs and the defendants 4 and 5 are not bona-fide purchasers and there were no considerations passed."
"The plaintiffs submit that the 1st defendant also threatened the aunty of his mother Dr.Krishnamkumari, namely C.Visalakshi Ammal demanding to settle her property to him."
"The 1st defendant used to threaten the said Visalakshi Ammal in person and over phone and thereby causing serious threat to her life. There is police complaint lodged by Visalakshi Ammal dated 13.10.2008 against the 1st defendant, besides filing civil suit. The 3rd plaintiff has also lodged a police complaint against the illegal act of the 1st defendant and thereby on a FIR was lodged against him, the 1st defendant by using his influence made the FIR closed on the ground of RCS".
5. The learned Senior Counsel appearing for the petitioners would submit that these averments have been made in the complaint only out of good faith which would fall squarely under Exception 5 and 9 to Section 499 of IPC. The learned Senior Counsel would further submit that these averments are absolutely necessary for proving the issues involved in the civil suit because it is necessary for the petitioners to disprove the execution of the Will sought to be used by the complainant in his favour. The learned Senior Counsel would also submit that, as a matter of fact, during her life time, Mrs.Krishnakumari had executed a registered Will and the same has come into force after her demise. Before the civil court, it is submitted by the petitioners that the said Will is the last Will executed by the deceased and the Will which is now made use of by the respondent was not really executed by the deceased. The learned Senior Counsel would further submit that it cannot be stated that these averments, which according to the respondent are defamatory in nature, are absolutely unnecessary for the issues involved in the suit. These averments are necessary and relevant and the petitioners are prepared to prove the same before the civil court. Therefore, according to the learned Senior Counsel for the petitioners, the complaint is liable to be quashed. In order to draw support to the above arguments, the learned Senior Counsel has relied on a judgment of this Court in Geetha vs. A.K.Dhamodharan reported in CDJ 2011 MHC 3809 wherein in similar circumstances, a learned Judge of this Court (Hon'ble Justice R.Mala) has quashed the private complaint of an offence under Section 500 of IPC by making the following observations :
Here, it is pertinent to note that admittedly, the case is subjudice and it is yet to be disposed of. It is confined to comments on cases which are decided by Court and not to those cases which are subjudice. It does not cover pending matters in Court. Pending matters are immune from comments. Considering the same, the respondent/husband herein has filed a divorce petition on the ground of adultery and cruelty. He also filed a suit and made an allegation against her wife, stating that she is leading adultery life with one Anju @ Prakash, who is none other than friend of her elder son. He also pleaded that it is an illegal act and the case is yet to be disposed of. In such circumstances, whether the fact has been true or not is yet to be decided. Hence, whether the statement is true or defamatory and that has been decided after the disposal of the case. In such circumstances, I am of the opinion, as per the dictum of 1987(3) SCC34 pending matters are immune from comments made by the parties. The averments mentioned in the pleadings filed before the judicial forum is not coming under the purview of Section 499 IPC., wherein the proceedings are pending and subjudice. Hence, there is no prima facie case has been made out for taking cognizable offence under Sections 499, 500, 501 and 502 IPC. Against the respondent/husband. So the learned Magistrate has considered all the aspects in proper perspective and came to the correct conclusion and hence, the criminal revision is dismissed as devoid of merits.
6. The learned Senior Counsel has nextly relied on a judgment of the High Court of Andhra Pradesh in G.Janardhana Reddy v. A.Narayana Reddy and another reported in 2010 Crl.L.J.2660 wherein also similar view has been taken and complaint has been quashed. In paragraphs 9 and 10 of the judgment, the learned Judge has observed as follows:
9. The Gujarat High Court in Darusing Durgasing v. State of Gujarat and another 2006 Crl LJ 720 followed the above said reported decision of the Supreme Court and quashed the criminal proceedings for the offence punishable under Section 500 of the Indian Penal Code in view of Exceptions 7,8 and 9 to Section 499 of the Indian Penal Code.
10. In an examination fact situation, the Bombay High Court in Valmiki Faleiro v. Mrs. Lauriana Fernandes and others Crl LJ 2498 went to the extent of holding a paper publication containing certain imputations as one saved by Exception 9 because intention of the accused was @ page-Crl LJ2663 to protect his rights in the property and not to harm reputation of the complainant. Thus, on reading of Exception 9 to Section 499 of the Indian Penal Code and the above case law, I have absolutely no doubt in my mind that the alleged imputations contained in pleadings and evidence in civil suit O.S.No.966 of 1998 andA.S.No.155 of 2004 are covered by Exception 9 of Section 499 of the Indian Penal Code, even assuming that the imputations are prima facie defamatory in nature. Viewed from in any angle, complaint filed by the 1st respondent in the lower Court cannot stand to legal scrutiny by this Court. Thus, according to the learned Senior Counsel for the Petitioners, the present private complaint is liable to be quashed as it is a clear abuse of process of court.
7. The learned Counsel appearing for the respondent would stoutly oppose this petition. According to him, Exception either 5 or 9 to Section 499 of IPC is to be pleaded and proved only at the time of trial. Plea of good faith cannot be presumed as the same requires to be proved. In the case on hand, though it is stated by the petitioners that these averments had been made out of good faith, it is for the criminal court to decide as to whether they have been made, out of good faith or not, on the basis of the evidence to be let in by both the parties. Thus, according to the learned Counsel for the respondent, it is too pre mature, at this stage, to presume good faith and quash the proceedings.
8. Nextly, the learned Counsel for the respondent would submit that there is no bar at all for an aggrieved to file a private complaint alleging that he had been defamed warranting punishment under Section 500 of IPC for the accused, if defamatory statement has been made in the pleading in a civil suit. It is the contention of the learned Counsel that the pendency of the civil suit has got nothing to do with the criminal case. In other words, according to the learned Counsel for the respondent, there is no bar for filing a prosecution for defamation on the basis of the averments found in a pleading filed before the civil court. For this proposition, the learned Counsel has relied on a judgment of this Court in Thangavelu Chettiar v. Ponnammal reported in AIR 1966 Madras 363 wherein a learned Judge of this Court has held in para 5 of the said judgment as follows:
(5) The learned advocate for the petitioner relied on exception 9 to S.499 I.P.C. It is clear from the judgments of the courts below that this was not urged in the courts below. Under S.105 of the Evidence Act, the burden of proving the circumstances to show that the case of the accused comes within exception 9 to S.499 I.P.C. is upon the petitioner and in the absence of such plea, it is open to a court to presume the absence of such circumstances. Good faith is defined in S.52 of the Penal Code. Nothings, says S.52 I.P.C. is said to be done or believed in good faith which is done or believed without due care and attention. In Harbhajan Singh v. State of Punjab (Crl.App.53 of 1961): (AIR 1966 SC 97) the Supreme Court in paragraph 21 of its judgment has dealt with the relevant considerations to support the plea of good faith to invoke the benefit of Exception 9. It is clear from the said judgment that the plea of good faith would be a question to be considered on the facts and circumstances of each case. It is true that if the facts and circumstances proved in this case support the plea of good faith and other requirements of Exception 9 to S.499 IPC., it is open to the accused to rely on the same and claim the benefit of the said Exception in spite of his not having pleaded it. The learned advocate for the petitioner relied on the several circumstances mentioned in ground NO.7 of the grounds of revision. I have already referred to the fact that the appellate Judge has considered these facts and found that there was no reason for the petitioner to believe that P.W.1 was the concubine of P.W.2. There can be no doubt at the petitioner has unnecessarily made the defamatory allegation in a suit for recovery of money and it shows lack of good faith.
9. The learned Counsel for the respondent has nextly relied on yet another judgment of this Court in Dr.J.Sudarshan v. Sankaran reported in 1992 Crl.L.J.2427 in which in para 14, the Honourable Judge has held as follows:
...The offending passage is per se defamatory and it is open to the respondent to choose to prosecute the petitioner, irrespective of the pendency or the result of the civil litigation. The civil court would confine its decision to the trespass, threat of injury and damage by the servants, agents and workmen of the various defendants and the entitlement of token damages by the respondent, while the criminal Court, the passage being per se defamatory, would proceed to find out whether any one of the 10 Exceptions to S.499 IPC would apply. The scope of the two proceedings is entirely different. They are not parallel.
10. The learned Counsel for the respondent would further contend that there is no need for the respondent to wait for the outcome of the civil suit and therefore, the present prosecution is maintainable. He would also submit that though it is possible for him to approach the civil court for striking out the above averments in the pleadings, that cannot be an impediment to the aggrieved to file the prosecution. Thus, according to the learned Counsel for the respondent, this petition is liable to be dismissed.
11. I have considered the above submissions and I have also perused the materials available on record.
12. At the outset, I want to state that as has been held by this Court consistently, there is no legal bar for filing a private complaint alleging that a party to a civil proceeding has made certain imputations in the pleadings before the civil court, which are per se defamatory. I am also clear that the pendency of the said civil suit is not an impediment for the aggrieved to file a private complaint. Without waiting for the final outcome of the suit, he can very well approach the criminal court by way of a private complaint seeking to punish the accused for defamatory statements made in the pleadings, provided the averments in the pleadings are totally unconnected to or unwarranted for the issues involved in the civil suit and they are per se defamatory. In any civil proceeding, it is absolutely necessary for the party concerned to make averments relevant to the issues. If such relevant averments are not made, the civil court may not permit the party to make a plea on that subject orally and also to lead evidence. It is common knowledge that in civil suits, there cannot be any evidence let in without there being relevant pleading. In this case, the petitioners have made averments touching upon the personal conduct and the relationship between the deceased and the respondent. According to the learned Senior Counsel for the petitioners, these averments are very much relevant for the civil court to decide as to whether the unregistered Will of the year 2005, which the respondent is projecting, would have been really executed by the deceased or not. The circumstances like the relationship between the deceased and the party in whose favour now the Will is projected and the love and affection between the parties are all relevant to this core issue as to whether the Will would have been executed by the deceased. Suppose, it is proved that the deceased was not in good terms with the respondent and they were fighting with each other frequently, it may be a circumstance to prove that the Will would not have been executed by the deceased in favour of the individual concerned. In the case on hand, the averments, which are stated to be defamatory, relate to the personal character of the respondent as well as his relationship with the deceased. These are all, in fact, relevant for the civil court to decide the issue as to whether the Will of the year, 2005 was really executed by the deceased or not. If these averments have not been made in the pleadings before the civil court, as I have already stated, the petitioners may not be permitted by the civil court to plead on that subject orally and lead evidence and as a result, they may not be in a position to disprove the Will. Therefore, it cannot be stated that these averments are totally unnecessary.
13. In this regard, it is useful to refer to Order VI Rule 16 of the Code of Civil Procedure which reads as follows:
"O.6 R.16. Striking out pleadings The Court may at any stage of the proceedings order to be struck out or ammended any matter in any pleading-
(a) which may be unnecessary, scandalous, frivolous, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or ) which is otherwise an abuse of process of the court."
14. As per the said rule, if it is the case of the respondent that these averments are either unnecessary or scandalous, frivolous or vexatious or which may tend to prejudice the mind of the court, he could have very well made an application under this provision before the civil court seeking to strike out the above averments in the plaint. If any such petition is filed, certainly, the civil court would give a finding as to whether these averments have got any relevance to the issues involved in the suit and whether these averments are scandalous, frivolous and vexatious or they are in the nature of causing prejudice in the mind of the court. If only such a finding is given by the civil court, then, the respondent would be entitled to approach the criminal court that the statements are defamatory because they are scandalous. In my considered opinion, when the averments are very relevant to the issues involved in the suit and the suit is pending, the respondent is precluded to file a private complaint.
15. This may also be viewed from a different angle. Let us assume that the present prosecution is allowed to continue further and if the criminal court holds that these statements are scandalous and accordingly punishes the accused and later on, the civil court gives a finding that they are not scandalous, frivolous, vexatious and holds that they are necessary to the issues involved in the suit, then, the said finding of the civil court will be contrary to the findings of the criminal court. Such a situation leading two courts of law to render two conflicting judgments cannot be permitted. Therefore, in my considered opinion, it is for the petitioners either to approach the respective civil court under Order VI Rule 16 or to wait till the final outcome of the civil suit and then to work out his remedies in the manner known to law.
16. Now coming to the two judgments relied on by the learned Counsel for the respondent, in those two cases, the finding was that the statements were per se defamatory and they had no connection with the issues involved in the suit. I have got no different opinion as to what has been held in the said judgments of this court referred to above.
17. As has been held by this Court in those two judgments, if the averments made in the pleading have got nothing to do with the issues involved in the suit and they are per se defamatory, certainly, the aggrieved shall have a right to file a private complaint for defamation against the accused who had made the defamatory averments in the pleadings before the civil court without waiting for the final outcome of the suit. As I have already concluded, if the averments in the pleading have got some relevance to the issues involved in the suit, it cannot be said that they are per se defamatory. It is because of this reason, I hold that the present prosecution is not maintainable.
18. Now coming to the exception pleaded by the learned Senior Counsel for the petitioners, there can be no second opinion that a plea of good faith is a matter to be pleaded and proved. Good faith cannot be readily inferred. The term 'good faith' has been defined in Section 52 of the Indian Penal Code which reads as follows:
"52."Good Faith" Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention."
19. A close reading of the above definition would make one to clearly understand that if a statement has been made without due care and attention, then, it cannot be said that he acted in good faith. Here in this case, the petitioners have made these averments that are very relevant for the issues, which according to them have been stated with due care and attention. Whether these averments made by the petitioners in the plaint are statements of truth or not is going to be decided by the civil court because there is a relevant issue on the genuineness of the Will of the year, 2005. Therefore, it cannot be said at this stage that the petitioners have made the above averments without due care and attention.
20. In view of the foregoing discussion, I hold that this is not a case where the statements are per se defamatory so as to disallow the plea of good faith at this stage so as to allow the respondent to go ahead with the prosecution. As I have already narrated, it is for the respondent to approach the civil court under Order VI Rule 16 of CPC. or to wait till the final outcome of the suit and thereafter to work out his remedies in the manner known to law. I only say that the present prosecution is highly premature and it would amount to abuse of process of court and so, the same cannot be allowed to go further.
21. In view of all the above, this petition is allowed and the case in C.C.No.50/2012 on the file of the learned Judicial Magistrate No.VII, Coimbatore is hereby quashed, however, with liberty to the respondent to work out his remedy as indicated above Consequently, connected Miscellaneous Petition is closed.
03.08.2012 Index : Yes Internet : Yes tsi To
1.The Judicial Magistrate No.VII, Coimbatore.
2. The Public Prosecutor, High Court, Madras.
S.NAGAMUTHU, J.
tsi CRL.O.P.No.10481 of 2012 03.08.2012