Delhi District Court
Sh. Shajan Thomas vs Mrs. Marykutty George on 27 April, 2018
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04 & SPECIAL JUDGE (NDPS) ACT
SOUTH EAST DISTRICT: SAKET COURT: NEW DELHI
CR No. 58 of 18
in CR No. 113/17
Sh. Shajan Thomas,
S/o Thomas, Aged 48 years, Business,
Flat No. 201, Block No. 13,
Nurses Residential Complex,
Sriniwaspuri, New Delhi - 110065 ..........Revisionist
Vs.
Mrs. Marykutty George,
W/o George, Aged about 48 years,
Nurse,
Flat No. 103, Block No. 8,
Nurses Residential Complex,
Sriniwaspuri, New Delhi 110065 ..........Respondent
Instituted on : 20.12.2017 Argued on : 09.04.2018 Decided on : 27.04.2018 O R D E R 1 The revisionist has impugned the order dated 06.11.2017 vide which his complaint u/s 500 IPC has been dismissed by Ld. Trial Court. 2 The revision is filed on the grounds that Ld. Trial Court has only to ascertain truth or falsehood at the time of issue of the process. The witnesses examined by him have corroborated the allegations leveled by him against the respondent and Ld. Trial Court should have issued the process against Shajan K. Thomas Vs. Marykutty George - CR No. 58 of 2018 1/10 him. It is not open to the court to appreciate the evidence at the time of the passing of summoning order. The allegations of the respondent has lowered down his reputation in the eyes of the residents of the society and this fact has been duly corroborated by the witnesses examined by him. Ld. Trial Court has committed a grave error by considering the case under exception 9 to Section 499 IPC while dismissing the complaint. Hence, the order be set aside.
3 Notice of the revision is issued to the respondent. 4 The facts of the case are like this. The revisionist has filed a complaint against the respondent with the allegations that respondent is President of Allottees Welfare Society, Nurses Residential Complex, Sriniwas Puri, New Delhi. He is husband of Mrs. Lissy Shajan i.e. allottee of the flat in Nurses Residential Complex. He is well reputed person in the society and holding various positions at various forums. He is an income tax assesses. His family has kept a parttime maid namely Seema aged 29 years, resident of Jhuggi, adjacent to Nurses Residential Complex. On 06.08.2013 Seema informed him that entry pass has not been issued to her upon which he approached the respondent and requested him to issue a pass for Seema. The respondent has denied to issue the pass by stating that there is a complaint against Seema. He Shajan K. Thomas Vs. Marykutty George - CR No. 58 of 2018 2/10 told the respondent that he has no complaint against Seema but pass was not issued. On 11.08.2013, a meeting of allottees was convened by AWS in the Community Hall of the complex where loudspeaker as fixed. The speech on loudspeaker was audible in the entire complex. The President was presiding over the meeting. There were around 75 members in the meeting. The respondent referred to him with an intention to harm his reputation by speaking the words "idar kam karnewali ladki ko hum pass nahi diay hai kyonki unki immoral traffic ke bare mein complaint milgay" "lekin inko Block 12/201 mein rehnewale lissy shajan ki husband support karthe or unki liye pass bhi mangaye".
5 The statement "idhar kaam karne wali ladki ko hum pass nahi diya hai kyunki unki immoral traffic ke baare mai complaint mil gayi, lekin inko block 13/201 mai rehne wale Lissy Shajan ke husband support karte or unke liye pass bhi mangte" is a Slander on its face and perse defamatory which is referred to him. The person, who are known to him, can make out that respondent has referred to him. The statement has exposed him to hatered, contempt and ridicule because it charges him with having illicit relations with a lady who is involved in immoral traffic. The statement of respondent is uncalled for and defamatory. The respondent has deliberately and Shajan K. Thomas Vs. Marykutty George - CR No. 58 of 2018 3/10 maliciously made this statement in the meeting without any provocation on his part in order to injure his reputation in the society. The statement has tarnished his image, reputation and good name in the society by knowing that statement made by him is false.
6 The statement made by the respondent was heard by Mrs. Chingnei Kim, Ms. Lissy Shajan and several other persons. The defamatory statement was spread among the public persons which has become subject matter of discussion and lowered his moral and intellectual character in the estimation of others. The respondent is responsible for the allegations made by him. A legal notice was sent to the respondent to tender an unconditional apology but respondent has not given any reply to the notice. Hence, this complaint. 7 The revisionist has examined three witnesses. CW2 is the revisionist. He has corroborated the version of the complaint as set out in the beginning while briefing the facts. Ex.CW2/1 is the photocopy of ID Card issued by International Action Council for World Government, Ex.CW2/2 & 3 are the photocopies of ID Cards issued by Global Indian Association and Audition Times, Hindi Newspaper, MarkA is the ITR for the financial year 201213, Ex.CW2/4 is the copy of VAT Registration Form and Ex.CW2/5 is the copy of legal notice dated 22.08.2013 with receipts.
Shajan K. Thomas Vs. Marykutty George - CR No. 58 of 2018 4/10 8 CW1 Mrs. Chingnei Kim stated that respondent is the president of Allottees Welfare Society and everyone respect and obeys him. Ms. Seema is her domestic help as well as of the wife of complainant. The welfare society has refused to give gate pass to domestic help. She went to the office of Welfare Society and asked for the pass for domestic help from the respondent. On 11.08.2013, a public meeting was held where loudspeaker was installed. The respondent uttered the words idar kam karnewali ladki ko hum pass nahi diay hai kyonki unki immoral traffic ke bare mein complaint milgay" "lekin inko Block 12/201 mein rehnewale lissy shajan ki husband support karthe or unki liye pass bhi mangaye. She heard the words and started thinking that complainant is a man of loose character having relations with maid servant. The people from the campus asked her "Kaisa hai aapka padosi, loose character hai". The trust has gone and many persons started ignoring the complainant.
9 CW3 Anil Nayar stated that he is friend of complainant as they reside in the same complex. On 11.08.2013 AGBM called by AWS of the complex. He was present in the GBM. The respondent has made an announcement on the loudspeaker that idar kam karnewali ladki ko hum pass nahi diay hai kyonki unki immoral traffic ke bare mein complaint milgay" "lekin inko Shajan K. Thomas Vs. Marykutty George - CR No. 58 of 2018 5/10 Block 12/201 mein rehnewale lissy shajan ki husband support karthe or unki liye pass bhi mangaye. The members present in the meeting started looking at each other. He came back to his house. They decided to avoid the complainant from calling him in the function organized on the eve of Independence Day. He avoided the complainant and did not invite him in the party.
10 Ld. Trial Court after hearing the Ld. Counsel for the complainant and perusing the record dismissed the complaint.
11 Ld. Counsel for the revisionist submitted that Ld. Trial Court has committed an error by meticulously examining the evidence on record. He further submitted that the Court has to see whether there is sufficient ground to proceed against the respondent or not on the basis of evidence adduced by the revisionist. He further submitted that it is for the respondent to come forward with his defence after his appearance in the Court and Court of its own cannot put the case within any of the exceptions to Section 499 IPC. 12 Ld. Counsel for the respondent submitted that Ld. Trial Court has rightly invoked exception 9 to Section 499 IPC. He further submitted that Court can scan the evidence before issuing the process to the respondent as summoning is an important stage in any case.
Shajan K. Thomas Vs. Marykutty George - CR No. 58 of 2018 6/10 13 Heard and perused the record.
14 Section 499/500 IPC contains the following ingredients :
(a) there must be making or a publication;
(b) that making or publication must amount to the words signs or
visible representation;
(c) that making or publication must be an imputation;
(d) it must be made with the intention to harm or with knowledge
that it will harm the reputation of another person.
15 The essence for the offence of defamation is the making or publication
of the defamatory statement or material. The mensrea to cause the harm is the most essential sine qua non for an offence u/s 499 IPC. 16 The summoning of an accused is a serious matter and criminal law cannot be set into motion as a matter of course. Reliance is placed upon Pepsi Food Ltd. Vs. Special Judicial Magistrate, (1998) 5 SCC 749. 17 In Sonu Gupta Vs. Deepak Gupta, (2015) SCC 424, it was held by their lordship that at the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the Ld. Shajan K. Thomas Vs. Marykutty George - CR No. 58 of 2018 7/10 Magistrate is not required to consider the defence version or material or arguments nor he is required to evaluate the merits of the material or evidence of the complainant, because the Magistrate must not under taken the exercise to find out at this stage whether the material will lead to conviction or not. Reliance is also placed on M. N. Damini Vs. S. K. Sinha (2001) 5 SCC 156.
18 The revisionist has examined three witnesses including himself as CW2. The testimony of CWs show that they are residing in the same complex. Respondent is President of Allottees Welfare Society. The testimony of CW2 shows that Ms. Seema is working as maid in her house. This fact is corroborated by CW1. The entry pass in the society to Ms. Seema was allegedly refused by the respondent. CW2 has approached the respondent for issuance of pass but pass was not issued.
19 The testimony of CWs shows that on 11.08.2013 a public meeting was called in the complex by the respondent. A loudspeaker was affixed. The respondent has uttered the words on the loudspeaker to the effect that idar kam karnewali ladki ko hum pass nahi diay hai kyonki unki immoral traffic ke bare mein complaint milgay" "lekin inko Block 12/201 mein rehnewale lissy shajan ki husband support karthe or unki liye pass bhi mangaye. Shajan K. Thomas Vs. Marykutty George - CR No. 58 of 2018 8/10 20 The testimony of CW2 shows that the words uttered by the respondent were heard by the residents of the society which has exposed him in general public that he has illicit relations with the lady involved in immoral traffic. This has lowered his estimation/reputation/character in the eyes of others. The testimony of CW1 shows that she has started thinking that complainant is a man of loose character having relations with main servant. The residents of the campus asked her that her padosi is of loose character. The trust has gone. The testimony of PW3 shows that complainant was not invited to the function on the eve of Independence Day due to the words uttered by the respondent.
21 The words allegedly uttered by the respondent are perse defamatory as no one has allegedly any right to assassinate the character of any person. 22 Ld. Trial Court has dismissed the complaint by invoking the exception 9th to Section 499 IPC. At this stage, it is premature to arrive at a conclusion that there was element of good faith on the part of respondent to utter such words. The burden of proof that these words were uttered in good faith and under bonafide belief is upon the respondent. It hardly needs any clarification that any person who makes any such allegation or statement must take due care and attention and must be satisfied about the truth of allegation. Whether Shajan K. Thomas Vs. Marykutty George - CR No. 58 of 2018 9/10 the statement was true or made in good faith is a subject matter of trial. The respondent has to prove during the course of trial that imputation was made in the good faith in order to protect the interest of residents of the society. It would not be in the interest of justice to scuttle the criminal proceedings at the very threshold.
23 To my mind, the Ld. Trial Court should not have invoked exception 9 to Section 499 IPC at the time of considering the fact whether there is sufficient material to proceed against the respondent or not. There is an infirmity in the order passed by Ld. Trial Court. The order is set aside. The revision is allowed.
24 The entire evidence on the file shows that there is sufficient material on record to proceed against the respondent for the offence u/s 500 IPC. Ld. Trial Court is directed to issue summon to the respondent and proceed against him in accordance with law.
25 TCR record alongwith copy of the order sent to the Ld. Trial Court. Both the parties are directed to appear before Ld. Trial court. 26 Revision file be consigned to record room.
Announced in open court on 27 April, 2018 th (SURESH KUMAR GUPTA) Add. Sessions Judge04 & Spl. Judge (NDPS) South East, New Delhi Shajan K. Thomas Vs. Marykutty George - CR No. 58 of 2018 10/10