Karnataka High Court
M. Somashekar And Ors. vs S.A. Subbaraju on 24 November, 1988
Equivalent citations: ILR1989KAR738, 1989(3)KARLJ195
ORDER
1. Petitioners 1 and 2 were Accused Nos. 1 and 2 respectively and respondent was the complainant in C.C. No. 119 of 1983 on the file of the Chief Judicial Magistrate, Chickmagalur, (hereinafter referred to as "the trial Court or the trial Magistrate" as the case may be). For the sake of convenience, reference will hereinafter be made to the parties in this revision petition with reference to the positions they occupied in the trial Court viz., complainant and accused.
2. Both the accused are convicted by the trial Magistrate for an offence under section 500 I.P.C. and sentenced to undergo imprisonment for a period of one month and also to pay a fine of Rs. 1,000/- or in default to suffer imprisonment for a further period of two months. Criminal Appeal No. 24 of 1985 filed by the accused in the Court of the Sessions Judge, Chickmagalur, against the judgment of conviction and sentence dated 20-11-1985 passed against them by the trial Court is dismissed by the learned Sessions Judge by the judgment dated 24-1-1987. Feeling aggrieved by the said order of the appellate Court, the accused have filed this revision petition under sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short "the Code").
3. The material averments made by the complainant in his private complaint filed under section 200 of the Code in the trial Court on 31-8-1981 are as under :-
(a) First accused M. Somashekar (A-1) is the editor and publisher of a Kannada weekly newspaper called "Sarpakavalu" edited and published at No. 1181, 5th Block, 6th Cross, Dhobhighat, Rajajinagar, Bangalore-10 and second accused K. Sampathkumar (A-2) is the printer of the said newspaper printed at Manjula Printers, No. 77, J.M. Lane, Balepet Cross, Bangalore-53. Under the leadership of the complainant, one Nagarajappa, resident of Rajajinagar, Bangalore, had received a sum of Rs. 19,500/- as advance agreeing to sell 7 sites in Athiguppe village near Bangalore in favour of 7 persons in 1979. It was found some time after payment of advance to Nagarajappa that he was not the owner of the sites which he had agreed to sell to the 7 persons and he had played fraud on the complainant and his friends. Therefore, a complaint was lodged against the said Nagarajappa for the offences of fraud and cheating in Chickpet Police Station, Bangalore City. At that stage, the first accused, who is said to be the friend of Nagarajappa voluntarily introduced himself to the complainant and represented that he would settle the matter between him and Nagarajappa provided he is given a commission of Rs. 2,000/-. At the instance of the accused, the matter between the complainant and Nagarajappa was settled on 5-6-1981 and pursuant to that settlement, Nagarajappa gave a post-dated cheque for Rs. 15,000/- to the complainant. The complainant told the first accused that he would pay his commission of Rs. 2,000/- after the cheque issued by Nagarajappa was encashed. But the said cheque bounced. Therefore, the complainant refused to pay the commission of Rs. 2,000/- to the first accused. Thereupon, the first accused became disappointed and enraged against the complainant. With the ulterior motive of blackmailing and defaming the complainant and extracting money from him, the first accused got a false and defamatory matter published in his weekly newspaper "Sarpakavalu" dated 20-8-1981. It is published in another newspaper called "Karmika Vani" of Bangalore that the first accused in an Ex-Police Constable and he had cheated a good number of unemployed labourers promising to get them employment.
(b) It is falsely alleged in the defamatory article published by the first accused in his weekly newspaper called "Sarpakavalu" dated 20-8-1981 and printed by the second accused that he (complainant) has invested his black money in a business in Bangalore; that he is debaucherous and he has engaged two rooms in a hotel in Bangalore one room for his business and another room for prostitution and he has cheated one cinema actress by promising to marry her and further he deals in fake notes by exchanging bags containing fake notes at Madras and thereby he has duped one of his relatives to the tune of Rs. 35,000/- and the said Vysya Sikhamani of Chickmagalur has now come to Bangalore and he is a notorious person etc. The first accused has also sent by post a good number of copies of his "Sarpakavalu" newspaper containing the above defamatory matter to complainant's friends and relatives and business people of Chickmagalur town in order to defame him and to bring down his reputation in the eyes of his friends, relatives and business people with whom he is having business connection. The said allegations are per so defamatory. By printing the newspaper containing the said defamatory article, the second accused has also committed the offence of defamation.
(c) After receipt of Sarpakavalu newspaper dated 20-8-1981 by post, a good number of his relatives, friends and people in the business circle of the complainant made enquiries with him and they began to look at him with disrespect and his business is also affected since then. Dignity, respect, reputation and credit of the complainant has been very adversely affected since then. Therefore, the accused have committed the offence under section 500 I.P.C. against the complainant.
4. Cognizance of the said complainant for an offence under Section 500 I.P.C. was taken by the trial Magistrate and summons were issued to both the accused after recording the sworn statement of the complainant and registering a case against them in C.C. No. 187 of 1981. Both the accused filed Criminal Petition No. 187 of 1982 in this Court under section 482 of the Code for quashing the proceedings in C.C. No. 187 of 1981. (Note : C.C. No. 187 of 1981 is later registered as C.C. No. 119/83). The said Criminal Petition was dismissed by this Court as not maintainable by order dated 20-8-1982 with an observation that the accused had not exercised their right of revision under section 397(1) of the Code and, therefore, the High Court would not interfere with the order by invoking its inherent powers under section 482 of the Code. Thereafter, the learned trial Magistrate read out the gist of the accusations made against both the accused by the complainant in his complaint and they were asked to state what they had to say in respect of the said accusation. Both of them pleaded not guilty to the said accusation. Therefore, the complainant was called upon to substantiate the allegations he had made against the accused in his complaint.
5. During the trial, the complainant examined himself as P.W. 1 and three other witnesses by name K. S. Rajanna, B. R. Srinivasa Rao and C. B. Nagappa, all of Chickmagalur town as P.Ws. 2 to 4 respectively and he also produced in evidence a copy of the weekly newspaper "Sarpakavalu" dated 20-8-1981 received by post as Exhibit P1 and the defamatory matter printed and published in it under the heading as Exhibit P1(a) and he got marked two more copies of the said newspaper received by post by two others as Exhibits P2 and P3 and a copy of the weekly newspaper called "Karmika Vani" dated 25-7-1981 as Exhibit P4 and closed his case. Both the accused did not adduce any evidence by way of their defence which is one of total denial of the allegations made in the complaint.
6. On an appreciation of the oral and documentary evidence adduced before Court by the complainant, the learned trial Magistrate by his judgment dated 20-11-1985 came to the conclusion that Accused No. 1 was the editor and publisher and Accused No. 2 was the printer of the Kannada weekly newspaper called "Sarpakavalu" Exhibit P1 dated 20-8-1981 containing the matter marked at Exhibit P1(a); that the complainant had proved that the first accused had published the said defamatory matter against the complainant and the same was printed by the second accused; and that the complainant had proved that Accused No. 1 had published and Accused No. 2 had printed the said matter which was per se defamatory with the knowledge or having reason to believe that it would harm the reputation of the complainant in the eyes of his friends, relatives and the people with whom he was having business connections and, therefore, both the accused had committed an offence under section 500 I.P.C. against the complainant. On the question of sentence, the learned trial Magistrate came to the conclusion that having regard to the nature and gravity of the offence committed by the accused, they were not entitled to the benefit of the provisions of Section 360 of the Code; that they had not shown that they had published the defamatory article out of mere thoughtlessness or inadvertance or ignorance or sudden temptation or by uncontrolled impulse or under the influence of others and, therefore, the ends of justice would be met if both of them are sentenced to suffer imprisonment for a period of one month and also to pay a fine of Rs. 1,000/- or in default of payment of fine to suffer further imprisonment for a period of two months and sentenced them accordingly.
7. Both the accused challenged the correctness and legality of the said judgment of conviction and sentence of the learned trial Magistrate by preferring Criminal Appeal No. 24 of 1985 in the Court of the Sessions Judge at Chickmagalur. By judgment dated 24-1-1987, the learned Sessions Judge confirmed the judgment of conviction and sentence passed against the accused by the trial Magistrate and consequently dismissed the appeal. Therefore, the accused have filed this Criminal Revision Petition by contending that there is absolutely no evidence to hold that the first accused is the editor and publisher and the second accused is the printer of the weekly newspaper called "Sarpakavalu" dated 20-8-1981 copies of which are marked as Exhibits P1 to P3; that Exhibits P1 to P3 are not produced from proper custody and the said papers and also the alleged defamatory article Exhibit P1(a) are not proved in accordance with law; that Exhibits P1 to P3 are fictitious and the accused are not at all the authors of these Exhibits; that the learned trial Magistrate and the learned Sessions Judge ought to have held that the complainant had failed to prove that it is the accused alone who had printed, published and posted Exhibits P1 to P3 in view of the admission of the complainant in cross-examination that he had neither seen the printing of Exhibits P1 to P3 nor their posting by the accused; that the learned trial Magistrate had erred in giving the benefit of doubt to the complainant rather than to the accused; that the motive alleged against the first accused for the publication of the alleged defamatory matter in Exhibits P1 to P3 had not been established beyond all reasonable doubt and, in any event, the sentence passed on the accused is to severe.
8. However, the points urged by Sri. M. T. Nanaiah, learned counsel for the petitioners, in the course of his arguments are; that the appreciation of the oral and documentary evidence placed before the Court by the complainant by the learned trial Magistrate is totally perverse; that except producing Exhibits P1 to P3 and getting the alleged defamatory matter in Exhibit P1 marked as Exhibit P1(a), the complainant had not stated in his evidence on oath that he is defamed by the accused in such and such a manner by repeating the contents of Exhibit P1(a) and he had also not established that the first accused is the editor and publisher and the second accused is the printer of Exhibits P1 to P3; that it is not established by the evidence of P.Ws. 2 to 4 that the complainant had suffered any damages or loss of reputation by the alleged publication of Exhibit P1(a) and, therefore, the two Courts below had committed a grave error in holding the accused guilty of the offence under section 500, I.P.C. and imposing on them the above mentioned punishment. In support of the said argument, Sri. M. T. Nanaiah placed reliance on the following decisions :-
(1) Balraj Khanna v. Moti Ram ;
(2) Bhimanagouda Mallangouda v. Malleshappa Basappa (1980) 1 Kant LJ 123;
(3) I. S. Jayappa v. N. S. Shamegowda 1985 Cri. LJ 1283 (Kant);
(4) Konath Madhavi Amma v. S. M. Sherief 1985 Cri LJ 1496; (Ker);
(5) J. Chelliah v. Rajeswari 1969 Cri LJ 571 (Mad);
(6) Narayan Choudhury v. Radha Gobinda Dutta ;
(7) Dilip Chakraborthy v. Public Prosecutor 1976 Cri LJ 1300 (Cal); and (8) G. G. Jeremiah v. F. S. Vas (1913) ILR 36 Mad 457 : (1911-12 Cri LJ 585).
That apart Sri. M. T. Nanaiah did not advance any argument on the point that the matter published in Exhibit P1 and marked as Exhibit P1(a) is not defamatory. Therefore, Sri. S. G. Bhagavan, learned counsel for the complainant, submitted that the only point he had to meet regarding the argument advanced by Sri. M. T. Nanaiah is whether Exhibit P1 containing the defamatory matter Exhibit P1(a) was edited and published by the first accused and printed by the second accused. He submitted that the decisions in Dilip Chakraborthy v. Public Prosecutor 1976 Cri LJ 1300 (Cal) and Konath Madhavi Amma v. S. M. Sherief 1985 Cri LJ 1496 (Ker) cited by Sri. M. T. Nanaiah are in favour of the complainant. He also placed reliance on a decision of the Hon'ble Supreme Court in Hajit C. H. Mohammad Koya v. T.K.S.M.A. Muthukoya in support of his submission that the presumption under Section 7 of the Press and Registration of Books Act, 1867 as modified and amended up to the 1st March, 1982 (for short the "the Act") is available to the complainant as Exhibit P1 containing the defamatory article Exhibit P1(a) is produced from proper custody and it is marked in evidence and the presumption flowing out of Section 7 is not rebutted by the accused. He further submitted that this is not a fit and proper case to interfere with the concurrent findings of the trial court and the appellate Court in exercise of the revisional powers under Section 397 of the Code and, therefore, the revision petition is liable to be dismissed.
9. Sri. M. T. Nanaiah submitted in his reply arguments that it is for the Court to decide whether the article Exhibit P1(a) is defamatory or not, although he had not adverted to that aspect in his main argument and added that the presumption under section 7 of the Act is not available to the complainant as he has not produced copy of a declaration made under section 5 of the Act he has also not summoned and produced a copy of the newspaper in question from the office of the Press Registrar. He alternatively submitted that if this Court were to affirm the findings of the Courts below, then the accused may be given the benefit of the provisions of the Probation of Offenders Act, 1958 (for short "the P.O. Act").
10. In the light of the above mentioned submissions made by the learned counsel on both sides, the points that arise for determination in this revision petition are :-
(1) Whether the complainant has proved that Exhibit P1 was edited and published by the first accused and it was printed by the second accused ?
(2) Whether the complainant has proved that the material marked as Exhibit P1(a) in Exhibit P1 contains defamatory matter published against him ?
(3) Whether the accused are entitled to the benefit of the provisions of the P.O. Act if the impugned judgments of conviction and sentence are upheld ?
(4) To what order ?
11. Point No. 1 :- This point involves consideration of Section 81 of the Evidence Act and Sections 7 and 8A of the Act. Therefore, I consider it necessary to extract the said provisions.
12. Section 81 of the Evidence Act reads thus :-
"Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents :-
The Court shall presume the genuineness of every document purporting to be the London Gazette, or any Official Gazette, or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament of the United Kingdom printed by the Queen's printer, and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody."
Section 7 of the Act reads as under :-
"7. Office copy of declaration to be prima facie evidence :-
In any legal proceeding whatever, as well as civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declarations or, in the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, or printed on such newspaper, as the case may be that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every newspaper whereof the title shall correspond with the title of the newspaper mentioned in the declaration, or the editor of every portion of that issue of the newspaper of which a copy is produced."
(Note :- The underlined portions are inserted by Act 14 of 1922).
Section 8A of the Act which has been inserted by Act 14 of 1922, reads thus :-
"8A. Person whose name has been incorrectly published as editor may make a declaration before a Magistrate :
If any person, whose name has appeared as editor on a copy of a newspaper, claims that he was not the editor of the issue on which his name has so appeared, he may, within two weeks of his becoming aware that his name has been so published, appear before a District, Presidency or Sub-Divisional Magistrate and make a declaration that his name was incorrectly published in that issue as that of the editor thereof, and if the Magistrate after making such inquiry or causing such inquiry to be made as he may consider necessary is satisfied that such declaration is true, he shall certify accordingly, and on that certify accordingly, and on that certificate being given the provisions of Section 7 shall not apply to that person in respect of the issue of the newspaper."
13. The complainant has furnished the name and other particulars of both accused in the cause title of the complaint as under :-
"Accused.
1. M. Somashekar, about 40 years, father's name not known to the complainant, Editor and Publisher of 'Sarpa Kavalu' a Weekly Kannada News Paper, No. 1181, V Block, VIth Cross, Dhobighat, Rajajinagar, Bangalore-16.
2. K. Sampathkumar, Major, Manjula Printers, No. 77, J.M. Lane, Balepet Cross, Bangalore-53."
He had also stated in his sworn statement recorded on 12-9-1983 that first accused Somashekar is the editor and publisher of a Kannada weekly "Sarpakavalu" published from Bangalore and second accused is the printer of the said weekly and he is having his own printing press in Bangalore. The complainant has also stated in the course of his evidence (P.W. 1) recorded on 26-6-1985 that first accused was the editor and publisher of "Sarpakavalu" published from Bangalore and he has published the defamatory matter as per Exhibit P1(a) in his "Sarpakavalu" paper dated 20-8-1981 with the intention of defaming him and with that object he has sent copies of the said weekly to his friends, relatives and business people at Chickmagalur; that Exhibit P1 is one such copy sent to his brother-in-law by post and the portion marked as Exhibit P1(a) in it is the defamatory matter published in respect of him; that Exhibits P2 and P3 are copies of the said weekly sent by post to his wife and father and he has been defamed by publication of the defamatory matter as per Exhibit P1(a) in Exhibits P1 to P3 and also other copies went to his friends and other people with whom he is having business connection. Exhibit P1 is addressed to Nagaraja Setty, Guru Jyothi Enterprises, Chickmagalur, by post as could be gathered from 25P postal stamp pasted on it and on which the seal of Bangalore Post Office dated 24-8-1981 is put. Similarly, exhibit P2 is sent by post to Mrs. Subbaraj, Gayathri Niketan, Neem Street, Chickmagalur, and Exhibit P3 is also sent by post to Appaiah Setty, Gayathri Niketan, Neem Street, Chickmagalur. Registration number, name and other particulars of Exhibit P1 are printed on the top of it as under :-
"No. M.A.G. (5) P.R.B. DECL 154/81-82 It is printed at the bottom of page 4 of Exhibits P1 to P3 as under :-
"Editor & Publisher : M. Somashekar, No. 1181, V Block, VI Cross, Dhobighat, Rajajinagar, Bangalore-10, Printed at Manjula Printers, No. 77, J.M. Lane, Balepet Cross, Bangalore-53."
Exhibits P1 to P3 and few other copies of Sarpakavalu weekly produced by the complainant at the time of lodging the complaint at the time of lodging the complaint bear the postal seal of Chickmagalur Post Office of date 26-6-1981. The name and other particulars of both accused as furnished in the cause title of the complaint extracted above are written in the summons sent in Form No. I to both accused (vide copies of summons available at pages 89 and 90 of trial Court records). A-1 has put his signature in English on the back of the summons sent to him and it is written below the said signature as under :-
"Editor and publisher, Sarpakavalu Kannada weekly."
But, Sri. M. T. Nanaiah submitted that the said writing is made by the Police Constable who had taken the summons for effecting service on the accused and not by A-1 and, therefore, the said description of A-1 should not be taken into consideration. There appears to be some force in that contention as the writings made below and above the signature of A-1 appear to be in the handwriting of a different person. Nevertheless, both accused have not taken any exception to their names and addresses written as per the above extracted Causes title of the complaint in the summons sent to them by the trial Court. That apart, both accused have repeated the same address in the cause title of Criminal Revision Petition No. 93 of 1987 filed by them in this Court against the order dated 20-11-1985 passed by the trial Magistrate in C.C. No. 119 of 1983 and also in the cause title of the appeal filed by them in Criminal Appeal No. 24 of 1985 in the Court of the Sessions Judge, Chickmagalur, and also in their present revision petition. Further, it is also stated in the application dated 24-11-1982 filed by the learned counsel for the first accused in the trial Court seeking exemption from personal appearance in Court on that day that "the first accused is a journalist and he is held up in Bangalore. He could not come to Court due to circumstances beyond his control". The second accused has stated in the applications filed by him in the trial Court praying for his exemption from personal appearance in Court on 23-6-1982 and again on 22-8-1984 as under :-
"Accused No. 2 is the ordinary resident of Bangalore. He is the proprietor of 'Manjula Printers', Balepet, Bangalore. His presence is absolutely necessary in his press, every day."
14. The learned trial Magistrate has taken all the above aspects into consideration in support of his finding that A-1 was the editor and publisher of the Kannada weekly "Sarpakavalu" Exhibit P1 dated 20-8-1981 containing the defamatory matter Exhibit P1(a) and second accused was the printer of that paper.
15. In addition to that, the complainant has also relied upon the presumption available under section 81 of the Evidence Act and Section 7 of the Act extracted above by producing in Court Exhibits P1 to P3 in the course of his evidence recorded on 26-6-1985. It is already noticed that they are produced from proper custody as Exhibit P1 is sent by post to the complainant's brother-in-law and Exhibits P2 and P3 are also sent by post to his wife and father. It is observed in Dilip Chakraborty v. Public Prosecutor 1976 Cri LJ 1300 by a Division Bench of the Calcutta High Court in paragraph 6 at page 1301 as under :-
"Section 81 of the Indian Evidence Act provides that a Court shall presume the genuineness of the documents mentioned in the Section including a newspaper and under section 4 of the Act when a Court shall presume a fact, it shall regard the fact as proved unless and until it is disproved. Therefore, when the prosecution produced a copy of the issue of "Bangladesh" dated 26th October, 1973 and proved that the said copy was available for sale, Section 81 was attracted and the learned Judge was fully justified in admitting the said newspaper into evidence. Once the newspaper was admitted "into evidence it was for the petitioners to prove that the said newspaper was not the correct copy of the issue of "Bangladesh" which was published on the 26th October, 1973."
Accused have not taken any objection at the time Exhibits P1 to P3 were tendered in evidence by the complainant in the course of his evidence recorded on 26-6-1985. Therefore, it was for the accused to prove that Ex. P. 1 was not the genuine copy and, on the other hand, it is a fictitious one and A-1 was not the editor and publisher and A-2 was not the printer of Exhibit P1. Added to that, complainant is also entitled to the benefit of the provisions of Section 7 of the Act, although he has not produced a copy of a declaration made by the accused under section 5 of the Act. In this connection, I may usefully refer to the observations made by the Hon'ble Supreme Court in Haji C. H. Mohammad Koya v. T.K.S.M.A. Muthukoya, in which their Lordships have extracted the provisions of Section 7 of the Act in paragraph 14 at page 159 and have further observed in paragraph 15 thus :-
"Section 8-A of the Press Act provides that where any person's name has appeared as an editor in a paper although he was not an editor he shall within two weeks of his becoming aware that his name has been so published, appear before the District, Presidency or Sub-Divisional Magistrate and make a declaration that his name has been incorrectly published and get a certificate from the Magistrate that the provisions of Section 7 shall not apply to him."
16. In my opinion, the said observations ensure to the benefit of the complainant and go against the accused inasmuch as Exhibits P1 to P3 are marked in evidence during the examination of the complainant (P.W. 1) on 21-6-1985, that the evidence on the side of the complainant is closed on 11-9-1985 after examining three more witnesses and both accused have not chosen to produce even at the stage of their examination under section 313 of the code on 25-10-1985 a certificate contemplated under section 8-A of the Act in order to rebut the presumption available to the complainant under section 7 of the Act and to substantiate the defence of A-1 that his name has been incorrectly published in Exhibit P1 as the editor of that paper and as a matter of fact he was not the editor and publisher of that paper and, therefore, the provisions of Section 7 shall not apply to him in respect of that issue of the newspaper. However, Sri. M. T. Nanaiah made a feeble attempt in the course of his reply argument by placing reliance on a decision of the Madras High Court in G. G. Jeermiah v. F. S. Vas (1913) ILR 36 Mad 457 : (1911-12 Cri LJ 585) in which it is observed that merely exhibiting a copy of a private newspaper containing a libellous statement without any sort of proof such as the production of an authenticated copy of a declaration under section 7 of the Act is no proof of publication of the libel by the person by whom the paper purports to have been published and evidence that a certain copy of the paper "appears to be printed and published by A" is no proof of publication, by him. As rightly pointed out by Sri. S. G. Bhagavan, the said observations are no longer valid as they are made on the basis of the provisions of Section 7 of the Act as it stood in November, 1911 whereas Section 7 has been substantially amended by inserting the portions referred to above in Section 7 of the Act by Act 14 of 1922. Therefore, I hold thought the finding recorded by the trial Magistrate that A-1 was the editor and publisher to Exhibit P1 and A-2 was the printer of Exhibit P1 and upheld by the learned Sessions Judge is correct, both on facts and also in law and as such it does not call for interference in this revision petition filed under Section 397 of the Code. Point No. 1 is answered accordingly.
17. Point No. 2 :- The defamatory matter published in Exhibit P1 is marked as Exhibit P1(a) in the course of the evidence of the complainant (P.W. 1). Substance of Exhibit P1(a) is also incorporated in paragraph 4 of the complaint lodged by the complainant against the accused in the trial Court. Therefore, they were aware of the substance of the allegations made against them in the complaint. However, Sri. M. T. Nanaiah argued that the complainant has not proved the defamatory matter attributed to the accused as he has not chosen to state in the evidence what are the defamatory allegations made against him in Exhibit P1 in the alleged defamatory matter published in it as per Exhibit P1(a). He placed reliance in support of his said argument on the above mentioned decisions cited by him. But his said argument cannot be regarded as a sound one inasmuch as it is observed by the Hon'ble Supreme Court in Balraj Khanna v. Moti Ram cited by him in paragraph 26 at page 1394 (of AIR) : (at pp. 1115-1116 of Cri LJ) as under :-
"It will be highly desirable no doubt if the actual words stated to have been used by an accused and which are all to be defamatory are reproduced by the complainant. The actual words used or the statements made may be reproduced verbatim by the complainant if the words are few and the statement is very brief. But in cases where the words spoken are too many or the statements made are too long, in our opinion, it will be the height of technicality to insist that the actual words and the entire statements should be reproduced verbatim. The object of having, if possible, the actual words or the statements before the Court is to enable it to consider whether those words or the statements are defamatory in nature. That purpose or object will be served if the complainant is able to reproduce in his complaint or evidence in substantial measure the words of imputation alleged to have been uttered."
18. In the light of the above observations of the Hon'ble Supreme Court, I am of the opinion that as the complainant has set out the substance of the defamatory matter published against him in Exhibit P1 as per Exhibit P1(a) in paragraph 4 of his complaint copies of which were already furnished to the accused, it was quite unnecessary for him to reproduce the same in the course of his evidence also.
19. It was next argued by Sri. M. T. Nanaiah that the complainant has not proved that he has either directly or indirectly suffered any damage financially or otherwise by the publication of the alleged defamatory matter in Exhibit P1 as per Exhibit P1(a). In my opinion, there is no substance in this contention also as the complainant has established by examining P.Ws. 2 to 4 that they entertained bad opinion about the complainant after they read the matter published in "Sarpakavalu" weekly newspaper sent to them by post. Even otherwise, it is held by the Kerala High Court in Konath Madhavi Amma v. S. M. Sherief 1985 Cri LJ 1496 cited by Sri. M. T. Nanaiah that it is not necessary to prove that the complainant directly or indirectly suffered from the scandalous imputations; that proof of intention, knowledge or reasonable belief on the part of the accused regarding the possible harm to reputation is sufficient and whether harm was actually caused or not is immaterial.
20. It was also argued by Sri. M. T. Nanaiah on the strength of the observations made by the learned single Judge in Narayan Choudhury v. Radha Gobinda Dutta that statement of facts contained in newspaper is merely hearsay and, therefore, inadmissible in evidence and that mere presumption under section 81 of the Evidence Act cannot be treated as proof of facts contained in newspaper and that the evidence of maker of statements as reported in newspaper is essential. But, the said observations are no longer valid in view of a subsequent Division Bench decision of the Calcutta High Court Dilip Chakraborty v. Public Prosecutor 1976 Cri LJ 1300 relied upon by Sri. Nanaiah himself. I have already extracted above the observations made in the said decision regarding the presumption available under section 81 of the Evidence Act. It is also observed in the said decision that if the imputations are shown to be prima facie defamatory, the petitioners are free to contend that any of the exceptions to Section 499 of the Indian Penal Code were attracted. But it may be pointed out here that it is not the defence of the accused that they are covered by any of the exceptions to Section 499, I.P.C.
21. The only other aspect that requires to be examined is whether Exhibit P1(a) is per se defamatory. In the article Exhibit P1(a), reference is made to the complainant and he is described as a debaucherer, swindler and racketeer in counterfeit currency notes; that he had even duped his own relative by exchange of a bag containing counterfeit currency notes of the value or Rs. 35,000/- at Madras; that he has cheated a film actress by falsely promising to marry her and he is a Vysya Sikhamani of Chickmagalur who has shifted his nefarious activities to Bangalore in order to dupe more people etc. There can be not doubt that the said words are per se defamatory. In this connection, I may usefully refer to a decision of the erstwhile High Court of Mysore in K. S. Namjundaiah v. Setti Chikka Thippanna AIR 1952 Mys 123 : (1952 Cri LJ 1633) in which it is held that the use of the expression "black marketeer" is per se defamatory within the meaning of Section 499 I.P.C. It is also held in J. Chelliah v. Rajeswari 1969 Cri LJ 571 (Mad) that describing a woman as having paramours everywhere is per se defamatory as it is scandalous and affects reputation. In this view of the matter, reliance placed by Sri. M. T. Nanaiah on two decisions of this Court in Bhimangouda Mallangouda v. Malleshappa Basappa (1980) I Kant LJ 123 wherein it is held that the use of the expressions "rowdy type of man and ex-convict" are not per se defamatory as by using the said words, the character of the person is not touched and in L. S. Jayappa v. N. S. Shamegowda 1985 Cri LJ 1283 (Kant) wherein it is held that the use of the words of mere abuses such as "Soole Magne - Boli Magne" were not defamatory are of no avail to the accused.
22. On the point of motive, the complainant has specifically alleged in his complaint and has also stated in his evidence that the first accused has got the defamatory matter published in his weekly with the ulterior motive of harming his reputation, as he refused to pay the commission amount of Rs. 2,000/- to the first accused as the cheque issued for Rs. 15,000/- by Nagarajappa had bounced. There is no serious cross-examination on that aspect of the evidence of the complainant. Therefore, it cannot be said that the complainant had not established motive against the first accused for publishing the defamatory matter as per Exhibit P1(a) in his weekly. Hence, the finding of the trial Court that Exhibit P1 contains the defamatory matter Exhibit P1(a) published against the complainant is correct.
23. Point No. 3 :- In my opinion, the learned trial Magistrate was not correct in considering whether the accused were entitled to the benefit of the provisions of Section 360 of the Code as the said Section is not applicable in Karnataka in view of Section 19 of the P.O. Act, which is made applicable to whole of Mysore State (now Karnataka) with effect from 1-10-1960. I am further of the opinion that the accused are also not entitled to the benefit of the provisions of Section 3 or Section 4 of the P.O. Act in a case of this nature. The Hon'ble Supreme Court has observed in Sahib Singh Mehera v. State of Uttar Pradesh that the Press has great power in impressing the minds of the people and it is essential that persons responsible for publishing anything in newspapers should take good care before publishing anything which tends to harm the reputation of a person; that reckless comments are to be avoided and when one is proved to have made defamatory comments with an ulterior motive and without the least justification motivated by self interest, he deserves a deterrent sentence. With the said observations, their Lordships have dismissed the appeal thereby confirming the sentence of simple imprisonment of six months and a fine of Rs. 200/- imposed on the appellant by the Sessions. Judge and affirmed by the High Court. In this connection, my attention was also drawn by Sri. S. G. Bhagavan to a decision in Jagadish B. Rao v. State 1974 Cri LJ 1358 (Goa) in which it is observed that in considering the quantum of sentence in the case of defamation a number of factors such as the type of defamation, the manner in which defamation was made etc., will have to be taken into consideration. It is further observed in that case that a journalist is required to attach more care and caution in publishing items which are likely to harm the reputation and good name of others; that papers publishing scandalous articles sometimes get wide publicity and the circulation increases and consequently the income of the journalists also increases; that this, therefore, calls for a deterrent punishment and a mere sentence of fine in such cases will not at all be adequate and that the conduct of the accused subsequent to the publication libel, before and during the trial may also have to be taken into consideration. In the instant case, both accused have not expressed even an element of regret for their mala fide act of publishing defamatory article in their weekly newspaper. Therefore, I am of the opinion that this is not a case in which the accused are entitled to the benefit of the provisions of the P.O. Act and the sentence of imprisonment of a period of one month and also a fine of Rs. 1,000/- or in default to undergo imprisonment for a further period of two months imposed on each of the accused by the trial Court and affirmed by the Sessions Court is too lenient a punishment and does not call for interference.
24. In the result, therefore, the revision petition is dismissed. The trial Court is directed to issue warrants of arrest against both the accused and enforce the sentence of imprisonment and fine imposed on them.
25. Out of the fine amount realised from the accused, Rs. 1,000/- shall be paid to the complainant as compensation.
26. Petition dismissed.