Bangalore District Court
Sri.C.V.Nagesh vs Sri.Pankaj Rai on 13 April, 2022
IN THE COURT OF THE VIII ADDL. C.M.M., BENGALURU.
Present
Sri.Patil Veeranagouda S.,
B.Com. LL.M.
VIII ADDL.C.M.M., BENGALURU
Dated this the 13th Day of April, 2022
C.C. No.9622/2015
Complainant:
Sri.C.V.Nagesh
s/o late S.Venkatakrishnaiah
No.33, Patalamma Temple Street
Basavanagudi
Bengaluru - 560 004
(By Sri.M.Devaraj, Adv.)
Versus
Accused:
Sri.Pankaj Rai
Seemavas, 6074
Prestige Shantiniketan
White Field Main Road
Bengaluru - 560 048
(By D.Dominic James, Adv.)
PARTICULARS U/S 355 OF THE Cr.P.C. 1973.
1. Sl. No. of the Case 9622/2015
2. The date of commission 07012014
of the offence
2 C.C.9622/2015
3. Name of the complainant C.V.Nagesh
4. Name of the accused Major Pankaj Rai
5. The offence complained of U/s.500 of IPC
or proved
6. Plea of the accused and Pleaded not guilty
his examination
7. Final Order As per final order
8. Date of such order 13042022
JUDGMENT
This complaint filed by the complainant under section 200 of Cr.P.C. for the offence punishable U/s 500 of IPC.
2. The case of the complainant is that he is an advocate by profession and hails from a highly learned family of Hindu Scholars, teachers and advocates. Srikanta Avadhani the grandfather of the complainant was an eminent Hindu scholar whose services were engaged by the erstwhile royal family of Mysuru. Sri.Venkatakrishnaiah the father of the complainant was a teacher of eminence and served as 3 C.C.9622/2015 Principal of Government Schools and in the education department. One of the brothers of the complainant who holds a Doctorate from Washington University and who retired from service as Professor and Head of Department of Sociology and Social Science of a reputed College, is presently in the board of management of the Society which is running schools and colleges throughout the State and another brother of the complainant who holds a Doctorate in Engineering from USA, is presently the head of a reputed Engineering Firm in USA, while another brother of the complainant served as a Civil Servant and was the Deputy Director General of Telecommunication, Government of India and Advisor to Delhi Government. His younger brother is an Engineer/Administrator by profession and is the country head Singapore of the Multinational giant "Phillips Semi Conductors". Two more younger brothers of the complainant are practicing advocates and are prominent members of the Mysuru and Bengaluru Bar respectively. 4 C.C.9622/2015
3. It is further submitted that the complainant had a distinguished academic record secured his science degree from the Bengaluru University and his law degree from the prestigious University Law College, Bengaluru, during the year 1962. The complainant is one of the senior most members of the Bengaluru Bar and has a distinguished record of 47 years of standing practice in Bengaluru Bar. In recognition of his merit and distinguished service, the full bench of Hon'ble High Court of Karnataka bestowed upon the complainant an honour by designating him as a "Senior Advocate".
4. It is further submitted that the complainant as a Lawyer, has represented the Central and State Governments in many sensational cases before various courts, Commissions and Forums of the country. He has a very large clientele, which included former Prime Minister, Chief Ministers, Bureaucrats, Police Officers, Civil Servants, 5 C.C.9622/2015 Doctors, Lawyers, Industrialists, Artists, Academicians, Corporate Offices, Celebrities etc. He has rendered his services to his clients and assisted the courts in highly sensational cases that rocked the country such as the Kidney Scandal in the year 1994, the JMM Bribery Case in the year 2002, the 2G Spectrum Case in 2012 and innumerable sensational cases that figured in the State of Karnataka such as Classic Computer case, Shakereh Khaleeli murder case/Swami Shraddananda case, Jayalalitha case, Karnataka Mining Scandal cases, Chitralekha murder case, Devikarani Rorich case etc.
5. It is further submitted that the complainant apart from his professional work is involved in diverse fields such as Religion, Culture, Philanthropy, Education, Social Service, etc. He has mentored innumerable advocates in his chamber who have become successful advocates and some of whom have become Law Officers, Judges, Bureaucrats, 6 C.C.9622/2015 Administrators etc. He is held in high esteem and reverence by the legal fraternity and the innumerable clients whom he has served. The complainant is an happily married man with three children who are all highly educated and well placed in their professions and society. The first daughter of the complainant who is a doctor by profession is married to a Surgeon whose father was the sole Chief Engineer of the State and is currently based in Melbourne, Australia while the second daughter who is also a Doctor by profession is married to a Surgeon and is presently based in Florida, USA. The son of the complainant is an Engineer by profession and he heads the AsiaPacific Region of a reputed Telecoms Company and is based in Spain. The members of the family of the complainant are also attached to several Professional, Cultural and Religious Organizations in one capacity or the other. The entire family of the complainant has a wide circle of professional contacts, friends and 7 C.C.9622/2015 relatives, all of whom hold the complainant and his family members in high esteem, regard and admiration.
6. It is further submitted that the complainant is assessed to Income Tax. He is certified by the Income Tax Department as one of the highest tax paid assessee. He has received commendations from the Income Tax Department as he happens to be the highest Tax payer.
7. It is further submitted that M/s. Fortis Hospital, Bannerghatta Road, Bengaluru and few of the Doctors who are attached to it engaged the services of M/s. C.V.Nagesh Associates, Advocates, a Law Firm to appear for them in various Courts and Forums, in certain actions brought against them by the accused. One such case in which their services came to be engaged by M/s. Fortis Hospital was Writ Petition No.45437/2011 before the Hon'ble High Court of Karnataka Bengaluru. Sri.M.R.Aneel, Advocate, who is attached to M/s. C.V.Nagesh Associates, on the basis of the 8 C.C.9622/2015 instructions given to him by Fortis Hospital, Bengaluru, drafted and filed the above said writ petition and thereafter, engaged the services of the complainant as a Senior Counsel to appear for his clients and briefed the complainant according to the instructions received by him from the client M/s. Fortis Hospital. The Hon'ble High Court of Karnataka after hearing the parties to the case while accepting the submissions made on behalf of the Hospital, allowed the writ petition, setatnaught the orders impugned in the writ petition and remitted the matter back to the authority for fresh disposal in terms indicated in the order. The appeal filed by the accused also came to be dismissed by a Division Bench of the Hon'ble High Court of Karnataka, Bengaluru.
8. It is further submitted that after the disposal of the writ petition and the writ appeal, the accused on 17012014 filed a complaint against the complainant before the Karnataka State Bar Council alleging that the 9 C.C.9622/2015 complainant being the Proprietor of the Law Firm, engaged by M/s. Fortis Hospital Ltd., appeared as the Senior Counsel in the writ petition, to which petition the accused is a party before the Hon'ble High Court of Karnataka and that as a Senior Counsel, instead of assisting the High Court in the administration of justice as an officer of the court, the complainant who earns his livelihood by practicing and as a Senior Counsel has been habitually making false averments in the court in collusion with M/s. Fortis Hospital with the sole intention of misleading the court so that the court passes wrong orders and that the common citizens loose faith in the judiciary and further during the hearing in the said W.P.No.45437/2011, the complainant has made a false statement to the effect that M/s. Fortis Hospital was not furnished with the copies of the report dated 20052011 of the Technical Committee and certain other documents and that the appropriate authority which decided the issue placed heavy reliance on the report of the technical 10 C.C.9622/2015 committee of the Lokayukta, Karnataka State, while passing the order which was impugned in the writ petition and that this statement came to be made by the complainant deliberately although M/s. Fortis Hospitals received a copy of the report of the technical committee attached to the Lokayukta on 23062011 itself and that the false statement made by the complainant before the court knowing it to be false resulted in miscarriage of justice consequent to the order of remand passed in the writ petition and that the clock of justice was reversed by one year and subjected the accused to hardship and that in the W.P.No.16521/2012 filed by Dr.Ramcharan Thiagarajan, the complainant despite knowing that there was no denial of principles of natural justice while passing the order impugned in the writ petition made a false submission before the High Court in the said writ petition and that the false and dishonest actions of the complainant has resulted in the writ petitioner getting the benefit of an interim order and that the complainant is 11 C.C.9622/2015 habituated in making dishonest pleadings with utter disregard to the noble profession of advocacy etc., and that he can bring to the notice of the council more number of instances where the complainant had made false averments and that the complainant does not have any remorse in bringing disrepute to the noble profession of advocacy etc.
9. It is further submitted that the plea incorporated in the writ petitions are based on the instructions that are given to the counsel on record in the case by his clients and that the designated senior counsel i.e. the complainant herein whose services came to be engaged, on the basis of briefing given to him by the counsel on record, made the submissions that were necessary before the court. In fact, the Hon'ble High Court of Karnataka, Benglauru, which perused the records of the case, accepted the submissions and granted an interim order in favour of the doctor who had filed the writ petition. The application which came to be filed by the 12 C.C.9622/2015 accused seeking dissolution of the interim order of stay on the ground that there has been no violation of the principles of natural justice also came to be rejected by the Hon'ble High Court.
10. It is further submitted that the counsel on record has a limited role to play in the drafting of pleadings in the case. He only discharges his professional duties on the instructions given to him by his clients and briefs the designated senior counsel whose services are engaged in the case and the senior counsel i.e., the complainant herein has made the submissions that are relevant either for the grant of interim order or for the final disposal of the writ petitions.
11. The accused who became unsuccessful in the case, in the process of terrorizing the counsel on record as well as the complainant who is the designated senior counsel and who argued the matter on being briefed by the counsel on record in the case has chosen to file the complaint by 13 C.C.9622/2015 making false, frivolous, baseless, reckless, uncharitable and perse defamatory allegations with the sole object of preventing if possible their appearance in the cases filed by him against the Fortis Hospital and the Doctors attached to it or in the cases filed against him by the Fortis Hospital.
12. It is further submitted that the Karnataka State Bar Council after the receipt of the response of the complainant has not chosen to take cognizance of the complaint filed by the accused and ordered that the complaint of the accused does not warrant any further action at its end. The allegations levelled against the complainant by the accused in his complaint filed before the Karnataka State Bar Council is totally false and far from truth. It is perse defamatory. The false allegations are made by the accused intentionally with the sole object of belittling the complainant in the eyes of the legal fraternity, his clientele and the public at large. It is made with an intention to 14 C.C.9622/2015 demoralise the complainant whose services are continuously engaged as a senior counsel by the counsel who are representing M/s. Fortis Hospital and the Doctors who are attached to it.
13. It is further submitted that the allegations made by the accused in his complaint would give an ordinary reader an impression that the complainant as a senior counsel, has more than one occasion while discharging his professional duties misled the Hon'ble High Court of Karnataka and has thus caused miscarriage of justice and that he is habituated in making false statements and is indulging in corrupt practices and that he is dishonest with no moral values etc. The complaint filed before Karnataka State Bar Council are deliberate, wanton and mischievous. It is false and perse defamatory. It is made in a hopelessly bad taste knowing fully well that what is being alleged by him is totally false, baseless and imaginary. It is done with the sole object of 15 C.C.9622/2015 tarnishing the professional, social and personal image of the complainant who has established his credibility as a lawyer not only in courts of law but also with his clients and with a view to terrorize the complainant and if possible to prevent him from rendering legal assistance to the Fortis Hospitals and the doctors who are attached to it in the event of his services being engaged by them.
14. It is further submitted that consequent to the filing of the complaint before the State Bar Council by making false and perse defamatory allegations in his complaint, which complaint is now ordered to be closed, the complainant has been receiving innumerable phone calls and enquiries with respect to the said complaint from the legal fraternity, his clientele and the general public who have come to know of the filing of the complaint by the accused before the Karnataka State Bar Council and the accusation made by him in the complaint against the complainant. In fact, the 16 C.C.9622/2015 accused himself is spreading in the corridors of the court and in several other proceedings which he has brought against the Fortis Hospitals the information about the complaint filed by him against the complainant and its contents, questioning his professional character and conduct. The complainant is thus put to public shame, humiliation and disgrace.
15. It is further submitted that the complainant, his family members and innumerable lawyers who are trained and mentored by him since the obnoxious allegations levelled against him, have also been put to untold mental agony, public shame, humiliation and disgrace. They are highly disturbed and depressed. It has caused incalculable damage and harm to the high image and reputation of the complainant who has an unblemished career as a lawyer for over 47 years. He has been disturbed as his professional character and conduct have become a topic of public 17 C.C.9622/2015 discussion amongst one and all known to him especially in the legal fraternity. It is also important and relevant to submit that the accused has been in the habit of making false, baseless and perse defamatory allegations against those whose conduct/orders in the actions either brought by him or against him are found not palatable to him. On an earlier occasion, the accused has gone to the extent of calling the Chairman of the Karnataka Medical Council as corrupt when the Council passed an order holding that the doctors of Fortis Hospital against whom the complainant had filed the complaint are not guilty of acts of negligence attributed to them. The Chairman of the Karnataka Medical Council has filed a complaint against the accused before the Basavanagudi Police within whose jurisdiction the office of the Karnataka Medical Council is situated and sought for action against him.
18 C.C.9622/2015
16. It is further submitted that when Dr. Raju the then Deputy Director of Department of Health and Family Welfare, Government of Karnataka who was asked to enquire into the complaint of the accused by the appropriate authority constituted under the provisions of the Human Organs Transplantation Act, gave a report stating that there is no truth in the allegations made by the accused in his complaint filed against M/s. Fortis Hospital and the Doctors attached to it, the accused filed a complaint against Dr.Raju making certain serious allegations against him. The appropriate authority which took the mantle of holding an enquiry into the complaint of the accused against the Fortis Hospital on its shoulder, then conducted a detailed enquiry and gave a report which report was found not palatable to the accused. The accused then filed a complaint against the Chairman of the appropriate authority who is a senior IAS Officer before the Lokayuktha making false, frivolous and 19 C.C.9622/2015 baseless allegations against him. The Lokayuktha however did not initiate any action whatsoever against the Chairman of the appropriate authority.
17. It is further submitted that after the Hon'ble High Court disposed of the writ petitions filed by M/s. Fortis Hospital and the one filed by accused and ordered the remand of the complaint of the accused while setting at naught the orders impugned in the writ petition, the accused went to the extent of filing a complaint against the learned Judge who disposed of the writ petition to the Hon'ble Chief Justice making false, baseless, frivolous, uncharitable allegations against the Hon'ble Judge of the Hon'ble High Court of Karnataka, Bengaluru. The Advocate General of the state to whose notice the conduct of the accused was brought, has accorded permission needed for the prosecution of the accused under the provisions of the Contempt of Courts Act and the complaint filed against the 20 C.C.9622/2015 accused to punish him for having committed criminal contempt is pending consideration before the Hon'ble High Court. From the course of his conduct in making reckless, obnoxious and perse defamatory allegations and knowing and having reason to believe that the said allegations are false and far from truth, the accused has committed a serious offence which is made penal under Section 500 of IPC and has made himself liable to be secured, dealt with and punished in accordance with law.
18. Although the damage caused to the image and reputation of the complainant by the accused consequent to the defamatory allegations made by him in his complaint filed before Karnataka State Bar Council is not measurable and cannot be quantified under the caption "Pecuniary Loss", the complainant modestly estimates the same at a sum of ₹50,00,000/. The accused who is responsible for 21 C.C.9622/2015 the damage caused to the complainant has got to compensate the same.
19. It is further submitted that the accused has filed the complaint making false and perse defamatory allegations against the complainant before the Karnataka State Bar Council whose office is within the jurisdiction of the Cubbon Park Police Station, Bengaluru, which in turn comes under the jurisdiction of this court. Therefore, the complainant humbly prays that this court be pleased to take cognizance of the offence committed by the accused which is made penal u/s 500 of IPC, secure the accused and deal with him in accordance with law and further be pleased to direct the accused to pay to the complainant a sum of ₹50,00,000/ as compensation for the injury, agony and suffering caused to the complainant by the wanton, willful and mischievous acts of the accused.
22 C.C.9622/2015
20. After filing this complaint, this court has registered this case in PCR 16760/2014 and posted the matter for recording of sworn statement. Thereafter, the complainant led his sworn statement as CW1 and produced various documents. Looking to the material available on record this court has taken cognizance against the accused for the offence punishable u/s 500 of IPC and issued the process.
21. In pursuance of summons the accused appeared and by moving application obtained bail. My predecessor in office had framed the substance of accusation, read over and explained to the accused and he submits that he has defense to make. So, the matter was posted for trial.
22. In order to prove his case, the complainant got examined himself as PW1 and got marked 30 documents as per Ex.P1 to P30 and closed his side.
23 C.C.9622/2015
23. Thereafter, the accused was examined U/Sec. 313 of Cr.P.C. to enable him to explain the incriminating evidence appeared against him in the evidence of complainant. He denied the same and chosen to lead defence evidence and he has filed his examination in chief through his counsel and not at all appeared before this court even after withdrawal of SOP by the Hon'ble High Court. Thereafter, again he has filed application u/s 243(1) of CrPC by remaining absent, so the same was seriously objected by the advocate for complainant. So his evidence has been discarded for not tendering for cross examination and the matter was posted for arguments.
24. Heard both sides, both the counsels have also filed written arguments.
25. Perused the written arguments and the material placed on record, the points that arise for my determination are; 24 C.C.9622/2015
1. Whether the complainant proved beyond all reasonable doubt that on 17012014 the accused filed a complaint against the complainant before the Karnataka State Bar Council stating that the complainant being the Proprietor/Partner of the Law Firm, engaged by M/s. Fortis Hospitals Ltd., appeared as the Senior Counsel in the Writ Petition, the accused is a party before the Hon'ble High Court of Karnataka and that a senior counsel instead of assisting the High Court in the administration of justice as an officer of the court has been habitually making false averments in the court in collusion with M/s.Fortis Hospital with a sole intention of misleading the court, so, that the court passed wrong orders and the common citizens loose faith in the judicial and further during the hearing in the W.P.No.45437/2011 the complainant has made a false statement to the effect that M/s.Fortis Hospital was not furnished with a copy of the report dated 2005 2011 of the Technical Committee and certain other documents and made defamatory 25 C.C.9622/2015 statements knowing to believe that the same was defamatory and further intending to harm the complainant and thereby the accused has committed the offence punishable u/sec. 500 of IPC?
2. What order?
26. My findings to the above points are as follows:
Point No.1 : In the affirmative Point No.2 : As per final order for the following:
REASONS
27. Point No.1: In order to bring home the guilt of accused, the complainant got himself examined as PW1 and got marked 30 documents as per Ex.P1 to P30.
28. In the examination in chief the PW1 has reiterated the averments made in the complaint. He also got marked the complaint filed before this court as per Ex.P1 and his signature is at Ex.P1(a). The certified copy of the complaint filed by he accused before Bar Council as per Ex.P2, the 26 C.C.9622/2015 certified copy of the notice given by Bar Council is marked as per Ex.P3. The certified copy of the reply given by the complainant to the Bar Council as per Ex.P4, the certified copy of the order passed by the Bar Council is at Ex.P5, the cash paid receipt to the Bar Council is at Ex.P6, the certified copies of the petition, order sheet and the order in W.P.No.122721/724/2012 are at Ex.P7 to Ex.P9 respectively. The certified copies of the Writ Appeal No.8791/2012 and 8767/2012 and the order in the said appeals are at Ex.P10 to P13respectively. The certified copy of the order in W.P.No.11207/2013 is at Ex.P14, the certified copy of the sanction given by the Advocate General to proceed contempt of court against the accused is at Ex.P15, the certified copy of the criminal contempt petition No.13/2014 is at Ex.P16, the certified copy of the order sheet in the said petition is at Ex.P17, the certified copies of the apology letter and additional apology letter of the accused in the said case are at Ex.P18 and P19 and the 27 C.C.9622/2015 certified copy of the order in the said petition is at Ex.P20. The certified copies of the plaint, judgment and decree in O.S.1343/2015 are at Ex.P21, P22 & P22(a) respectively. The certified copy of the complaint lodged by Karnataka Medical Council against the accused before Basavanagudi Police Station is at Ex.P23. The certified copy of the appreciation letter issued by the Income Tax Department for paying highest tax by the complainant is at Ex.P24. The certified copies of tax returns for the last three years are at Ex.P25 to P27. The certified copy of the order passed by Income Tax Department is at Ex.P28, the certified copies of the returns for the year 201920 are at Ex.P29 and P30 respectively.
29. During the cross examination PW1 expressed his ignorance about the technical report of Lokayukta regarding Fortis Hospital dated 20052011 that Fortis Hospital has registered with appropriate authority to undertake only for 28 C.C.9622/2015 Kidney, Homograft and Liver Transplantation surgeries and not for Pancreas. He also expressed his ignorance about Lokayukta report at Annexure C43 in the consumer complaint C.C.No.206/2010 on 26102011. He further stated that he is not aware that W.P.No.45437/2011 was filed by Fortis Hospital on 07122011 regarding cancellation of licence for transplantation, however he volunteers that as a designated Senior Counsel he only argue matters when his services are requested by counsels appearing for the parties. He denied the suggestion that he has made false submission in the W.P.No.45437/2011, however he volunteers that whatever instructions given by the counsel on record he has made such submission which is acceptable and relevant to the case.
30. PW1 during the cross examination stated that he is aware of the observation made in paragraph No.22 and 24 of the order in W.P.No.45437/2011. Further, he stated that he 29 C.C.9622/2015 is not aware that W.P.No.16521/2012 was filed by the accused on 24052012 to direct Medical Council of India for time bound enquiry. He denied the suggestion that he has submitted in paragraph No.4 of W.P.No.16521/2012 dated 24012013 that he has argued before Medical Council of India about medical negligence, however he volunteers that he never appeared personally before Medical Council of India. He also expressed ignorance that Fortis Hospital had filed a fresh Writ Petition No.11207/2013 relating to appeal before Medical Council of India.
31. To the question that he has made false submission in paragraph No.29 of W.P.No.11207/2013 that Medical Council of India has violated the principles of natural justice even though he argued before Medical Council of India, PW1 answered that as a designated Senior Counsel he does not prepare any writ petition and law prohibits from doing so. Further, to the question that whether he will agree that 30 C.C.9622/2015 basis of present complaint is the complaint of professional misconduct filed by the accused in Karnataka State Bar Council in complaint No.KSBC/C8/2014 he answered that he denied the same however his basis for present case is perse false and defamatory statement made in the said complaint which is rejected by Karnataka State Bar Council. He denied the suggestion that the complaint before Karnataka State Bar Council was not dismissed on the merits but holding that the accused was not his client. He denied the suggestion that the complaint before statutory body is not defamatory.
32. On the basis of the oral as well as documentary evidence, both the counsels have submitted their oral as well as written arguments.
33. Having gone through the entire material placed on record as well as the written arguments, as per the case of 31 C.C.9622/2015 the complainant the foundational document which is alleged to be defamatory is the complaint filed by the accused on 17012014 before the Disciplinary Committee of Karnataka State Bar Council which complaint has been supported by an affidavit sworn to by the accused. The said complaint has been marked at Ex.P2, the following are the imputations according to the complainant are perse defamatory.
(a) " ........... Mr. Nagesh being an Officer of the Court and knowing very well that he earns his livelihood habitually makes false averments in the Court............"
(b) "Mr. C.V.Nagesh deliberately made this false statement ..............."
(c) ".............. Mr. Nagesh knew that he was making a false statement in November 2012 and that based on his false averments miscarriage of justice would take place ..............."
(d) "Mr. Nagesh knows that this averment is patently false ............."32 C.C.9622/2015
(e) "................... However, Mr. Nagesh knowing very well that there was no denial of natural justice to Dr. Thiagarajan not only made the false plea in High court but also suppressed the orders pronounced in W.P.No.16521/2012 with the sole intention of misleading the Court and the false and dishonest actions of Mr. Nagesh resulted in an order of interim stay in favour of his client".
(f) "Since Mr. Nagesh is habituated to making dishonest pleadings with utter disregard to the noble profession of advocacy, it is prayed that his registration as an advocate may please be permanently revoked else the confidence of the common citizen in the noble profession as well as the administration of justice will be eroded.
Once again, it is reiterated that more instances of false averments of Mr. Nageh can be brought to the notice of this Hon'ble Council to substantiate the point that Mr. Nagesh does not have any remorse in bringing disrepute to the noble profession of advocacy".
33 C.C.9622/2015
34. After perusal of the above imputations now it is pertinent to mention the ingredients which constitutes an offence punishable u/s 500 of IPC for defamation which are as under:
(i) Making or publishing any imputation
concerning any person.
(ii) Such imputation must have been made by words either spoken or intended to be read or by signs or by visible representation.
(iii) Such imputation must have been made with the intention to harm or with knowledge or having reason to believe that it will harm the reputation of the person concerned.
35. Having gone through the above ingredients which constitute an offence for defamation, now we shall see the evidence of the complainant both oral as well as documentary produced in support of his case. 34 C.C.9622/2015
36. On going through the evidence of PW1 and the documents produced by him clearly goes to show that they remained unchallenged despite the PW1 being subjected to cross examination for the simple reason that the accused even not suggested to PW1 that he never made such a defamatory statement against PW1 in that complaint filed by him before the Karnataka State Bar Council. There has been no material whatsoever which has been brought out by the accused during the course of cross examination of PW1 which would even lend a degree of doubt to the contention of the complainant.
37. Absolutely there is no doubt that the accused has filed the complaint dated 17012014 before the Disciplinary Committee at the Karnataka State Bar Council setting out several allegations and imputations which are perse defamatory and touching the character, conduct, honesty and integrity of the complaint in discharge of his duties as a 35 C.C.9622/2015 Senior Advocate. It is also not in dispute that the said complaint has been dismissed on the ground that non existence of an advocate and client relationship between complainant and the accused. However, said complaint filed by the accused before the Karnataka State Bar Council continues to remain in the public domain and is available to access by anyone by means that are known to law.
38. This being the case it shall not certainly lie in the mouth of the accused to contend that the complaint so filed by him is a private communication interse between the complainant and the accused. The allegations made against the complainant in the complaint lodged before Karnataka State Bar Council are perse defamatory before a public forum knowing it very well that the contents of the complaint are harmful against the complainant. 36 C.C.9622/2015
39. Though the advocate for accused in his written argument contended that the material facts/imputation of truth is first exception to defamation u/s 499 of Cr.P.C., but the accused has failed to establish that the contents of his complaint filed before the Karnataka State Bar Council are true facts. So, the accused has not substantiated his contention that the imputations in the complaint filed before Karnataka State Bar Council against the complainant are the true facts.
40. At this juncture it is also pertinent to mention Fifth Exception to Section 499 of IPC which reads thus:
Fifth Exception - Merits of case decided in court or conduct of witnesses and others concerned - It is not defamation to express in good faith any opinion whatever respecting the merits of any case civil or criminal, which has been decided by a court of justice or respecting the conduct of any person as a party, witness or 37 C.C.9622/2015 agent in any such case or respecting the character of such person, as far as his character appears in that conduct, and no further.
41. To attract the above exception the accused has not at all produced an iota of evidence to invite the attention of this court that the said act was the one that was done by him in good faith. Under such circumstances, the act of the accused can certainly not seek shelter under the Fifth Exception to Section 499 of IPC, as his defence of good faith remains unproved. It is no more res integra that good faith is an exception of the accused and cannot be considered in the absence of the same being established conclusively by the accused by leading acceptable evidence.
42. Apart from this the complainant has also filed a civil suit in O.S.1343/2015 seeking damages to the tune of ₹50,000/ against the accused for the very act of allegations made by him in the complaint dated 17012014 filed before 38 C.C.9622/2015 Karnataka State Bar Council. The suit was came to be decreed by Hon'ble XXXI Addl. City Civil Judge Bengaluru (CCH14) on 21032016 which could be seen from Ex.P21 and P22.
43. In the written arguments the advocate for accused contended by producing the website copy of case status of Crl.P.No.1666/2022 & RFA No.495/2017, W.A.3558/2014 that he has challenged the order of taking cognizance and issuance of summons in this case after lapse of nearly 7 years in Crl.P.No.1666/2022 before the Hon'ble High Court of Karnataka u/s 482 of CrPC. However, there is no order of stay has been issued by the Hon'ble High Court nor the accused has intimated the same before this court so far. The another copy of RFA is with regard to challenging the judgment passed by the Hon'ble XXXI Addl. City Civil and Sessions Judge, Bengaluru, wherein the accused though appeared has not filed his written statement and it was 39 C.C.9622/2015 decreed against him. It is pertinent to mention here that mere filing an appeal or Revision Petition that cannot certainly act as an embargo to proceed with the present case because in this case already full fledged trial has been concluded.
44. The advocate for accused in the written arguments contended that the trial was miscarriage of justice because the judgment of Supreme Court in State of Maharashtra v/s. Prapul Desai was ignored way back in the year 2002 Supreme Court has held that the evidence can be by electronically, so the accused was denied to right to defend himself. I have gone through the above decision of course the Supreme Court has permitted to give evidence electronically to the witness who is unable to appear before the court but not to the accused.
(emphasized by me) 40 C.C.9622/2015
45. Here in this case, the accused never appeared before the court since 2018 on one or the other pretext he used to remained absent. The matter was posted for recording of statement of accused u/s 313 of CrPC on 26042021, thereafter 25052021 but in view of SOP case was adjourned to 30062021, on all these days the accused remained absent, so it was posted on 17072021 on that day also the accused absent, so it was posted on 2508 2021 and due to the SOP it was adjourned to 13092021, on that day also the accused remained absent. It was posted on 28092021 on that day the accused absent so the matter was posted on 28102021 on that day he was examined u/s 313 of CrPC through digital mode and the accused chosen to lead his defence evidence but he remained absent.
46. Meanwhile, the accused sent some email to this court and the higher courts, so on 30102021 the accused again 41 C.C.9622/2015 remained absent and his counsel was present and submitted that he will say to his client not to post unnecessary emails. So, the matter was posted for defence evidence on 16112021 but on that day also he remained absent but filed evidence affidavit u/s 243(1) of CrPC along with list with 3 documents and prays time, so the matter was posted on 09122021 on that day the counsel for the complainant filed a memo stating that the evidence by way of affidavit is not permissible. So, the matter was posted for hearing on 04012022. On that day also the accused remained absent and his counsel filed memo with submitting further evidence. Due to the objection raised by the advocate for complainant and continuous absence without any reason by the accused the application u/s 317 was rejected and NBW was issued. Meanwhile, the accused has sent email to the Hon'ble Registrar of High Court of Karnataka the same was forwarded to this court. On 0402 2022 the accused remained absent but the NBW issued 42 C.C.9622/2015 against him was recalled by noting his presence through digital mode and matter was posted on 24022022, on that day also the accused remained absent and his counsel filed application u/s 309 seeking adjournment but it was rejected and his evidence was discarded on the ground that he has not been tendered himself for cross examination and matter was posted for arguments. Thereafter also the accused not appeared however his counsel submitted the written arguments.
47. On perusal of the affidavit dated 28092021 filed by the accused which is sworn to before Dr.R.S.Vijay Advocate and Notary at Bengaluru but counsel for the accused submits that the accused was not present. However, the affidavit filed by him shows that it was sworn before the said Notary at Bengaluru itself. This was not properly explained by the accused.
43 C.C.9622/2015
48. The another affidavit dated 04012022 was filed by the advocate for accused showing that the memo for submitting for further evidence and it was not sworn to before either Oath Commissioner or Notary or the Sheristedar. It has been blindly produced before this court contending that as per the decision the evidence has to be taken through electronically. This shows the attitude of the accused towards the court. He never bothered to appear before this court on the other hand used to send email to higher courts frequently.
49. Ex.P15 goes to show that the Advocate General of High Court of Karnataka has given sanction to initiate criminal contempt against the present accused for the remarks made by him against the sitting Hon'ble High Court Justice. Accordingly, Ex.P16 shows that criminal contempt case was registered against the present accused and Ex.P18 and P19 were the affidavit and further affidavit filed by the present 44 C.C.9622/2015 accused tendering his unconditional apology before the Hon'ble High Court. Therefore, looking to the entire documents and the attitude of the accused it strengthen the contention of the complainant that the accused has no respect even towards the court of law.
50. So far as the evidence of the accused in this case is concerned though he has filed affidavit without appearing before the court and has not tendered himself for cross examination despite giving sufficient opportunity. Therefore, his evidence has been discarded, so absolutely there is no evidence in support of his defence in this case. Even though he has referred several documents in his written arguments but it is of no use when he has neither confronted to the PW1 during cross examination nor got marked those documents by leading his evidence by appearing before the court even after withdrawal of SOP by Hon'ble High Court. 45 C.C.9622/2015
51. As per the settled principle of law the prosecution has to prove its case beyond reasonable doubt. However in case of defamation heavy burden is lies upon the accused to demonstrate his innocence or he has to disprove the allegations levelled against him. In this case, the accused totally failed to produce any iota of evidence in support of his defence to establish his innocence in this case.
52. Even till today the accused has not denied the allegation made by the complainant in this case, on the other hand he has not produced any document to show that the statement or imputation made by him in his complaint dated 17012014 before the Karnataka State Bar Council with regard to complainant are true facts. The oral as well as documentary evidence clearly goes to show that the complainant is designated Senior Counsel as defined u/s 16 of Advocates Act.
46 C.C.9622/2015
53. Looking to the documents and evidence of PW1 the complainant appears to be most senior in the age and also having reputation in the legal fraternity in Karnataka. The imputation made by the accused in the complaint dated 17012014 as mentioned above read in juxtaposition with the evidence available on record, the complainant has proved beyond reasonable doubt that the accused has committed the offence punishable u/s 500 of IPC. Therefore, I answer the above point in the affirmative.
54. Point No.2: Since this case being summons case and there is no stage prescribed in the Cr.P.C. to hear the accused before sentencing him. However, the court while passing sentence has to keep in mind the aggravating and mitigating circumstances and required to prepare a balance sheet. While examining the accused u/s 313 of CrPC he stated his age 63 years. Looking to Ex.P18 the accused is retired Indian Army Major. It appears that he has served the 47 C.C.9622/2015 Indian Defence till his superannuation, now he is senior citizen.
55. On the other hand, the complainant is also senior advocate and also the Hon'ble High Court of Karnataka designated him as Senior Counsel and having practice of more than 50 years. Looking to the averments made in the complaint the complainant represented the Central Government as well as State Government in various Courts, Commissions and Forums of the Country. Due to the act of the accused by making allegation as per Ex.P2 definitely the complainant have been put to untold mental agony, public shame, humiliation and disgrace.
56. So, keeping all these material aspects in mind, looking to the age and the service rendered by him for the Indian Army by the accused, if only fine is imposed on accused without sentencing him for imprisonment it will meet the 48 C.C.9622/2015 ends of justice. It is also reasonable that if out of the fine amount certain amount by way of compensation is awarded to the complainant. Hence, I proceed to pass the following ORDER Accused is convicted of the offence punishable U/Sec. 500 of IPC by acting U/Sec.255(2) of Cr.P.C.
Accused is sentenced to pay fine of ₹1,10,000/ in default of the same he shall undergo simple imprisonment for two months for the offence punishable U/Sec. 500 of IPC.
It is hereby directed that out of the fine amount deposited by the accused, the complainant is entitled for ₹1,00,000/ as compensation by acting u/s 357 of CrPC.
His bail bond stands cancelled.
49 C.C.9622/2015
Office is hereby directed to supply a free copy of this judgment to the accused forthwith. (Dictated to the stenographer directly on the computer, verified and corrected by me, then the judgment pronounced by me in the open court, on this 13 th day of April 2022.) (Patil Veeranagouda S.) VIII Addl. CMM, Bengaluru : Annexure :
Witness examined on behalf of the complainant:
PW1 : C.V.Nagesh s/o Venkata Krishnaiah Documents marked on behalf of the complainant:
Ex.P1 : Complaint Ex.P1(a) : Signature of PW1 Ex.P2 : C.C. of the complaint No.KSBC/C8/2014 Ex.P3 : C.C. of the notice given by Bar Council Ex.P4 : C.C. of the reply to complaint No.KSBC/C8/14 Ex.P5 : C.C. of the order passed by the Bar Council Ex.P6 : C.C. of cash paid receipt to the Bar Council Ex.P7 : C.C. of the petition in W.P.No.122721/724/2012 Ex.P8 : C.C. of the order sheet in W.P.122721/724/12 Ex.P9 : C.C. of the order passed in W.P.122721/724/12
Ex.P10 & 11: C.C. of the W.A.No.8791/2012 & 8767/2012 Ex.P12 & 13: C.C. of the order in W.A.No8791 & 8767/2012 Ex.P14 : C.C.of the order in W.P.No.11207/2013 Ex.P15 : C.C. of the sanction given by the A.G Office Ex.P16 : C.C. of the criminal contempt petition No.13/14 50 C.C.9622/2015 Ex.P17 : C.C. of the order sheet in CCP No.13/2014 Ex.P18 & 19: C.C. of the apology letters in CCP No.13/2014 Ex.P20 : C.C. of the order in CCP No.13/2014 Ex.P21 : C.C. of the plaint in O.S.1343/2015 Ex.P22 : C.C. of the judgment in O.S.1343/2015 Ex.P22(a) : C.C. of decree in O.S.1343/2015 Ex.P23 : C.C. of the complaint lodged by KMC Ex.P24 : C.C. of the letter issued by IT Department Ex.P25 : T.C. of tax returns for the 201617 Ex.P26 : T.C. of tax returns for the 201718 Ex.P27 : T.C. of tax returns for the 201819 Ex.P28 : T.C. of the intimation by IT Department Ex.P29 : T.C. of the bank counterfoil Ex.P30 : T.C. of the receipt Witness examined on behalf of the accused:
NIL Documents marked on behalf of the accused:
NIL VIII Addl. C. M. M. Bengaluru 51 C.C.9622/2015 Again case called out Accused absent Judgment pronounced in the open court vide separately ORDER Accused is convicted of the offences punishable U/Sec. 500 of IPC by acting U/Sec.255(2) of Cr.P.C.
Accused is sentenced to pay fine of ₹1,10,000/ in default of the same he shall undergo simple imprisonment for two months for the offence punishable U/Sec. 500 of IPC.
It is hereby directed that out of the fine amount deposited by the accused, the 52 C.C.9622/2015 complainant is entitled for ₹1,00,000/ as compensation by acting u/s 357 of CrPC.
His bail bond stands cancelled.
Office is hereby directed to supply a free copy of this judgment to the accused forthwith.
Issue conviction warrant to the accused accordingly.
VIII Addl. C. M. M. Bangalore