Andhra HC (Pre-Telangana)
Sri Bhaskar Raj Sexena vs Sudershan Ausekhar And Anr. on 19 December, 2000
Equivalent citations: 2001(1)ALD(CRI)255, 2001(1)ALT(CRI)168
ORDER T. Ch. Surya Rao, J.
1. The petitioner seeks to quash the proceedings initiated against him in C.C. No. 81 of 2000 on the file of the 14th Metropolitan Magistrate, Hyderabad.
2. The first respondent herein filed a private complaint for the alleged offence punishable under Section 500 of the Indian Penal Code against the petitioner before the 14th Metropolitan Magistrate Court, Hyderabad. The learned Magistrate had taken cognizance of the same and directed the process to be issued to the accused therein namely the petitioner. The petitioner pursuant to the said process appeared before that court. Thereafter, he filed the present petition for quashing of the proceedings.
3. The factual matrix germane in the context for consideration and for effective adjudication of the same may be set forth thus:
The petitioner is the son of late Narahar Raj Saxena. The said Narahar Raj Saxena was trustee of Sri Ramachandraji temple situated at Salibanda, Hyderabad and the appurtenant house constructed about 150 years back. The said temple and house were said to have been gifted by one late Alam Chand to the forefather of the complainant sri Sudershan Ausekhar. The father of the petitioner late Narahar Raj Saxena is said to have bequeathed the said temple and residential portion of the house in favour of the complainant on 3-10-1976 to the exclusion of his sons Bhaskar Raj Harihar Raj, Narayana Raj, Janardhan Raj, and Surender Raju on the ground that they were not interested in the upkeep and welfare of the temple. It is stated further that since then Sudershan Ausekhar the complainant has become the Archaka-cum-Mnaging Trustee of the temple.
4. It seems disputes arose between the said Sudershan Ausekhar and the petitioner Bhaskar Raj Saxena in respect of the said temple and the residential house. Sudershan Ausekhar therefore approached the Endowment Department and filed O.A.No.47 of 1997 and O.A.Nos. 11 of 1998 and 14 of 1998, which are pending adjudication. Bhaskar Raj Saxena seems to have submitted several petitions to various departments namely Municipal Corporation, Hyderabad, Endowment Department, Police Department and also the Collector. On the application filed by the said Bhaskar Raj Saxena the Assistant Commissioner of Endowments appeared to have initiated proceedings in E/870/93 dt.9-3-1993. The complainant Sudershan Ausekhar therefore filed writ petition No. 10566 of 1994 against the Assistant Commissioner of Endowments and the petitioner questioning the said proceedings. The petitioner Bhaskar Raj Saxena filed his counter in the writ petition mentioning inter alia that the will dated 3-10-1976 said to have been executed by his father was forged and created one. The complainant filed O.S. No. 476 of 1997 on the file of the V Judge, City Civil Court, Hyderabad seeking declaration of his title over the said temple and property and for consequential perpetual injunction restraining the defendants namely the Assistant Commissioner and the petitioner herein. The petitioner filed his written statement therein again mentioning inter alia that the will dated 3-10-1976 was never executed by his father and it was created for the present purposes. Thus a serious dispute has been in existence between the complainant and the accused the petitioner herein in respect of and the other residential portion of the house.
5. While so alleging inter alia that on 10-12-1999 the petitioner accused came to his house at about 6 P.M. when one Abdul Habeeb Ansari and one Babu were present at his house and started saying that the will dated 3-10-1976 was a forged one; that his father never signed on any will and further stated that the will was created by the complainant to cheat him, the respondent complainant filed the criminal complaint as aforesaid in C.C. No. 81 of 2000.
6. Sri Vilas V. Afzulpurkar, learned counsel for the petitioner contends that the criminal complaint filed against the petitioner is nothing but an abuse of the process of the court. The learned counsel contends that before the Endowments Department in appropriate proceedings, and before the civil court it has been the consistent stand of the petitioner that the will dated 3-10-1976 said to have been executed by his father is a forged will and therefore it cannot be a defamatory statement.
7. Smt.C.Jayashree Sarathy, learned counsel appearing for the first respondent, on the other hand, contends that the petitioner has no business to come to the house of the complainant and utter those words in the presence of two persons and therefore the offence is squarely made out.
8. The offence of defamation has been defined under Sec.499 of the Indian Penal Code. For brevity and better understanding of the matter it is expedient to extract the said section in so far as relevant for the present purpose is concerned here under thus:
" 499: Defamation:--- Whoever by words either spoken or intended to be read, or by signs or by visible representation, makes or publishes any imputation concerning any person intending to harm or knowing reason or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
Exceptions 1......... 2......... 3......... 4.......... 5.......... 6.......... 7.......... 8..........
Exception 9: --Imputation made in good faith by person for protection his or other's interests of it is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any person, or for the public good."
9. The punishment for the said offence is provided under Section 500 of I.P.C. As is obvious from the mere glance at exception 9 that any imputation made in good faith by a person for protecting his own interest or of any other person or for the public good is not defamation at all. The imputation said to have been made by the petitioner at the house of the complainant was to the following effect:
"The will dated 3-10-1976 is a forged one that his father never signed on any will and further stated that the will is created by the complainant to cheat him."
10. The complainant is a practising advocate. His grievance is that by such utterances by the accused-petitioner he felt insulted. Whether the words said to have been uttered by the petitioner as excerpted supra would attract the offence defined under Sec.499 I.P.C. and if it were an offence as defined in the said section whether would come within the 9th exception or not is the moot question.
11. Obviously, the civil and other proceedings have been pending between the complainant and the accused. In all those proceedings, the genuineness or otherwise of the will has been the contentious issue; in as much as the petitioner-accused has consistently been stating that his father never executed such a will and the will dated 3-10-1976 is a forged document. The main grievance of the complainant appears to be that the accused petitioner has the audacity of coming to his house and uttered those words particularly when two persons were present before him one of whom was a news paper agent. It is no matter whether such utterance has been made against the complainant at his house in the presence of two or more persons or in writing in any proceeding initiated by the complainant in various fora or elsewhere, if such utterance has been made in good faith and in his own interest. There is no gainsaying that the petitioner has been contending that his father never executed such a will in favour of the complainant before the Civil Court and before various authorities before whom the proceedings are pending. Obviously the said stance is in his own interest and in the interest of the public good since Endowment Department also claims the said property. Therefore, viewed in this perspective and backdrop it is difficult to discern the necessary malice or ill will on the part of the petitioner in having uttered those words which in view of the complainant are in insinuating nature. It is apposite here to consider the judgment of the Judicial Commissioner's court in BAIJA v. BABU, 45 INDIAN CASES 833 held as follows:
"A statement made by a party to a suit in good faith and for the protection of his interest and which is relevant to the matter in issue falls under exception 9 of Sec.499 I.P.C. and is privileged and in order to take such statement out of the exception express malice must be proved."
12. Nowhere in the complaint it has been averred that the petitioner uttered those words out of spite and malice with intention to defame the complainant. Even otherwise the facts set out supra would take away in my considered view the necessary malice. The learned counsel for the petitioner further seeks to place reliance upon the judgment of the Madras High court in SANKAMMA V. GOVINDA CHETTY, AIR 1925 MADRAS 246 According to the facts in that case, a lawyer's notice was got sent by a widow of deceased Hindu to the accused charging him with the offence of criminal breach of trust and theft of the property of her husband and threatening further with civil and criminal proceedings. In reply thereto, through his counsel the accused stated inter alia that she was living adulterous life and that she was discarded owing to her such conduct by her husband and that her daughter was not the daughter of her husband and that she had never lived with the deceased for about 25 years. When a criminal prosecution was launched alleging defamation it was held by the Madras High court that the accused being directly interested in making those allegations and the terms employed were not too violent for the occasion or disproportionate to the facts, no offence of defamation was made out. The learned counsel further relied upon a decision of the Supreme court in RAJENDRA KUMAR PANDE V. Uttam & Another, . That was a case where a complaint was filed for defamation alleging inter alia that the accused persons made a complaint to the Treasury Officer Amaravathi containing false imputations that the complainant had come to office in a drunken state and abused the Treasury Officer, Additional Treasury Officer and the Collector in the filthy language and such imputations had been made with an intention to cause damage to the reputation of the complainant and thereby committed a criminal offence punishable under Sec.500 read with Sec.34 of I.P.C. When the process was issued after taking the complaint on file, the accused filed a petition to quash the proceedings. The Apex Court held, that taking on its face value that it would be squarely covered by exception 8 of Sec.499 of I.P.C. and therefore no case of defamation could be made out.
13. The imputation must be made intending to harm the reputation of the person against whom it was made or knowing or having reason to believe that such imputation would harm the reputation of the person aimed at if it was made that would be an offence of defamation except under the exceptions incorporated under the section. As discussed supra, exception 9 of Sec.499 of I.P.C. is germane very much for consideration in the present set of facts. The petitioner has been making the utterances, which in view of the complainant is an imputation not for the first time at his house but on several occasions elsewhere including in judicial proceedings. That is very much necessary in the point of view of the accused in his interest to defend him in the suit and to protect the property and also in the interest of public. Therefore, in my considered view, the gravamen of the accusation said to have been made against the petitioner is squarely covered by exception 9 under Sec.499 of I.P.C. The offence under Sec.500 of I.P.C. is therefore not attracted. In view of the pendency of various civil proceedings between the parties inter se it is nothing but an abuse of the process of the court to initiate criminal proceedings against the petitioner.
14. For the foregoing reasons, the Criminal Petition is allowed and the criminal proceedings in C.C. No. 81 of 2000 against the petitioner are hereby quashed.