Madras High Court
K.Ragothaman vs A.Shabnam Banu on 7 August, 2021
Author: N. Sathish Kumar
Bench: N.Sathish Kumar
Crl.O.P.No.11761 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 22.07.2022
DELIVERED ON : 27.07.2022
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Crl.O.P.No.11761 of 2022
and Crl.M.P.Nos.6676 & 6678 of 2022
K.Ragothaman .. Petitioner/Accused
Vs.
A.Shabnam Banu .. Respondent/Complainant
Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C.,
seeking to call for the records in C.C.No.243 of 2022 on the file of the
learned V Metropolitan Magistrate at Egmore, Chennai and to quash the
same.
For Petitioner : Mr.K.Venkatapathy
For Respondent : Ms.T.Sushil Sarayu
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https://www.mhc.tn.gov.in/judis
1/17
Crl.O.P.No.11761 of 2022
ORDER
This petition has been filed to quash the private complaint initiated for offence punishable under Section 500 of IPC.
2. The brief facts leading to the filing of this petition is as follows:
(i) The respondent/complainant was enrolled as an Advocate on 07.08.2011, and due to her hard work, she got lot of motivation and now she has set up her independent practice. Her mother is also practicing as a Senior Advocate with more than 25 years.
(ii) The petitioner/accused worked as a Law Officer in Bank of India. After his retirement, he enrolled himself as an Advocate. The petitioner/accused has dealt with several lawyers and exactly know how litigation works and he is not naive to the procedures.
(iii) When the matter stood thus, the petitioner/accused sent a SMS to the respondent/complainant on 26.03.2021, stating that she has to appear before the Disciplinary Committee of the Bar Council of Tamil Nadu and Puducherry (hereinafter referred to as "the Bar Council"). Thereafter, the complainant came to know that the accused has initiated false and motivated https://www.mhc.tn.gov.in/judis 2/17 Crl.O.P.No.11761 of 2022 disciplinary proceedings against the complainant mainly on the ground that the suit filed by the accused in O.S.No.3318 of 2010, through the mother of the complainant was dismissed for default. It is alleged that the above suit was dismissed due to collusion and misconduct of the respondent/complainant. According to the complainant, the allegations in the complaint are motivated, vexatious, malicious and vengeful.
(iv) It is her contention that she never appeared for the petitioner/accused in the suit in O.S.No.3318 of 2010. Knowing very well that the complainant has nothing to do with the case, the accused with vengeful motive, to take revenge against her and to further harass her, has filed the said complaint before the Bar Council with several defamatory statements. Even during the Bar Council proceedings, the accused would demand money for settlement of the proceedings. The accused tried to prolong the disciplinary proceedings and thus spoiled the career of the complainant and because of that, she has to resign from her Government Advocate post. Thereafter, she was discharged from the disciplinary proceedings on merits.
(v) It is the contention of the complainant that malicious statements https://www.mhc.tn.gov.in/judis 3/17 Crl.O.P.No.11761 of 2022 were made with an intention to tarnish her image and therefore she has lodged a complaint. The same was sought to be quashed mainly on the ground that the accused had entrusted his personal case to Mrs.Kamala Kumari, mother of the complainant, to file a suit for recovery of rental arrears. During the pendency of the said suit, one third party has got impleaded and therefore he has instructed the said Mrs.Kamala Kumari to file a Civil Revision Petition against the impleadment. Civil Revision Petition in C.R.P.No.2790 of 2018, has been filed before this Court through the mother of the complainant and the complainant also used to discuss this case and after obtaining a stay order in the said C.R.P., the same was not brought to the notice of the trial Court and therefore the trial Court dismissed the said suit for default.
(vi) Hence it is the contention of the petitioner/accused that the respondent/complainant and her mother have not taken any steps towards restoring the suit and therefore, he preferred a complaint before the Bar Council. However, the Bar Council discharged the respondent/complainant.
(vii) It is the stated by the petitioner/accused that the learned Magistrate has not applied his mind in taking cognizance and it is his further https://www.mhc.tn.gov.in/judis 4/17 Crl.O.P.No.11761 of 2022 contention that the proceedings before the Bar Council were instituted as per law with all good faith as a victim and therefore, the said act is protected as per the Exceptions 8 and 9 to Section 499 of I.P.C. Merely initiating a complaint against the complainant before the Bar Council per se is not defamatory since the imputations are made in good faith for protection of his interest and therefore it is not an offence of defamation.
(viii) It is further stated by the petitioner that initiation of proceedings before judicial and quasi judicial forum is nothing but a bona fide act following the due process of law and the same cannot be construed as it affects the reputation and moral of the respondent/complainant.
(ix) It is also further stated by the petitioner that not even a single witness was listed and therefore no third party will have any occasion to know about the above proceedings. The petitioner/accused has no intention to damage the reputation of the respondent/complainant in the eye of the general public and therefore the basic ingredient for an offence of defamation is not made out and as such, the offence under Sections 499 and 500 of IPC will not get attracted and hence seeks to quash the entire proceedings.
https://www.mhc.tn.gov.in/judis 5/17 Crl.O.P.No.11761 of 2022
3. The learned counsel appearing for the petitioner would submit that the petitioner in the quash petition is also a practicing lawyer and merely because he has made certain complaint against the respondent/complainant before the Bar Council for professional misconduct, such proceedings cannot be termed as defamatory in nature. He further contended that the respondent's mother was entrusted with vakalat in respect of the suit filed before the Civil Court and as against the impleadment order, a Civil Revision Petition has been filed before this Court, wherein the respondent has also appeared in the said C.R.P. and despite stay order granted by this Court, the same has not been informed to the lower Court and therefore the lower Court has dismissed the suit for default and only on the above grounds sensing collusion, the petitioner has given a complaint against the respondent before the Bar Council in good faith. Therefore, the offence under Sections 499 and 500 IPC is not attracted.
4. The learned counsel further vehemently contended that the proceedings initiated before the Bar Council will fall within the Exceptions 8 and 9 to Section 499 of IPC and therefore there cannot be any proceedings for defamation. Hence, the learned counsel seeks to quash the case in https://www.mhc.tn.gov.in/judis 6/17 Crl.O.P.No.11761 of 2022 C.C.No.243 of 2021 pending before the learned V Metropolitan Magistrate, Egmore. The learned counsel also relied upon the following judgments viz.,
(i) Rajendra Kumar Sitaram Pande and Ors Vs. Uttam and Another reported in (1999) 3 SCC 134 ;
(ii) Anil Chaudhry Vs. Yakult Danone India Pvt Ltd reported in 2018 SCC Online Delhi 11638 and
(iii) Thekkittil Gopalankutty Nair Vs. Melepurath Senkunni Ezhuthaseah reported in AIR 1971 Ker 280.
5. Whereas, the learned counsel appearing for the respondent/complaint would submit that the petitioner is well aware of the fact that the respondent/complainant was only a student when he entrusted the vakalat to her mother. The petitioner is not a full time lawyer and he is a bank employee and after his retirement, he got himself enrolled as an Advocate. Knowing very well that he has not entrusted any matter to the respondent/complainant and only in order to extract money, disciplinary proceedings has been initiated against the complainant before the Bar Council with malicious statements, which has resulted in various consequences including resignation of the respondent/complainant from the post of State Government Law officer.
https://www.mhc.tn.gov.in/judis 7/17 Crl.O.P.No.11761 of 2022
6. It is further contended that in the Bar Council proceedings itself, the petitioner has admitted that he has not entrusted the case to the respondent herein. Only on that admission made by the petitioner, the respondent was discharged. Even after the respondent was discharged from the proceedings, the petitioner has filed an affidavit before the Bar Council making serious allegations containing defamatory statements not only against the respondent but also against her family members and he has also questioned the caste and marriage of the respondent hence she submitted that knowing very well that the petition filed by the petitioner against the respondent before the Bar Council has been dismissed and the respondent was discharged, the petitioner is still making such allegations against the respondent/complainant itself shows that the proceedings initiated and the defamatory statements made are not in good faith. At any event, it is her contention that even the plea of good faith has to be proved. It is a matter of appreciation of evidence and the same cannot be decided under Section 482 of Cr.P.C. Therefore, she opposed this petition. In support of her submissions, she has also relied upon the judgment of the Hon’ble Apex Court in M.N.Damani Vs. S.K.Sinha and Others reported in (2001) 5 SCC 156. https://www.mhc.tn.gov.in/judis 8/17 Crl.O.P.No.11761 of 2022
7. I have considered the rival submissions and also perused the entire materials on record.
8. While exercising power under Section 482 Cr.P.C., the Courts normally would not conduct a mini trial or would look into the probative value of the statements made in the complaint. Only when the complaint does not constitute an offence or motivated with mala fide intention or infested with mala fideness, the Court would exercise the power under Section 482 of Cr.P.C.
9. As culled out from the facts, it could be seen that the cause of action for initiation of the Bar Council proceedings by the petitioner lies mainly on the ground that the suit instituted by the petitioner herein before the learned VII Assistant Judge, City Civil Court, Chennai in O.S.No.3318 of 2010 through the respondent's mother has been dismissed for default due to the alleged collusion of the respondent. It is alleged that an interim order passed in the suit, a Civil Revision Petition has been filed before this Court and the respondent has also appeared in the C.R.P. before this Court and stay was also obtained, but in spite of that, the suit was allowed to be dismissed. https://www.mhc.tn.gov.in/judis 9/17 Crl.O.P.No.11761 of 2022 Therefore, alleging that there is collusion between the respondent and the defendant in the said suit, the petitioner has filed a complaint before the Bar Council against the respondent and her mother alleging misconduct. It is relevant to note that the Bar Council has discharged the respondent in Bar Council Proceedings in I.A.No.38 of 2021 in D.C.C.No.85 of 2021, dated 07.08.2021, mainly on the ground that the petitioner himself has admitted that the respondent herein has not filed vakalat for the petitioner and she has been implicated because she is the daughter of the first respondent in the Bar Council proceedings.
10. From a perusal of the typed set of papers, it appears that even after the discharge of the respondent by the Bar Council, the petitioner has filed an affidavit before the Bar Council alleging that when he was working as the Head of the Legal Department of a leading Nationalised Bank and the respondent's mother introduced herself as an advocate living in penury and that she married a Muslim who was a daily wager doing odd work of fixing tiles, therefore, the petitioner empaneled her as an Advocate of the Bank out of pity and compassion. Thereafter, the respondent's mother started earning lot of money and her lifestyle has changed and also her attitude. There were few complaints about her quality of service and the way of charging fee from https://www.mhc.tn.gov.in/judis 10/17 Crl.O.P.No.11761 of 2022 the bank branches and borrowers. The borrowers claimed that she is very much money minded and demanded enormous fees for clearing the title deeds and therefore, he pulled up her on few occasions and warned her not to indulge in the said practice in future. However, he has not removed her from service since he do not want to ruin the future career of her two children, despite there are various allegations against her.
11. It is relevant to note that though it is stated by the petitioner that the Civil Revision Petition has been filed by the mother of the respondent and the respondent was also sworn in as one of the counsel, but it was not established by the petitioner that any vakalat has been entrusted to the respondent herein by the petitioner herein.
12. Be that as it may, the petitioner seeks to quash the proceedings mainly on the ground that on good faith all the statements were made in the previous proceedings before the Bar Council. As indicated above, after the respondent was discharged from the Bar Council proceedings, an affidavit has been filed questioning the character and the way of life of the respondent by the petitioner. It is well settled that there is no absolute immunity from prosecution for defamation for the statements contained in the application or https://www.mhc.tn.gov.in/judis 11/17 Crl.O.P.No.11761 of 2022 pleadings or affidavit filed before any forums. Though the judgment of the Delhi High Court in Anil Chaudhry Vs. Yakult Danone India Pvt Ltd reported in 2018 SCC Online Delhi 11638 relied upon by the petitioner to show that the statements made in the pleading have absolutely privilege. On a careful perusal of the above judgment it makes it clear that the above case relied upon by the petitioner relates to a claim of damages in a civil suit and therefore, the same cannot be mechanically applied to a criminal case.
13. In the next case relied upon by the learned counsel appearing for the petitioner in Rajendra Kumar Sitaram Pande and Ors Vs. Uttam and Another reported in (1999) 3 SCC 134, the Hon’ble Apex Court has held that the allegation is that the accused persons made a false complaint to the Treasury Officer, containing false imputations to the effect that the complainant therein had come to office in a drunken state and abused the Treasury Officer. Therefore, the learned Magistrate directed him to hold an enquiry and submit a report. The report of the Treasury Officer indicated that Departmental Enquiry has been initiated and complainant was found guilty and only in such circumstances, the Hon’ble Apex Court has held that no case of defamation is made out and the statement falls within Exception 8 to Section 499 of IPC.
https://www.mhc.tn.gov.in/judis 12/17 Crl.O.P.No.11761 of 2022
14. The another judgment relied on by the petitioner in Thekkittil Gopalankutty Nair Vs. Melepurath Senkunni Ezhuthaseah, reported in AIR 1971 Ker 280, the Full Bench of the Kerala High Court has held that even a plea of qualified privilege was available, as there is intrinsic evidence of malice, the plea would stand rebutted. The above judgment arises out of a Civil Proceedings.
15. In the judgment relied upon by the respondent in M.N.Damani Vs. S.K.Sinha and Others reported in (2001) 5 SCC 156, the Hon’ble Apex Court has held that it has to be examined whether imputations were made in good faith, in what circumstances, with what intention, etc. and all these can be examined on the basis of evidence in the trial and declined to set aside the order of the High Court.
16. It is relevant to extract Section 499 of IPC, which reads as follows:
"499. Defamation — Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes https://www.mhc.tn.gov.in/judis 13/17 Crl.O.P.No.11761 of 2022 any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
*** Eight Exception —Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
Ninth Exception.—Imputation made in good faith by person for protection of his or other’s interests.—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 interests of the person making it, or of any other person, or for the public good."
17. Exception 8 to Section 499 of IPC was relied upon by the petitioner. From the facts, it is seen that even after the discharge of the respondent from the Bar Council proceedings, the petitioner has been making imputating statements about the respondent life and profession, https://www.mhc.tn.gov.in/judis 14/17 Crl.O.P.No.11761 of 2022 whether such statements are made in good faith or not is a matter of evidence. The plea of good faith is to be proved by a person who takes such a plea. Therefore, it requires appreciation of evidence. At this stage, this Court cannot assume the role of a trial Court and without any evidence on record, no definite findings can be given. Such view of the matter, this Court is not inclined to entertain this petition to quash the entire proceedings and accordingly this Criminal Original Petition is dismissed. Consequently, the connected miscellaneous petitions are closed.
27.07.2022 Index : Yes / No kk To The V Metropolitan Magistrate, Egmore, Chennai.
https://www.mhc.tn.gov.in/judis 15/17 Crl.O.P.No.11761 of 2022 Crl.O.P.No.11761 of 2022 & Crl.M.P.Nos.6676 & 6678 of 2022 N. SATHISH KUMAR, J.
While pronouncing Orders, the learned counsel appearing for the petitioner sought indulgence of this Court to dispense with the personal appearance of the petitioner before the trial Court on the ground that the petitioner is aged about 71 years and he is a diabetic patient.
2. In view of the submissions of the learned counsel for the petitioner, the personal appearance of the petitioner is dispensed with except on the date of initial questioning, questioning under section 313 of Cr.P.C., on the date of pronouncing judgment and on any other date as fixed by the trial court. It is also made clear that even if the personal appearance of the petitioner is dispensed with, the witnesses have to be cross examined on the same day on their examination in chief.
27.07.2022 vrc https://www.mhc.tn.gov.in/judis 16/17 Crl.O.P.No.11761 of 2022 N.SATHISH KUMAR, J.
kk PRE DELIVERY ORDER in Crl.O.P.No.11761 of 2022 and Crl.M.P.Nos.6676 & 6678 of 2022 RESERVED ON : 22.07.2022 DELIVERED ON : 27.07.2022 https://www.mhc.tn.gov.in/judis 17/17