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[Cites 13, Cited by 0]

Delhi District Court

Complainant vs . on 27 October, 2022

     IN THE COURT OF METROPOLITAN MAGISTRATE-07,
                WEST, TIS HAZARI COURTS,
                          NEW DELHI
             Presided over by- Devanshu Sajlan, DJS

Ct. Case No.              -: 2000/2016
Unique Case ID            -: DLWT020011222010
No.
Police Station            -: Paschim Vihar (East)
Section(s)                -: 500 IPC

In the matter of -


ASHOK DRALL
                                                            .... Complainant
                                     VS.

KANTA CHOUDHARY

                                                                 .... Accused
1. Name of Complainant                : Sh. Ashok Drall
2. Name of Accused                    : Ms. Kanta Choudhary
      Offence complained of or
3.                                    : 500 IPC
      proved
4. Plea of Accused                    : Not Guilty
5. Date of Filing of case             : 15.01.2008
6. Date of Reserving Order            : 11.10.2022
7. Date of Pronouncement              : 27.10.2022
8. Final Order                        : Convicted


Argued by -: Complainant in person.
             Sh. P. K. Sharma, Ld. Counsel for the accused.


                                                                                Digitally signed
                                                                   DEVANSH by DEVANSHU
                                                                            SAJLAN
                                                                   U SAJLAN Date: 2022.10.27
                                                                                15:14:06 +05'30'


Ct. Case No. 20000/2016         Ashok Drall v. Kanta Choudhary       Page 1 of 28
 BRIEF STATEMENT OF REASONS FOR THE DECISION-:


A. FACTUAL MATRIX:
        Reputation, reputation, reputation! Oh, I have lost my
        reputation! I have lost the immortal part of myself, and what
        remains is bestial.
                                             - William Shakespeare


1.      The aforesaid lines, from William Shakespeare's famous play
"Othello", spoken by Cassio in a state of deep anguish, would
resonate with any person whose reputation has been lowered in the
eyes of the society.
2.      The complainant in the present case, who is an advocate by
profession, claims to be similarly anguished due to the harm caused
to his reputation by the actions of the accused. Briefly stated, the
case of the complainant is that the accused filed a complaint against
the complainant before Bar Council of Delhi on 23.03.2007 (bearing
no. 17/2007) levelling serious and defamatory allegations against
him. The allegation which the complainant has alleged to be deeply
defamatory is reproduced hereinbelow:
        Ashok Drall ne kaha ki mere to judges se bhi achhe sambandh
        hai main to murder case bhi lakh do lakh me nipatwa deta hu yeh
        to mamuli si bat hai. Mai Ashok Drall vai Neelam ki bataon mai
        aa gayi.


3.      The complainant has submitted that the said complaint, made
to the Bar Council of Delhi by the accused, is duly signed and sworn
by her. It has been submitted that the accused, by way of the
aforesaid allegation, has clearly imputed that the complainant acts as
a broker between judges and litigants for the purpose of facilitating
bribery. It has been further submitted that the accused has imputed

Ct. Case No. 20000/2016        Ashok Drall v. Kanta Choudhary     Page 2 of 28
 that the institution of justice is just a toy which can be sold and
purchased by people.
4.      The complainant has further submitted that he has a good
reputation in legal fraternity and except for the present libel made
by the accused against him, there is no complaint or allegation
against the complainant in relation to his professional conduct. It
has been further submitted that the complaint of the accused was
dismissed by the Bar Council of Delhi on 30.05.2008 on the ground
that no prima-facie case of misconduct was found against the
complainant. Based on the same, it has been contended that the
allegation of the accused was made without any due care and
caution in order to harm the reputation of the complainant. It has
been further submitted that the defamatory allegation made by the
accused was made with an intention to lower the complainant's
reputation in the estimation of his fellowmen and judicial set-up,
and that due to the defamatory allegations of the accused, the
honesty and integrity of the complainant in the society and
profession has been impeached.

B. PRE-SUMMONING EVIDENCE & NOTICE

5.      Pre-summoning evidence was led by the complainant and on
finding a prima-facie case, the accused was summoned to face trial
vide order dated 19.09.2011. Thereafter, the accused was served
with the notice of accusation under Section 251, Code of Criminal
Procedure, 1973 (hereinafter "CrPC") on 19.07.2013, to which the
accused pleaded not guilty and claimed trial.




Ct. Case No. 20000/2016    Ashok Drall v. Kanta Choudhary   Page 3 of 28
 C. COMPLAINANT EVIDENCE:


6.      During the trial, complainant led the following oral and
documentary evidence against the accused to prove his case
beyond reasonable doubt-:
                                ORAL EVIDENCE
                                Sh. Virender Sirohi (Supervisor, BCD
        CW-1                :
                                Office)
                                Sh. Hansraj (Ahlmad from the Court of
        CW-2                :
                                Ld. Civil Judge-20, Central, THC, Delhi)
        CW-3                : Sh. Ashok Drall (complainant)
                          DOCUMENTARY EVIDENCE
        Ex.   CW1/A   Complaint dated 23.03.2007 filed by the
                    :
        (OSR)         accused before Bar Council of Delhi
        Ex.   CW1/B
                    : Copy of affidavit
        (OSR)
        Ex.   CW1/C
                    : Copy of notice issued by BCD
        (OSR)
                      Copy of order dated 30.05.2008 vide
        Ex.   CW1/D
                    : which complaint of the accused was
        (OSR)
                      dismissed by BCD
                                Copy of plaint in the civil suit titled as
        Ex. CW2/A           :
                                Ashok Drall vs. Kanta Chaudhary
                              Copy of written statement in the civil suit
        Ex. CW2/B           : titled as Ashok Drall vs. Kanta
                              Chaudhary


D. STATEMENT OF ACCUSED:


7.      Thereafter, before the start of defence evidence, in order to
allow the accused to personally explain the incriminating
circumstances appearing in evidence against her, the statement of
accused was recorded without oath under Section 281 read with
Section 313 CrPC. In reply, the accused denied all allegations and

Ct. Case No. 20000/2016           Ashok Drall v. Kanta Choudhary      Page 4 of 28
 stated that she wishes to examine herself in her defense.


E. DEFENSE EVIDENCE:


8.       The accused led the following oral and documentary
evidence in her defense evidence-:
                            ORAL EVIDENCE
         DW-1             : Ms. Kanta Chaudhary (Accused)


9.       I have heard both sides at length. I have also given my
thoughtful consideration to the material appearing on record.
Learned counsel for the accused has raised the following
contentions in the defense of the accused:
(i)      A complaint made to a lawful authority (Bar Council in this
case) does not amount to publication of statement/ imputation;
(ii)     The accused's complaint does not include any defamatory
imputation since it is based on truth;
(iii)    The present case is covered within the scope of eighth
exception to section 499;
(iv)     The undersigned court does not have territorial jurisdiction to
entertain the present complaint;
(v)      The civil property dispute between the complainant and the
accused has already been decreed in favour of the accused by the
civil court, and the judgment of the civil court is binding on this
court.
10.      The aforesaid contentions and ingredients of the offense are
discussed next.



Ct. Case No. 20000/2016       Ashok Drall v. Kanta Choudhary   Page 5 of 28
 F. INGREDIENTS OF THE OFFENCE:


11.     The offence of defamation is defined under section 499 of the
IPC, which provides as follows:
        Whoever, by words either spoken or intended to be read, or by
        signs or by visible representations, makes or publishes 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.
        Explanation 1.-It may amount to defamation to impute anything
        to a deceased person, if the imputation would harm the
        reputation of that person if living, and is intended to be hurtful to
        the feelings of his family or other near relatives.
        Explanation 2.-It may amount to defamation to make an
        imputation concerning a company or an association or collection
        of persons as such.
        Explanation 3.-An imputation in the form of an alternative or
        expressed ironically, may amount to defamation.
        Explanation 4.-No imputation is said to harm a person's
        reputation, unless that imputation directly or indirectly, in the
        estimation of others, lowers the moral or intellectual character of
        that person, or lowers the character of that person in respect of
        his caste or of his calling, or lowers the credit of that person, or
        causes it to be believed that the body of that person is in a
        loathsome state, or in a state generally considered as disgraceful.

12. Punishment for the offence of defamation is provided under
Section 500 IPC as follows:

        500. Punishment for defamation.-Whoever defames another
        shall be punished with simple imprisonment for a term which
        may extend to two years, or with fine, or with both.

13.     The sine-qua-non of the offence of defamation lies in one
word - "Reputation". The term reputation was defined in the case
titled as Kiran Bedi v. Committee of Inquiry, (1989) 1 SCC 494, by
the Hon'ble Apex Court of India in the following manner:
        It is stated in the definition Person, 70 C.J.S.p. 688 note 66 that
        legally the term "person" includes not only the physical body
        and members, but also every bodily sense and personal attribute,


Ct. Case No. 20000/2016          Ashok Drall v. Kanta Choudhary        Page 6 of 28
         among which is the reputation a man has acquired. Blackstone in
        his Commentaries classifies and distinguishes those fights which
        are annexed to the person, jura personarum, and acquired fights
        in external objects, jura rerum; and in the former he includes
        personal security, which consists in a person's legal and
        uninterrupted enjoyment of his life, his limbs, his body, his
        health, and his reputation. And he makes the corresponding
        classification of remedies. The idea expressed is that a man's
        reputation is a part of himself, as his body and limbs are,
        and reputation is a sort of fight to enjoy the goods opinion of
        others, and it is capable of growth and real existence, as an
        arm or leg. Reputation is, therefore, a personal fight, and the
        right to reputation is put among those absolute personal
        fights equal in dignity and importance to security from
        violence. According to Chancellor Kent, "as a part of the rights
        of personal security, the preservation of every person's good
        name from the vile arts of detraction is justly included. The laws
        of the ancients, no less than those of modern nations, made
        private reputation one of the objects of their protection.

14.     Further, in the case titled as Vishwanath Agrawal v. Sarla
Vishwanath Agrawal, (2012) 7 SCC 288, it was observed that:

        Reputation is not only the salt of life, but also the purest
        treasure and the most precious perfume of life. It is
        extremely delicate and a cherished value this side of the
        grave. It is a revenue generator for the present as well as for
        the posterity.

15.     The significance of reputation has also been emphasized by
the Hon'ble Supreme Court of India in Subramanian Swamy v.
Union of India, (2016) 7 SCC 221, in the following words:
        34. The reference to international covenants has a definitive
        purpose. They reflect the purpose and concern and recognise
        reputation as an inseparable right of an individual. They
        juxtapose the right to freedom of speech and expression and the
        right of reputation thereby accepting restrictions, albeit as per
        law and necessity. That apart, they explicate that the
        individual honour and reputation is of great value to human
        existence being attached to dignity and all constitute an
        inalienable part of a complete human being. To put it
        differently, sans these values, no person or individual can
        conceive the idea of a real person, for absence of these
        aspects in life makes a person a non-person and an


Ct. Case No. 20000/2016         Ashok Drall v. Kanta Choudhary       Page 7 of 28
         individual to be an entity only in existence perceived without
        individuality.
        195. . . . Right to free speech cannot mean that a citizen can
        defame the other. Protection of reputation is a fundamental
        right. It is also a human right. Cumulatively it serves the
        social interest. Thus, we are unable to accept that provisions
        relating to criminal defamation are not saved by doctrine of
        proportionality because it determines a limit which is not
        impermissible within the criterion of reasonable restriction. It
        has been held in D.C. Saxena v. Chief Justice of India [D.C.
        Saxena v. Chief Justice of India, (1996) 5 SCC 216], though in a
        different context, that if maintenance of democracy is the
        foundation for free speech, society equally is entitled to regulate
        freedom of speech or expression by democratic action. The
        reason is obvious viz. that society accepts free speech and
        expression and also puts limits on the right of the majority.
        Interest of the people involved in the acts of expression should
        be looked at not only from the perspective of the speaker but
        also the place at which he speaks, the scenario, the audience, the
        reaction of the publication, the purpose of the speech and the
        place and the forum in which the citizen exercises his freedom of
        speech and expression. The Court had further observed that the
        State has legitimate interest, therefore, to regulate the freedom of
        speech and expression which liberty represents the limits of the
        duty of restraint on speech or expression not to utter defamatory
        or libellous speech or expression. There is a correlative duty not
        to interfere with the liberty of others. Each is entitled to dignity
        of person and of reputation. Nobody has a right to denigrate
        others' right to person or reputation. (Emphasis Added)


16.     Therefore, as observed by the Hon'ble Supreme Court,
protection of reputation has been held to be a fundamental right, and
that the same is universally recognized to be an integral and
important aspect of dignity of every individual. The right to
preservation of one's reputation is acknowledged as a right in rem, a
right good against all the world (see Shobhana Bhartia & Ors v.
NCT of Delhi, reported in AD (CR) (2007) 5 229).
17.     Moving on, the ingredients of the offense of defamation were
discussed by the Hon'ble Supreme Court of India in Subramanian
Swamy (supra):

Ct. Case No. 20000/2016          Ashok Drall v. Kanta Choudhary        Page 8 of 28
         168. For the aforesaid purpose, it is imperative to analyse in
        detail what constitutes the offence of "defamation" as provided
        under Section 499 IPC. To constitute the offence, there has to
        be imputation and it must have been made in the manner as
        provided in the provision with the intention of causing harm
        or having reason to believe that such imputation will harm
        the reputation of the person about whom it is made. Causing
        harm to the reputation of a person is the basis on which the
        offence is founded and mens rea is a condition precedent to
        constitute the said offence. The complainant has to show that
        the accused had intended or known or had reason to believe
        that the imputation made by him would harm the reputation
        of the complainant. The criminal offence emphasises on the
        intention or harm. Section 44 IPC defines "injury". It denotes
        any harm whatever illegally caused to any person, in body,
        mind, reputation or property. Thus, the word "injury"
        encapsulates harm caused to the reputation of any person. It also
        takes into account the harm caused to a person's body and mind.
        Section 499 provides for harm caused to the reputation of a
        person, that is, the complainant.


18.     Further, in Google India (P) Ltd. v. Visaka Industries, (2020)
4 SCC 162, it was held that:
        105. Under the said provision, the lawgiver has made the making
        or publishing of any imputation with a requisite intention or
        knowledge or reason to believe, as provided therein, that the
        imputation will harm the reputation of any person, the essential
        ingredients of the offence of defamation. What is the meaning to
        be attached to the words "making of an imputation" and
        "publishing of an imputation"? This question has been set out
        with clarity in a recent judgment which is reported in Mohd.
        Abdulla Khan v. Prakash K. [Mohd. Abdulla Khan v. Prakash
        K., (2018) 1 SCC 615 : (2018) 1 SCC (Cri) 255] It was held as
        follows : (SCC p. 620, para 10)

        "10. An analysis of the above reveals that to constitute an
        offence of defamation it requires a person to make some
        imputation concerning any other person;

        (i) Such imputation must be made either
        (a) With intention, or
        (b) Knowledge, or
        (c) Having a reason to believe

        that such an imputation will harm the reputation of the


Ct. Case No. 20000/2016         Ashok Drall v. Kanta Choudhary      Page 9 of 28
         person against whom the imputation is made.

        (ii) Imputation could be, by
        (a) Words, either spoken or written, or
        (b) By making signs, or
        (c) Visible representations

        (iii) Imputation could be either made or published.

        The difference between making of an imputation and publishing
        the same is:

        If 'X' tells 'Y' that 'Y' is a criminal -- 'X' makes an
        imputation. If 'X' tells 'Z' that 'Y' is a criminal -- 'X' publishes
        the imputation.
        The essence of publication in the context of Section 499 is the
        communication of defamatory imputation to persons other than
        the persons against whom the imputation is made. [Khima Nand
        v. Emperor, 1936 SCC OnLine All 307 : 1937 Cri LJ 806; Amar
        Singh v. K.S. Badalia, 1964 SCC OnLine Pat 186 : (1965) 2 Cri
        LJ 693] "
        107. In the light of this discussion, we may only reiterate that the
        criminal offence of defamation under Section 499 IPC is
        committed when a person makes a defamatory imputation
        which, as explained in Mohd. Abdulla Khan [Mohd. Abdulla
        Khan v. Prakash K., (2018) 1 SCC 615 : (2018) 1 SCC (Cri)
        255], would consist of the imputation being conveyed to the
        person about whom the imputation is made. A publication, on
        the other hand, is made when the imputation is communicated to
        persons other than the persons about whom the defamatory
        imputation is conveyed. A person, who makes the defamatory
        imputation, could also publish the imputation and thus could be
        the maker and the publisher of a defamatory imputation. On the
        other hand, a person may be liable though he may not have made
        the statement but he publishes it.


19.     In light of the aforesaid decisions, the following two-fold
ingredients of the offence of defamation can be culled out:
(i) An imputation must be made or published by the accused
concerning the complainant.
(ii) Intention to cause harm to the reputation of the
Complainant: Such imputation must be made/ published either (a)


Ct. Case No. 20000/2016          Ashok Drall v. Kanta Choudhary        Page 10 of 28
 with intention, or (b) with knowledge, or (c) having a reason to
believe, that such an imputation will harm the reputation of the
person against whom the imputation is made. It is further pertinent
to note that the parameter to judge as to whether a particular
statement or imputation has harmed the reputation of a person or
not, as encoded in Explanation - 4 to Section 499 IPC, is whether
the imputation, directly or indirectly, in the estimation of others,
lowers the character or credit of that person or causes it to be
believed that the person is in a loathsome or disgraceful state.


  I.      PUBLICATION - Complaint made to lawful authority
                          amounts to publication


20.     The first question that needs determination is whether an
imputation made by the accused has been published. The allegation
of the complainant is that the accused has made defamatory
imputations in her complaint filed with the Bar Council of Delhi.
21.     The accused has not denied making the complaint to the Bar
Council of Delhi. In her examination-in-chief during defense
evidence, the accused has specifically deposed that she filed the said
complaint with the Bar Council of Delhi. Further, in her cross-
examination, the accused has admitted that she had drafted the said
complaint herself and that the said complaint was accompanied with
an affidavit sworn by her. The copy of the said complaint has been
exhibited in evidence as Ex. CW1/A (OSR) and the copy of the
affidavit is Ex. CW1/B (OSR). Accordingly, filing of the complaint
with Bar Council of Delhi is not in dispute.


Ct. Case No. 20000/2016       Ashok Drall v. Kanta Choudhary   Page 11 of 28
 22.     It has been contended by the complainant that a complaint
filed before the Bar Council of Delhi amounts to publication
whereas learned counsel for the accused has contended otherwise. I
humbly agree with the contention of the complainant. The scope of
'publication' in criminal law is broader than civil law (see Sanjay
Mishra v. NCT of Delhi, 2012 SCCOnLine Del 1779). Further, it is
a settled position of law that a publication to an institution which
has authority over the person against whom the imputations are
made would amount to publication. In this regard, reliance can be
placed upon the decision in Madhuri Mukund Chitnis v. Mukund
Martand Chitnis, 1990 SCC OnLine Bom 410, in which the
Hon'ble High Court of Bombay has held that:
        13...In the present case the imputations are made in a
        proceeding which is filed in Court and therefore publication is
        definitely clear. Even a publication to an authority over the
        person against whom the imputations are made must be held
        to be sufficient publication which falls within the purview of
        the said Section 499 of the Penal Code, 1860.


23.     Similarly, it has been held by the Hon'ble Kerala High Court
in Prabhakaran v. Gangadharan, 2006 SCC OnLine Ker 302 that
once a statement has been filed in a court of law, that statement can
be taken as published:
        7. Admittedly, the complainant was not a party to the
        proceedings in O.S. No. 481 of 2000. It is alleged in the written
        statement that the father of the first petitioner trusting the
        plaintiff-his sister and her husband, the complainant who was a
        practicing lawyer, affixed his signature wherever he was asked
        to sign which was misused by the complainant for creating
        materials to appropriate the plaint schedule properties. It can be
        seen that the complainant never conducted any case as alleged in
        the written statement filed in O.S. No. 481 of 2000. Annexue C
        complaint would show that the imputation now made against the
        complainant is susceptible to harm his reputation. The stand now
        taken by the petitioners is that the statements contained in the


Ct. Case No. 20000/2016         Ashok Drall v. Kanta Choudhary       Page 12 of 28
         written statement can be justified by taking a defence as
        contemplated under the exceptions to S. 499 I.P.C. Once a
        statement has been filed in a court of law, that statement can
        be taken as published and if such a statement amounts to per
        se defamatory, it is the duty of the accused to establish that
        they are justified in making such a statement under any of
        the exceptions to S. 499 I.P.C...

24.     Lastly, the Hon'ble Madras High Court, in Thangavelu
Chettiar v. Ponnammal, 1965 SCC OnLine Mad 248, has also held
that:
        4. ... But in this case, the defamatory matter contained in the
        plaint was admittedly signed and filed by the petitioner.
        There can be no doubt that there was publication of the
        defamatory matter.


25.     Therefore, it is evident that publication includes pleadings,
complaints, and affidavits made before a lawful authority.
Therefore, the first ingredient (i.e., making/ publication of an
imputation) of the offense of defamation stands proved in the
present case.


  II.     INTENTION/ KNOWLEDGE TO CAUSE HARM TO
                             REPUTATION


26.     Once publication of an imputation has been proved, the next
ingredient which requires satisfaction is that defamatory imputation
was made by the accused intending to harm or knowing or having
reason to believe that such imputation will harm the reputation of
the complainant. The said ingredient is required to be read together
with Explanation 4 to Section 499 IPC, which requires that the
imputation, directly or indirectly, in the estimation of others, lowers



Ct. Case No. 20000/2016        Ashok Drall v. Kanta Choudhary    Page 13 of 28
 the character or credit of that person or causes it to be believed that
the person is in a loathsome or disgraceful state. Therefore, the onus
on the complainant is to prove that (i) the accused had an intention/
knowledge/ reason to believe to cause harm to the reputation of the
complainant; and (ii) the imputation made by the accused actually
caused harm to the reputation of the complainant.


  II.1 In case of a per se defamatory statement, burden to prove
                 harm to reputation stands discharged.


27.     It is pertinent to note that the standard of proof is different in
the case of a per se defamatory imputation as opposed to any other
imputation. The said distinction has been succinctly explained by
the Hon'ble Supreme Court of India in the case of John Thomas v.
K. Jagadeesan (Dr), (2001) 6 SCC 30:
        10. Shri Sivasubramaniam, learned Senior Counsel for the
        appellant contended that the imputations contained in the
        publication complained of are not per se defamatory. After
        reading the imputations we have no doubt that they are prima
        facie libellous. The only effect of an imputation being per se
        defamatory is that it would relieve the complainant of the
        burden to establish that the publication of such imputations
        has lowered him in the estimation of the right-thinking
        members of the public. However, even if the imputation is not
        per se defamatory, that by itself would not go to the advantage of
        the publisher, for, the complaining person can establish on
        evidence that the publication has in fact amounted to defamation
        even in spite of the apparent deficiency. So the appellant cannot
        contend, at this stage, that he is entitled to discharge on the
        ground that the imputations in the extracted publication were not
        per se defamatory.


28.     Therefore, once a statement is held to be per se defamatory,
the complainant is not required to prove loss to his reputation


Ct. Case No. 20000/2016         Ashok Drall v. Kanta Choudhary       Page 14 of 28
 separately and he/ she stands discharged of the said burden. This
position of law was first laid down by the Hon'ble Allahabad High
Court way back in 1887 in the case of Queen Empress v. McCarthy
(ILR 9 All 420):
        The explanation does not apply where the words used and
        forming the basis of a charge are per se defamatory. When an
        expression used verbally or in writing, is doubtful as to its
        significance and some evidence is necessary to decide what the
        effect of that expression will be and whether it is calculated to
        harm a particular person's reputation, it is possible that the
        principle enunciated in Explanation IV of Sec. 499 might, and
        would with propriety, be applied. But in this case there is no
        question as to the significance or meaning of the words
        written. They are distinctly defamatory within the meaning
        of Sec. 499 and as such whether they were written in haste or
        in anger, the respondent is clearly responsible and unless she
        can show that her case falls within any of the exceptions to
        the section it was and is impossible for her to resist a verdict
        of guilty.


29.     The aforesaid position of law has also been re-iterated by the
Hon'ble Bombay High Court in the case of Sopullo Datta Naik
Dessai v. Yeshwant Govind Dessai, 2009 SCC OnLine Bom 1400,
wherein the imputation made by the accused referred to the
complainant as a person who does things under influence of liquor
and as a person who was locked up because of "goondagiri" during
a drama festival. These imputations were held to be per se or
distinctly defamatory and the complainant was discharged of the
burden to prove loss/ harm to reputation. Similarly, even the
Hon'ble Gujarat High Court has agreed with the position of law that
in case of a per se defamatory statement, harm to reputation is not
required to be proved (see Rohini Singh v. State of Gujarat, 2018
SCC OnLine Guj 209).



Ct. Case No. 20000/2016         Ashok Drall v. Kanta Choudhary      Page 15 of 28
   II.2 In case of a per se defamatory statement, burden to prove
      intention/ knowledge to cause harm stands discharged.


30.     In addition to the aforesaid, it is pertinent to note that in case
of a per se defamatory statement, necessary mens-rea/ knowledge to
cause harm is also required to be presumed. The said position of law
has been specifically laid down by the Hon'ble Gujarat High Court
in the case of Narottamdas L. Shah v. Patel Maganbhai Revabhai,
1984 SCC OnLine Guj 100:
        31. If the imputation is defamatory per se, necessary mens
        rea will be presumed. No resultant harm may be proved, if
        the expression itself is defamatory per se. The maker of the
        statement must know that it will harm the reputation of one
        concerning whom the same is made. Explanation 1 includes
        even a dead person. We are not concerned with this explanation.
        Explanation 2 embraces imputation concerning a company or
        association or collection of persons as such. The gist of the
        offence is dissemination of harmful imputation concerning a
        person. It is not necessary to refer to other explanations for our
        purposes.


31.     Therefore, the twin-fold burden upon the complainant (i.e., to
prove that (i) the accused had necessary intention to cause harm or
had knowledge or reason to believe that such imputation will harm
the reputation of the complainant; and (ii) harm to reputation was
actually caused due to the imputation made by the accused) stands
discharged in case the imputation is held to be defamatory per se.


         II.3    Parameters of a per se defamatory statement


32.     The definition of the phrase "defamatory per se" has been
explained in the case of Rohini Singh (supra). In the said case,


Ct. Case No. 20000/2016         Ashok Drall v. Kanta Choudhary       Page 16 of 28
 Hon'ble Justice, J.B. Pardiwala, Single Judge, Hon'ble Gujarat High
Court, as he then was, has relied upon the book 'Clerk and Lindsell
on Torts (Tenth Edition)' to define the said phrase:
        12.2 The meaning of the words "defamatory per se" and their
        definition, scope and effect have been copiously discussed in
        Clerk and Lindsell on Torts (Tenth Edition). At page 711 of the
        said book it is stated that:
        Language is defamatory on the face of it, either when the
        defamatory meaning is the only possible meaning, or when it
        is the only natural and obvious meaning.


33.     Therefore, it has to be seen whether the defamatory meaning
is the only possible meaning from the imputation made by the
accused. At the cost of repetition, the statement of the accused is
reproduced hereunder:
        Ashok Drall ne kaha ki mere to judges se bhi achhe sambandh
        hai main to murder case bhi lakh do lakh me nipatwa deta hu yeh
        to mamuli si bat hai. Mai Ashok Drall vai Neelam ki bataon mai
        aa gayi.


34.     The complainant has denied ever making such a claim to the
accused. He has contended that the said claim has been imputed to
him with an ill-intention to project him as a corrupt and venal
person. I am of the considered view that the only possible meaning
of the said statement is that the complainant has been projected as a
person who claims to be a broker between judges and litigants for
the purpose of facilitating bribery. There is no other meaning that
can be attributed to the said statement. This imputation undoubtedly
is calculated to lower in the estimation of others the ethical
character of the complainant as a lawyer. Questioning the honesty of
a person is the worst form of accusation and the same can have a
serious detrimental effect on the reputation of a person. It would


Ct. Case No. 20000/2016        Ashok Drall v. Kanta Choudhary     Page 17 of 28
 definitely harm the reputation of any person, and especially an
advocate, in the estimation of the right-thinking members of the
society. There is no doubt that such a statement is per se
defamatory.
35.      Since the statement of the complainant is per se defamatory,
the complainant is discharged of the burden to prove mens rea and
harm to reputation. Accordingly, the second ingredient also stands
proved in the present case.
      III.   Defence of the accused - Whether the present case is
   covered within the scope of Exception 8 to section 499 IPC?


36.      Since both the ingredients of the offense of defamation have
been proved, the only means by which the accused can escape
conviction is by proving that her case is covered within any of the
exceptions to section 499 IPC. Learned counsel for the accused has
taken the defence that the present case is covered within the scope
of Exception 8 to section 499 IPC. The said exception is reproduced
hereunder:
         31.     Eighth 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.
         Illustration
         If A in good faith accuses Z before a Magistrate; if A in good
         faith complains of the conduct of Z, a servant, to Z's master;if A
         in good faith complains of the conduct of Z, a child, to Z's
         father-A is within this exception.

37.      It has been contended that the Bar Council of Delhi has
lawful authority over the complainant and since a complaint was
filed to the said lawful authority by the accused, the accused enjoys


Ct. Case No. 20000/2016          Ashok Drall v. Kanta Choudhary       Page 18 of 28
 complete immunity in the present case in terms of the eighth
exception since a statement made to a person, who has lawful
authority over the person against whom defamatory statement has
been made, enjoys absolute privilege.
38.     The parameters of the eighth exception were explained by the
Hon'ble Supreme Court of India in the case of Subramanian
Swamy v. Union of India, (2016) 7 SCC 221:
        188. Again in M.C. Verghese v. T.J. Poonan [M.C. Verghese v.
        T.J. Poonan, (1969) 1 SCC 37], it has been ruled that a person
        making libellous statements in his complaint filed in court is not
        absolutely protected in a criminal proceeding for defamation, for
        under the Eighth Exception and the illustration to Section 499
        the statements are privileged only when they are made in
        good faith. . .
        189. In Chaman Lal [Chaman Lal v. State of Punjab, (1970) 1
        SCC 590 : 1970 SCC (Cri) 253] the Court has opined that
        good faith requires care and caution and prudence in the
        background of context and circumstances. The position of
        the persons making the imputation will regulate the
        standard of care and caution. . . In M.A. Rumugam v. Kittu
        [M.A. Rumugam v. Kittu, (2009) 1 SCC 101 : (2009) 1 SCC
        (Civ) 35 : (2009) 1 SCC (Cri) 245], it has been held that for the
        purpose of bringing the case within the purview of the Eighth
        and the Ninth Exceptions appended to Section 499 of the Penal
        Code, it would be necessary for the accused to prove good
        faith for the protection of the interests of the person making
        it or of any other person or for the public good.


39.     Further, in the case of Chaman Lal v. State of Punjab, (1970)
1 SCC 590, it was held that:
        Good faith requires care and caution and prudence in the
        background of context and circumstances. The position of
        the persons making the imputation will regulate the
        standard of care and caution. Under the Eighth Exception
        statement is made by a person to another who has authority to
        deal with the subject-matter of the complaint whereas the Ninth
        Exception deals with the statement for the protection of the
        interest of the person making it. Interest of the person has to be
        real and legitimate when communication is made in protection of
        the interest of the person making it.


Ct. Case No. 20000/2016         Ashok Drall v. Kanta Choudhary       Page 19 of 28
 40.     Further, in the case of M.C. Verghese v. T.J. Poonan, (1969)
1 SCC 37, it was observed that:
        11. In Tiruvengadda Mudali v. Tripurasundari Ammal [ILR 49
        Mad 728] a Full Bench of the Madras High Court observed that
        the exceptions to Section 499 IPC, must be regarded as
        exhaustive as to the cases which they purport to cover and
        recourse can be had to the English common law to add new
        grounds of exception to those contained in the statute. A person
        making libellous statements in his complaint filed in Court is
        not absolutely protected in a criminal proceeding for
        defamation, for under the Eighth Exception and the
        illustration to Section 499 the statements are privileged only
        when they are made in good faith. There is therefore authority
        for the proposition that in determining the criminality of an act
        under the Penal Code, 1860 the Courts will not extend the scope
        of special exceptions by resorting to the rule peculiar to English
        common law that the husband and wife are regarded as one.

41.     Therefore, there is no absolute privilege granted to
complaints/ statements made to a lawful authority. It is required to
be proved that the said statement was made in good faith. The word
"good faith" has been defined in Section 52 of the IPC to mean:
        52. 'Good faith'--Nothing is said to be done or believed in
        'good faith' which is done or believed without due care and
        attention.


42.     Therefore, the eighth exception shall only apply when it is
proved that the complaint made to the lawful authority was made
with due care and attention.
43.     The onus to prove that the statement was made with due care
and attention was on the accused. In this regard, reliance can be
placed upon M.A. Rumugam v. Kittu, (2009) 1 SCC 101:
        19. For the purpose of bringing his case within the purview of
        the Eighth and the Ninth Exception appended to Section 499 of
        the Penal Code, it would be necessary for the appellant to prove



Ct. Case No. 20000/2016         Ashok Drall v. Kanta Choudhary       Page 20 of 28
         good faith for the protection of the interests of the person
        making it or of any other person or for the public good.
        20. It is now a well-settled principle of law that those who
        plead exception must prove it. The burden of proof that his
        action was bona fide would, thus, be on the appellant alone.


44.     Similarly, in Maroti v. Ramkrushna, 2021 SCC OnLine Bom
2184, it has been held that:
        10. . . In the case of Chaman Lal v. State of Punjab (supra),
        specifically in the context of Eighth Exception to section 499 of
        the IPC, in paragraph-8 it has been specifically held that
        'good faith' has also to be established as a fact. In paragraph-
        16 of the said judgment, it was held that in the facts of the said
        case, the Court found that there was utter lack of 'good faith' in
        the accusation...
        12. In the case of Chanan Singh v. Tarak Singh (supra), the
        Lahore High Court specifically dealt with a question pertaining
        to Eighth Exception to section 499 of the IPC. It was held that a
        complaint for defamation would be maintainable in respect of
        allegations made before a public servant and that the burden of
        proof would lie on the accused person to show that his case
        fell within Eighth Exception to section 499 of the IPC. It was
        specifically held that when an accused claims benefit of
        Eighth Exception to section 499 of the IPC, it has to be
        proved as a fact.


45.     Therefore, the onus to prove the existence of eighth exception
is upon the accused. However, the accused has failed to establish the
same, even on the scale of preponderance of probabilities. The
accused has failed to give any reasonable explanation behind
making the concerned accusation against the complainant. It is
pertinent to mention here that in the entire cross-examination of the
complainant, not even a single suggestion has been made to the
complainant that he had indeed made the concerned claim (that he
has links with judges, and he can bribe them to get case disposed of)
to the accused. There is no cogent evidence (oral or documentary) to
show that the accused made the said imputation based on truth or

Ct. Case No. 20000/2016         Ashok Drall v. Kanta Choudhary       Page 21 of 28
 after exercising due care and attention. In order to prove that the
said claim was indeed made by the complainant, the accused could
have summoned the wife of the complainant, since the said claim
was alleged to have been made in the presence of the wife of the
complainant. However, the accused neither summoned the wife of
the complainant as a witness nor cross-examined the complainant on
this aspect.
46.     Further, the complainant has proved on record the decision of
the Bar Council of Delhi, by which the complaint of the accused
was dismissed by the Bar Council of Delhi. The said decision is
exhibited as Ex. CW1/D (OSR). It is pertinent to mention that the
accused, till date, has not challenged the said order of the Bar
Council of Delhi and the said order has attained finality. Learned
counsel for the accused has contended that the said order was
exhibited in evidence by a clerk who had no authority to depose on
behalf of the Bar Council of Delhi. However, I am afraid that
objection to mode of proof of a document cannot be taken at the
stage of final arguments and is required to be taken at the stage of
exhibition of documents. No objection was raised regarding the
mode of proof of the order of the Bar Council of Delhi at the stage
of exhibition of the said order. Therefore, the said order has been
duly admitted in evidence and its exhibition in evidence cannot be
challenged now.
47.     Absence of any challenge to the decision of the Bar Council
itself indicates absence of any good faith on part of the accused in
making the complaint to the Bar Council. The accused has failed to
bring any cogent evidence on record which shows that the statement


Ct. Case No. 20000/2016     Ashok Drall v. Kanta Choudhary   Page 22 of 28
 made to the Bar Council was made with due care and caution.
Therefore, I am of the humble opinion that the accused has not been
able to prove that her case is covered within the eighth exception of
section 499 IPC.
48.     Learned counsel for the accused has contended that good faith
of the accused can be ascertained from the fact that the civil case
filed by the accused has been decreed in her favour by two courts of
law. However, I do not agree with the said contention. The said civil
suit pertains to the property dispute between the parties which has
no concern with the present defamation complaint. The accused may
or may not have sold a plot to the complaint. This Court is not
concerned with the property dispute in any manner and is only
concerned with the allegation made to the Bar Council of Delhi by
the accused. The accused was required to prove that the said
allegation was made in good faith (i.e., with due care and caution).
The civil property dispute between the parties has no connection
with the defamatory imputation made against the accused.
Accordingly, I am of the opinion that the fate of the civil property
dispute has no bearing on the facts of the present case. Therefore, in
absence of any cogent material that the imputation against the
accused was made in good faith, I am of the view that eighth
exception cannot be availed in the present case.


      IV.   Defence of the Accused - No Territorial Jurisdiction


49.     Last argument of the learned counsel for the accused is that
the undersigned court does not have territorial jurisdiction in the


Ct. Case No. 20000/2016     Ashok Drall v. Kanta Choudhary   Page 23 of 28
 present case since the defamatory statement was not published
within the jurisdiction of the undersigned court. However, I am of
the considered view that this objection cannot be raised at this stage
for the reasons discussed hereinafter.
50.     Firstly, it is a settled position that the objection regarding
question of territorial jurisdiction must be raised at the earliest and
at any rate, before adducing evidence/examination of witnesses in
the Court. In this regard, it is apposite to refer to the following
decision of the Division Bench of the Hon'ble Kerala High Court in
K. Ramanujan Nair v. S. Sarojini Amma, 1970 SCC OnLine Ker
79, wherein the objection to territorial jurisdiction after recording of
evidence was held to be non-maintainable:
        2. . . All the prosecution witnesses were examined; and on
        12th September 1969 the Magistrate discharged accused persons
        2 to 5 and adjourned the case for defence evidence of the
        petitioner to 13th February 1970. Thereafter, the petitioner
        filed a petition questioning the territorial jurisdiction of the
        Court to try the offence. It was on that petition that the
        impugned order was passed, the Magistrate holding that the
        petition was belated and that the Court had jurisdiction to
        proceed with the trial. The revision petition has been placed
        before a Division Bench by a learned Judge of this Court since
        he felt that the question involved was one of importance.
        6. In the special circumstances we have already pointed out at
        the commencement of this judgment, namely, that the petitioner
        did not take the objection of lack of territorial jurisdiction
        until the entire prosecution evidence was over and even until
        four of the five accused persons were discharged, we feel that
        this case may be taken out of the expression "ordinarily" in
        S. 177 of the Criminal P.C. The petitioner has not even
        alleged that he is prejudiced by the trial being continued
        before the Court at Trivandrum: in fact, the circumstances
        pointed out at the bar indicate, that the trial of the cage in the
        Trivandrum Court might probably be more convenient to the
        petitioner.




Ct. Case No. 20000/2016         Ashok Drall v. Kanta Choudhary       Page 24 of 28
 51.     Similarly, in another case titled as Meenakshi v. Udaya
kumar, 2007 SCC OnLine Ker 435, it was held that the
preponderance of judicial opinion is to the effect that if an objection
regarding territorial jurisdiction has not been raised at the earliest
opportunity, then it will not be entertained by the court:
        3. The learned Magistrate took cognizance of the offence and
        recorded the sworn statement of the complainant and took the
        case on file as S.T. No. 143/2006. On receipt of summons, the
        accused entered appearance. The trial of the case was later on
        commenced. After the evidence in the case was over, the
        accused was examined under S. 313 Cr. P.C. and the case
        was posted for arguments when the first respondent accused,
        for the first time, raised a contention that the said Magistrate
        lacks territorial jurisdiction to entertain and try the
        complaint since the place where the revision petitioner
        complainant is residing and the place where the cheque was
        presented and the place where the accused is residing are not
        within the local limits of the JFCM-II, Haripad.
        7. [I]t is pertinent to note that the objection regarding
        territorial jurisdiction was raised only at the fag end of the
        trial and that too for the first time when the arguments were
        heard. Even though there is no provision in Cr. P.C.
        analogous to one contained in S. 21 of the Code of Civil
        Procedure, the preponderance of judicial opinion is to the
        effect that if an objection regarding territorial jurisdiction
        has not been raised at the earliest opportunity, then it will
        not be entertained by the court. The position is almost
        analogous to what is obtained under S. 21 C.P.C.
        8. The court below was not justified in entertaining the
        objection regarding territorial jurisdiction at the belated
        stage as aforesaid especially when no prejudice was pleaded
        or proved. The impugned order dated 5.2.07 is accordingly set
        aside and JFCM-II, Haripad is directed to proceed with S.T. No.
        143/06 and dispose it of in accordance with law.


52.     Most recently, the aforesaid position of law has been re-
iterated by the Hon'ble Kerala High Court in Nishad Mathew v.
State of Kerala, 2022 SCC OnLine Ker 4847:
        12. Reading the decisions referred by the learned Additional
        Sessions Judge, it is crystal clear that, when there is no
        inherent lack of jurisdiction, lack of territorial jurisdiction


Ct. Case No. 20000/2016         Ashok Drall v. Kanta Choudhary     Page 25 of 28
         or ground of irregularity of procedure an order or a
        sentence awarded by a competent court could not be set
        aside unless a prejudice is pleaded and proved, which would
        mean failure of justice. In the case on hand, the accused
        conceded the jurisdiction of the N.I. Court, Ernakulam and
        accordingly, trial was completed and the accused raised question
        of territorial jurisdiction at the fagant. Since the law is settled
        that, if the Court has otherwise jurisdiction or the Court
        does not lack inherent jurisdiction, the Court has the power
        to dispose of the matter wherein, the evidence already
        recorded, since the question of jurisdiction was not raised
        before start of trial.
        13. In this view of the matter, C.C. No. 154 of 2016 of the N.I.
        Court, Ernakulam shall be disposed of by the said Court and the
        transfer ordered by the said court to JFCM, Kalamassery is not
        necessary.
        14. In view of the matter, the learned Sessions Judge set aside
        the order of transfer, with direction to the of the N.I. Court,
        Ernakulam to hear and dispose of the matter within a period of
        three months. I find no illegality in the order and therefore, the
        order impugned herein is liable to be confirmed.
        15. In view of the facts discussed, there is no merit in this
        petition. Accordingly, this revision petition is dismissed,
        directing the Judicial First Class Magistrate Court (NI Act),
        Ernakulam to deliver judgment, after hearing both sides, within a
        period of one month from the date of receipt or production of a
        copy of this order.

53.     Based on the aforesaid pronouncements, it is evident that the
objection regarding lack of territorial jurisdiction is required to be
taken at the earliest stage. Once the trial has concluded after
recording of entire evidence, the accused cannot be allowed to raise
the objection of lack of territorial jurisdiction for the first time,
especially when no prejudice has been shown to have been caused
to the accused.
54.     In light of the aforesaid discussion, I am of the humble
opinion that the accused cannot be allowed to raise this objection at
the stage of final arguments when it was not raised during any stage
of trial. The trial proceedings have lasted for more than fourteen


Ct. Case No. 20000/2016          Ashok Drall v. Kanta Choudhary       Page 26 of 28
 years. The accused has participated in the trial proceedings for
fourteen years without raising any objection to the territorial
jurisdiction of the undersigned court. Evidence was recorded in
detail during trial. Learned counsel for the accused has not
contended that any prejudice/ failure of justice has been caused/ has
occasioned on account of the trial having been conducted before the
undersigned court. It is not the case of the accused that recording of
evidence was hampered in any manner on account of the trial
having been conducted before the undersigned court. In absence of
any prejudice having been caused to the accused, I am of the
considered view that the accused cannot be allowed to raise this
objection at this stage.
55.     Further, it is pertinent to note that there is a difference
between inherent lack of jurisdiction and lack of territorial
jurisdiction. Competence of a court to try a case goes to the very
root of the jurisdiction, and where it is lacking, it is a case of
inherent lack of jurisdiction. On the other hand, an objection as to
the territorial jurisdiction of a court is a curable irregularity. It is
well settled that the objection as to territorial jurisdiction of a court
does not stand on the same footing as an objection to the
competence of a court to try a case. Section 462 of Cr.P.C.
specifically mentions that:
        No finding, sentence or order of any Criminal Court shall be set
        aside merely on the ground that the inquiry, trial or other
        proceedings in the course of which it was arrived at or passed,
        took place in a wrong sessions division, district, sub-division or
        other local area, unless it appears that such error has in fact
        occasioned a failure of justice.




Ct. Case No. 20000/2016         Ashok Drall v. Kanta Choudhary       Page 27 of 28
 56.      Therefore, since the objection regarding lack of territorial
jurisdiction was not raised at the first instance or before recording of
evidence, it cannot be allowed to be raised at this stage and the said
contention stands dismissed on account of belatedness.


G.       CONCLUSION:
57.      To recapitulate the above discussion, the complainant has
been successful in establishing his case beyond reasonable doubt.
The accused has failed to rebut the case of the complainant by
raising a probable defence. The defence of the accused that her case
is covered within the scope of eighth exception to section 499 IPC is
not proved, even on the standard of preponderance of probabilities.
58.      Resultantly, the complaint of the complainant is allowed,
and the accused Ms. Kanta Chaudhary is hereby convicted of
the offence under Section 500 of the Indian Penal Code, 1872.
Let the convict be heard separately on quantum of sentence.
59.      A copy of this judgment be given free of cost to the
convict.
ORDER :

- CONVICTED.

Pronounced in open court on 27.10.2022 in presence of the accused. This judgement contains 28 pages, and each page has been signed by the undersigned.

DEVANSHU Digitally signed by DEVANSHU SAJLAN SAJLAN Date: 2022.10.27 15:13:40 +05'30' (DEVANSHU SAJLAN) Metropolitan Magistrate - 07 West District, Tis Hazari Courts, New Delhi/ 27.10.2022 Ct. Case No. 20000/2016 Ashok Drall v. Kanta Choudhary Page 28 of 28