Bangalore District Court
A.S. Pattabiraman vs M/S. S.N. Finance Limited on 2 April, 2018
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-15) AT BENGALURU
Dated this the 2nd day of April, 2018.
PRESENT:
Sri PATIL NAGALINGANAGOUDA, B.A.,LL.M.,
VIII Additional City Civil and Sessions Judge (CCH-15),
Bengaluru.
ORIGINAL SUIT No.3477/2003
PLAINTIFFS : 1. A.S. Pattabiraman,
M.Sc.,I.I.B.,
S/o. Late A.B. Subramaniam,
Aged about 60 years,
Door No.607-A, I Main Road,
II Stage, Rajajinagar,
Bangalore - 560 010.
2. Smt. Satyavathi Kolala, M.A.,
W/o. A.S. Pattabiraman,
Retired Chief Manager,
State Bank of India and
resident of D. No.607-A,
I Main Road,
II Stage, Rajajinagar,
Bangalore - 560 010.
(Party in person)
-VERSUS-
DEFENDANTS : 1. M/s. S.N. Finance Limited,
No.180, 'Srilakshmi', 9th
Cross, Raghavendra Temple
Street, Off CMH Road,
Indiranagar I Stage,
Bangalore, represented by
the Deputy General
Manager.
-2- O.S. No.3477/2003
2. P.S. Murali,
The Executive Director,
M/s. S.N. Finance Limited,
'Srilakshmi', No.180, 9th
Cross, Raghavendra Temple
Street, Off CMH Road,
Indiranagar I Stage,
Bangalore - 560 038.
3. R.N. Kamat,
Dwaraka Mayee,
Michigan Compound,
Saptapur, Dharwad - 580
001.
4. G.H. Patil,
Mathru Krupa,
No.40, Indira Colony,
Nagashetti Koppa,
Keshwapur, Hubli - 560
028.
5. S. Harikrishna,
S/o. S. Madhava,
Srilakshmi,
No.4000, 100 Feet Road,
HAL 2nd Stage, Indiranagar,
Bangalore - 560 008.
6. V.R. Gundannavar,
No.3062, 11th Main, 11th
Cross, HAL 2nd Stage,
Indiranagar, Bangalore -
560 008.
7. Basavaraja Pattanashetty,
S/o. V.D. Pattannashetty,
Basavajyothi, I Main, III
Cross, Jayanagara Post,
Dharwar - 580 001.
8. S. Jayarama,
No.95/2, 2nd Cross, 2nd
Stage, Mottappanapalya,
Bangalore - 560 038.
Cont'd..
-3- O.S. No.3477/2003
(Defendant Nos.1 and 6 by
Sri M.N.M., Advocate)
(Defendant No.2 by Sri
M.G.C., Advocate)
(Defendant No.3 by Sri
K.N.R., Advocate)
(Defendants 4, 5 and 8 : Ex-parte)
(Defendant No.7 by Sri
J.D.H., Advocate)
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Date of Institution of the Suit : 26-05-2003
Nature of the Suit (Suit on : Money Suit(Damages).
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement : 06-11-2009
of recording of the evidence
Date on which the Judgment : 02-04-2018
was pronounced
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Year/s Month/s Day/s
----------------------------------
Total duration : 14 years, 10 months, 6 days.
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(PATIL NAGALINGANAGOUDA)
VIII Additional City Civil and Sessions Judge,
An&/- Bengaluru.
JUDGMENT
This is a suit filed by the plaintiffs against the defendants for judgment and decree directing the defendants to pay to the plaintiff a sum of Rs.10,00,000/- as damages towards defamation.
Cont'd..
-4- O.S. No.3477/2003
2. The brief facts of the plaint are as under -
Plaintiffs have contended defendant No.1 is a company. It is non-banking finance corporation engaged in hire purchase, merchant banking and leasing. First plaintiff from the inception of the company worked as Executive Director thereof designated as its Managing Director and he had been managing the affairs of the company quite sincerely and honestly from the beginning. It is contended in fact first plaintiff was a Deputy General Manager of the State Bank of India before he joined the 1st defendant company. He obtained voluntary retirement from services from the bank at the request of S. Madhava, Chairman, M/s. Bellary Steels Limited who found in the 1st plaintiff an eminent officer who could speared the team of the then proposed company and accomplish the purpose for which the company had been proposed to be started. It is contended second plaintiff is wife of first plaintiff and she was a Chief Manager in service of the State Bank of India. She also obtained voluntary retirement from the services of the bank, whatever she also toiled relentlessly for the aggrandizement of the 1st defendant with her rich experience as a bank officer.
It is contended plaintiffs 1 and 2 desired to join their daughter in the U.S.A. and to spend a few months with her, hence the first plaintiff resigned from the services of the 1st defendant Company on 19-03-2002. The required notice of resignation was also tendered Cont'd..
-5- O.S. No.3477/2003 with the Registrar of Companies and also with the Reserve Bank of India and it was duly accepted without any kind of resentment or the like. Upon his resignation plaintiffs 1 and 2 went to U.S.A. to join their daughter.
It is contended though there was no complaint whatsoever against the first plaintiff while he was in the services of the company ever since the year 1995 and his resignation was also duly accepted, defendants 1 to 5 caused a severely damaging publication in the Times of India dated 19-05-2002 quite deliberately and with a mala fide intention of tarnishing his image in the eyes of public at large and also to prejudice the minds of the various depositors of the company. It is contended defendants 3 and 4 had lodged police complaint against the first plaintiff for the offences punishable under Section 341 of the I.P.C. for cheating and preventing the other two directors from performing their duties of the company. The said damaging publication also made a knowingly false statement that the 1st plaintiff was absconding and that all the customers of the company were cautioned that any dealing with the 1st plaintiff would be at their own risk. As on the date of the said publication, the plaintiffs were in California, U.S.A. Umpteen number of telephone calls were received by them, while in the United States seeking clarification about the damaging publication mentioned above. It is contended many depositors, well-wishers, family members and friends of the plaintiff were anguished Cont'd..
-6- O.S. No.3477/2003 about the damaging publication and even desired to know the truth or otherwise of the same. Public at large and even the close relatives and friends of the plaintiff started looking upon the plaintiffs with in air of suspicion and condemnation. The second defendant who was an officer functioning under the first plaintiff, when the letter was in the services of the company, stepped into the shoes of the said plaintiff upon the resignation of the said plaintiff. Without verification of any records and without any basis, damaging publications and statements were being made by him and the same publication thereof caused with the active connivance and collusion of all the other defendants i.e., defendants 3 to 7. It is contended plaintiffs were traumatic experience in the United States because of the defamatory publication made against them. Such publication made even widely distributed at the place of work of the 3rd plaintiff with a deliberate intention to damage their position, name and reputation. It is contended after obtaining bail from the concerned Criminal Courts and in view of the repeated publications that were being made by the defendants thereby adding insult to injury the first plaintiff caused legal notice dated 10-12-2002 to all the defendants calling upon them to apologise to the first plaintiff for the knowingly defamatory and false publications made by the defendants. In spite of service of notice, none of the defendants either tendered any apology nor have they refrained from tarnishing the image of the Cont'd..
-7- O.S. No.3477/2003 plaintiffs. Plaintiffs who had a fair public profile,
reputation and image have been subject to a severe shame and infamy by such false publications which the defendants have deliberately made, conniving with one another and they had no bona fide whatsoever in causing such publications made. With this submission, plaintiff prayed to decree the suit.
3. On the other hand, in spite of service of summons, defendants 4, 5 and 8 have not appeared before the Court, hence they were placed ex-parte.
4. In pursuance of summons, rest of the defendants appeared through their Counsel and out of them, defendants 2, 3 and 7 filed their separate written statement. Sum and substance of the written statement of the defendant No.2 are as under -
Defendant No.2 has contended suit filed by the plaintiff is false, frivolous and vexatious. He has taken specific contention defendant No.1 has not followed the prudential norms as laid down by the R.B.I. in running the defendant No.1 company. Though plaintiff No.1 had a credit limit of 100 lakhs with Dhanalakshmi Bank, he has shifted the operation of the defendant No.1 company to other banks, therefore the D.R.T. has initiated recovery proceedings against defendant No.1 company. Defendant No.2 has denied plaintiff No.1 took voluntary retirement to join defendant No.1 company. He has admitted plaintiff No.1 had joined Cont'd..
-8- O.S. No.3477/2003 defendant No.1 company as Executive Director. Though plaintiff No.1 knowing fully well share capital of the said company of Rs.5 Crores was not brought in by way of cash, but their shares of promoters of the company. It is contended when plaintiff No.1 was Managing Director of the defendant No.1 company, the company suffered loss of Rs.4,88,61,033-25/- and in the very next year company suffered loss of Rs.16,35,04,031-74/-. This clearly goes to show how effectively efficiently plaintiff No.1 managed the affairs of the defendant No.1 company. It is contended as on 30-03-1991, plaintiff No.1 had declared loss of Rs.17.91 Crores and plaintiff No.1 was doctored and have mislead the depositors as well as the rating agencies and R.B.I. It is contended plaintiff No.1 maintained a kuccha book to record these type of transactions. This finds a mention in the complaint lodged by R.B.I. against defendant No.1 company and others. It is contended plaintiff No.1 misled the Government of India and attracted deposits from them to the tune of nearly 3 Crores the amount being a providence fund of their employees. Plaintiff No.1 used to frequently travel by air to Ahmedabad at cost the defendant No.1 company. It is contended immovable property bought out of the defendant No.1 company funds it was registered in the name of plaintiff No.1 by violating the company rules. Further, it is contended plaintiff No.1 has not at all followed the guidelines of the R.B.I. in running the defendant No.1 company and plaintiff No.1 misappropriated the amount Cont'd..
-9- O.S. No.3477/2003 of the defendant No.1 company of various actions. It is contended plaintiff No.1 had misutilised the account of the defendant No.1 company in various heads, therefore number of criminal cases and civil case have been registered against plaintiff No.1. Rest of the allegations made by the plaintiff is totally denied by defendant No.2. Defendant No.2 has taken contention in view of the misappropriation committed by the plaintiff as narrated in the written statement suit of the plaintiff is not tenable. With this submission, defendant No.2 prayed to dismiss the suit.
5. The brief facts of the written statement of defendant No.3 are as under -
Defendant No.3 has taken contention suit filed by the plaintiff is not tenable either in law or on facts and it is liable to be dismissed in lemine. Defendant No.3 has taken contention during tenure of the first plaintiff, company has violated several provisions prescribed by the R.B.I. It is contended publication In Times of India had not been made with any deliberate intention of causing any damage or tarnishing the image of the plaintiffs in the eyes of public. It is contended during that period, there was a constant stream of public visiting office enquiring about whereabouts of Managing Director, therefore publication is made only with honest intention of putting the depositors on alert as a precautionary measure. Plaintiff No.1 had severed all connections with the public. It is contended though Cont'd..
- 10 - O.S. No.3477/2003 plaintiff No.1 had resigned on 19-03-2002, he continued in the post of Managing Director and did not allow the two newly inducted directors R.N. Kamat and G.H. Patil to his office. It is contended in view of these newly inducted Directors were obliged to seek for police help for handing over the charge to them. Defendant No.3 has denied depositors, well-wishers, family members and friends of the plaintiff anguished about the damaging publication. It is contended lodging of several suits and proceedings by the company against the plaintiff and their relatives are justified and these are on various levels of proceedings and defendant No.3 is nothing to do with the said proceedings. Defendant No.3 also denied plaintiff had traumatic experience in U.S.A. because of the defamatory publication made against them.
Defendant No.3 has contended he was appointed as Branch Manager when the branch of the company was opened at Dharwad on 15-08-1997 on a monthly gross salary of Rs.5,000/-. Defendant No.3 contributed to the company a sum of Rs.3 Crores by way of deposits canvassed and achieved by him from his relatives, friends and acquaintances in and around Dharwad. It is contended defendant No.3 was inducted as a director on 07-07-2001 and subsequent to his induction, he came to know about the various misdeeds and dishonest intentions of the plaintiff, therefore he resigned from the directorship on 10-08-2002. Lastly, it Cont'd..
- 11 - O.S. No.3477/2003 is contended publication in Times of India dated 19-05- 2002 is indeed a sequel to the untrustworthy, fraudulent action and behaviour of the plaintiff in handling the public monies. It was his own action and for the company and the defendants there was no option left except to caution the general public through the captioned publication. Absolutely, there was no illwill or deliberate intention in doing so - which would affect the plaintiff's personal reputation, honour, status or respectability. With this submission, defendant No.3 prayed to dismiss the suit.
6. The brief facts of the written statement of the defendant No.7 are as under -
Though defendant No.7 has submitted parawise reply, sum and substance of the written statement of the defendant No.7 are as under -
Defendant No.7 has totally denied entire averments of the plaint. Defendant No.7 has contended defendant No.7 has been cheated badly by plaintiff No.1 during his tenure as Managing Director. Defendant No.1 company had made loss of Rs.5 Crores in the year ending 31-03-2001 whereas defendant No.7 along with his wife had made deposits in May 2001 on the persuasion of plaintiff No.1. It is contended suit of the plaintiff against defendant No.7 is not tenable and defendant No.7 is no way concerned with the defamatory article published in the newspaper. With Cont'd..
- 12 - O.S. No.3477/2003 this submission, defendant No.7 prayed to dismiss the suit.
7. On the basis of the above said pleadings, this Court has framed the following -
ISSUES
1. Whether the plaintiffs prove that on 19.05.2002 defendants 1 to 5 made a publication in Times of India with a malicious intention to defame the 1st plaintiff?
2. Whether the plaintiffs prove that defendants 3 and 4 lodged a complaint before the police against 1st plaintiff with an intention to damage his reputation?
3. Whether the plaintiffs prove that on account of the act of the defendants, they were defamed and they suffered mental agony?
4. Whether the plaintiffs prove that they are entitled to damages of Rs.10.00 lakhs?
5. Are the plaintiffs entitled to the reliefs sought for in the suit?
6. What order or decree?
Cont'd..
- 13 - O.S. No.3477/2003 ¢£ÁAPÀ 15-06-2009 gÀAzÀÄ ºÉZÀÄѪÀj «ªÁzÁA±ÀUÀ¼À£ÀÄß gÀa¹zÀ.É
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Additional Issues framed on 11.09.2017
1. Whether plaintiffs prove that the defendants No.1 to 5 made false allegations/ accusations of fraud, cheating etc., against the plaintiffs in
(i) the letter dated 19.06.2002 (Ex.P.61) and
(ii) the Director's report dated 28.10.02 (Ex.P.62) Cont'd..
- 14 - O.S. No.3477/2003 both circulated among the depositors/ share holders and the public, with the malicious intention to defame the plaintiff's and their family members?
8. When case posted for plaintiff evidence, very plaintiff himself examined as P.W.1 and he has adduced evidence of P.Ws.2 and 3 and got documents marked as per Exs.P.1 to P.98 and closed his side.
9. When case posted for defendant evidence, defendant No.7 himself examined as D.W.1, defendant No.3 himself examined as D.W.2, defendant No.2 himself examined as D.W.3 and got documents marked as per Exs.D.1 to D.22.
10. I have heard arguments from both sides.
11. At the time of argument, plaintiff No.1 in person argued the matter and relied the citations and he has also submitted notes of argument.
12. My findings on the above Issues are as under -
ISSUE No.1 - Negative;
ISSUE No.2 - Negative;
ISSUE No.3 - Negative;
ISSUE No.4 - Negative;
Cont'd..
- 15 - O.S. No.3477/2003
ISSUE No.5 - Negative;
ISSUE No.6 - As per final order.
ADDITIONAL- Negative
ISSUE No.1
FRAMED ON
15-06-2009
ADDITIONAL- Negative
ISSUE No.2
FRAMED ON
15-06-2009
ADDITIONAL- Negative
ISSUE No.3
FRAMED ON
15-06-2009
ADDITIONAL- Negative
ISSUE No.1
FRAMED ON
11-09-2017
for the following -
REASONS
13. ISSUE NOs.1 TO 3, ADDITIONAL ISSUE NOs.1 AND 2 FRAMED ON 15-06-2009 AND ADDITIONAL ISSUE FRAMED ON 11-09-2017 : Since all the above Issues are inter-related to each other, they are being taken up together for discussion at a stretch in order to avoid repetitive discussion of facts.
14. At the time of argument, plaintiff No.1 in person has argued and produced written arguments.
Cont'd..
- 16 - O.S. No.3477/2003 Sum and substance canvassed on behalf of the plaintiff that being aggrieved by the humiliation mental suffering and torture and loss of reputation suffered by the defamatory publications made in Exs.P.1, P.61 and P.62 by the defendants, he has filed suit in the year 2003. It is argued, this suit has been filed seeking exemplary damages from the defendant as compensation for their acts of libel as well as their acts of slander both written and oral defamation of the plaintiff and their family members among the general public as well as depositors and shareholders of S.N. Finance Limited of which plaintiff No.1 was executive director and then Managing Director. It is argued defamation was done after the resignation of the 1st plaintiff from the 1st defendant company. It is argued he was Executive Director then Managing Director of defendant No.1 company and plaintiff No.2 is his wife. She took voluntary retirement. She had no connection with the affairs and management of defendant No.1 company except a depositor along with her sister and brother. It is argued in addition to causing financial loss, damage and hardship to the plaintiffs through the non-payment of their deposits for the large amount of about Rs.2.5 Crores, the defendants added insult to injury to the plaintiffs by deliberately making wanton, defamatory, malicious false and baseless allegations in a newspaper advertisement marked as per Ex.P.1, circular dated 19- 06-2002 addressed to the depositors marked as per Ex.P.61, Director's report dated 28-02-2010 circulated Cont'd..
- 17 - O.S. No.3477/2003 amongst thousands of shareholders marked as per Ex.P.62. It is argued acts of the defamation by way of both libel and slander committed by defendants 1 to 8 jointly and severally and allegation of the plaint supported by oral evidence of the plaintiff and it is coupled with evidence of P.Ws.2 and 3. It is argued apart from this, defendants 3 and 4 have lodged complaint before the police against plaintiff with intention to damage his reputation and act of the defendants were defamed the plaintiff and on account of the same, they have suffered mental agony. It is argued defendant Nos1 to 5 made false allegations/accusations of fraud, cheating through Exs.P.61 and P.62. It is argued defendants have also taken various contention with regard to alleged misappropriation and cases instituted against the plaintiff, but they have not established the same. It is argued all the proceedings initiated against the plaintiff were ended in favour of the plaintiff, therefore defendants are liable to pay damages as prayed. With this submission, plaintiff No.1 in person prayed to answer the above said Issues in his favour.
15. On the other hand, Advocate for plaintiff No.2 submitted arguments canvassed by the plaintiff No.1 in person. He has also argued plaintiff No.2 being wife of plaintiff No.1 has not committed any misappropriation, in spite of that defendants have defamed plaintiff No.2 knowing fully well she is no way concerned to the Cont'd..
- 18 - O.S. No.3477/2003 alleged transaction. With this submission, Advocate for plaintiff No.2 prayed to answer the above said Issues in favour of the plaintiff.
16. On the other hand, Advocate for defendants vehemently argued absolutely there are no grounds made out by the plaintiff to decree the suit as prayed. It is argued since plaintiff No.1 has violated several provisions prescribed by the Reserve Bank of India, defendant No.1 company has suffered loss of Crores of rupees in the financial year of 2000-2001 and 2001- 2002. It is argued, in spite of the company suffering huge loss during the tenure of the first plaintiff, he has been deceptively showing the profits in the balance sheet and same has been evidenced by the publication in the daily newspaper Samyuktha Karnataka dated 11- 03-2001. It is argued when plaintiff No.1 was Managing Director of the company, the company claimed its net owned funds was Rs.658.77 lakhs on 31-03-2001 whereas it was actually Rs.39.10 lakhs and the said fact has been pointed out by the R.B.I. It is argued during the tenure of first plaintiff, company failed to publish real and true picture of its financial position, therefore the R.B.I. filed Criminal Case in C.C. No.9165/2002 on the file of Additional Chief Metropolitan Magistrate, Traffic Court, Mayo Hall, Bangalore against the company and its directors alleging defaults/contraventions/violations during the conduct of its business under Sections 58B and 58C of the Act.
Cont'd..
- 19 - O.S. No.3477/2003 It is argued publication in Times of India had not been made with deliberate intention of causing damage or tarnishing image of the plaintiff in the eyes of public. During that period there was a constant stream of public visiting the office enquiring about whereabouts of the Managing Director and their publication is made only with honest intention of putting the depositors on alert as precautionary measures. It is argued entire allegations made by the plaintiff in the suit is bad, false and baseless and it is filed only to harass the defendants. With this submission, Advocate for defendants prayed to answer the above said Issues in favour of the defendants.
17. On careful perusal of the oral as well as documentary evidence of both the sides and on the basis of settled position of law, this Court is of the opinion that plaintiff has failed to prove alleged publication in Times of India dated 19-05-2002 is published with malicious intention to defame the first plaintiff. Further, plaintiff has failed to prove defendants 3 and 4 lodged complaint before the police against him with intention to defame his reputation and similarly, plaintiff has also failed to prove defendants 1 to 5 made false allegations/accusations of fraud, cheating in the letter dated 19-06-2002 and the director's report dated 28-10-2002 as alleged. First and foremost point to be considered by this Court is this suit being filed by the plaintiff for relief of damages, Court should see whether Cont'd..
- 20 - O.S. No.3477/2003 alleged publication is derogatory and defamatory as alleged by the plaintiff. It is just and necessary to reproduce the alleged publication which is marked as per Ex.P.1. It reads as under -
"KIND ATTENTION : DEPOSITORS Sri A.S. Pattabiraman the Former Managing Director of the company against whom Police Complaints have been lodged under section 420 and 341 for cheating and preventing the other two Directors from performing their duties of the Company, is absconding. All customers are cautioned that any dealing with Sri. A.S. Pattabiraman will be at their own risk.
Consequent upon the resignation of Sri A.S. Pattabiraman, the Board has been reconstituted on 20.04.2002 with the sole objective of recovering the dues of the company from various borrowers and to repay the amounts to the investors in a phased manner, under the strict guidance of the Reserve Bank of India.
All the depositors of the company are hereby requested to extend the fullest co-operation to the newly formed board in this regard.
Cont'd..
- 21 - O.S. No.3477/2003 Our Dharwad and Hubli Branches will continue to function, as hithertofore, for the limited purpose mentioned above.
P.S. Murai R.N. Kamath G.H. Patil S. Harikrishna Executive Director Director Director Director"
18. On perusal of the above said publication wherein it is specifically mentioned plaintiff No.1 was the farmer Managing Director of the company against whom police complaints have been lodged under Sections 420 and 341 of I.P.C. In the said publication, it is published in view of the resignation of A.S. Pattabhiraman i.e., plaintiff, Board has been re- constituted under the guidelines of the Reserve Bank of India. In the said publication, it is mentioned all the depositors of the Company are requested to extend fullest co-operation to the newly formed Board. Except the above said contentions, nothing has been published on behalf of the defendants with regard to the plaintiff - which amounts to derogatory and defamatory. Whatever publication published in Ex.P.1, it is in respect of lodging of complaint against plaintiff under Sections 420 and 341 of I.P.C. and in respect of resignation of the plaintiff to his post. In Ex.P.1, it is also informed to the customers since plaintiff has resigned to the post, any dealings with the plaintiff will be at their own risk. In my considered view, above said publication is made for the welfare of the defendant Cont'd..
- 22 - O.S. No.3477/2003 No.1 company and for welfare of the depositors of the said company. Nowhere in Ex.P.1 it is alleged plaintiff who worked as Managing Director has misappropriated the amount of defendant No.1 company. Even in Ex.P.1, it is not mentioned plaintiff has left India and he is staying in U.S.A. as on the date of publication after misappropriating the amounts of the defendant No.1 company. At the cost of repetition, I would like to say simply in the said publication, it is mentioned about lodging of complaint against plaintiff under Sections 420 and 341 of the I.P.C. for cheating and preventing other two directors from performing their duties of the company. No doubt in Ex.P.1, it is published plaintiff is absconding, but it does not mean it amounts to derogatory and defamatory.
19. At the time of argument, plaintiff No.1 in person has argued and relied the decision reported in AIR 2016 SUPREME COURT 2728 in a case Subramanian Swamy -versus- Union of India, Ministry of Law and others. In the above said decision, it is held "defamation of a private person - by another private person - affects public interest - Can be regarded as crime under Constitutional network." In the above said decision, it is held - "to constitute offence of defamation under Section 499 of I.P.C., there has to be imputation and it must have 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 Cont'd..
- 23 - O.S. No.3477/2003 reputation of the person about whom it is made. Causing harm to the reputation of a person is the basis on which offence is founded and mens rea is a condition precedent to constitute the said offence." In my considered view, principle laid down in the above said decision is not applicable to the case of the plaintiff. As per the pleading of the plaintiff as on the date of publication, he was staying in U.S.A. after resigned to the post held by him in defendant No.1 company. It is not the case of the plaintiff that he has informed to all the depositors by way of paper publication with regard to resignation of the before leaving India. When he was not available in India as on the date of publication, it is the duty of the subsequent body to inform all the depositors not to deal with the person who has resigned to the post.
20. Plaintiff in person has also relied the decision of the Hon'ble Apex Court reported in (2010) 6 Supreme Court Cases 243 in a case Jeffrey J. Diermeier and another -versus- State of West Bengal and another. In the above said decision, it is held -
"There must be an imputation which must be made with intention to harm or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. That is the offence of defamation is the harm caused to the reputation of a person."
Cont'd..
- 24 - O.S. No.3477/2003
21. In my considered view, principle laid down in the above said decision is not helpful to the case of the plaintiff, because plaintiff has not proved defendants have published alleged publication and they had reason to believe alleged imputation made by them to harm the reputation of the plaintiff.
22. Plaintiff in person has also relied another decision reported in AIR 1999 SUPREME COURT 2979 in a case Common Causes Registered Society -versus- Union of India and others wherein, Full Bench of the Hon'ble Apex Court held the dictum with regard to matter relating to violation of fundamental rights or enforcement of public duties and with regard to exemplary damages. In my considered view, principle laid down in the above said decision though it is relating to defamation of damages, but at no stretch of imagination, it is not possible to come to conclusion in view of the principle laid down in the above said decision, plaintiff has proved Issues in his favour.
23. Now, coming to the contents of Ex.P.1. This Court is of the opinion that contents of Ex.P.1 are not derogatory and defamatory as alleged by the plaintiff. Defendant in their written statement as well as in their oral evidence have taken specific contention publication in Times of India i.e., Ex.P.1 had not been made with a deliberate intention of causing any damage or tarnishing the image of the plaintiff in the eyes of the public. They have also explained under what Cont'd..
- 25 - O.S. No.3477/2003 circumstances Ex.P.1 publication made by them. They have contended during that period, there was a constant stream of public visiting the office enquiring about whereabouts of Managing Director. Further, they have contended publication made only with honest intention of putting the depositors on alert as a precautionary measure. In my considered view, above said contention of the defendant has to be accepted on the ground that there has been a complaint lodged by defendants 3 and 4 before publication of Ex.P.1. It is not the case of the plaintiff defendants 3 and 4 have not at all lodged complaint for offence of cheating and for wrongful restrain of newly inducted directors as on the date of publication of Ex.P.1. The documents produced by both sides discloses defendants 3 and 4 have lodged complaint against plaintiff prior to the publication of Ex.P.1. Under such circumstances, this Court is of the opinion that plaintiff has failed to prove the above said Issues in his favour.
24. Though P.W.1 in his evidence has reiterated the averments of the plaint, in the cross-examination, several documents confronted to P.W.1 and he has admitted contents of those documents. There is no dispute with regard to contents of Ex.D.1 which is confronted to P.W.1. Ex.D.2 is the copy of the plaint filed by M/s. S.N. Finance Limited i.e., defendant No.1 against the present plaintiffs and others for judgment and decree directing the defendants to pay a sum of Cont'd..
- 26 - O.S. No.3477/2003 Rs.5,94,21,914/-. Contents of Ex.D.2 admitted by
P.W.1 in page 13 of his cross-examination. Exs.D.3 and D.4 also confronted to P.W.1 and he has admitted the contents of Ex.D.3 and Ex.D.4. Ex.D.4 is the copy of the private complaint filed by R.B.I. against defendant No.1 S.N. Finance and other directors. On perusal of Ex.D.4, it discloses plaintiff No.1 arrayed as 'accusedNo.12' in the said proceedings. Contents of Ex.D.4 is also admitted by P.W.1. Admittedly, said complaint has been filed by R.B.I. against the accused of the said case for the offences under Sections 58B(1), 58B(4A), 58B(5)(a), 58B(5)(a)(a) and 58B(6) read with Section 58C of the Reserve Bank of India Act, 1934. Ex.D.5 is also document confronted to P.W.1 and he has admitted the contents of Ex.D.5 in his cross- examination at Page No.26. On perusal of Ex.D.5, it is a copy of the P.C.R. filed by Shobha S. Hadli against defendant No.1 and plaintiffs of the present case filed under Section 138 of the Negotiable Instruments Act. Ex.D.6 are the certified copy of the cheques issued by plaintiff No.1 in capacity of Managing Director to Shobha S. Hadli, they are dated 30-04-2002, 30-06- 2002 and 30-07-2002.
25. As per say of the plaintiff, he resigned to the service of first defendant company on 19-03-2002. If really he has resigned to the said post on 19-03-2002, it is not clear how he had issued cheques in favour of Shobha S. Hadli in capacity of Managing Director of Cont'd..
- 27 - O.S. No.3477/2003 S.N. Finance which are dated 30-04-2002, 30-06-2002 and 30-07-2002. In the cross-examination, he has clearly admitted Shobha S. Hadli filed criminal case against him and he has also admitted cheqes in question were signed by him as Managing Director of the first defendant. On perusal of Ex.D.7 which is also confronted to P.W.1 and he has specifically admitted contents of the said document. It discloses plaintiff No.1 in capacity of Managing Director lodged complaint before the Inspector of Police in the letterhead of S.N. Finance Limited on 27-03-2002. Again it is to be mentioned here if really plaintiff has resigned to the post of Managing Director on 19-03-2002 how he was empowered or entitled to lodge complaint on behalf of the Managing Director as per Ex.D.7. So, the above said conduct of the plaintiff disentitles him to claim damages against the defendants. Ex.D.8 is copy of the gift deed executed by plaintiff No.1 in favour of his wife. Contents of the above said documents is also admitted by P.W.1. In the written statement as well as in the oral evidence, defendants have taken specific contention plaintiff No.1 by misusing his power purchased the property in the name of his wife by spending money of defendant No.1 company. So, on the basis of the contents of Ex.P.8 it probabilises the case of the defendant.
26. In the cross-examination, he pleads ignorance one P.J. Sathe has lodged complaint before the R.B.I. as Cont'd..
- 28 - O.S. No.3477/2003 well as Indira Nagar police with allegation plaintiff No.1 has misappropriated the amount of defendant No.1 company. P.W.1 has admitted in the month of August 2010, C.C.B. police have arrested him. Further, he has admitted defendant No.2 took charge as Executive Director after he tendered resignation. He has also admitted he sold one of the property of S.N. Finance Limited in favour of his wife for consideration of Rs.10,00,000/- by way of execution of sale deed dated 07-09-2001. He has also admitted in the cheque bounce case filed by Shobha S. Hadli, Court has convicted accused No.2 and proceedings against him was ended in compromise. Further, he has admitted as per the contents of Ex.P.71, he has purchased the property in the name of his wife on behalf of S.N. Finance. He has admitted his wife had filed criminal case against him and S.N. Finance. He has further admitted he has passed F.D. receipt for a sum of Rs.10,00,000/- on behalf of S.N. Finance in favour of his wife. He has also admitted one Joseph has lodged complaint against S.N. Finance with allegation he being Managing Director of S.N. Finance has misappropriated Rs.40,00,000/-. He has further admitted on the basis of the audited report dated 31-03-2001, R.B.I. has lodged complaint against defendant No.1 and others on the ground of misappropriation of the amount. He has also admitted whatever proceedings initiated by defendant No.2 are initiated in capacity of Executive Director of defendant Company, defendant No.2 has not Cont'd..
- 29 - O.S. No.3477/2003 initiated any proceedings in his personal capacity. He has admitted in none of the proceedings it is mentioned false case has been registered against him. These are the admissions of P.W.1 not helpful to the case of the plaintiff to prove above said Issues in his favour.
27. In order to support version of the plaintiff, two witnesses have been examined as P.Ws.2 and 3. In their evidence, they have deposed defendants have published advertisement dated 19-05-2002 as per Ex.P.1 and circulated letters dated 19-06-2002 and in the Director's letter dated 28-10-2002, defendants have defamed the plaintiff. Further, they have deposed defendants 1 and 2 have established the fact reputation among the customers of State Bank of India as well as their colleagues in State Bank of India and they were respected for their honesty on the one hand and their dynamism on the other hand. They have deposed they sought advertisement published by the defendant in the Times of India marked as per Ex.P.1 mentioning that the first plaintiff was absconding. They have deposed this description was false and motivated as they knew plaintiff No.1 had resigned from S.N. Finance in March 2002 and only thereafter left in April 2002 with full knowledge of his friends and relatives to attend his daughter's M.B.A. convocation in the prestigious Stanford University. Further, they have deposed they came to know criminal case has been filed against plaintiff No.1 for cheating and preventing other two Cont'd..
- 30 - O.S. No.3477/2003 directors performing the duties of the company.
Further, they have deposed the bad impression so created by the above advertisement was further worsened by the circular dated 19-06-2002 issued by the defendant. They have also deposed Criminal Case registered against the plaintiff was dismissed, therefore allegations made by the defendant against plaintiff are all false and baseless.
28. In my considered view, evidence of P.W.2 and 3 not helpful to the plaintiff to prove the above said Issues, because in the cross-examination P.W.2 has categorically admitted he has no documents to show that he was working in the defendant No.1 company. He has admitted he is close friend of plaintiff No.1 and he has come to the Court as per the request of the plaintiff to depose evidence. He has also admitted with regard to contents of ExD.9 and D.10 which are the letters written by plaintiff No.1 to the Chairman, B.G.M.L. on 28-03-2002. Ex.D.10 is also letter written by plaintiff No.1 to one H.R. Shreyas/Smt. H.P. Shubha/Smt. H.P. Gayathri on 29-03-2002. They have also admitted as per contents of Ex.P.62, resolution has been passed to initiate criminal proceedings against the culprit. It is pertinent to note here that though Exs.D.9 and D.10 confronted to P.W.2, they are dated 28-03- 2002 and 29-03-2002. P.W.2 has admitted signature of the plaintiff No.1 in that document though plaintiff No.1 resigned to the post of Managing Director on 19-03- Cont'd..
- 31 - O.S. No.3477/2003 2002, it is not clear why he has sent letter as per Exs.D.9 and D.10 in capacity of Managing Director. P.W.2 in the cross-examination pleads ignorance that he knew R.B.I. has initiated criminal proceedings against plaintiff. He has also admitted he has not produced any documents to show that he is one of the depositor in defendant No.1 company. Further, he has admitted defendant No.1 company has initiated cheque bounce proceedings against his wife. Though he has voluntarily deposed said matter was settled, but he has not produced any documents to show said matter was ended in compromise. Further, he has admitted on the basis of the report of the R.B.I. and on the basis of the complaints filed by the depositors now defendant No.1 company was closed. These are the admissions of P.W.2 not helpful to the case of the plaintiff to support his contention.
29. P.W.3 in the cross-examination has clearly admitted that he has no documents to show that he is one of the depositors of the defendant No.1 company. At the cost of repetition, I would like to say evidence of P.Ws.2 and 3 no way helpful to the case of the plaintiff to establish publication in Times of India dated 19-05- 2002 by the defendants is with malicious intention to defame the first plaintiff and to prove defendants 3 and 4 have lodged false complaint against plaintiff No.1 with intention to damage his reputation. Even evidence of P.Ws.1 to 3 is not sufficient to establish rest of the Cont'd..
- 32 - O.S. No.3477/2003 Issues more particularly Additional Issues framed on 15-06-2009 and on 11-09-2007.
30. The other two documents relied by the plaintiff are Exs.P.61 and P.62. Relating to contents of Exs.P.61 and P.62. Plaintiff has taken contention contents of the said documents are derogatory and defamatory. First and foremost thing point to be considered at this stage that whether plaintiff has pleaded in the plaint with regard to contents of Exs.P.61 and P.62. Absolutely, there is no pleading with regard to contents of Exs.P.61 and P.62 on behalf of the plaintiff. When he has not pleaded with regard to contents of Exs.P.61 and P.62 that he has been defamed by the defendants, this Court is of the opinion that it is an after-thought of the plaintiff. Even for sake of argument, contents of Exs.P.61 and P.62 are considered by this Court, absolutely there are no grounds to hold that contents of those documents are derogatory and defamatory as alleged by the plaintiff. In one of the sentence in Ex.P.61 it is mentioned as under -
". . . . . we also propose to legally attach some of the properties of our Ex- Managing Director, Shri. A S Pattabiraman, which have been acquired through diversion of company' funds. . . . ."
It is an admitted fact Ex.P.61 is the letter sent by S.N. Finance Limited to the depositors on 19-06-2002. It is Cont'd..
- 33 - O.S. No.3477/2003 also admitted fact as on the date of 19-06-2002, several cases have been registered against the plaintiff. When that being the case, it was obligation on the part of defendant No.1 company to take into confidence of its depositors that they are going to attach some of the properties of their ex-managing director A.S. Pattabhiraman which have been acquired through diversion of company's funds. Whether plaintiff has defrauded the company's funds or not it is not point to be considered by this Court. If really plaintiff has not diverted the Company's funds as alleged, he can get acquittal order from the competent Court. No doubt plaintiff has produced plenty of records to show all the proceedings initiated against him were ended in his favour, but those documents are not helpful to the case of the plaintiff to prove the above said Issues.
31. Plaintiff has relied another document i.e., Ex.P.62 which is director's report. In the report, it is mentioned -
"The enquiries have attributed the responsibility for this deteriorated position of the Company prima facie to Mr A S Pattabiraman then Managing Director of the Company."
It is mentioned -
Cont'd..
- 34 - O.S. No.3477/2003 "He resigned on 21/03/2002 as per records submitted to ROC, Karnataka, but continued to hold the office of the Managing Director, till 17/04/2002."
Even this contention is not amounting to derogatory and defamatory as alleged by the plaintiff. In the above said paragraph, it is discussed by this Court though plaintiff has resigned to the post which he was held on 21-03-2002, but some of the documents signed by him even after 21-03-2002 in capacity of Managing Director. So it discloses contents of Ex.P.62 to the extent of holding the post of the plaintiff as Managing Director till 17-04-2002 is acceptable one. When Ex.P.62 discloses contents of document that plaintiff No.1 held the post till 17-04-2002, at any stretch of imagination it is not possible to come to conclusion the said portion is derogatory and defamatory as alleged by the plaintiff.
32. Now, this Court has to see whether defendants have resisted the claim of the plaintiff by adducing cogent, material and corroborative oral as well as documentary evidence.
33. Defendant No.7 who examined as D.W.1 in his evidence deposed he is not aware about the acts made by defendants 1 to 5 even this day and even he is not aware with regard to publication of advertisement by defendants 1 to 5 in Times of India dated 19-05-2002. Further, he has deposed he is very innocent and very Cont'd..
- 35 - O.S. No.3477/2003 peace-loving person in the society and also his wife has invested her hard earned money on good faith when plaintiff No.1 was Managing Director in the S.N. Finance Company. Further deposed unnecessarily plaintiff has made him as party in the present suit. Further, he has deposed even if defendants 1 to 5 have published advertisement on 19-05-2002, it is not a defamatory or derogatory, in fact it is the information to the depositors of the finance company. Though D.W.1 cross-examined at length, nothing has been brought on record to disbelieve his evidence.
34. D.W.2 in his evidence has specifically deposed reiterating the averments of the written statement. He has deposed when plaintiff No.1 was Managing Director of the defendant No.1 company claimed its net owned funds was Rs.658.77 lakhs, whereas it was actually 39.10 lakhs, it has been pointed out by the R.B.I. Further deposed company could not function without having a minimum statutory net owned funds of Rs.25 Lakhs, but the company continued by filing false statement and drawing false balance sheet prepared by the first plaintiff basing on the concocted, false and imaginary accounts and figures. Further, he has deposed during tenure of the first plaintiff as Managing Director, company followed the provisions prescribed by the R.B.I. Further deposed even though he resigned from the company as its Managing Director on 19-03- 2002, he continued to hold the office of M.D. The Cont'd..
- 36 - O.S. No.3477/2003 evidence of D.W.2 is supported by documentary
evidence which are confronted to P.W.1 which are marked as per Exs.D.1 to D.8. Though D.W.2 cross- examined at length, nothing has been brought on record to disbelieve his evidence.
35. D.W.3 though he has submitted lengthy chief- examination which runs 28 pages entire evidence of D.W.3 not helpful to the case of the defendant to resist the claim of the plaintiff. D.W.3 has narrated all the alleged violations took place during the tenure of plaintiff No.1. Even plaintiff No.1 has cross-examined D.W.3 at length with regard to all the alleged violations during his tenure. At the cost of repetition, I would like to say, this Court is not adjudicating whether plaintiff has committed alleged violation or whether plaintiff has misappropriated the amount as alleged by the defendants. The only question for adjudication before this Court is whether contents of Ex.P.1 is defamatory or derogatory. If it is so, whether plaintiff is entitled for relief of damages or not. In order to adjudicate above said aspect, entire evidence of D.W.3 with regard to alleged violations of the R.B.I. guidelines and with regard to various proceedings initiated on behalf of the defendant No.1 company and against defendant No.1 company and with regard to various proceedings initiated by depositors against defendant No.1 company, those aspects are not at all necessary for adjudication of the case. In his evidence, he has specifically deposed Cont'd..
- 37 - O.S. No.3477/2003 publication in Times of India had not been made with deliberate intention of causing any damage or tarnishing the image of the plaintiff in the eyes of public. Further, he has deposed during that period, there was a consistent stream of public visiting the office enquiring about whereabouts of the Managing Director, therefore the said publication is made only with honest intention of putting the depositors on alert as a precautionary measure. Further, he has deposed though first plaintiff had resigned on 19-03-2002, he continued in the post of Managing Director did not allow newly inducted Directors viz., R.N. Kamath and G.H. Patil to his office. Further, he has deposed in view of those newly inducted Directors were obliged to seek for police help for handing over charge. Evidence of D.W.3 is also supported by documentary evidence which are confronted to P.W.1 which are marked as per Exs.D.1 to D.8. As I have discussed above, though plaintiffs have cross-examined at length, the said cross-examination is no way helpful to the case of the plaintiff to prove their case. Because the entire cross-examination of D.W.3 is only in respect of denial of allegations made by defendants in the written statement as well as in their oral evidence. At the cost of repetition, I would like to say whatever allegations made by the defendants with regard to alleged violations of the guidelines of the R.B.I. and with regard to alleged misappropriation of the plaintiff pertaining to finance funds, those are all not relevant for consideration to decide the present case.
Cont'd..
- 38 - O.S. No.3477/2003 Therefore, whatever documents produced by the plaintiff and defendants with regard to various
proceedings initiated against the finance company are on behalf of the finance company against the plaintiff or on behalf of the plaintiff not relevant for consideration. In the cross-examination, no doubt some of the documents confronted to D.W.3, they are marked on behalf of the plaintiff. Even contents of those documents are also not helpful to the case of the plaintiff to prove the above said Issues.
36. In the cross-examination of D.W.3, it has suggested to D.W.3 that he has no power to give publication as per Ex.D.1. Admittedly, defendant No.2 took charge as Office Bearer of the defendant No.1 institution, it is his obligation and duty to inform depositors about the case instituted against the plaintiff and about resignation submitted by the plaintiff. Therefore, cross-examination of P.W.1 that defendant No.2 has no power to give advertisement as per Ex.P.1 has no substance at all. No doubt DW-3 in the cross- examination has admitted that they have circulated director's report as per Ex.P.62 to all the shareholders, even this admission not fatal to the defense set up by the defendant. No doubt in the cross-examination, D.W.1 has admitted that he has not produced any documents to show plaintiff has misappropriated the company funds as alleged in Ex.P.61. Even this admission is not fatal to the case of the defendants. As Cont'd..
- 39 - O.S. No.3477/2003 I have discussed above, there are no allegations or pleadings against the defendants with regard to contents of Exs.P.61 and P.62. Hence, whatever the cross-examination on behalf of the plaintiff to D.W.3 pertaining to contents of Exs.P.61 and P.62 has no relevancy to consider the above said Issues. As I have discussed above, except Exs.P.1, P.61 and P.62, contents of other documents produced by the plaintiff which are marked as per Exs.P.2 to P.60 and P.63 to P.98 no way helpful to the case of the plaintiff to prove the above said Issues, because those documents are pertaining to various proceedings taken place between the plaintiff and others and taken place between S.N. Finance Company and others.
37. On the other hand, the documents produced by the defendants which are marked as per Exs.D.1 to D.22 helpful to the case of the defendants to resist the claim of the plaintiff. Exs.D.1 to D.8 are documents confronted to P.W.1 and P.W.1 has admitted contents of those documents. Exs.D.9 and D.10 are the documents to show even after resignation plaintiff No.1 continued his post as Managing Director of S.N. Finance Limited. Ex.D.11 is the bank account extract, Ex.D.12 is the report submitted by the inspection officer to the Managing Director of S.N. Finance. Ex.D.13 is the letter dated 04-04-2002 alleged to be written by plaintiff to one Shobha S. Hadli. Ex.D.14 is the Memorandum of Understanding between S.N. Finance depositors and Cont'd..
- 40 - O.S. No.3477/2003 S.N. Finance Limited on 16-04-2002. It discloses plaintiff has also attended the said meeting and subscribed his signature though he has resigned to the post on 19-03-2002. Ex.D.15 is the minutes of meeting. Ex.D.16 is the ledger book. Ex.D.17 is the copy of the charge sheet filed in C.C. No.22716/2003. Ex.D.18 is the copy of the F.I.R. Ex.D.19 is the copy of the complaint filed by one V.L. Joseph. Ex.D.20 is the complaint against farmer Managing Director i.e., A.S. Pattabhiraman. Ex.D.21 is the certified copy of the deposition of C.C. No.9165/2002. Contents of those documents helpful to the case of the defendants to resist the claim of the plaintiff.
38. At the time of argument, Advocate for defendant has vehemently argued absolutely there are no grounds to come to conclusion contents of Ex.P.1 are derogatory and defamatory. It is settled principles of law that in order to test the defamatory statement, there are some rules and principles. There are certain established rules to determine whether statement is defamatory or not. The first rule is that the whole of the statement complained of must be read and not only a part or parts of it. The second is that words are to be taken in the sense of their natural and ordinary meaning. The Court must have regard to what the words would convey to the ordinary man. The test to be applied for the determination of the question whether a statement is defamatory is the answer to the question, Cont'd..
- 41 - O.S. No.3477/2003 "would the words tend to lower the plaintiff in the estimation of right-thinking members of society?"
39. As per Salmond statement, "the test of defamatory nature of a statement is its tendency of excite against the plaintiff the adverse opinions or feeling of other persons. The typical form of defamation is an attack upon the moral character of the plaintiff attributing to him any form of disgraceful conduct." Following requisites have to be necessarily proved by the plaintiff -
(a) The words or the act must defamatory,
(b) They must have reference to the plaintiff,
(c) They must have been published,
(d) They must have been published maliciously,
(e) There can be no offence of defamation unless the defamatory statement is published or communicated to a third party, that is to a party other than the person defamed.
40. Defense available in defamation claims - truth is a complete defence. However, it is an exacting defence and operates under rigorous rules. If a statement conveys a defamatory meaning there is a presumption that the words are untrue. The burden of proof is on the defendant to call evidence that Cont'd..
- 42 - O.S. No.3477/2003 establishes the words are accurate. In the present case, defendants have established whatever the contents made in Ex.P.1 or in respect of the proceedings initiated by the depositors or it is the act of the plaintiff.
41. At the time of argument, plaintiff in person and Advocate for plaintiff No.2 has vehemently argued all the cases registered against the plaintiff No.1 ended in his favour and no case is pending against the plaintiffs. It is argued false cases have been foisted against the plaintiffs and on the basis of the said false cases, publication as per Ex.P.1 published by the defendants knowing fully well said publication causes harm to the reputation of the plaintiff. In my considered view, argument canvassed on behalf of the plaintiff No.1 in person and on behalf of plaintiff No.2 in this regard has no substance at all. No doubt plaintiffs have produced plenty of records to show cases registered against him ended in his favour. But, it does not sufficient to hold plaintiff is entitled for relief sought for.
42. It is settled principle of law that even closure of the criminal cannot be held as malicious prosecution unless it is shown that the complaint filed by the defendant is false and equitable order passed by the Magistrate on a clear findings that the institution of Criminal Case is based on a false complaint. In support of the above said settled position of law, I would like to rely the ruling reported in ILR 2007 KAR 4851 in a case Cont'd..
- 43 - O.S. No.3477/2003 W.E. Sathyanarayana -versus- W.S. Vijayakumar. In
the above said decision, it is held the dictum thus -
"SUIT FOR DAMAGES - Ground - Malicious prosecution - Complaint filed by the respondent against the appellant under Sections 324 and 506 of IPC -
Discharge of the accused/appellant - Clousure of the criminal case in favour of the appellant - Whether confer any right on the appellant to claim damages by instituting a suit - HELD, The closure of criminal case cannot be held as malicious prosecution unless it is shown that the complaint filed by the defendant is false and the acquittal order is passed by the jurisdictional Magistrate on a clear finding that the initiation of the criminal case is based on false complaint - FURTHER HELD, Even assuming that the written statement is not filed, the Court is not precluded from examining the plaintiff's case on merit to grant a decree - All prosecution cases which ended in acquittal cannot be treated as malicious prosecution, unless the malice is established by the plaintiff - The conclusion arrived by the Trial Cont'd..
- 44 - O.S. No.3477/2003 Court in dismissing the suit is just and proper."
43. Further, I would like to rely another decision reported in ILR 1997 KAR 95 in a case Veeresh -versus- Channaveerappa and others. In the above said decision, it is held thus -
"TORT - Suit for damages for malicious prosecution - Appellant complaining against Respondent for wrongful confinement - prosecution ended n acquitting Respondent, who filed suit for damages - Courts below decreeing it - Appellant's complaint bona fide without any interference in prosecution case - held, suit for damages for malicious prosecution did not lie for mere filing of complaint, though ending in plaintiff's acquittal."
44. In my considered view, principle laid down in the above said decision are exactly applicable to the case on hand. I am of the opinion that plaintiffs have failed to prove the Issues in thier favour. Viewed from any angle, this Court is of the opinion that plaintiffs have miserably failed to prove the above said Issues in their favour. Hence, my answers to the above Issues are in negative.
Cont'd..
- 45 - O.S. No.3477/2003
45. ISSUE NOs.4 AND 5 AND ADDITIONAL ISSUE No.3 FRAMED ON 15-06-2009 : Since the plaintiff have failed to prove material Issues, certainly plaintiffs are not entitled for the relief sought. Hence, my answers to above issues are in negative.
46. ISSUE No.6 : For my reasons and discussion on the above Issues and Additional Issues, I proceed to pass the following -
ORDER Suit filed by the plaintiffs against the defendants is hereby dismissed.
No order as to cost.
Draw decree accordingly.
(Dictated to Judgment Writer, transcribed by him, revised by me and after corrections, pronounced in open Court on this the 2nd day of April, 2018.) (PATIL NAGALINGANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..
- 46 - O.S. No.3477/2003
ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFF:
Examined on:
P.W.1 : A.S. Pattabhiraman 06-11-2009 P.W.2 : M.K. Subramanya 26-02-2016 P.W.3 : M. Jagannathan 26-02-2016
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:
Ex.P.1 : Publication in the Times of India dated 19-12-2002.
Ex.P.2 : Copy of notice dated 10-12-2002. Ex.P.3 : Copy of notice dated 11-12-2002.
Ex.P.4 : Postal acknowledgement.
Exs.P.5 to : 8 Postal receipts.
P.12
Exd.P.13 : Postal certificates - 2.
and P.14
Ex.P.15 : Certified copy of the order dated
21-10-2005 passed by the Consumer
Disputes Redressal Forum.
Ex.P.16 : Certified copy of the order sheet of
O.S. No.824/2003.
Ex.P.17 : Certified copy of the order sheet of
O.S. No.1151/2008.
Ex.P.18 : Certified copy of the order sheet of
P.C.R. No.4941/2003.
Ex.P.19 : Certified copy of the order dated
12-06-2009 passed in Criminal Petition No.2506/2007.
Ex.P.20 : Certified copy of Private Complaint No.4756/2003.
Exs.P.21 : Xerox copies of cheques receipts and to P.45 correspondence letters.
Cont'd..
- 47 - O.S. No.3477/2003 Ex.P.46 : Certified copy of order passed in Private Complaint No.4756/2003. Ex.P.47 : Certified copy of order dated 12-06-2009 passed in Criminal Petition No.2505/2007. Ex.P.48 : Certified copy of order sheet of C.C. No.17225/2007.
Ex.P.49 : Certified copy of PCR No.10511/2003. Ex.P.50 : Certified copy of order sheet of Crime No.89/2003.
Ex.P.51 : Certified copy of charge sheet. Ex.P.52 : Certified copy of Judgment date 5-10-2007 passed in C.C. No.5118/2003. Ex.P.53 : Certified copy of inspection proceedings. Ex.P.54 : Certified copy of order passed in Criminal Petition No.702/2003. Ex.P.55 : Certified copy of order sheet of C.C. No.833/2006.
Ex.P.56 : Certified copy of F.I.R. Ex.P.57 : Certified copy of cover page of C.C. No.22649/2002.
Ex.P.58 : Certified copy of order dated 14-05-2009 passed O.A. No.160/2002.
Ex.P.59 : Copy of gift deed dated 27-06-2001. Ex.P.60 : Certified copy of Form No.32. Ex.P.61 : Copy of letter dated 19-06-2002. Ex.P.62 : Directors report. Ex.P.63 : Certified copy of order sheet of O.S. No.7306/2002.
Ex.P.64 : Certified copy of judgment dated 16-11-2011 passed in O.S. No.824/2003. Ex.P.65 : Certified copy of Form No.32. Ex.P.66 : Certified copy of order sheet in Criminal Petition No.4525/2010.
Cont'd..
- 48 - O.S. No.3477/2003 Ex.P.67 : Certified copy of order dated 10-10-2012 passed in Writ Appeal No.519/2008. Ex.P.68 : Resignation letter dated 20-03-2002. Ex.P.69 : Certified copy of encumbrance certificate. Ex.P.70 : Certified copy of sale deed dated18-6-2001. Ex.P.71 : Certified copy of sale deed dated 7-9-2001. Ex.P.72 : Family pension advice. Ex.P.73 : Form No.22.
Ex.P.74 : Certified copy of the order sheet of Criminal Petition No.67/2008. Ex.P.75 : Certified copy of company registration details.
Ex.P.76 : Certified copy of order sheet of C.C. No.8218/2002.
Ex.P.77 : Certified copy of order sheet of P.C.R. No.16803/2004.
Ex.P.78 : Certified copy of order sheet of Crl.R.P. No.585/2009.
Ex.P.79 : Certified copy of order sheet of P.C.R. No.16805/2003.
Ex.P.80 : Certified copy of order sheet of Crl.R.P. No.584/2009.
Ex.P.81 : Certified copy of order sheet of P.C.R. No.16806/2003.
Ex.P.82 : Certified copy of order sheet of Crl.R.P. No.586/2009.
Ex.P.83 : Certified copy of copy application. Ex.P.84 : Certified copy of order sheet of P.C.R. No.4330/2003.
Ex.P.85 : Certified copy of order dated 2-6-2015 passed in C.R.P. No.990/2014. Ex.P.86 : Certified copy of order sheet of Crl.R.P. No.148/2015.
Cont'd..
- 49 - O.S. No.3477/2003
Ex.P.87 : Certified copy of order sheet of
Crl.R.P. No.25147/2015.
Ex.P.88 : Certified copy of sale deed
dated 29-05-1997.
Ex.P.89 : Certified copy of Form No.89.
Ex.P.90 : Certified copy of Stamp Paper of Rs.20/-.
Ex.P.91 : Certified copy of order sheet of
P.C.R. No.4331/2003.
Ex.P.92 : Certified copy of order sheet of
O.S. No.7306/2002.
Ex.P.93 : Certified copy of order sheet of
L.A.C. No.134/2008.
Ex.P.94 : Certified copy of letter dated 30-01-2012.
Ex.P.95 : Certified copy of letter dated 13-03-2003.
3. WITNESSES EXAMINED FOR THE DEFENDANTS:
D.W.1 : B.V. Pattanshetty 22-11-2010 D.W.2 : Ramdas Narayan Kamath 11-01-2011 D.W.3 : P.S. Murali 08-06-2016
4.DOCUMENTS MARKED ON BEHALF OF DEFENDANTs:
Ex.D.1 : News letter.
Ex.D.2 : Copy of the plaint filed by M/s. S.N.
Finance Limited.
Ex.D.3 : Xerox copy of paper publication.
Ex.D.4 : Certified copy of P.C.R. No.9165/2002.
Ex.D.5 : Certified copy of P.C.R. No.3629/2002.
Ex.D.6 : Certified copy of cheques.
Ex.D.7 : Complaint of non-payment of deposit;
Ex.D.7(a) : Signature of A.S. Pattabiraman.
Ex.D.8 : Certified copy of gift deed dated 27-6-2001.
Ex.D.9 : Letter dated 28-03-2002.
Ex.D.10 : Letter dated 29-03-2002.
Cont'd..
- 50 - O.S. No.3477/2003
Ex.D.11 : Certified copy of Bank Statement. Ex.D.12 : Letter regarding inspection. Ex.D.13 : Letter dated 04-04-2002.
Ex.D.14 : Memorandum of understanding. Ex.D.15 : Minutes of Meeting.
Ex.D.16 : Minutes of Meeting Book.
Ex.D.17 : Certified copy of charge sheet. Ex.D.18 : Certified copy of F.I.R.
Ex.D.19 : Certified copy of letter addressed to the Commissioner of Police.
Ex.D.20 : Certified copy of complaint addressed to the Police Inspector.
Ex.D.21 : Certified copy of deposition in C.C. No.9165/2002.
Ex.D.22 : Certified copy of letter dated 02-09-2002.
(PATIL NAGALINGANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..