Andhra HC (Pre-Telangana)
Gorantla Venkateswarlu vs B. Demudu on 26 July, 2002
Equivalent citations: AIR2003AP251, 2003(2)ALD649, AIR 2003 ANDHRA PRADESH 251, (2003) 2 ANDHLD 648
JUDGMENT C.Y. Somayajulu, J.
1. Defendant in O.S. No. 36 of 1983 on the file of the Court of the Additional Subordinate Judge, Ongole is the appellant.
2. Respondent filed the suit against the appellant claiming damages of Rs. 20,000/-for the defamatory statements made against him by the appellant, i.e., for the appellant alleging that he (respondent) while acting as Managing Director of the Central Farmers Services Co-operative Society (for short 'Society') indulged in malpractices and was having illicit intimacy with several ladies. Appellant filed his written statement taking the plea of justification by truth. Basing on the pleadings, the Trial Court framed two issues for trial. In support of his case, respondent examined himself as P.W.1 and another witness as P.W.2 and marked Exs.A1 to A11. Appellant examined himself as DW.1 and two other witnesses as D.Ws 2 and 3 and got marked Exs.X-1 to X-7 through witnesses. The Trial Court held that respondent is entitled to Rs. 20,000/-as damages for the defamatory statements made by the appellant and accordingly passed a decree for Rs. 20,000/- claimed by the respondent. Hence, the appeal by the defendant in the suit.
3. The point for consideration is what amount of damages, if any, is the respondent entitled to.
4. The contention of the learned Counsel for the appellant is that the appellant sending complaint to the superiors of the respondent, bringing to their notice the various irregularities committed by the respondent and his conduct does not amount to defamation more so because a departmental inquiry was held against the respondent and since no departmental inquiry would be initiated without prima facie case no question of defamation arises. It is his contention that report of the Inquiry Officer cannot be taken into consideration because the Inquiry Officer is not examined and in any event since it is for the respondent to prove actual or express malice, respondent who failed to establish the same is to (sic not) entitled to claim any damages, more so because the audit reports, Exs.X1 to X3, do show the financial irregularities committed by the Society. The contention of the learned Counsel for respondent is that since the defence taken by the appellant is one of justification by truth and since the appellant failed to establish that the allegations made by him are true, the Trial Court rightly awarded damages against the appellant. He relied on the observations at Pages 468 to 470 stroke of "Torts" (9th Edition), and also the observations at Pages 169 and 170 in 'Salmond and Heuston on Law of Torts', (20th Edition) in support of his contention.
5. Respondent, who is an Officer in the Central Bank of India, was sent on deputation to work as the Managing Director of the Society and worked as such during the tenure of the predecessor in office of the appellant as President of the Society. During the tenure of Presidentship of the appellant-respondent was deputed to inspect the affairs of the Society. On coming to know that fact appellant sent Ex.A5 (same as Ex. A10) complaint or representation against the respondent to the Chairman, Central Bank of India, alleging that the respondent has illicit connection with ladies and spoiled the image of the Society when he was the Managing Director of the Society and did not take proper interest in the working of the Society, and was abusing staff during his visits and was a habitual late comer and used to purchase fertilizers and pesticides from private dealers spending of lakhs of rupees with a view to earn commission from them. Basing on that complaint or representation, the authorities of Central Bank of India sent Ex.A1 questionnaire to the respondent for his response. Respondent sent a reply denying the allegation made against him. Subsequently the Branch Manager of Central Bank of India, Ongole, after making an enquiry submitted Ex.A11 Report that all the allegations made against the respondent are false and are made only with a view to see that respondent, who is an honest and sincere officer, is not deputed to inspect the affairs of the Society.
6. PW1 is the respondent. He spoke about his case. P.W.2 is the Branch Manager of the Central Bank of India, Ongole Branch, who succeeded the Branch Manager that gave Ex.A. 11 report. He produced Ex.A. 11 report. DW1 is the appellant. DW2 is the predecessor in office of the appellant and was the President of the Society during the tenure of the appellant as Managing Director of the Society. DW.3 is Managing Director of the Society at the time of the suit.
7. Since the allegations in Ex.A.5 are per se defamatory and since the defence is justification by truth, it is not necessary for the respondent to establish malice on the part of the appellant for claiming damages and in order to escape his liability to pay damages, appellant has to establish that the averments made in Ex.A.5 are true. Respondent, admittedly was not the Managing Director of the Society during the tenure of the appellant. In Para 3 (b) of the plaint respondent specifically alleged that after he came away from the Society, appellant became the President of the Society. That allegation is not denied or disputed by the appellant in his written statement. So, the irregularities alleged against the respondent by the appellant cannot be said to be from his personal knowledge. One of the main allegations against the respondent is that he purchased stocks of fertilizers, etc., from private dealers without buying from Markfed, etc., with a view to enrich himself by taking commission from those private dealers. During cross-examination DW2 (who was the President of the Society during the tenure of the respondent) admitted that there is no Resolution by or Bye-law of the Society that stock should be purchased only from Markfed and should not be purchased from outside agency, and that there is also no resolution by the Board of Directors of the Society that the Managing Director should not purchase stock worth above one lakh in open market, and that he never objected in writing about the respondent purchasing stock from outside and that he did not make any complaint in writing to the superiors of the respondent about the irregularities committed by the respondent and that the Board of Directors did not pass any resolution condemning the irregularities committed by the respondent. DW.3, the successor in the office of respondent, i.e., the Managing Director of the Society from 1986. He produces Exs.X1 to X3 audit reports of the Society for the years 1978-79, 1979-80 and 1980-81, and Exs.X4 to X7, except producing Exs.X1 to X7, he did not state anything.
8. When the superiors of the respondent in the Central Bank of India, reacting on the complaint sent by the appellant, sent a questionnaire to the respondent, respondent sent the original of Ex.A2 notice to the appellant claiming damages alleging that the contents of the complaint are defamatory. Appellant sent Ex.A.4 reply to Ex.A2 sticking to his stand that the averments in the complaint sent by him are true. Appellant as D.W.1 admitted during cross-examination that Shiva Sankar, Branch Manager of Central Bank of India, Ongole, recorded his statement on the basis of the allegations made by him against the respondent. Since Central Bank of India is one of the Nationalised Banks, in my considered opinion, it is an 'official body' within the meaning of Section 74 of Evidence Act and so records of its acts would be 'public documents' within the meaning of Section 74 of Evidence Act. Shiva Sankar, Branch Manager of Central Bank of India, who recorded the statement of appellant, on the basis of the complaint sent by him (appellant) to the Chairman of Central Bank of India, sent Ex.A.11 report. Therefore, Ex.A.11 also is a public document within the meaning of Section 74 of Evidence Act. PW2, the successor in office of Shiva Sankar, produced Ex.A.11 into Court. Therefore Ex.A.11 needs no further proof. Therefore, I am not able to agree with the contention of the learned Counsel for the appellant that Ex.A.11 cannot be taken into consideration for non-examination of Shiva Sankar, who prepared the same.
9. All the allegations made by the appellant against the respondent in his Ex.A.5 complaint (same as Ex.A.10) are found to be false under Ex.A1l report. The specific finding therein is that in order to avoid the respondent, who is a strict officer, being deputed to make scrutiny of credit limits, a false report is sent against him, by giving cogent reasons. He specifically found that respondent purchased some items from private dealers at a rate less than that is being sold by Markfed, and that purchases were made from outside agencies for a very small rate above the rate at which those items were being sold by Markfed, for justifiable reasons and that the respondent did not commit any malpractice and did not make money and did not commit any fraud. He also specifically held that respondent exercised utmost care and caution in disposal of loan applications of the Society in time and that no record was kept pending without sufficient reason. He also found that the remarks of the appellant are objectionable and that he (appellant) desired the things to be done as per his whims and wanted orders sanctioning loans being passed without proper scrutiny of the loan application. Thus Ex.A.11 cuts at the root of the contention of the appellant that the allegations made by him against respondent are true. Except the interested oral evidence of appellant as D.W. 1 and his predecessor in office as D.W.2, who did not even speak to all the allegations levelled against the respondent by the appellant, there is no other evidence on record to show that the allegations leveled against the respondent by appellant are true. Exs.X1 to X7 produced by P.W.3 do not establish the truth of the allegations made against the respondent. The audit reports Exs.X1 to X3 relate to general lapses in the running of the business of the Society, for which not only the respondent but the President and the Board of Directors of the Society and the other officials also have a role to play. Therefore, by taking Exs.X1 to X3 into consideration it cannot be said appellant established that respondent indulged himself in the activities alleged against him by the appellant. Therefore I hold that the appellant failed to establish that the allegations levelled by him against the respondent are true. Since, the said allegations as per se defamatory, since there is communication of his defamatory statements by the appellant, he is bound to pay damages to the respondent.
10. In Ratan Lal and Dhiraj Lal on The Law of Torts, 22nd Edition, 1992, at page 256, it is observed--
"Damages recoverable in an action for defamation will depend upon the nature and character of the libel, the extent of its circulation, the position in life of the parties, and the surrounding circumstances of the case."
"The violation of the defendant's language, the nature of the imputation conveyed, and the fact that the defamation was deliberate and malicious will enhance the damages. Court will consider the fact that the attack was entirely unprovoked, and that the defendant was culpably reckless or grossly negligent in the matter. The defendant's subsequent conduct may aggravate the damages, e.g., if he has refused to listen to any explanation, or to retract the charge he made, or has only tardily published an inadequate apology. Plea of justification if persisted it will tend to aggravate damages."
In J.G.Strake's on Torts, 9th Edition, at page 468 it is observed--
"Precedents in an unsubstantiated plea of justification will lead to higher award of damages."
At page 470 it is observed--
"In assessing the damage to reputation, it is plaintiffs reputation at the time of trial which is in issue where defendant proceeded in the plea of justification".
Salmond and Heuston on the Law of Torts, Twentieth Edition, at page 195 observed--
"...A jury is the constitutional Tribunal for assessing the proper sum to be paid for an attack on the reputation of a fellow-citizen, particularly on one in a public position, such as a politician, and within wide limits its award will not be interfered with by an Appellate Court. All matters relating to the mode of publication, the circumstances of the parties, and the conduct of the defence (e.g., a failure to apologise, or bullying tactics by Counsel) can be considered. If the trial is before a Judge without a jury, it was once thought that the award could be reduced by reason of the fact that the Judge could use his tongue to exonerate the plaintiff or excoriate the defendant, but this is no longer the law. The plaintiff may recover not only the estimated amount of his past and future losses but also, "in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge."
In this case the complaint was sent by the appellant to the Chairman and Branch Manager of Central Bank of India, Ongole, alleging misconduct against the respondent. So, it can be taken that the defamatory statements were known only to the members of the staff of the Bank in which the respondent is working. For that reason and since the evidence of P.W.1 does not show that there was a wide publicity of the defamatory statement made against him, taking into consideration the nature of the charges levelled against the respondent by the appellant, and the appellant's failure to tender apology even after the respondent sent a legal notice, and his persistence of making accusations against the respondent, Rs. 15,000/- would be a reasonable amount of damages to the respondent. Therefore, I hold that respondent is entitled to Rs. 15,000/-as damages from the appellant. The point is answered accordingly.
11. In the result, the Appeal is allowed in part and the appellant is directed to pay Rs. 15,000/- (Rupees fifteen thousand only) as damages to the respondent with interest at 6% per annum from the date of suit till date of payment. Parties are directed to bear their own costs in this Appeal.