Karnataka High Court
Smt Vijayalaxmi Shetty vs Mr Kochu Shetty on 11 November, 2020
Equivalent citations: AIRONLINE 2020 KAR 2478, 2021 (1) AKR 705
Author: H.P.Sandesh
Bench: H.P. Sandesh
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL No.1141/2010
BETWEEN:
SMT. VIJAYALAXMI SHETTY,
AGED ABOUT 63 YEARS
D/O LATE SUBBAYYA SHETTY,
R/AT " ANUGRAHA HOUSE",
OLD CONVENT ROAD,
BAJPE, MANGALURU. ... APPELLANT
(BY SRI P.P. HEGDE, ADVOCATE)
AND:
MR. KOCHU SHETTY,
AGED ABOUT 67 YEARS,
S/O LATE A.P. DASU SHETTY,
R/AT GUNDILA HOUSE,
YELINJE VILLAGE,
MANGALORE TALUK. ... RESPONDENT
(BY SRI SAMPATH ANAND SHETTY, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) of
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITTAL
DATED 03.09.2010 PASSED BY THE PRL. S.J. D.K., MANGALURU IN
CRL.A.NO.367/06 ACQUITTING THE RESPONDENT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 500 OF IPC AND
CONFIRM THE ORDER DATED 29.11.2006 PASSED BY JMFC-II
MANGALORE IN C.C.NO.18962/1997.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 04.11.2020, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
2
JUDGMENT
This appeal is filed challenging the judgment dated 03.09.2010 passed in Crl.A.No.367/2006 acquitting the accused for the offence punishable under Section 500 of the Indian Penal Code.
2. The parties are referred to as per their original rankings before the Trial Court as complainant and accused to avoid the confusion and for the convenience of the Court.
3. The factual matrix of the case is that the complainant married the accused on 05.11.1974 and the said marriage was dissolved on 09.08.1978 as per the decree of the Court. It is the allegation of the complainant that after the dissolution of the marriage, the accused had been writing open letters to the complainant containing per se defamatory matters to her residential address as well as official address, wherein the complainant was working and also addressing letters to her colleagues. The said letters, which were written in the open cards have been read by her colleagues. The accused has insulted the womanhood of the complainant describing her as a 'born prostitute' and threatened that he would make publication 3 in all newspapers to that effect. The contents of those letters attribute unchastity to her and per se defamatory. Many of the letters are in the form of open cards sent to her office address and also addressed to her Bank Manager and thereby it has been read by her colleagues and others and defamed the complainant. Hence, the complainant filed the complaint against the accused.
4. The Trial Court after considering both oral and documentary evidence placed on record, vide judgment dated 29.11.2006 found the accused guilty for the offence punishable under Section 500 of IPC and sentenced him to undergo simple imprisonment for a period of one year and also to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for 30 days. However, the accused was acquitted for the offence punishable under Section 504 of IPC.
5. The accused being aggrieved by the judgment of conviction, preferred Crl.A.No.367/2006 before the Appellate Court. The Appellate Court vide judgment dated 03.09.2010 set aside the judgment of the Trial Court. Hence, this present appeal is filed by the complainant/appellant.
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6. The main grounds urged in this appeal is that the learned Sessions Judge has not appreciated the evidence on record and no valid and justifiable reasons are assigned to upset the judgment of conviction. The Appellate Court failed to take note of the fact that the letters written by the accused are in open post cards and some of the letters are addressed to the Manager and staff of the Bank. Moreover, the evidence of the complainant - P.W.1 coupled with evidence of P.W.2 and P.W.3 proves the publication. The well reasoned judgment of conviction passed by the Trial Court has been set aside on the ground that there is nothing on record to show that the contents of those letters were made known to the public. The finding of the learned Sessions Judge in the appeal is factually incorrect. The ingredients of offence under Section 500 of IPC have been proved beyond reasonable doubt. The Trial Court has rightly convicted the accused and the Appellate Court has committed illegality in upsetting the judgment of conviction. It is also contended that acquittal of the accused for the offence punishable under Section 504 of IPC by the Trial Court is also unsustainable. Hence, it requires interference of this Court. 5
7. The learned counsel for the complainant/appellant in his oral arguments vehemently contended that the Appellate Court has committed an error in coming to the conclusion that there is no material with regard to the publication of per se defamatory allegations made in the letters. The counsel would also submit that P.W.4 - handwriting expert has categorically deposed that the documents of Exs.P.1 to 7 are in the handwriting of the accused and has given the report in terms of Exs.P.19 and 20 i.e., the report and certificate of handwriting examination. There is no dispute with regard to the fact that the letters are addressed to the complainant as well as the Bank Manager, wherein the complainant was working. P.W.3 who was working as Manager during the period in which the letters were addressed turned hostile. P.W.3 was won over by the accused and the Appellate Court ought not to have acquitted the accused, which amounts to casuality. The accused has also not led any defence evidence and the Appellate Court committed an error in acquitting the accused even though the accused has not denied Ex.P.4 - open post card, which was sent to the Manager. When the open post card was sent to the Manager, both the Manager and the staff of the Bank would read the contents of it. 6 Hence, the reasoning of the Trial Court that the same was not published, is nothing but committing an illegality in passing the acquittal order. The Court also cannot expect mathematical niceties while appreciating the evidence available on record and addressing the letters to others itself is a publication. The learned counsel would also contend that the very conduct of the accused also shall be taken note of and Exs.P.10 to 14 are written subsequent to the filing of the complaint during the pendency of the complaint and those letters are sent through post in open card.
8. The learned counsel brought to the notice of this Court the definition of Section 499 of IPC, particularly explanation 3 and would contend that the said letters which have been written to the complainant as well as the Bank Manager, are per se defamatory, which diminishes the reputation of the complainant. The learned counsel referring the material available on record and also the reasoning given by the Trial Court would submit that the Trial Court appreciated both oral and documentary evidence placed on record and discussed in detail while forming the opinion that the accused has committed an offence. The approach of the Appellate Court is casual in nature 7 and the reasons assigned are illegal and it requires interference of this Court.
9. The learned counsel for the appellant/complainant in his argument relied upon the judgment of the Hon'ble Apex Court in the case of SUKHWANT SINGH AND OTHERS v. STATE OF PUNJAB reported in (2009) 7 SCC 559 and brought to my notice paragraph No.3 of the judgment, wherein it is held that the reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the Constitution as held in the case of Deepak Bajaj v. State of Maharashtra reported in (2008) 16 SCC 14.
10. The learned counsel relied on the judgment of the Hon'ble Apex Court in the case of SUBRAMANIAN SWAMY v. UNION OF INDIA, MINISTRY OF LAW AND OTHERS reported in (2016) 7 SCC 221 and brought to my notice paragraph Nos.25.1, 46, 47, 48, 52, 53, 168, 169 and 195 of the judgment. Referring these paragraphs, the learned counsel would submit that the Apex Court has discussed in detail regarding the reputation of a person and referred Bhagavad Gita and definition of Section 499 and offence under Section 500 of 8 IPC and the judgments of different countries. The Apex Court in paragraph No.47 of the judgment held that the right to the enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property. In paragraph No.52, the Apex Court has referred to the case of State of Gujarat v. High Court of Gujarat reported in (1998) 7 SCC 392, wherein in paragraph No.99 it is held that an honour which is lost or life which is snuffed out cannot be recompensed.
11. The learned counsel referring paragraph No.168 brought to the notice of this Court that the criminal offence emphasizes on the intention or harm. Section 44 of 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. 9
12. The learned counsel also brought to the notice of this Court paragraph No.169 of the judgment, wherein it is held that it would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged.
13. The learned counsel also brought to the notice of this Court paragraph No.195 of the judgment, wherein it is held that, in that context criminal defamation which is in existence in the form of Sections 499 and 500 of IPC is not a restriction on free speech that can be characterized as disproportionate. 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.
14. The learned counsel for the appellant relied upon the judgment of the Hon'ble Apex Court in the case of R. RAJAGOPAL ALIAS R.R. GOPAL AND ANOTHER v. STATE OF T.N. AND OTHERS reported in (1994) 6 SCC 632 and brought to the notice of this Court paragraph No.26 with regard 10 to Article 21 of the Constitution of India, wherein it is held that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent.
15. The learned counsel also relied upon the judgment of the Hon'ble Apex Court in the case M.C. VERGHESE v. T.J. POONAN AND ANOTHER reported in 1969 (1) SCC 37 and brought to the notice of this Court that the rule that husband and wife are one in the eye of law has not been adopted in its full force under our system of law and certainly not in our criminal jurisprudence. However, it must be remembered that the Indian Penal Code exhaustively codifies the law relating to offences with which it deals and the rules of the common law cannot be resorted to for inventing exemptions which are not expressly enacted.
16. The learned counsel also relied upon the judgment of the Hon'ble Supreme Court in the case of MOHD. ABDULLA KHAN v. PRAKASH K reported in (2018) 1 SCC 615, wherein the Apex Court with regard to offence under Sections 499, 500, 11 501 and 502 of IPC discussed in detail how it constitutes an offence. Difference between making of imputation and publishing the same was explained. Printing or engraving any defamatory material and offering for sale or selling any such printed or engraved defamatory material constitute distinct offences. The learned counsel also brought to my notice paragraph No.10 of the judgment wherein an analysis is made in respect of offence under Section 499 of IPC.
17. The learned counsel also relied upon the judgment of the Madras High Court in the case of J. CHELLIAH v. RAJESWARI reported in 1968 SCC ONLINE MAD 291 and brought to the notice of this Court paragraph No.5 of the judgment, wherein it is held that there cannot be any doubt that describing a woman that she has paramours wherever she goes, is scandalous and will bring down the reputation of the woman concerned to a considerable extent in the eyes of the public. It is, therefore, per se defamatory.
18. The learned counsel also relied upon the judgment of the Bombay High Court in the case of SMT. MADHURI MUKUND CHITNIS v. MUKUND MARTAND CHITNIS AND 12 ANOTHER reported in 1990 SCC ONLINE BOM 410 and brought to the notice of this Court paragraph No.9 of the judgment, wherein it is held that making an allegation against a woman that she is not a spinster and that it was so found after the marriage and that she had actually married the respondent No.1 when her marriage with her first husband was still in subsistence and that she also delivered a child definitely must be considered as defamatory if it is not true and the same amounts to per se defamatory.
19. The learned counsel also relied upon the judgment of Allahabad High Court in the case of RAM NARAIN v. KING- EMPEROR reported in AIR 1924 Allahabad 566, wherein it is held that Explanation 4 of Section 499 of IPC overlooks the fact that a person commits defamation within the meaning of Section 499 of IPC who publishes any imputation concerning any person intending to harm the reputation of that person whether harm is actually caused or not. A person who publishes defamatory matter against another in a case not covered by any of the exceptions cannot escape punishment on the ground that the reputation of the person attacked was so good, or that of the 13 persons attacking so bad, that serious injury to the reputation was not in fact caused.
20. The learned counsel also relied upon the judgment of the Calcutta High Court in the case of BISWANATH BUBNA AND ANOTHER v. THE KING reported in 1949 SCC Online Cal 227 and brought to my notice paragraph No.12, wherein it is held that if one alleges of a person that his wife is a prostitute that would amount to defaming him within the meaning of Section 499 of Penal Code.
21. The learned counsel relied upon the judgment of the Hon'ble Apex Court in the case of of MAGAN BIHARI LAL v. THE STATE OF PUNJAB reported in (1977) 2 SCC 210 with regard to the opinion of the handwriting expert referring to Section 45 of the Indian Evidence Act as to whether the opinion of the handwriting expert be considered as the sole basis of conviction and whether corroboration is necessary and brought to the notice of this Court paragraph No.7 wherein it is held that it is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. It is further 14 held that we need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence, being opinion evidence is by its very nature, weak and infirm and cannot of itself form the basis for a conviction. We must, therefore, try to see whether, in the present case, there is, apart from the evidence of the handwriting expert any other evidence connecting the appellant with the offence.
22. The learned counsel also relied upon the judgment of Hon'ble Apex Court in the case of MURARI LAL v. STATE OF MADHYA PRADESH reported in (1980) 1 SCC 704 and brought to the notice of this Court paragraph Nos.4 and 6 of the judgment, which read as follows:
"4. We will first consider the argument, a stale argument often heard, particularly in criminal courts, that the opinion-evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with the observation that the expert is no accomplice. There is no justification for condemning his opinion-evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it 15 has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses-the quality of credibility or incredibility being one which an expert shares with all other witnesses-, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty 'is to furnish the judge with the necessary scientific criteria for testing 16 the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'.
6. Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person `specially skilled' `in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars which justifies the court in assuming that a handwriting expert's opinion in unworthy of credit unless corroborated. The Evidence Act itself (Section 3) tells us that `a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we set an artificial standard of proof not warranted by the provisions of the Act. Further, under Section 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard 17 being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that Section 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it."
23. In paragraph No.7 of the judgment, the Apex Court has held that apart from principle, let us examine if precedents justify invariable insistence on corroboration and came to a conclusion that the observations made in paragraph Nos.8 and 9 lend no support to any requirement as to corroboration of expert testimony. In paragraph No.10 considering the case of Magan Bihari Lal v. State of Punjab has observed that the extracted 18 passage, undoubtedly, contains some sweeping general observations. But we do not think that the observations were meant to be observations of general application or as laying down any legal principle. It was plainly intended to be a rule of caution and not a rule of law as is clear from the statement it has almost become a rule of law.
Paragraph No.11 of the judgment reads as follows:
"11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystalized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate 19 courts and sentences torn out of context from the judgments of this Court are often flaunted."
24. The learned counsel also relied upon the judgment of the Hon'ble Apex Court in the case of ALAMGIR v. STATE (NCT, DELHI) reported in (2003) 1 SCC 21 regarding opinion of handwriting expert and brought to the notice of this Court that expert opinion can be relied on when supported by other evidence. Though there is no rule of law that without corroboration, the opinion evidence cannot be accepted, but due caution and care should be exercised and it should be accepted after probe and examination.
25. The learned counsel also relied upon the judgment of the Hon'ble Apex Court in the case of IQBAL MOOSA PATEL v. STATE OF GUJARAT reported in (2011) 2 SCC 198 and brought to the notice of this Court paragraph No.23 of the judgment, wherein it is held that the prosecution is required to establish its case beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt.
26. The learned counsel also relied upon the judgment of the Hon'ble Apex Court in the case MOBARIK ALI AHMED v. 20 THE STATE OF BOMBAY reported in AIR 1957 SC 857 and brought to the notice of this Court paragraph No.11 of the judgment, wherein it is held that the proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Sections 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject matter of the chain of correspondence to speak to its authorship.
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27. Having referred all these judgments, the learned counsel for the appellant would submit that the complainant has proved that the letters Exs.P.1 to 7 are written by the accused. Those documents are sent to the handwriting expert and the handwriting expert who has been examined as P.W.4, authoritatively deposed before the Court that the handwriting in S1 to S4, which are letter correspondence of the accused with the officers are examined and based on those admitted handwriting, the expert has given the opinion that Exs.P.1 to 7 are in the handwriting of the accused. Though the complainant has not filed any complaint against the accused in respect of Exs.P.10 to 12, those documents are produced with regard to the conduct of the accused that even after the filing of the complaint also, he has continued to write such letters. The Trial Court has appreciated both oral and documentary evidence placed on record and also the contents of the documents and rightly convicted the accused. The Appellate Court has committed an error in upsetting the judgment of the Trial Court in coming to the conclusion that there was no any publication of the contents of the documents and the approach of the Appellate Court is erroneous in passing illegal order. Hence, it requires 22 interference of this Court in reversing the finding of the Appellate Court by setting aside the order of acquittal and restore the judgment of the Trial Court against the accused.
28. Per contra, the learned counsel for the accused in his argument vehemently contended that the accused has disputed the document Exs.P.1 to 7 that he has not addressed the said letters. The complainant has also not filed any complaint in respect of Exs.P.10 to 12. The learned counsel referring Ex.P.1 would submit that there is no date and signature on Ex.P.1. Ex.P.2 dated 6.2.1997 and Ex.P.3 dated 22.2.1997 do not bear the signature. Ex.P.4 is dated 6.9.1994 which was allegedly addressed to the Manager and the complaint was filed in 1997, almost after three years of the said letter.
29. The Manager, who has been examined as P.W.3 has not supported the case of the complainant and he was treated hostile and cross-examined. The evidence of P.W.3 does not help the case of the prosecution. The learned counsel submits that only on expert opinion, the accused cannot be convicted. The learned counsel also brought to my notice the contents of the documents and would contend that no defamatory allegations 23 are made in Ex.P.4. Ex.P.5 is addressed to residential house of the complainant and Ex.P.6 does not contain date and signature. Ex.P.7 is addressed to the Manager and the staff of the Bank.
30. The learned counsel in his argument vehemently contended that while considering the opinion of the expert under Section 45 of the Evidence Act, and also considering the opinion under Sections 47 and 73, the Court can compare the handwriting and it is evident that there is dissimilarity and it is specific that S3 and S4 are not similar. When there is dissimilarity, the Court cannot accept the evidence of handwriting expert. The handwriting expert in paragraph No.3 of his report has not specified as to which document is having dissimilarity. The accused also disputed S1 to S4 and filed the written statement under Section 313 of Cr.P.C. disputing the same. Inspite of disputing the same, the Trial Court committed an error in relying upon S1 to S4 by comparing the documents and accepting the opinion of handwriting expert.
31. The learned counsel for the accused/respondent relied upon the judgment of the Hon'ble Apex Court in the case of FAKHRUDDIN v. THE STATE OF M.P. reported in AIR 1967 24 SC 1326, wherein it is held that this is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its observation that it is safe to accept the opinion whether of the expert or other witness.
32. The learned counsel relied upon the judgment of the Mysore High Court in the case of RAVJAPPA v. NILAKANTA RAO AND OTHER reported in AIR 1962 Mysore 53 and brought to my notice paragraph No.23 of the judgment regarding dissimilarity in the opinion of handwriting expert, wherein it is observed that the evidence of an expert in handwriting is of little value when it is contradicted by that of another. Where the signature examined by an expert is in a language which he cannot read or write, his opinion is not of much value, and can be used merely as corroborative of other evidence. It is further observed that in examining a disputed document the true test is not the extent of the similarities observed when compared with genuine documents, as forged documents usually are good imitations of genuine documents, but the nature and extent of the dis-similarities noticed. It is 25 these differences which expose the true character of the documents in question.
33. The learned counsel also relied on the judgment of the Hon'ble Apex Court in the case of MAGAN BIHARI LAL v. THE STATE OF PUNJAB reported in 1977 CRI. L.J 711. Referring paragraph No.7 of the judgment, the learned counsel would submit that everyone knows how very unsafe it is to rely upon anyone's opinion concerning the niceties of penmanship- Opinions are necessarily received, and may be valuable, but at best this kind of evidence is a necessary evil. We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence, being opinion evidence, is by its very nature, weak and infirm.
34. The learned counsel relied upon the judgment of the Punjab and Haryana High Court in the case of PIARA SINGH v. JAGTAR SINGH AND ANOTHER reported in AIR 1987 PUNJAB AND HARYANA 93. Referring this judgment, the learned counsel brought to the notice of this Court paragraph No.7 wherein it is held that it is well-settled that the science of 26 handwriting is not a perfect science. Therefore, evidence of a handwriting expert is received with great caution. Moreover, the handwriting expert in the present case admitted that there were variations in the admitted signature and the disputed ones, and that the hand of the writer was not a set hand. In this situation, the statement of a handwriting expert could not be of much assistance.
35. The learned counsel also relied upon the judgment of the Bombay High Court in the case of BHARGAV KUNDALIK SALUNKHE v. STATE OF MAHARASHTRA reported in 1996 CRI.L.J 1228, wherein it is held that the evidence of handwriting expert must be received with great caution when there is consistent dissimilarities in the general features of disputed writing and admitted signature and handwriting opinion of expert that disputed handwriting tallied with specimen handwriting could not be sustained.
36. The learned counsel relied upon the judgment of the Kerala High Court in the case of M.K.USMAN KOYA v. C.S.SANTHA AND ANOTHER reported in AIR 2003 KERALA 191, wherein it is held that comparison of handwriting is an 27 imperfect science and an expert would not be able to state with 100% certainty that a particular signature is that of the person who purportedly signed it. He can only state that there is high probability.
37. The learned counsel relied upon the judgment of this Court in the case of H.N. RAMACHANDRA v. STATE OF KARNATAKA reported in LAWS (KAR) 2016 3 21. Referring paragraph No.15 of the judgment, the learned counsel would contend that the evidence of a handwriting expert is on the lower rank in the hierarchy of expert evidence. It is the dissimilarities which are decisive and not the similarities, while comparing admitted handwriting with the disputed one. The science of calligraphy is not a perfect science and the instances are not rare when even the best handwriting expert had not been able to find out the forgery.
38. The learned counsel referring all these judgments would submit that first of all the complainant has not proved that Ex.P.7 is in the handwriting of the accused. Ex.P.4 - letter addressed to the Bank Manager also has not been proved and the Bank Manager who has been examined as P.W.3 has not 28 supported the case of the prosecution for having received the letter and he turned hostile and his evidence cannot be relied upon. The complainant has also not explained the contents of the documents to show that the contents of the documents are per se defamatory. The complainant has failed to prove the ingredients of Section 499 of IPC. When such being the case, the accused cannot be convicted for the offence punishable under Section 500 of IPC. The Trial Judge has committed an error in accepting the evidence of the complainant inspite there being no incriminating material against the accused and committed an error in holding that the complainant has proved the case. The Appellate Court considered both oral and documentary evidence placed on record in its right perspective and has rightly come to the conclusion that there is no publication of the letter and there is no material before the Court that those documents are published and diminished the reputation of the complainant. The Appellate Court has given the reason while reversing the finding of the Trial Court. Hence, it does not require any interference of this Court and order of acquittal requires to be confirmed.
39. Having heard the arguments of the learned counsel for the complainant/appellant and the learned counsel for the 29 accused/respondent, the points that arise for the consideration of this Court are:
(i) Whether the Appellate Court has committed an error in acquitting the accused for the offence punishable under Section 500 of IPC?
(ii) Whether the Trial Court has committed an error in accepting the evidence of P.W.4 -
handwriting expert and other evidence?
(iii) Whether the judgment of the Trial Court requires to be restored in confirming the judgment of the Trial Court reversing the finding of the Appellate Court, as contended in the appeal?
Point Nos.(i) to (iii):
40. Having heard the arguments of the learned counsel for the complainant and the learned counsel for the accused and also on perusal of the grounds urged in the appeal and the oral arguments of respective counsel, this Court has to re-appreciate the material available on record, since the judgment of the Trial Court and the Appellate Court are divergent findings.
41. Before considering both oral and documentary evidence placed on record in consonance with the contentions 30 raised in the appeal, it is appropriate to extract the provisions of Section 499 of IPC to invoke Section 500 of IPC, which reads as follows:
"499. Defamation.- Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes 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 31 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."
Section 500 of IPC reads 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."
42. Having perused the provisions of Section 499 of IPC and also the penal provisions of Section 500 of IPC, this Court has to analyze the material available on record as to whether the charges leveled against the accused have been proved or not. Considering the material available on record both oral and documentary evidence, this Court would like to make it clear at this stage itself that there were two charges framed against the accused for the offence punishable under Sections 500 and 504 of IPC. The Trial Court acquitted the accused for the offence punishable under Section 504 of IPC in coming to the conclusion that the complainant has failed to prove the charges under Section 504 of IPC. Though the complainant in the present appeal has contended that the acquittal of the accused for the 32 offence punishable under Section 504 of IPC by the Trial Court is unsustainable, no appeal is filed against the order of acquittal of the Trial Court. Hence, the same cannot be entertained before this Court and the said contention of the complainant cannot be looked into in this appeal.
43. Now the question before this Court is whether the acquittal of the accused for the offence punishable under Section 500 of IPC by the Appellate Court, is in accordance with law and whether that order is sustainable in the eye of law. Keeping in view the contentions urged by both the learned counsel for the complainant and the learned counsel for the accused, this Court has to re-appreciate the material on record since divergent findings are available before this Court.
44. Keeping in view the respective contentions, first this Court would like to refer the allegations made in the complaint against the accused. The gist of the complaint is that the complainant was the wife of the accused and their marriage was solemnized in the year 1974 and the said marriage was dissolved in the year 1978. After dissolving of the marriage, both were residing separately. However, it is the contention of the 33 complainant that the accused used to write letters per se defamatory against the complainant and those letters were open letters addressed to the office address of the complainant and also her residential address making insulting allegation in respect of womanhood of the complainant. It is contended that the said letters described the complainant as a 'born prostitute' and also he threatened that he would make publication in all the newspapers to that effect. It is the specific allegation that in the letter dated 6.2.1997 written in two post cards addressed to the complainant an allegation is made about the character of the complainant describing her as having inherited falsehood, cheating and untrustworthiness. In the letter dated 22.2.1997 written in two unbroken post cards to the office address of the complainant, the accused has written that the complainant was a 'born prostitute', who does not understand culture, values of human relationship and described her brother as a 'pimp' and 'funac' and also he has imputed unchastity to the complainant.
45. In the letter dated 6.9.1994 written in a post card, which bears the seal of the office of the accused addressed to the Manager and staff of Syndicate Bank wherein the complainant was working, the accused has questioned the 34 chastity, character and integrity of the complainant. The letter dated 15.7.1996 of Bajpe Post Office and seal dated 13.7.1996 of Darbe Puttur Post Office written in post cards pinned together is addressed to the residential address of the complainant. The letter dated 23.6.1994 written in a sheet of paper is addressed to the Manager and staff of Syndicate Bank describing her as unchastity woman.
46. The Trial Judge having perused the contents of the complaint and also sworn affidavit, took the cognizance and secured the accused and framed the charges against the accused. The accused appeared and denied the charges. Hence, the complainant examined herself as P.W.1 and also examined one witness as P.W.2, who is the complainant witness who spoke with regard to the addressing of the letter and working in the house of the complainant. The Bank Manager is examined as P.W.3 and the handwriting expert is examined as P.W.4 who examined Exs.P.1 to 7, 10 to 14 and S1 to S4. The complainant got marked the documents at Exs.P.1 to 21(a).
47. Now this Court has to examine the evidence available before this Court. First, this Court would like to 35 consider the evidence of the complainant, who has been examined as P.W.1. The complainant in her chief examination has reiterated the contents of the complaint and also got marked the letters dated Nil, 6.2.1997, 22.2.1997 and 6.9.1994 as Exs.P.1 to 4, respectively and the letter bearing the seal of Bajpe Post Office dated 15.7.1996 as Ex.P.5 and another letter in the letter head of the office of the accused as Ex.P.6 and the letter dated 23.6.1994 as Ex.P.7. Among these, Exs.P.1 to 5 are open cards. Ex.P.7 is addressed to the Manager and the staff of the Bank where the complainant was working. Ex.P.8 is the copy of the legal notice sent to the accused and Ex.P.9 is the acknowledgment for having served the notice on the accused. Exs.P.10 to 14 are the open cards alleged to have been written by the accused after filing of the complaint. Exs.P.15 to 18 are the documents which were obtained by this Court from the office of the accused vide letter dated 16.12.2005. Ex.P.19 is the report of the handwriting expert and Ex.P.20 is the certificate of the handwriting expert. Ex.P.21 is a sample seal.
48. P.W.1 was subjected to cross-examination. In the cross-examination, it is elicited that in the year 1993-94 for the first time after the divorce she received the letter from her 36 husband and till then there was no letter correspondence. It is suggested that in the year 1994, the accused has caused the issuance of notice to her through advocate for filing the defamation case and the complainant P.W.1 replies that she does not remember the same. However, she admits that notice was sent on 21.2.1995 through the counsel to her making the allegation of making defamation case against her. P.W.1 says that she received the last letter in April 2001. It is suggested that the accused has not written any per se defamatory letters and the said suggestion was denied. It is elicited that there were 35 staff members in her Bank and she cannot say particularly which staff have read the letter. It is elicited that Ex.P.1 does not contain the signature and name of the author of the said letter. P.W.1 admits that handwriting available on Exs.P.1 and 2 are different and those letters also does not contain the name of the author of the said letter. It is elicited that Ex.P.4 does not contain the signature of the Manager, who received the said letter. The other letters Exs.P.10 to 14 are marked which are written subsequent to the filing of the complaint.
49. In the cross-examination of P.W.1, it is suggested that those letters are created and the same was denied. It is 37 suggested that Exs.P.1 to 7 are in no way concerned to the accused and the said suggestion was denied. Typed copy of those letters are also produced by further examining the complainant. In the further cross-examination, a suggestion was made that Exs.P.10 to 14 are created for the purpose of the case and those documents are in no way concerned to the accused and the said suggestion was denied.
50. P.W.2 - complainant witness in his evidence says that during the year 1996-97 he was working as care taker in the house of the complainant and the postman used to hand over the post card to him and some times he used to throw the said letters in the sit out room of the complainant. He used to hand over the said post card to the complainant after she returned to the house. He has received two open cards from the postman in the name of the complainant and he had gone through the contents of the open card and also informed the same to the complainant having read the open cards and those letters contained defamatory words against the complainant. It is elicited that Ex.P.5 letter was received by him and on going through the letter he started to look down the complainant. 38
51. In the cross-examination of P.W.2, it is elicited that he does not have any documentary evidence such as ration card, election identity card to show that he was residing in any particular house. It is further elicited that he does not remember on which date he has received the letter Ex.P.5. The first letter he received was Ex.P.5 and after three months thereafter he received another letter and he has only read the address of that letter and not its contents. He stayed in the house of the complainant for four months after receipt of Ex.P.5 and he has no records to show that he stayed in the house of the complainant during the year 1996-97. The complainant was not paying any salary to him. He was not looking after the house of the complainant. It is suggested that he is falsely deposing to the effect that he has received Ex.P.5 and read the same, but he claims that one Ramanna, Postman gave Ex.P.5 in his hand.
52. P.W.3 is the retired Bank Manager. In his evidence he says that he was the Manager during 1993 June to 1995 June and there were 30 staff in Moodabidre Branch. He deposes that if any letter is addressed to the Manager, he used to receive the same and if any letter is addressed to the Manager and staff, the same comes to him and after going through the contents, 39 depending upon the nature of the letter, the same will be sent to the concerned staff. He does not remember having received any letter containing anything about the complainant. He does not remember whether he has received any letter particularly addressed to the Manager and staff during his tenure, because of time gap. Ex.P.4 letter showed to him is addressed to the Manager and staff and he says that the same was delivered on 7.9.1994. It is his evidence that the complainant has not come to him and told him that she has received any letter. He does not remember any letters received imputing anything against her. He also does not remember whether he has received Ex.P.4 in the Bank or not. This witness was treated as hostile and cross- examined by the complainant's counsel.
53. A suggestion was made that inspite he has received Ex.P.4, he is deliberately deposing falsely to the effect that he does not remember and the same was denied. He admits that under the letters DESP it is written as Darbe. A question was put to him over the letter DESP it is mentioned as 9.4 and he replied that it is not clear. He says that he does not remember whether Ex.P.4 reached his table or not. He admits that he knows to read and write Kannada language and can read Ex.P.4 which is in 40 Kannada. If such letters are received, first he used to read it and it will be maintained in general file. He admits that now he is leading a retired life. It is elicited that he handed over the letters concerning to the particular staff through attender. In Ex.P.7 the year is written as 1994 and Ex.P.7 contents are in Kannada and he can read it. It is suggested that he is falsely deposing at the instance of the accused in order to help him and the same is denied.
54. P.W.4 is the Assistant Director and Scientific Officer at Forensic Science Laboratory. In his evidence he says that basically he is a science graduate. He is having experience in examining the handwriting and he has examined several documents and given opinion. That on 17.2.2006 he has received the questioned documents from the Court marked as Exs.P.1 to 7 and 10 to 12. Exs.P.1 to 7 and 10 to 12 were to be compared with the admitted standard writings and signatures of the accused. The admitted signatures of the accused were four in number, which were marked as S1 to S4. S1 to S4 are marked as Exs.P.15 to 18 before the Court. It is his evidence that the questioned documents Exs.P.1 to 7, 10 to 12 and S1 to 41 S4 were examined scientifically by using various scientific instruments like magnifiers, micro scopes, video spectral comparator and electro static detection operators. After such scientific investigation of questioned and standard documents, they have noted the significant writing habits in execution of various characters found in questioned and admitted documents, both in Kannada and English language. After comparison of handwriting in question as well as in standard documents, they have found some significant similarities in execution of characters. On the basis of the said significant similarities, they have expressed their opinion and submitted the report to the Court in terms of Ex.P.19. Based on the report Ex.P.19, he has issued a certificate of handwriting examination in terms of Ex.P.20. He identifies his signature as Ex.P.20(a). He was subjected to cross-examination.
55. In the cross-examination he admits that on receipt of Exs.P.1 to 7, 10 to 12 and S1 to S4, which have been received from the Court he had come to the conclusion that S1 to S4 are admitted signatures. It is suggested that at the instance of the complainant, he has mentioned S1 to S4 are admitted signatures and the said suggestion was denied. It is suggested that he has 42 given false report stating that handwriting available at Exs.P.1 to 7, 10 to 12 and S1 to S4 belongs to the same person and the same was denied.
56. The accused has not led any evidence before the Trial Court.
57. Having perused the oral evidence, this Court has to examine the documentary evidence, which have been placed before this Court as Exs.P.1 to 21(a). Exs.P.1 to 4 are the letters written in open post cards. Ex.P.5 is also a open post card connecting two post cards. Ex.P.6 and Ex.P.7 are written in a sheet of paper. Ex.P.8 is the legal notice sent to the accused and Ex.P.9 is the postal card for having delivered the notice against the accused. Exs.P.10 to 12 are the letters dated 12.1.1998, 11.3.1998 and 21.2.1998, which were addressed to the complainant subsequent to the filing of the complaint. Exs.P.13 and 14 are open post cards. Exs.P.15 to 18 are the letters secured from the Court from the department wherein the accused was working which are in both Kannada as well as in English language. Ex.P.19 is the report of P.W.4 handwriting expert. In the report Ex.P.19, P.W.4 stated that he has 43 examined Exs.P.1 to 7, 10 to 12 and S1 to S4. On comparison between the questioned and standard documents, he finds similarities in the formation of characters. On examining the documents, he has opined in terms of Ex.P.19 that similarities are observed between questioned and standards documents which are significant and sufficient to express positive opinion regarding the authorship. Ex.P.20 is the certificate of handwriting examination and in the certificate, it is opined that person who wrote the enclosed standard writing and signature stamped and marked as S1 to S4 also wrote the enclosed questioned writings, similarly stamped and marked Exs.P.1 to 7 and 10 to 12.
58. Keeping in view the contentions of the respective counsel and also the principles laid down in the judgments referred supra, this Court has to analyze whether the imputations made in the letters are written by the accused. This Court has already examined both oral and documentary evidence placed on record and it is the specific charge against the accused that he has dis-reputed the complainant in the eye of general public by writing such letters. As a result, the reputation of the complainant was lowered in the eye of general public. Having 44 perused both oral and documentary evidence placed on record, there is no dispute with regard to the fact that the letters were addressed to the complainant as well as to the Bank Manager and staff. Having perused the contents of the documents Exs.P.1 to 7, particularly which are the documents are based on which the complainant was filed before the Trial Court, a scandalous and the words disreputing the character of the complainant are used in such letters. Ex.P.4 is the letter addressed to the Bank Manager. The main contention of the accused is that he has not written such letters and disputed the documents and also he has disputed the documents of Exs.P.15 to 18, which are referred as S1 to S4 by the expert.
59. The learned counsel for the accused brought to the notice of this Court that in 313 statement, he has filed the written statement before the Trial Court denying that the said document belongs to him. The defence of the accused is total denial of not addressing such letters and also the documents S1 to S4 do not belong to him. It has to be noted that an application was filed before the Trial Court to summon the documents from the department and also to send those documents to the handwriting expert and at the first instance 45 the Trial Court has rejected the said application. Being aggrieved by the said order, a revision petition was filed before the Sessions Court. The said revision petition was allowed and directed the Trial Court to secure the records. Consequently, an order was passed in 2006 summoning those documents and after securing the said documents, Exs.P.15 to 18 written by the accused to the department were secured and those documents were also sent along with the questioned documents Exs.P.1 to 7 and 10 to 12.
60. This Court cannot rely upon Exs.P.10 to 12 to come to a conclusion that the accused has committed an offence, since based on those documents no complaint is filed. It is pointed out by the learned counsel for the complainant that those documents are produced to show the conduct of the accused that even after filing of the complainant also, he used to write such letters. The documents Exs.P.1 to 7 were also sent to the handwriting expert after securing the documents from the department wherein the accused was working and those letters are written by the accused and the same are interse correspondence between him and the department, particularly the accounts department. Though, the counsel disputes the document S1 to S4 does not 46 belong to him, did not dispute the fact that the document was secured from the department wherein the accused was working. The order of the Trial Court securing the records has attained its finality and the same has not been questioned. Hence, the accused now cannot contend that those documents does not belong to him.
61. It is also important to note that P.W.4 handwriting expert in his oral evidence and also in terms of his report in Exs.P.19 and 20 has categorically deposed before the Court that he has adopted the scientific method in examining the questioned documents and also the documents Exs.P.15 to 18. In the cross-examination of P.W.4, it is elicited that he has mentioned Exs.P.15 to 18 as admitted documents, since he has received the documents from the Court. But in the cross- examination of P.W.4, the evidence which he has given before the Court has not been disputed except making the suggestion that he has given the report at the instance of the complainant and those documents does not belongs to the accused. There is no effective cross-examination with regard to the method adopted by the handwriting expert in coming to the conclusion that Exs.P.1 to 7 questioned documents and Exs.P.10 to 12 47 letters written after filing of the complaint and Exs.P.15 to 18 are written by the same person, has not been challenged in the cross-examination. P.W.4 in his evidence categorically deposed before the Trial Court that he has adopted the scientific method in examining the documents i.e., by using various scientific instruments like magnifiers, micro scopes, video spectral comparator and electro static detection operators and his evidence has not been rebutted by the accused except the suggestion. The evidence of P.W.4 is not controverted in the cross-examination. In the cross-examination of P.W.4, the method adopted by P.W.4 in examining the documents is not disputed.
62. Now coming to the legal aspect, there is no doubt that the learned counsel for the accused vehemently contend that the handwriting expert's opinion is a weak piece of evidence. He also cited several judgments and the same has to be considered with due caution. It is further contended that based on the sole evidence of the handwriting expert, the accused cannot be convicted. No doubt, it is settled law that handwriting expert's evidence is one of the factor to be 48 considered while considering the material on record. In the case on hand, the complainant has been examined as P.W.1. There is no dispute between the parties that the complainant and the accused were the husband and wife and the marriage was solemnized in 1974 and the same was dissolved in 1978. It is also emerged in the evidence of P.W.1 that there was no letter correspondence after dissolving of the marriage till 1993-94. It is the specific case of the complainant that the accused started writing letters after 1993-94 making the allegation against the complainant about unchastity. The only dispute before the Court is that the documents are not written by the accused and total denial.
63. The P.W.1 complainant deposed before the Court that she was having acquaintance with the handwriting of the accused, who is none other than her husband. It is also emerged in the evidence that they lived together for some time after the marriage. When such being the case, it cannot be contended that the complainant is not having any acquaintance with the handwriting of the accused. In the case on hand, apart from the evidence of P.W.1 with regard to acquaintance with the handwriting of the accused, P.W.4 - handwriting expert in his 49 evidence has given the specific reason in coming to the conclusion that Exs.P.1 to 7, 15 to 18 are the handwriting of a particular person. This Court has already pointed out that in the cross-examination of handwriting expert, nothing is elicited to disbelieve his evidence.
64. It is the main contention of the learned counsel for the accused that this Court has to take note of the dissimilarities and refer the judgment of this Court regarding dissimilarities is concerned. The said judgment is not applicable to the case on hand for the reason that nothing is elicited in the cross- examination of P.W.4 with regard to dissimilarities. No doubt, the Court has to examine the report of the expert with due care and caution. It is also the contention of the learned counsel for the accused that the evidence of handwriting expert is a weak piece of evidence and in order to come to such a conclusion, particularly in this case, nothing is elicited in the cross- examination of P.W.4. The evidence of P.W.4 has not been challenged and nothing is elicited with regard to dissimilarity. P.W.4 has adopted the scientific method in comparing the signatures. No doubt in the evidence of P.W.1, it is elicited that handwriting in Exs.P.1 and 2 are different. P.W.1 is not an expert 50 and the Court also cannot act as an expert exercising the powers under Section 73 of the Evidence Act to compare the handwriting. However, the Court can look into the documents which are available before the Court and compare the handwriting. The reason has been assigned with regard to the dissimilarity in the document that if the letter is written in fast manner, naturally the handwriting varies. In the case on hand, the handwriting expert by adopting scientific method has come to the conclusion that handwriting belongs to the same person and I have already pointed out that evidence of P.W.4 has not been challenged except making the suggestion. Hence, it is a clear case to accept the evidence of the handwriting expert in addition to the evidence of P.W.1, who was having acquaintance with the handwriting of the accused.
65. Now the question before this Court is whether this Court can consider the evidence of P.W.3, who was the Bank Manager working in the particular Bank, wherein the complainant was working in between 1994 to 1997. The letters are also addressed in between 1994 to 1997. The complainant particularly relies on Exs.P.4 and 7. Ex.P.4 is the postal card and Ex.P.7 is the letter written in the sheet of paper and there is no 51 dispute with regard to the fact that those two letters are addressed to the Bank Manager directly. The handwriting expert in respect of handwriting available on Exs.P.4 and 7, has particularly given the opinion that it is handwriting belonging to a particular person who wrote other documents also.
66. P.W.3 - Bank Manager in his evidence deposed that he does not remember having received any letter containing anything about the complainant, but he does not deny the fact that the complainant was working in the same Branch and categorically admitted that there were 30 persons working and it is his evidence that he does not remember and he has not specifically denied that he has not received such letters. Hence, it is clear that he has not deposed the truthness before the Court and he categorically admits in the cross-examination that if any such letters are addressed to the Manager and staff, the same will be handed over to him and he used to read the said letter and thereafter if it belongs to a particular staff, he used to hand over the same through his attender or otherwise he will keep the letters in the bank records. When such being the evidence elicited and taking note of the fact that he is a retired person, in order to help the accused he gave the evidence. It is not his case 52 that he has not received the said letter, but his evidence is that does not remember and he admits Ex.P.4 is addressed in favour of Bank Manager and so also Ex.P.7.
67. Having taken note of those documents which were addressed to the Bank and also other letters addressed to the complainant that too in a open post card, though evidence of P.W.2 cannot be believed with regard to he has read the contents, the accused was indulged in dis-reputing the reputation of the complainant by addressing open card and also addressing the letter to the Bank. The Trial Court considering both oral and documentary evidence available on record, appreciated the evidence on record. But the Appellate Court has committed an error in coming to the conclusion that there was no material for publication of those letters. The letters are addressed to the Bank and the same was served on the Bank Manager. The letters, particularly Exs.P.4 and 7 bears the seal of the post office and the same was delivered to the Bank. Though P.W.3 denied that he does not remember the same, the contents of the letter Exs.P.1 to 7 are clear that only with an intention to impute the reputation of the complainant, those letters are 53 addressed to the complainant as well as the Bank Manager to lower the dignity of the complainant in the eyes of general public.
68. The principles laid down by the Apex Court in the judgment in the case of Subramanian Swamy (supra) in respect of reputation is concerned, is aptly applicable to the case on hand. The judgment of the Apex Court in the case of Sukhwant Singh (supra) is clear that the reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the Constitution of India as held in the case of Deepak Bajaj v. State of Maharashtra reported in (2008) 16 SCC
14. Making any allegation of unchastity against a woman amounts to bringing down the reputation of the womanhood, as held by the Madras High Court, Bombay High Court, Allahabad High Court and Calcutta High Court.
69. This Court would like to refer to the judgment of the Apex Court in the case of Mohd. Abdulla khan (supra). Paragraph No.10 of the judgment reads as follows:
"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;54
(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 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.
70. The Apex Court in paragraph No.10 of the said judgment referring to provisions of Section 499 of IPC analyzed that to constitute an offence of defamation it requires a person to make some imputation concerning any other person. Such 55 imputation must be made either with intention, knowledge, or having a reason to believe that such an imputation will harm the reputation of a person against whom the imputation is made. It is also observed that imputation could be by words, either spoken or written or by making signs or visible representation and imputation could be either made or published. It is also important to note that in the case on hand, though the same is not published in any paper, the accused made the imputation in the said letters addressing the same to the complainant and the Bank wherein the complainant was working. Hence, the very finding of the Appellate Court that there was no material before the Court for publication cannot be accepted. It is clear that imputation could be either made or published and it is not necessary that there must be a publication and if anything is spoken or written or by making signs with intention, knowledge, having a reason to believe that such an imputation will harm the reputation of the person, that itself is enough to come to the conclusion that the same is made with an intention and knowledge to disrepute the reputation of a person. The Apex Court held that the essence of publication in the context of Section 499 of IPC is the communication of defamatory 56 imputation to persons other than the persons against whom the imputation is made by referring the judgment in the cases of Khima Nand v. Emperor reported in 1936 SCC Online All 307 and Amar Singh v. K.S. Badalia reported in 1964 SCC Online Pat
186. Hence, it is clear that the Appellate Court has committed an error in reversing the finding of the Trial Court in coming to the conclusion that there is no publication. The very approach of the Appellate Court is erroneous.
71. The Court has to look into the contents of the documents available on record and charges leveled against the accused and examine the same whether it inspires the confidence of the Court. The said act indulged in by the accused disrepute the complainant. The Apex Court in the judgment in the case of Mobarik Ali Ahmed (supra) in paragraph No.11 held as follows:
"11. Most of the letters from the appellant relied upon bear what purport to be his signatures. A few of them are admitted by the appellant. There are also a few letters without signatures. Both the complainant and Jasawalla speak to the signatures on the other letters. The objection of the learned counsel for the appellant is that neither of them has actually seen the 57 appellant write any of the letters nor are they shown to have such intimate acquaintance with his correspondence as to enable them to speak to the genuineness of these signatures. Learned trial Judge as well as the learned Judges of the High Court have found that there were sufficient number of admitted or proved letters which might well enable Jasawalla and the complainant to identify the signatures of the appellant in the disputed letters. They also laid stress substantially on the contents of the various letters, in the context of the other letters and telegrams to which they purport to be replies and which form the chain of correspondence as indicating the genuineness of the disputed letters. Learned counsel objected to this approach on a question of proof. We are, however, unable to see any objection. The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Sections 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, 58 some links in which are proved to the satisfaction of the court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender, limited though it may be, as also his knowledge of the subject matter of the chain of correspondence, to speak to its authorship. In an appropriate case the court may also be in a position to judge whether the document constitutes a genuine link in the chain of correspondence and thus to determine its authorship. We are unable, therefore, to say that the approach adopted by the courts below in arriving at the conclusion that the letters are genuine is open to any serious legal objection. The question, if any, can only be as to the adequacy of the material on which the conclusion as to the genuineness of the letters is arrived at. That however is a matter which we cannot permit to be canvassed before us."
72. In the case on hand, it has to be noted that P.W.1 is none other than the wife of the accused and it is her specific case that she was having acquaintance with the handwriting of the accused and both of them lived together for sometime. Apart from the evidence of P.W.1, the evidence of P.W.4 - handwriting expert is clear that he has adopted the scientific method in 59 comparing the signature and though disputed the opinion of the P.W.4, nothing is elicited in the cross-examination of P.W.4 to disbelieve the evidence of handwriting expert. No doubt hand writing expert cannot be the sole basis for convicting a person. In the case on hand, evidence of P.W.1 is clear that she was having acquaintance with the handwriting of the accused and apart from that the evidence of P.W.4 has been unchallenged. On perusal of evidence of P.W.3, it is clear that he is not speaking the truth. It is also clear that the contents of the documents which are addressed was in the knowledge of the accused. Hence, the principles laid down in the judgment of Apex Court in the case of Mobarik Ali Ahmed (supra) is aptly applicable to the case on hand and the same is proved by person who is acquainted with the handwriting of the accused and also those letters are received by P.W.1 through post and the sender is having the knowledge of the subject matter of chain of correspondence and there is a clear link letter to letter making unchastity allegation against the complainant. Hence, it do not find force in the contention of the learned counsel for the accused that the evidence of handwriting expert cannot be believed.
60
73. Having perused both oral and documentary evidence placed on record and also the reasoning of the Trial Court, the Trial Court while coming to the conclusion that the charges has been proved against the accused, in detail discussed the evidence of the prosecution witnesses as well as the contents of the documents. The Appellate Court has committed an error in upsetting the judgment of the Trial Court in coming to the conclusion that there is no publication. This Court has already referred the judgment of the Apex Court in the case of Mohd. Abdulla khan (supra) and particularly referred to paragraph No.10 and has observed that in order to invoke Section 499 of IPC, it is not necessary that it should be published, but if it is gone to the knowledge of any other person other than the complainant, that itself is enough to invoke Section 499 of IPC. Hence, the Appellate Court has committed an error in acquitting the accused for the offence punishable under Section 499 of IPC. Hence, the judgment of the Trial Court has to be restored.
74. In view of the discussions made above, I pass the following:
61
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment of the Appellate Court
dated 03.09.2010 passed in
Crl.A.No.367/2006, is hereby set aside.
(iii) The judgment of the Trial Court dated
29.11.2006 passed in C.C.No.18962/1997, is restored.
(iv) The Trial Court is directed to secure the accused and subject him for sentence.
Sd/-
JUDGE MD