Karnataka High Court
N V Babu vs M K Marattukulam on 24 March, 2020
Equivalent citations: AIRONLINE 2020 KAR 770
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24th DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.2902/2017
BETWEEN :
1. Mr. N.V. Babu
S/o Mr. B.Narayana
Aged about 69 years
Presently residing at
Rathna Complex - IV Floor,
Rathna Avenue, No.143,
Richmond Road,
Bengaluru-560 025.
2. Mr. J.K. Bihani
S/o late H.P.Bihani
Aged about 73 years
Presently residing at No.11A/38,
Cunningham Road
Bengaluru-560 002.
3. Mr. V. Kumar Subramanian
S/o late K.V.Vaidyanathan
Aged about 57 years
Presently residing at No.54,
6th Cross, Cambridge Layout,
Ulsoor, Bengaluru-560 008.
... Petitioners
(By Sri Sampath Kumar B.K., Advocate)
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AND :
Mr. M.K. Marattukulam
S/o late K.T. Marattukulam
Aged about 68 years
Presently residing at Villa-14,
"Prestige Cedar", No.7,
Convent Road, Richmond Town
Bengaluru-560 025.
... Respondent
(By Sri Nitin R., Advocate)
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to call for the records in P.C.R.
No.51234/2014 on the file of the XI Additional Chief
Metropolitan Magistrate, Mayo Hall Unit, Bengaluru City
and quash the entire said proceedings vide Annexure-B
and complaint Annexure-A dated 31.12.2016 initiated by
the respondent and direct the respondent to pay the
costs of these proceedings to the petitioners.
This Criminal Petition having been heard, reserved
on 6.3.2020 and coming on for pronouncement of order
this day, the Court made the following:-
ORDER
This petition is filed by accused Nos.2, 3 and 4
under Section 482 of Cr.P.C. praying to quash the complaint in P.C.R.No.51234/2014, pending on the file of XI Additional CMM Court, Bengaluru for the offences -3- punishable under Sections 499, 500 r/w. Section 34 of IPC.
2. I have heard the learned counsel for the petitioners and the learned counsel appearing for the respondent.
3. The gist of the complaint is that accused No.1-Sri A.P.Velayudhan along with the present petitioners filed O.S.No.25941/2012, wherein at paragraph-10 certain allegations have been made as against the complainant so as to harm his reputation and lower his character, which amounts to nothing but defamatory. It is further stated that the said suit was withdrawn as not pressed. But the allegations which were made have been kept in tact. On the basis of the private complaint, a case has been registered.
4. It is the submission of the learned counsel for the petitioners that the learned Magistrate without application of mind and without perusal of the records -4- has wrongly issued the process as against the petitioners-accused. It is his further submission that the allegations made in the complaint are utterly baseless and false. It is his further submission that the contents of paragraph-10 have not been denied by the complainant and therefore, it will not amount to defamation. It is his further submission that in the General Body Meeting, a Resolution has been passed by an overwhelming majority by the members stating that the members have lost the confidence in its then President Mr.M.K.Marattukulam owing to misuse of his office and transgression of prevailing statutes, systems and procedures and he was directed to be removed from the role of honours. It is his further submission that the averments which have been made in paragraph-10 in O.S.No.25941/2012 are based on the documents and the Resolution. The contents of said paragraph mentioned by the accused persons fall within Ninth Exception to Section 499 of IPC. It is his further submission that whatever the -5- statement which has been made is not a false statement, so as to establish that it is defamatory. It is his further submission that there is no mens rea by the petitioners- accused so as to constitute an offence. In order to substantiate his arguments he has relied upon the decisions in the case of Laxman Jairam Malvankar Vs. Reshma Ramesh Narvekar, reported in LAWS(BOM)- 2012-5-119; in the case of Darusing Durgasing Vs. State of Gujarat Vs. State of Gujarat, reported in LAWS(GJH)-2005-10-55; in the case of Sukhdeo Vithal Pansare Vs. Prabhakar Sukhdeo Pansare reported in LAWS (BOM)-1974-3-5; in the case of G.Janardhana Reddy Vs. A.Narayana Reddy, reported in LAWS (APH)-2009-12-18; and decisions of the Co-ordinate Benches of this Court in the case of Chirashree Das Gupta Vs. Amitabh Das S/o.Late Punyanand Das, reported in LAWS (KAR)-2018-8- 304 and in the case of Ravishankar R.V. Vs. Sainath reported in LAWS (KAR)-2014-4-341. On these -6- grounds, he prayed to allow the petition and to quash the proceedings.
5. Per contra, the learned counsel for the respondent-complainant has vehemently argued and submitted that the contents of paragraph-10 made in the Suit in question are defamatory words as against the complainant and they have been made by the accused in their individual capacity, without there being any basis and the documents, such false allegations have been made which constitutes nothing but a defamation. It is his further submission that the complaint given by a lady about sexual harassment has been subsequently withdrawn without final adjudication. Under such circumstances, the reference made in paragraph-10 in the Suit is without any basis. It is his further submission that the contentions taken up by the petitioners are highly disputed facts and at this stage without holding a trial it cannot be held that the case has not been made out. In order to substantiate his contention, he relied -7- upon a decision of the Hon'ble Apex Court in the case of Balraj Khanna & others Vs. Moti Ram reported in (1971)3 SCC 399. It is his further submission that when the accused-petitioner himself has specifically contended that the said act of the accused falls within the Ninth Exception to Section 499 of IPC, then under such circumstances, the accused have to take exception during the course of trial and it has to be proved as a defence at the time of trial, but not at this premature stage. In order to substantiate the said contention, he has relied upon the decision in the case of M.A.Rumugam Vs. Kittu @ Krishnamoorthy reported in (2009) 1 SCC 101. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
7. It is the specific contention of the complainant that the accused persons filed O.S.No.25941/2012, -8- wherein at paragraph-10 certain allegations have been made by them as against the complainant which constitute a defamatory. Hence, the complainant has filed a private complaint. It is the contention of the petitioners that the said suit was subsequently withdrawn as not pressed and the allegations which have been made are on the basis of the Resolution passed in Annual General Body Meeting. It is his further submission that the said allegations are based on the documents which fall under Ninth Exception to Section 499 of IPC. For the purpose of brevity, I quote Ninth Exception to Section 499 of IPC, which reads as under:-
"Ninth Exception.- Imputation made in good faith by person for protection of his or other's interests.- It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good."-9-
8. As could be seen from the above Exception, it indicates that if any imputation is made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good then it will not constitute an offence. The contents of paragraph-10 mentioned in O.S.No.25941/2012, read as under:-
"10. Plaintiffs submit that the President has misused his office and authority in the Bangalore Club to settle personal scores and has shown scant respect for the Rules and Bye- Laws of the Bangalore Club and above all else, the Laws of the Land. He has resorted to suspension of Members, victimization of applicants for Membership and guests in the Club and indulged in frivolous litigation causing huge financial losses to the Club. He has neglected and rendered non est Resolutions and decisions made by the General Body and former General Committees to subserve his devious ends causing embarrassment to the Club and its Members and heavy financial losses thereby. He has willfully failed to take preventive action against delinquents in the
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Club leading to feelings and sentiments of discontent amongst its Members. He has also been unable to maintain law and order in the Club and to protect its Membership from trespassers and rapists on the prowl. He has indulged in sexual harassment and can truly be characterized a male chauvinist leading to a Complaint being lodged before the Karnataka State Women's Commission against him. He has also abused the process of law and has left the Membership of the Club in disarray, discontent and desperate. At Annexure "B"
hereto the Plaintiffs have produced an open letter dated 12/5/2012 written to the said President Mr.Mathew K.Marattukalam i.e., the First Defendant, by one of the permanent members of the Bangalore Club by name K.Rustumji and the same which substantiates the say of the Plaintiffs hereinabove may kindly be read as part and parcel of this Plaint."
9. It is the contention of the learned counsel for the petitioners that such averments were made based on the documents and the Resolution made in the Annual General Body Meeting. But it is well settled proposition
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of law that if the accused wants to bring his case within the purview of Ninth Exception appended to Section 499 of IPC, it is necessary for him to prove good faith for the protection of the interests of the person making it, or of any other person, or for the public good. It is also well settled proposition of law that the accused who pleads exception, must prove it and the burden of proof would lie on him. Under such circumstances, I am of the considered opinion that at this stage, it is premature to consider the material placed before this Court to arrive at a definite conclusion. This proposition of law has also been laid down in the case of M.A.Rumugam Vs. Kittu @ Krishnamoorthy (cited supra), wherein at paragraphs-15 to 17 it has been observed as under:-
"15. The word "good faith" has been defined in Section 52 of the Penal Code to mean:
"52. 'Good faith'.--Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention."
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16. The complaint petition filed by the respondent herein contained a statement that he was implicated allegedly on the basis of an information received by the appellant from one Namasivayam, son of Rajagopal and Kaliappan, son of Ramu of Naluvedapathi Village that they had damaged nine coconut trees by pouring acid mixed kerosene on the respondent's advice. The aforementioned allegation against the respondent was published in various newspapers viz. Maalai Murusu, Maalai Malar, Dhina Boomi, Dhina Karan, Dhina Malar as well as in some weeklies.
17. On the aforementioned backdrop, he alleged to have been defamed as thereby, "false propaganda among the village people and implication of his name in the complaint against the enemies Kakliappan and Namasivayam besides publishing the same in the dailies and weeklies" was made against him. It was furthermore stated:
"Since there was no basic evidence in the complaint, it was given with the sole intention of defaming the petitioner herein and the complainant did not cooperate for the
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investigation, the case registered in Thalaignayiru Police Station in Crime No. 360 of 2003 could not be proceeded further and the charge-sheet could not be filed. Therefore, the case on the file of the Judicial Magistrate, Tiruthuraipoondi was closed on 7-4-2005. Because of the illegal activities of the respondent, the petitioner complainant herein is unable to make his foreign trips and suffered heavy financial loss and lost his status among his relatives and the people of the village and suffered enormous mental agony."
10. Though the learned counsel for the petitioners- accused by relying upon the decisions of various High Courts and tried to convince that the contents of paragraph-10 in the suit in question have been made in a good faith for the purpose of protection of the interest of the person making it, as rightly held by the Hon'ble Apex Court, the said aspect requires the evidence and the accused must establish that it has been made honestly based upon certain documents which are intended to be relied upon by the petitioners-accused are not conclusive
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proof. It is the contention of the respondent that the said complaint has not reached logical end and the said suit has been withdrawn by the accused before the concerned Court without withdrawing the allegations. In that angle, if the entire material is perused, the matter requires consideration and the petitioners-accused have to bring material to substantiate their contention. In that light, I am of the considered opinion that at this premature stage, it cannot be held that there is no material as against the petitioners-accused so as to quash the proceedings.
In the light of the above discussion held by me, the petition being devoid of merits is liable to be dismissed and accordingly the same is dismissed.
Sd/-
JUDGE *ck/-