Madras High Court
S.R.Nair vs V.Srikumarn Nair on 3 September, 2010
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/09/2010 CORAM THE HONOURABLE MS.JUSTICE R.MALA Criminal Original Petition(MD) No.7079 of 2010 and M.P.(MD) No.1 and 2 of 2010 S.R.Nair .. Petitioner Vs V.Srikumarn Nair .. Respondent Prayer Criminal Original Petition filed under Section 482 of Cr.P.C. to call for the records relating to C.C.No.29 of 2010 on the file of the Judicial Magistrate No.1, Nagercoil, Kanyakumari and quash the same. !For Petitioner ... Mr.G.R.Swaminathan ^For Respondents ... Mr.M.Suri :ORDER
The petitioner approaches this Court with a prayer to call for the records relating to C.C.No.29 of 2010 on the file of the Judicial Magistrate No.1, Nagercoil, Kanyakumari and quash the same.
2. The respondent has filed a complaint under Section 500 I.P.C against the petitioners and one Santhappan Nair alleging the offence under Sections 499, 500 and 34 of the Indian Penal Code stating that the respondent/Complainant is a founder, President of the Kanyakumari District Nairs Service Society and Chairman of Velu Thambi Memorial Education Trust, Nagercoil. The allegation against the petitioner is that he and the second accused in the complaint with the help of the vested interest persons tried to oust the complainant from the post of Presidentship of Kanyakumari District Nair Service Society and the Chairman of VTM Educational Trust from the very beginning. Both the accused with a malafide intention to impute the character of the complainant not only among the community but also in the general public, at large made several attempts to hurt the personality of the complainant. At last, the accused with a malafide intention of tarnishing the image of the complainant and brining down his reputation in the midst of the public and especially among the Nair Community Members, had printed and published a hand bill in Malayalam language purportedly captioned as "Sthithi Vivara Regha" (Tamil Version jw;;Bghija epytuk;) an open letter to the shareholders signed by the accused and circulated to the V.T.M. Educational Trust and among members of Nair community and to the general public at all over Kanyakumari District from 16.06.2009 onwards and thereby, the accused had tarnished the image of the complainant by using veiled and sarcastic comments and slanderous innuendos without having any iota of truth in it. The readers and the witnesses called the complainant and asked about the publication and some of them felt very bad of the act of the accused and hence, he preferred the complainant, which was taken on file in C.C.No.29 of 2010 by the Judicial Magistrate, Kanyakumari.
3.The learned counsel appearing for the petitioner would submit that the petitioner has issued a hand bill dated 06.12.2009 but he has no malafide intention to defame the respondent and he did it in good faith and hence he comes under the purview of Exception 3 of Section 499 I.P.C and hence, he prayed for the quashing of the proceeding in C.C.No.29 of 2010 on the file of the Judicial Magistrate No.1, Nagercoil, stating that he is only the trustee and the respondent is the founder and Chairman of V.T.M.Education Trust, Nagercoil; it is true that he has issued hand bill and circulating the same to the members of the Trust; he has done the same in good faith and he has come under the exception 3 of Section 499 I.P.C and hence, he prayed for the allowing of the application and quashing the criminal complaint against him.
4.The learned counsel appearing for the respondent would contend that the respondent is an advocate; the petitioner has wantonly with a malafide intention to cause imputation in respect of the reputation of the respondent, issued hand bill to the members of the Trust and witnesses have been examined to prove the same. He would cull out the portion of page Nos.20 to 24 of the typed set of papers filed by the petitioner and submit that the petitioner has caused harm to the reputation of the respondent and the prima facie case has been made under Section 499 I.P.C. He would further submit that the exception to be decided only after letting oral and documentary evidence at the time of trial and hence, he prayed for the dismissal of the application. To substantiate his argument, he relied upon the decision of this Court and Apex Court.
5.Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent and perused the materials available on record.
6.Admittedly, the petitioner is one the of the Trustee of Kanyakumari Nairs' Service Association and the complainant is the founder and President of the Kanyakumari District Nair Service Association and the Chairman of Velu Thampi Memorial Educational Trust, Nagercoil. He is the practicing lawyer from the year 1977 onwards in various Courts. They have also established V.T.M. College of Arts and Science of Vilavancode Taluk, in the year 2004-2005 and got it affiliated with Manonmaniam Sundaranar University, Tirunelveli, functioning well with various courses. The allegation in the complaint is that the accused with a malafide intention of tarnishing the image of the complainant and brining down his reputation in the midst of the public and especially among the Nair Community Members, had printed and published a hand bill in Malayalam language purportedly captioned as "Sthithi Vivara Regha" (Tamil Version jw;;Bghija epytuk;) in open letter to the shareholders and the petitioner had tarnished the image of the complainant by using veiled and sarcastic comments and slanderous innuendos without having any iota of truth in it. Hence, the respondent has come forward with the complaint and it was taken on file in C.C.No.29 of 10 by the Judicial Magistrate No.1, Nagercoil.
7.Admittedly, the respondent is founder and President of Kanyakumari District Nair Service Society and the Chairman of V.T.M.Educational Trust, Nagercoil and he is a practicing advocate and notary public from 1977 and a part time professor of Sree Ayyappan College for Woman, Chungankadai from 1894 onwards. The learned counsel appearing for the petitioner would contend that he has issued the hand bill in good faith and hence he is coming under the Exception 3 of Section 499 I.P.C. which reads as follows:
Section 499 I.P.C along with exception 3 which reads as follows:
499.Definition - 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 exepted, to defame that person.
Third Exception : - Conduct of any person touching any public question. - It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
At this juncture, it is appropriate to consider the decision in BulBul Roy Mishra Vs. City Public Prosecutor, Chennai reported in (2006) 1 M.L.J. (Crl.) 578, wherein, this Court has held as follows:
"In order to attract the Ninth Exception to Sec.499, I.P.C., the imputations must be shown to have been made (i) in good faith, and (ii) for the protection of the interest of the person making it or of any other person or for the public good. In the definition of 'good faith' in Sec.52, I.P.C., the insistence is upon the exercise of due care and attention. Recklessness and negligence are ruled out by the very nature of the definition. The standard of care and attention must depend on the circumstances of the individual case, the nature of the imputation, the need and the opportunity for verification, the situation and context in which the imputation was made, the position of the person making the imputation, and a variety of other factors. Good faith, therefore, is a matter for evidence. It is a question of fact to be decided on the particular facts and circumstances of each case. So too is the question whether an imputation was made for the public good. "
So the plea of exception is a matter of trial proceeding, it cannot be decided at the time of quashing the complaint.
In M.Arumugam Vs. Kittu alais Krishnamoorthy reported in (2009) 1 Supreme Court Cases (Cri) 245, wherein, the Apex Court has held as follows:
"18. Allegations made in the said complaint petition, thus, in our opinion, make out a case for proceeding against the appellant under Section 500 of the Penal Code as thereby imputation concerning the respondent had been made intending to harm or knowing or having reason to believe that such imputation would harm his reputation.
19.For the purpose of bringing his case within the purview of the Eighth and the Ninth Exception appended to Section 499 of the Penal Code, it would be necessary for the appellant to prove good faith for the protection of the interests of the person making it or of any other person or for the public good.
20.It is now a well-settled principle of law that those who plead exception must prove it. The burden of proof that his action was bona fide would, thus, be on the appellant alone"
In M.A.Damini Vs. S.K.Sinha and Others reported in 2001 Supreme Court Cases (Cri) 823, wherein, the Apex Court has held as follows:
"Assuming that the imputations made could be covered by Exception 9 of Section 499 I.P.C, several questions still remain to be examined - whether such imputations were made in good faith, in what circumstances, with what intention, etc. All these can be examined on the basis of evidence in the trial."
In John thomas Vs. Dr.K.Jagadeesan reported in 2001 Supreme Court Cases (Cri) 974, wherein, the Apex Court has held as follows:
"10. .... After reading the imputations we have no doubt that they are prima facie libellous. The only effect of an imputation being per se defamatory is that it would relieve the complainant of the burden to establish that the publication of such imputations has lowered him in the estimation of the right- thinking members of the public. However, even if the imputation is not per se defamatory, that by itself would not go to the advantage of the publisher, for, the complaining person can establish on evidence that the publication has in fact amounted to defamation even in spite of the apparent deficiency. So the appellant cannot contend, at this stage, that he is entitled to discharge on the ground that the imputations in the extracted publication were not per se defamatory.
13. ... The collocation of the words "by some persons aggrieved"
definitely indicates that the complainant need not necessarily be the defamed person himself. Whether the complainant has reason to feel hurt on account of the publication is a matter to be determined by the court depending upon the facts of each case."
8.Considering the above said citations, even though the petitioner has fairly conceded that he has issued the hand bill in good faith, and hence he comes under the purview of exception 3 of Section 499 I.P.C., since the same is a question of fact, I am of the opinion that as per the decision rendered in M.Arumugam Vs. Kittu alais Krishnamoorthy reported in (2009) 1 Supreme Court Cases (Cri) 245, it is a well-settled principle of law that those who plead exception must prove it, the burden of proof that his action was bonafide would, thus, be on the petitioner alone and the same can be decided only after letting oral and documentary evidence at the time of trial and hence while considering the decisions referred to above, I am of the view that the petitioner is not entitled to quash the proceeding against him and I find no merits in this application and the same deserves to be dismissed.
9.Accordingly, this criminal original petition is dismissed. Consequently, connected miscellaneous petitions are also dismissed.
arul To
1.The Judicial Magistrate No.I, Nagercoil.