Bangalore District Court
Sri. B.S. Paramashivaiah vs Sri. N. Keshava on 11 February, 2015
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL &
SESSIONS JUDGE (CCH :15) AT BENGALURU CITY
DATED THIS THE 14TH DAY OF JULY, 2014
PRESENT:
SHRI.MASTER R.K.G.M.M. MAHASWAMIJI,
M.A., LL.B.,
VIII Additional City Civil & Sessions Judge,
Bengaluru.
ORIGINAL SUIT No. 967/2002
BETWEEN:
PLAINTIFF: SRI. B.S. PARAMASHIVAIAH,
aged about 61 years,
No.1149, 11th main road,
RPC Layout, Vijayanagar East,
Bangalore-560 040.
(By Sri.T.R. Jayakeerthi Advocate)
AND:
DEFENDANT: SRI. N. KESHAVA,
Owner, Publisher, Editor,
Printer,
"VOICE OF OPPRESSED"
An informative weekly from Bangalore,
No.282, BSK 1st stage, 2nd Block,
80 ft. Road, Srinivasanagar,
Bangalore-560 050.
(By Sri.C. Lakshminarayana Rao,
Sri. Shashidhar Belaguma, Advocates)
2
O.S.967/2002
Date of institution of the suit: 08.02.2002
Nature of suit: Declaration, Damages and
for permanent injunction
Date of commencement of 02.09.2008
Recording the evidence:
Date on which the judgment 14.07.2014
Was pronounced:
Total Duration : 12-Years, 05-Months &
06-Days
*****
JUDGMENT
The plaintiff has filed this suit against the defendant praying to declare that the conduct of the defendant in writing, printing, publishing and circulating the baseless defamatory statements in his weekly newspaper "Voice of Oppressed" dtd. 25.11.2001, 02.12.2001 and 16.12.2001 are injurious to the reputation, interest and goodwill of plaintiff and further to direct the defendant to pay a sum of Rs. 1,00,000/- as damages and to tender unconditional apology to publish in his weekly and further to grant an order of permanent injunction restraining the defendant from writing, printing, publishing and circulating any 3 O.S.967/2002 defamatory articles or statements relating to or referable to the plaintiff in the Voice Oppressed weekly with costs.
2. The case of the plaintiff in brief is as under:
It is stated that the plaintiff is the president of the Veerashaiva co-operative Bank ltd., Bangalore and the defendant is a journalist running a news weekly paper in the name and style as "voice of oppressed" from Bangalore and in his weekly dtd. 25.11.2001, 02.12.2001 and 16.12.2001, he had published articles titling 'Exploiting the Veerashaiva name - B.S. Paramashivaiah' - 'The cat among pigeons - Veerashaiva Co-operative Bank - B.S. Paramashivaiah scams', - Thy name is V.C.P. and Veerashaiva Co-operative Bank - who is preventing supercessions? Respectively; the contents of which are defamatory against the plaintiff made without any basis or documents.
In the weekly dtd. 25.11.2001 under the heading - 'Exploiting the Veerashaiva name - B.S. Paramashivaiah - The cat among pigeons' following defamatory writings is made : -
(i) Para No.1 : B.S. Paramashivaiah, a self proclaimed leader of Lingayath's had harmed the Lingayat more than any one.4
O.S.967/2002
(ii) Para No.2: Ever since BSP took control of these institutions, they are on the downward journey.
(iii) Para No.2: The KVVNS has become the hen that lays golden eggs to BSP every day.
(iv) Para 3: As BSP is a powerful man with connections to VVIP politicians, no harm has come to him for all his sins.
(v) Para 4 : The contents of para No.4 is a lump of falsehood without any basis and the statements are highly defamatory
(vi) Para 6 : BSP has provided a job to Patil's sister's daughter Bharathi in Veerashaiva Co-operative Society.
(vii) Para 10: The KVVNS has become a money spinner to BSP.
(viii) Para 11: The SJM complex which is estimated cost of 10 crores is expected to cross 20 crores because of large scale misappropriation by BSP caucus.
5O.S.967/2002
(ix) Para 13: We will be exposing all the dirty deeds to BSP and his caucus one by one.
The plaintiff has denied the said allegations and putforth some factual aspects to justify his acts;
It is further stated that the Bank transaction is carried out between the Bank and customer in the normal course by taking security or mortgaging the properties and advancing the loan to the eligible member of the Bank; but legal business transaction is termed as scams. if any loss is incurred by the society, plaintiff cannot be blamed solely and held responsible.
Further he has stated that S.J.M. Power Complex has been rented out by the institution and not by the plaintiff, by obtaining sanction from the board.
It is further stated that all the allegations are without any documentary proof. The Annual General Body meeting report 1999-00 directed the members to avail loan facility within 3 years from the date of their membership.
The defendant is craze of and in the habit of tagging the controversial defamatory titles to the respectable persons of the society such as - B.S. Paramashivaiah -
6O.S.967/2002 modern 'Bin Laden', 'Doctorate of Fraud', 'Lord of Fraud Empire which are all highly defamatory'.
In the weekly of defendant dtd. 02.12.2001, under the heading - 'B.S. Paramashivaiah - scams, Thy name is VCB - following defamatory statement is made :
i) Para-1 : Under the able leadership of B.S. Paramashivaiah and his caucus who have covered these premier institutions into their personal fiefdom.
ii) Para 2 : After BSP took control, he had enrolled members in a large numbers to continue his hold on the bank.
iii) Para 3 : ..... allowed the money to be misappropriated by BSP caucus.
iv) Para 4 : The multifaceted and multi dimensional scandals of VCB committed by BSP caucus has brought the VCB to the threshold of liquidation.
v) Para 9: The entire FD scam was a result of a conspiracy by B.S. Paramashivaiah, B.R. 7 O.S.967/2002 Sheshadri and Ravishankar to knock out 50 lakhs.
It is pleaded that though the transaction between Veerashaiva Co-operative Bank (VCB) with Jyothirlinga co-operative Bank (JCB) was a legal, the defendant termed it as a scam with malafide intention. The defendant is totally under misconception about JCB and it is not a bogus bank since it is obtained licence from RBI to carry on banking business.
It is further pleaded that the allegations made by the defendant against the plaintiff is nothing but assassination of character and highly defamatory in nature with an intention to defame the goodwill and reputation of plaintiff.
The plaintiff is reputed educationist and social worker and holding the positions of President of Veerashaiva Co-operative Bank; Vice President of Karnataka State Urban Bank Federation; Director of Karnataka Co-operative Consumer Federation; Secretary of Karnataka Pradesh Congress Committee; Director of Veerashaiva Co-operative society, founder Secretary of Sarvajna Educational Institutions; Trustee of 8 O.S.967/2002 Sarpabushana Mutt Trust and President of Karnataka Veerashaiva Vidya Abhiruddi Samsthe, Bangalore.
It is further pleaded that on 07.01.2002, the plaintiff got issued a legal notice calling upon the defendant to pay a damages of Rs.1,00,000/- and for apology; but the defendant did not reply and the defendant in his weekly paper voice of oppressed, published on 13.01.2002, made a article titling - "B.S. Paramashivaiah sends legal notices.
The articles published by the defendant on 25.11.2001, 02.12.2001 and 16.12.2001 are highly defamatory out of ill-will and due to this, the reputation of plaintiff is lowered in the estimation of his friends, society, community and general public.
Hence, the plaintiff is constrained to file this suit for the above reliefs.
3. On receipt of suit summons, the defendant entered appearance through his counsel and filed a written statement contending inter alias under :
The defendant denied all the plaint averments except specifically admitted.9
O.S.967/2002 The defendant admitted that he has published his 'voice of oppressed' - dtd. 25.11.2001, 02.12.2001 and 16.12.2001 about scandals of VCS, VCB and KVVNS;
based on the documentary, circumstantial oral evidence. The plaintiff has not come to the court with clean hands; the plaintiff did not deny entire contents; but he accepts partly and denies some part and silent towards hard hitter truth.
It is contended that defendant paid a role of investigating agency such as police and co-operative department officials meant for enquiring scandals of misappropriation, breach of trust and cheating. These institutions are not the plaintiff's personal properties, he has to act as Trustee instead of beneficiary. The defendant is exposing malpractices, misdeed and acts of the plaintiff. KVVNS is an institution meant for issuing scholarship and loan to poor and needy Veerashaiva students for running free and paid hostels to establish libraries and training schools of art, fine art etc. and no activity is undertaken.
It is further contended that JCB Bank transactions were enquired by JRCS as per Sec.64 of act and gave report against plaintiff and his brother in law, G.M. Sri. B.V. Nagaraja, who played key role in depositing the 10 O.S.967/2002 amount of Rs.50.00 lakh, wherein, then president or Neelakantaiah was under control and guidance of plaintiff and approval was taken under coercion.
Reserve Bank of India cancelled licence of JCB through its order 12.09.2000 and expelling from banking transaction also preventing to receive deposits from public and not to repay amount by way of cheque, DD or in any form. As per this notification the averments made in para 30 of the plaint is not correct.
The Asst. Director Co-op Audit in his notice dated 14.09.2000 vide No.59/DEP/VCB/Summons 1/99-2000 shows penal liability over the bank for its mismanagement.
It is also peculiar that the plaintiff is silent on some aspect published in the newspaper. Such as;
(a) BSP has provided a job to JRCS-Mr. N.M.Patil's Sister's daughter Bharati in VCS. (Para 6 of Annexure-A)
(b) SJM tower in Sheshadri Road has been inaugurated without its actual completion. (Para 9 of Annexure-A) 11 O.S.967/2002
(c) The President of JCB had claimed that the bank has been making steady progress from 1996 and that the bank has a fixed deposit of 35 crore by the end of March99. Interestingly the JCB started functioning only after 22-4-97 when it was registered by ARCS Bijapur vide No.AR-RSR 18998 VOB 97-98. The letterhead of JCB carries this registration number. If BVN had taken a glance at the letterhead, detected that bank was started only in 1997.......a bogus statement (Para 5 of Annexure)
(d) What does the compliance report say? Two different breakup figures were given to the JRCS (UBC) & JRCS (Enq.&Ins) in two compliance reports dated 23.03.2000 & 10.08.2001 regarding the collection of Rs.1,500 from 6659 applicants enrolled as Associate Members.(Para 5 of Annexure E) He further contended that another factor of publication regarding super session of VCB as per Annexure-C. The question of highly defamatory does not arise. Names of any persons who are enimically deposed of towards the plaintiff has not mentioned in the plaint 12 O.S.967/2002 para.(Para 31-32). The plaintiff admitted the contents of the paper "(Annexure C)" as "As far as the super session of the Board of Directors printed by the defendant the contents to some extent are true".
The Annual General Body Meeting which was to be held on 23.09.2001, purposefully postponed with intent to escape the attack of members on bank scandals. Till today, audit report has not been served to its members and to keep them in darkness.
The Joint Registrar of Co-Op. Society (Urban Banking Division) in his show-cause notice No.VBC/2/SSN276/99-2000 has made out many charges like-illegal collection of funds to the tune of 99 lakh & Rs.1500 from each members and instead of Rs.100 and again collecting Rs.3,500 from each members, upto Rs.33,80,600-00 for Jagajyothi Basaveswara Jayanthi Mahotsava, Loka Kalyana Trust etc., running Lokavani paper etc., along with other charges cautioning to supersede the bank as per Sec.30(1) of the Act. Sri. Mahadevappa one of the Directors of VCS complained about illegal collection of funds under different heads as per his petition dated 18.12.2002, for which enquiry was held and reported in No.EIC/APP/40/99-00 dated 27-5-2000 with a direction to repay the excess amount 13 O.S.967/2002 collected from the members except share fee and entry fee.
The members and shareholders of VCB filed a WP in No.28918/2000, seeking appropriate action questioning mismanagement and against the malpractice in the bank, also to disqualify its President .e., plaintiff. It was ordered on 15.10.2001 by the High Court of Karnataka directing the Joint Registrar and Deputy Registrar's of Co-Op. Society to take appropriate action in accordance with law. It is only after enquiry by the departmental officials the scams are considered to be serious and true, the Registrar of Co-Op Society in his show cause notice No.UBC2 SSN27/99-2000 dated 06.04.2002 charging for the misdeeds and acts committed by the plaintiff in the shade of VCB gives a clear picture and support the publications made by the defendant.
It is further contended that on a complaint dated 17.01.2002 by Karnataka Veershaiva Social Organizations Welfare Committee the scams of VCB, VCS, KVVNS alleging cheating, misuse of funds and power by this plaintiff is referred to COD for enquiry vide DGP Office No.Crme/17/BC/02 dated 18.02.2002 and COD Headquarters Office No.8/ Crime/ff/ COD/2002 which is under investigation. Co-Operative Bank Members Welfare 14 O.S.967/2002 Forum ® Bangalore compelled the VCB President to repay amount of Rs.75 lakh loss caused through dealing with JCB vide letter dated 23.03.2002.
The defendant is not aware of the plaintiff status as reputed educationalist, social worker etc. and also office bearer of (b) (e) (g). This plaintiff is a secretary of Karnataka Pradesh Congress Committee, ruling party and by virtue of his political contact threatening the editors of other papers who have raised voice against his scandals. For example O.S.No.4282/2002 filed against Sri.B.C.Mangaladish, Editor of Poura Mata pending before this Hon'ble Court. He also went to the extent of threatening to his life. Commerce Educational Institute Association of Karnataka has resolved that the members present at SGB held on 16.09.2001 moved a no confidence motion against the president of association BSP i.e., plaintiff in view of charges leveled against him as per the enquiry committee report which was adopted unanimously by the SGB.
Earlier the defendant's newspapers has published the scandal of bogus stamp paper now became true which has affected the state and central economy to a tune of Rs.10,000 crores. Likewise it has exposed 250 crore rupees scandal of surcharge of Bangalore City Municipal 15 O.S.967/2002 Councils in Bangalore. The defendant has no personal interest or bias over the affairs of VCS, VCB & KVVNS. Likewise he has no motive or ill-will against the plaintiff and no intention to assassinate the character, reputation etc. The defendant had used his fascinate journalistic language to narrate the scams of the plaintiff in the shade of these institutions.
The defendant has printed some of the documents, official correspondence and enquiry reports n the news paper itself.
To have control over these institutions and for his wrongful gain the plaintiff is making all sort of tactics such as blackmailing, goondaism, groupism threatening to life, using criminal force and filing false cases etc., His intolerant behavior, dictatorship is the main reason to file this case seeking damages, declaration permanent injunction against the defendant and his paper which in turn bring down the voice raised against the biggest, continuous scandals of a community bank in Karnataka also warranting the freedom of press guaranteed under articles.......... of the Constitution of India.
It is true that defendant has received legal notice dated 07.01.2002. He is firmly standing on his wordings 16 O.S.967/2002 and publication, question of paying damages of Rs. 1 lakh or unconditional apology duly publishing in the paper does not arise. It is also true that defendant published the issuance of notice tilting "B.S.Paramashivaiah sends legal notice" calling him to apologies to the community for making heavy lose to premier institutions.
4. Then, the defendant has taken other formal pleas; therefore, defendant prays to dismiss the suit claim with exemplary costs.
5. On the basis of pleadings of the parties, following issues have been framed for consideration and decision :-
ISSUES
1. Whether the plaintiff proves that the defendant published in the Newspaper dtd. 25.11.2001, 02.12.2001 and 16.12.2001, which are injurious to the reputation and goodwill of the plaintiff?
2. Whether plaintiff proves that he is entitled damage of Rs.1,00,000/-?
3. Whether plaintiff proves that the defendant is trying to publish repeated defamatory statements?
4. Whether plaintiff is entitled reliefs as prayed for?
5. What Order or Decree?17
O.S.967/2002
6. The plaintiff in order to prove his case, he got examined himself as P.W.1 and produced the documents and got marked the documents as Ex.P.1 to Ex.P.3 and closed his side.
On the other hand, the defendant did not tender rebuttal evidence by examining himself; but he has got marked 6 documents as Ex.D.1 to D.6.
I heard the arguments and perused oral and documentary evidence on record.
7. My findings on the aforesaid issues are as under:
Issues No.1 - Affirmative Issues No.2 - Partly affirmative Issues No.3 - Affirmative Issues No.4 - Partly affirmative Issues No.5 - As per final order for the following:
REASONS
6. Issue No.1 to 3 : Since these three issues are interlinked to each other, they are taken up together for joint consideration.18
O.S.967/2002 It is a case of plaintiff that he is the person of reputation and held various prestigious posts and the defendant published defamatory articles in his weekly newspaper titled 'Voice of Oppressed', dtd. 25.11.2001, 02.12.2001 and 16.12.2001 and which are injurious to reputation and goodwill of plaintiff and therefore he is entitled for Rs.1,00,000/- damages and further defendant is trying to publish repeated defamatory statements.
The defendant in his written statement justified his acts.
7. Therefore, the burden of proof to prove these issues are on the plaintiff' as per Sec. 101 and 102 of Indian Evidence Act, 1872.
8. In this regard, the plaintiff, in order to establish his case, got examined himself as P.W.1 and got marked 3 documents i.e. newspapers.
9. P.W.1 - Sri. B.S. Paramashivaiah, the plaintiff, he has stated on his affidavit evidence, by reiterating the plaint averments.
On perusal of cross-examination of P.W.1 made by defendant counsel, it is noticed that the members of the Bank had filed writ petition alleging illegalities and 19 O.S.967/2002 irregularities in the Bank and plaintiff had filed a writ appeal and Registrar of Co-operative Societies issued Show Cause Notice to the Bank making 12 charges and the Bank was superseded, after enquiry and an administrator was appointed and the plaintiff was directed not to contest in the Election for the period of 4 years.
10. It is further noticed that as per Ex.D.2, the audit report of Veerashaiva Co-operative Bank, there is mention regarding loss and said Bank was reduced from 'A' Grade to 'C' Grade; the RBI has imposed fine of Rs.5,00,000/- since the relative of Bank Directors were borrowed loans; the paper titled 'Powramatha' had published regarding misappropriation of Bank (Ex.D.6) and there is a defamation suit pending against that paper also.
From the entire cross-examination of P.W.1, it can be said that although, the Bank incurred loss and there is alleged misappropriation, there is no specific case made out against the plaintiff that he is only responsible for that.
11. Now, let me to discuss about the documents relied by the plaintiff in support his case i.e. Ex.P.1 to P.3.
20O.S.967/2002 Ex.P.1 - English weekly newspaper titled as 'Voice Oppressed' dtd. 25.11.2001, on perusal, it is seen that it is written that B.S. Paramashivaiah, a self proclaimed leader of Lingayath's had harmed the lingayat more than any one; Ever since BSP took control of these institutions, they are on the downward journey; The KVVNS has become the hen that lays golden eggs to BSP every day; As BSP is a powerful man with connections to VVIP politicians, no harm has come to him for all his sins; BSP has provided a job to Patil's sister's daughter Bharathi in Veerashaiva Co-operative Society; The KVVNS has become a money spinner to BSP; The SJM complex which is estimated cost of 10 crores is expected to cross 20 crores because of large scale misappropriation by BSP caucus; We will be exposing all the dirty deeds to BSP and his caucus one by one; and further it is seen that under the photo of plaintiff it is written as modern Bin Laden Ex.P.2 - English weekly newspaper titled as 'Voice Oppressed' dtd. 02.12.2001, on perusal, it is seen that it is written that - Under the able leadership of B.S. Paramashivaiah and his caucus who have covered these premier 21 O.S.967/2002 institutions into their personal fiefdom; After BSP took control, he had enrolled members in a large numbers to continue his hold on the bank; ..... allowed the money to be misappropriated by BSP caucus; The multifaceted and multi dimensional scandals of VCB committed by BSP caucus has brought the VCB to the threshold of liquidation; The entire FD scam was a result of a conspiracy by B.S. Paramashivaiah, B.R. Sheshadri and Ravishankar to knock out 50 lakhs.
Ex.P.3 - English weekly newspaper titled as 'Voice Oppressed' dtd. 16.12.2001, on perusal it is seen that it is written as - the Veerashaiva Co-operative Bank lorded by B.S. Paramashivaiah and his caucus has become Epi-centre of unimaginable scams and further under the photo of plaintiff it is written stating that B.S. Paramashivaiah: Lord of Fraud Empire.
From the supra noted documents it is crystal clear that the defendant has made defamatory statement not only against the institution and also the defendant has made allegations against the plaintiff personally, which constitute clear defamation.
22O.S.967/2002 In this instant case, the defendant has not tendered any rebuttal evidence; but got marked 6 documents.
12. Now, I shall proceed to examining the documents relied by the defendant in support of his case i.e. Ex.D.1 to D.6.
Ex.D.1 - Notice of General Body Meeting (Booklet regarding Annual General Body Meeting for the year 2000-01 and 2001-02), wherein Smt. Pista bai has purchased the property mentioned therein from Chinnappa.
Ex.D.2 - Audit Report of Veerashaiva Co-operative Bank Ltd. for the 2001-02, 2002-03 and 2003-04.
Ex.D.3 to D.6 - 'Powramatha' Newspapers (4 in Nos.), said to be published similar allegations by the said paper.
13. On going through the Ex.D.1 to D.6, I find that there is no personal allegations for the loss or misappropriation against the plaintiff and further, as revealed from the cross-examination of P.W.1, a defamatory suit is pending against the newspaper titled 23 O.S.967/2002 'Powramatha' as such above relied documents going to support the contentions of the defendant.
14. Further, the defendant is not led his evidence to substantiate the contents of his written statement; but he has got marked 6 documents as Ex.D.1 to D.6; it is to be noted that mere marking of the document, it is not proof and there is no personal allegations against the plaintiff in the said documents as already noted and the defendant should give his evidence and tender himself and withstanding the cross-examination to believe his words.
15. Then, next question arises to my consideration is that whether said alleged statements, is defamation/libel or not?
(i) At this juncture, in my view, it is necessary to see what is defamation; as per Section 499 of IPC defamation is defined 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, 24 O.S.967/2002 the reputation of such person, is said, except in the cases excepted to defame the person".
As per dictionary meaning of Wharton's Law Lexicon, the defamation is defined as under :
"An intentional false communication, either published or publicly spoken, that injures another's reputation or good name, holding up of a person to reduce, scorn or contempt in a respectable an considerable part of the community; it may be criminal as well as civil, includes both libel and slander."
Defamation, general term for words spoken (slander) or written (libel) to the prejudice of a persons character, in such wise as to support an action by such person against the speaker or writer.
The Act of a defaulter : Embezzlement or misappropriation of public or trust funds :
diminution, abatement, excision of any part of a customary allowance "a cutting off, a diminution by way of deficit.
The defamatory statement is defined in the same dictionary as below :25
O.S.967/2002 A statement which tends to lower a person in the estimation of right thinking members of society, generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or redicule, or to disparage him in his office, profession, calling, trade or business.
Further, in this regard, we have to go through the definition of libel.
Libel is "a publication of false and defamatory statement tending to injure the reputation of another person without lawful justification or excuse. A statement must be expressed in some permanent form eg.: writing, printing, pictures, statue wax work effigy etc."
In order to found an action for libel, it must be proved that statement complained of is -
1. False
2. In writing
3. Defamatory
4. Published Whether any words which are deemed to be defamatory or not, to consider this aspect, we have to look into the following points 26 O.S.967/2002 a. Expose the plaintiff to hatred, contempt, ridicule, or obloquy or b. Tend to injure him in his profession or trade.
c. Cause him to be shunned or avoided by his neighbours.
The test whether the words would "tend to lower the plaintiff in the estimation of right thinking members of society generally".
In applying this test, the statement complained of, has to be read as a whole and words used in it or to be given their natural or ordinary meaning which may be ascribed to them by ordinary men.
Keeping the definition of libel and what words are defamatory and what words are not defamatory in the mind, if I read the whole statements made in Ex.P.1 to P.3, in my view it clearly explicit that the words used are defamatory in nature; because there is clear personal allegations against the plaintiff with regard to his conduct, honesty and integrity.
Although, in the written statement, it is written that there are evidence in proof of said allegations, but the defendant failed to step into witness box, to justify the 27 O.S.967/2002 acts and to defend himself that the alleged statements made is nothing but true.
In absence of justification or defence on the part of the defendant, it is inevitable to infer that the defamatory statement/allegation made are all false.
(ii) In this context, it is profitable to quote the decision reported in AIR 1941 Bombay, Page 278, wherein the Hon'ble High Court of Bombay is clearly observed as under:
"It is not necessary for the plaintiff to prove that words are false. If the words are defamatory they are presumed to be false, and it is for the defendant if he seeks to justify them to prove that they are substantially true. It is not necessary for the plaintiff to prove any malice on the part of the defendant. It is only for the purpose of rebutting the defence of qualified privilege that it becomes necessary to prove express malice in the sense of improper motive on the part of the defendant."
(iii) It is also useful to refer another decision in J. Sudhir Chandra Shekar Vs. Lokaprahash (ILR 2001 28 O.S.967/2002 KAR 4142), wherein it is quoted that "In law of torts by Ramaswamy Iyer at page 228 dealing with Justification", the learned author says that "In a civil action, the defendant has to plead and prove the truth of the defamatory words and not merely his belief in their truth, though honest. If the words are true, he escapes liability however improper his motives may have been. The defendant should take great care before he raises his defence because his failure to prove it would generally aggravate damages."
(iv) In the same decision it is quoted that "In CLERK AND LINDSELL ON TORTS, 14th edition, the learned authors dealing with defamation at page 1664, has stated as hereunder:
The prima facie publication of defamatory matter is a cause of action. The plaintiff must in his pleading, be able to set-out with reasonable certainty, the alleged defamatory words. He must also allege that imputation published is false and it is usual, though not necessary to allege that it is malicious; but the burden of proof of neither of these allegations lies upon him. In fact, no plaintiff was never non suited for failing to prove malice in the first instance and further the law assumes in 29 O.S.967/2002 his favour, the prima facie falsity of statement in question. It is not be assumed that every one is bad character, and therefore, defamation of individual is taken to be false, until it is to be proved.
Further, it is held that the allegations of which, the plaintiff complains may be either statements of facts or matters of comment or interference. The defendant must prove the justification of defamatory matter as alleged, but he need not prove literal truth of every fact, it is enough if he prove the substantially truth of every material fact. Where the charge against the plaintiff is general in its nature, he is entitled to particulars of the facts relied upon in support of the plea of justification. And in such a case, the defendant may give particulars of facts occurring within a reasonable time after the publication of libel with go to show the existence of a tendency or character such as the plaintiff is alleged in the libel to possess, since the law will not allow a man to recover damages for injury to a character he is in fact, not entitled to bear.
It is further held that for the charge of defamation U/Sec. 500 of IPC, when accused invokes the aid of Exception (9) to section 499, good faith and public good have both to be established.30
O.S.967/2002 The publisher of a defamatory statement can only be protected if he shows that he had taken all reasonable precautions and then had a reasonable and well-grounded belief in truth of statement.
16. The above authorities clearly show that if the words published or used are prima facie defamatory in nature, then it should be presumed that it is false. It is for the defendant to prove that it is true.
It is important to note that the plaintiff need not prove any malicious intention on the part of the defendant because it is state of mind or mensrea, it cannot be proved directly by adducing evidence.
For the aforesaid reasons, in the light of ruling, under given facts and circumstances of this instant case, I constrained to hold and record my findings on this Issue No.1 in the affirmative.
17. In so far as issue No.2 regarding entitlement of damage of Rs.1,00,000/- by the plaintiff is concerned, in view of my findings on Issue No.1 that the words published are defamatory in nature and regarding entitlement of damage, 31 O.S.967/2002
(i) In this regard, it is useful to refer a decision in J.Sudhir Chandrashekar -Vs- Lokaprahash reported in ILR 2001 KAR 4142, wherein the Hon'ble High court of Karnataka has held as under:
SUIT FOR DAMAGES FOR DEFAMATION-
Publishing highly defamatory matter in News paper without verifying the truth and opposed to journalistic ethics- plaintiff is entitled to damages -Reversing the decree of the Trial Court. Damage of Rs.25,000/- awarded.
(ii) In the same judgment, it is referred the case in Madhya Pradesh High Court in the case of DONGARSINGH Vs KRISHAN KANT VYAS AND ANOTHER ; dealing with exception 9 to Section 499 has held as under:
(b) In the case of publication of a defamatory matter actual source of information on which the person accused has acted and the justifiability of his so acting ought to be considered. If he has not taken proper care and acted on a gossip and the complainant is thereby defamed he ought not to escape consequences on the ground that he has promptly contradicted the incorrect report.32
O.S.967/2002 It is further held that "In an action for damages for defamation, the defendant who wants to put forward the defence of justification must not only raise the plea in his written statement should prove it strictly by leading evidence that the defamatory remarks about the plaintiff were true. The onus to prove justification always lies on the defendant."
It is further held that in order to establish good faith, it has be shown that the publication had been honestly made in the belief of its truth and also upon reasonable grounds for such a belief, after exercise of such beliefs to verify its truth, as will be taken by a man of ordinary prudence, under like circumstances. The plea of good faith implies the making of a genuine effort to reach the truth, and a mere belief in the truth, without there being reasonable grounds for such a plea is not synonymous with good faith.
It is further held that the grievance of plaintiff unless is prevented from a decree of permanent injunction, he would indulge in further publications against the plaintiff is well founded. The reputation is most valuable asset then money and when these publications have tendency to destroy such reputation, the injury 33 O.S.967/2002 or harm complained of by the plaintiff would be irreparable. The plaintiff made out case for granting injunction.
18. As per supra noted ruling, it is manifestly clear that the journalist or editor or reporter should look into the veracity of truth prior to they publish any matter which amounts to defamatory. If publication of allegation or defamatory statement is defamatory, then plaintiff is undoubtedly entitled for damages.
The next question arises for my consideration is regarding quantum to damages to which plaintiff is entitled to?
Under the given set of facts and circumstances and nature of this case, I am of the considered view that it is just and proper to pay the nominal compensation in the form of damages of Rs.25,000/- instead of Rs.1,00,000/- as claimed; because plaintiff is as admitted facts, he is in a good financial status and better position and the financial condition of the editor may not be good; since it is a weekly paper. Hence I hold and record my findings on Issue No.2 in partly affirmative.
19. In so far as issue No.3 that whether the defendant is trying to publish repeated defamatory 34 O.S.967/2002 statements and granting of permanent injunction is concerned, in view of my findings on Issue No.1 and 2, and Ex.P.1 to P.3 paper publications clearly go to show that the defendant is repeating to publish defamatory statements against the plaintiff.
(i) In this regard, it is useful to refer a decision in A.K.Subbaiah - Vs- B.N.Garudachar reported in ILR 1987 KAR 100, Wherein, the Hon'ble High Court of Karnataka is held that :
(A) SPECIFIC RELIEF ACT, 1963 ( Central Act No.47 of 1963)- Section 38 & 39- Applicability -
Under the guise of exposing corrupt practices, statements per se defamatory not excusable in anticipation of plea of justification or truth - If speech results in or likely to result in injury to another, right to do so is controlled by duty owed to another- Temporary injunction must issue to restrain person from making such speeches.
(B) CONSTITUTION OF INDIA- Article 19(2)- Freedom of Speech and Expression not unfettered to allow defamatory statements injuring reputation based on anticipatory plea of truth and justification.
35O.S.967/2002 The plea of justification would come into picture only after speech is made, but not before. The reputation is most valuable to any person is much more valuable than any amount of money or anything else in the world. The reputation is not susceptible to be measured in terms of money. Therefore, merely because defendant wants to plead truth or justification, it does not mean that he has got an unfettered right to freedom of speech and expression.
It is further held that merely because the law recognises award of damages for defamation does not entitle, any person to make a defamatory statement. The reputation is the most valuable property one can have during his lifetime.
It is further held that the reputation can be compensated by paying damages in terms of money is not easy to accept. If the reputation of a respectable citizen can be measured in terms of money then, it will amount to issue of a licence against a citizen and asking him to take money, as compensation for the injury suffered to his reputation.
It is further held that no doubt, every person in our democratic republic has got a freedom of 36 O.S.967/2002 speech and expression, but however that right is controlled by a corresponding duty which he owes to another. Merely because, the law recognises the truth or justification has a defence, it does not give him a right to speech anything he likes. There is no doubt true that one has got a right to expose corrupt practices found in the society. But there are methods and ways by which one can expose them.
It is further held that merely because he has made references to the statements contending justice Kudoor's enquiry report, it does not mean that he wants to plead justification and truth as a defence. In view of Non denial of the allegations contend in the plaint, it cannot be said that his plea would be one of justification are true.
(ii) It is also profitable to refer a decision in case of RAVISHANKAR V/s. KAILASH NARAYAN AND OTHERS (AIR 1982 MP 47), wherein it is held that "the publication of false and defamatory news in newspaper - injunction - cannot be refused on ground that the reputation can be compensated by paying damages - on the 37 O.S.967/2002 contrary, it will amount to granting license to publish defamatory news against payment of compensation - the Article 19(1) of Constitution does not give free hand to publish defamatory matter under the guise of free expression and freedom of press."
(iii) It is also advantageous to quote a ruling rendered in SMT. KIRAN BEDI AND JINDER SINGH V/S. COMMITTEE OF ENQUIRY (AIR 1989 SC 714), wherein, regarding the importance attached with regard to matter of safeguarding the reputation of a person is emphasized, wherein the words of caution uttered by the Lord Krishna to Arjuna in Bhagvathgeeta is also mentioned as dishonour exceeded the death.
In the same judgment at para-25, it is observed that in F.D. Marion V/s. Davis, 55 AMERICAN LAW REPORTS PAGE 171, it was held "the right to enjoyment of the private reputation, unassailed by malicious slander is of ancient origin and his necessary to women society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to enjoyment of life, liberty and property".
38O.S.967/2002
(iv) It is also lucrative to refer a ruling relied by the common plaintiff counsel reported in AIR 1961 A.P. 190 IN BETWEEN K.V.RAMANIAH V/S SPL PUBLIC PROSECUTOR AIR 161 AP 160, wherein, the Hon'ble Andhra Pradesh High Court has held that "freedom of speech and expression in article 19(1)(a) cannot be taken to mean absolute freedom to say or write whatever a person chooses recklessly without regard to any persons honour and reputation. Indeed, the right has its own natural limitation, The Article 19(2) in this behalf contains safeguards of reasonable restrictions on the exercise of rights".
(v) In NATIONAL SUGAR MILLS LTD. V/S. MUKHERJEE (AIR 1962 CALCUTTA 27), wherein it is held that "in a suit for damages for publication of defamatory article and perpetual injunction, the injunction can be granted restraining publication, when plaintiff has made out prima facie case".
39O.S.967/2002
(vi) It is also gainful to note down a decision in between AJAY AGGARWAL V/S. VINOD MEHTHA, A.K. WARRIER, THE PIONEER LTD. AND STAFF REPORTER (MANU/DE/1785/2002) wherein, it is observed that suit for damages for defamation and mandatory injunction - the plaintiff, an IPS Officer, the defendant, their newspaper publishing a news item captioned "DSP Accused of preventing dowry victims post mortem" - despite the plaintiffs letter protesting, incorrect, unfair, malafide and defamatory reporting and to clarify the position so that things that straightened. The defendants repeated the defamatory report by printing below the plaintiffs letter on editors note reasserting their report was based on court judgment -
Said judgment not saying that post mortem not conducted under the instructions of plaintiff - news item not correctly reported, resulting in defamation of plaintiff and lowering his dignity, prestige and standing in the eye of public - report published not in good faith nor for public good in larger interest of society - suit decreed - plaintiff entitled to general and special damages together with 40 O.S.967/2002 interest and also for mandatory injunction to withdraw said news item as prayed.
In the same judgment it is further held that however, the report published by the defendant gave an impression to the general pubic and was on innuendo as if plaintiff had wrongly presented the P.M. of dead body and court had inducted him for misdemeanour.
In the same judgment at para-15, it is held that there is no room for doubt that in a democratic set-up precise fourth estate and it is its legitimate function to bring to the notice of general public all that happens around and make reports specially in regard to lapses in the administration and misconduct of public servants.
While making a report about the court proceedings or of judicial order, however the press like any other person is under an obligation to ensure that the publication is a substantially true report and is being made in good faith and for public good.
Mere relief of printer/publisher that report is correct could not be a defence unless it is shown that they had acted with due care 41 O.S.967/2002 and caution. A coloured account of judicial proceedings mixed with reporters own observations so as to create on impression as if, those observations were also the observations of the court cannot be protected by the plea of good faith, as in the absence of any motive even it falls short of duty of due care and caution.
(vii) It is also useful to refer a decision in SELVI J. JAYALALITHA AND ANR. V/S. R. RAJAGOPAL ALIAS NAKKIRAN GOPAL AND ANR. (AIR 2006 MADRAS 197) wherein, the Hon'ble High Court of Madras has held as follows :
"CPC Order 39 Rule 1 - temporary injunction - prima facie case against defendants to restrain them from publishing defamatory news item in future i.e. Articles, caricatures, cartoons etc. defamatory or derogatory in nature - news item made in issues were defamatory and reflecting character assassination - defendant has investigating journalist were entitled to make criticism but they had exceeded their limits - right to freedom of speech in Article 19(1) is not an absolute or unfettered right - prima case is made out for granting temporary injunction - plea that plaintiff can seek common law remedy of recovery of damages is untenable.42
O.S.967/2002 In the same decision at para-16, it is observed that as K..G. Gardinar in his rule on the road says "when you walk on the road you are at liberty to revolve your walking stick so long as it does not touch the nose of the other men" applying the same analogy, it is opined that true it is, the defendants as investigating journalists are entitled to make criticism, but without touching reputation and without exceeding limits and bounds made by law, since law would not permit anyone to use his freedom of speech or expression as to injure another reputation or to indulge what may be called character assassination. Apart from that, allowing the defendants to repeat the same would definitely impair the reputation of plaintiffs.
(viii) It is also lucrative to refer a decision in SRI.
MAHESHWAR HYDEL POWER CORPORATION LTD. V/S. CHITROOPA PALIT AND ANOTHER (AIR 2004 BOMBAY 143) wherein, it is held CPC Order 39 Rule 1 and 2 interim relief - sought against defendants from making defamatory statements against company - mere 43 O.S.967/2002 plea of justification by defendants - not sufficient for denial of interim relief - Apart from taking plea of justification, defendants had to show that statements were made bona fide and in public interest - rejection of application for injunction without ascertaining the same liable to be set-aside.
It is further held that under Article 19(1)(a) of Constitution of India, citizen does not have right to make defamatory statement.
In the same decision it is further held that the tenor of use of such expression is highly damaging, the respondents also have not taken reasonable precaution ascertaining the truth before publication, the trial court ignored the settled principles of law regarding grant or refusal of interlocutory injunctions as has been held by the Hon'ble Supreme Court in Wander Ltd. V/s. Antox India (Pvt.) Ltd. (1990 Supp SCC 727).
(ix) It is also worthmentioning to quote another decision relied by learned counsel for common plaintiff in State of Bihar Vs. Lalkrishna Advani and others (AIR 2003 SUPREME COURT 3357), wherein the Hon'ble Apex Court has observed and held as follows :
44O.S.967/2002 Comment, pre-judicial to reputation of person - to be made only after person concerned is given opportunity of hearing -
In the same authority, it is further held that one is entitled to have and preserve, one's reputation and one also has a right to protect it. In discharge of its duties fastened upon it under the law transverses into the realm of personal reputation adversely affecting him, must provide a chance to him to have his say in the matter.
Observations by Commission of Inquiry - Made without giving any chance to a person to explain his conduct - Militate against the reputation of a person - Said person need not wait till certain action is initiated by the Government considering report of Inquiry Commission - It would be open for him to move the court for deletion of such remarks made against him.
From the perusal of supra noted authorities, it is prima facie crystal clear that the expression or words or reference need not be explicit. Even the reference by innuendo also constitute defamation. Reading of allegation or statement in its entirety by the reader in ordinary sense as a ordinary man, if it gives a bad 45 O.S.967/2002 impression, it clearly amounts to defamation; mere plea of good faith or public interest are not acceptable and injunction can be granted.
20. It is significant to note that in this case the defendant has not produced any documents to show that he has made reasonable enquiry with the plaintiff to find out the truthfulness of defamatory allegations and the contention of the defendant that in Ex.D.3 to D.6 also there is similar allegations against the plaintiff and it does not amount to defamation and it is true fact do not hold water, and unacceptable; moreover, if it is presumed that they have written the article on the basis of report, documents etc. it is the duty of defendant to make reasonable enquiry into the truthfulness of contents of report or document by giving an opportunity to the plaintiff. Hence, in my view there is no justification on the part of defendant. Hence, I hold and record my findings on this issue No.3 in affirmative.
21. In this instant case, the defendant is not lead any evidence to substantiate the contentions of written statements. In case of defamation, it is mandatory that the defendant should step into the witness box and depose and withstand the cross-examination.
46O.S.967/2002
(i) In this regard, regarding requirement of defendant to prove the contentions by leading evidence, it is helpful to refer a ruling in Radhakrishen Pratap Singh Vs. H.S. Bates (MANU/UP/0131/1953), wherein, the Hon'ble Allahabad High Court is held as under :
........But it must be remembered that the onus to prove justification always lies on the defendant; he has to lead evidence to prove that defamatory statements made about the plaintiff were true.
(ii) At this juncture, regarding non adducing of defendant evidence, it is relevant to refer a decision in ESHWAR BAI C. PATEL VS. HARIHAR BEHERA reported in AIR 1999 SC 1341, wherein, the Hon'ble Apex Court is held that:
"when a person fails to enter into witness box to state his case on oath, the adverse inference can be drawn as per Sec. 114 of Indian Evidence Act, against such person".
(iii) In this context, it is also profitable to refer another decision in Vidhyadhar Vs. Manikrao and another (1999) 3 Supreme Court Cases 573, wherein the Hon'ble Supreme Court has held that.
47O.S.967/2002
1. Evidence Act, 1872 - S. 114 III. (g) - Presumption - If a party abstains from entering the witness-box, an adverse inference would arise against him.
Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set-up by him is not correct In view of aforesaid reasons, in the light of rulings and under the given set of facts and circumstances of this case, I hold and record my findings on issue No.1 and 3 in affirmative and issue No.2 in partly affirmative.
22. ISSUE NO.4 AND 5: In view of my findings on issue No.1 to 3, for the reasons stated above and observations made in the light of rulings, I am of the considered opinion and inclined to hold that there is sufficient and satisfactory oral and documentary evidence on record to the required civil standard of proof or preponderance of probabilities. It is fit case to grant relief as already held as per law. Accordingly, I answered Issue No.4 in partly affirmative and proceed to pass the following 48 O.S.967/2002 ORDER In the result, therefore this suit filed by the plaintiff against the defendant U/O VII Rule 1 of CPC is hereby partly decreed.
b) Consequently, it is hereby declared that the conduct of the defendant in writing, printing, publishing and circulating defamatory statement in his weekly newspaper 'Voice of Oppressed' dtd. 25.11.2001, 02.12.2001 and 16.12.2001 are injurious to reputation interest and goodwill of plaintiff as prayed.
c) The defendant is hereby held liable and directed to pay a sum of Rs.25,000/- by way of the damages to the plaintiff within 3 (three) months from the date of this order, in default, the plaintiff is entitled for the interest on said damage at rate of 6% per annum, from the date of failure to comply this order until realization of decreed amount.
d) An order of permanent injunction is hereby granted in favour plaintiff against defendant, restraining him from writing, 49 O.S.967/2002 printing publishing, and circulating any defamatory articles/statements relating to or referable to plaintiff in his news weekly 'Voice of oppressed' as prayed.
e) Draw decree accordingly.
(Dictated to the Stenographer, directly over computer, typed matter, corrected and then pronounced by me in open Court on this the 14th day of July, 2014.) (MASTER R.K.G.M.M. MAHASWAMIJI) VIII Additional City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined on behalf of the plaintiff;
P.W.1- B.S. Paramashivaiah List of Documents marked on behalf of the plaintiff:-
Ex.P.1 Relevant portion of "Voice of oppresse d" weekly newspaper dtd.
25.11.2001.
Ex.P.2 Relevant portion of "Voice of oppressed" weekly newspaper dtd.
25.11.2001.
Ex.P.3 Relevant portion of "Voice of oppressed" weekly newspaper dtd.
25.11.2001 50 O.S.967/2002 List of witnesses examined on behalf of the defendant :-
D.W.1 Nil List of Documents marked on behalf of the Defendant:-
Ex.D.1 Notice of General body meeting Ex.D.2 Audit Report of Veerashaiva Co-operative Bank Ltd. for the year 2001-02, 2002-03, 2003-04 Ex.D.3 to 6 Powramatha newspaper (4 in Nos.) VIII Addl. City Civil & Sessions Judge, Bengaluru.
14.07.2014 P-JNS D-CLNR/SB Judgment (The following Judgment is pronounced in the open Court vide separate) ORDER In the result, therefore this suit filed by the plaintiff against the defendant U/O VII Rule 1 of CPC is hereby partly decreed.
b) Consequently, it is hereby declared that the conduct of the defendant in writing, printing, publishing and circulating 52 O.S.967/2002 defamatory statement in his weekly newspaper 'Voice of Oppressed' dtd. 25.11.2001, 02.12.2001 and 16.12.2001 are injurious to reputation interest and goodwill of plaintiff as prayed.
c) The defendant is hereby held liable and directed to pay a sum of Rs.25,000/- by way of the damages to the plaintiff within 3 (three) months from the date of this order, in default, the plaintiff is entitled for the interest on said damage at rate of 6% per annum, from the date of failure to comply this order until realization of decreed amount.
d) An order of permanent injunction is hereby granted in favour plaintiff against defendant, restraining him from writing, printing publishing, and circulating any defamatory articles/statements relating to or referable to plaintiff in his news weekly 'Voice of oppressed' as prayed.
e) Draw decree accordingly.
53 O.S.967/2002 VIII ACC & SJ, Bengaluru.