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6) The Complainant further submits that the accused has addressed, published and communicated, false, malicious and defamatory statements vide his mail dated 08/10/2012 to various individuals named in the said mail. He also requested Mr. B.B. Chatterjee, the company secretary of the company to confirm receipt of his said mail and circulate to all members of the Board of Directors. The intention of the accused in writing the said mail to various persons is to defame the complainant in the eyes of the recipients and readers of the said mail and portray him as a Judgment Crl. Appeal No.25248/2018 person of careless character and / or a person of unethical professional conduct / behaviors and to harm his reputation among the people known to the compliant and other professionals. The accused also addressed, published circulated and communicated scandalous, defamatory and malicious statements to various individuals who are on the Board of Directors of the Company during the year 2009 and 2010 with the object of making such individuals suspect the professional integrity and competence of the complainant and harm the reputation of the complainant. The statements, claims made by the accused in the aforesaid mail dated 08/10/2012 particularly portions concerning complainant are per se defamatory. The accused has not acted in good faith in making these reckless malicious and defamatory statements. The accused has chosen to make such false, malicious, mischievous and defamatory statements after a period of 2 years after his retirement without any basis or reason but with the objective of unjustly enriching himself. The accused know and has Judgment Crl. Appeal No.25248/2018 reason to know that the allegations made by him in the said mail are not true and they are false the accused has sent such an e mail from his email-id "RAMABADRAN SRINIVASAN" [email protected] to the official email addresses as well as personal email addresses of various individuals for the purpose of causing annoyance, inconvenience, insult, intimidation, enmity, hatred and ill- will.

9) The appellant/accused submits that the impugned judgment and sentence passed by the learned Magistrate is opposed to law, facts and probabilities in the case and the same is liable to be set aside. The learned Magistrate has Judgment Crl. Appeal No.25248/2018 erred in not extending the benefit of provisions of Probation of Offenders Act 1958. Admittedly the appellant is a first time offender and he was not found to have been convicted earlier. Soon after the judgment the learned Magistrate without extending the benefit of U/S 360 Cr.P.C or the benefits of the provisions of Probation of Offenders Act goes to show that the learned Magistrate has passed the impugned judgment mechanically without application of mind. Admittedly the learned Magistrate has found the appellant guilty for offence punishable U/S 500 of IPC and has sentenced him to pay fine only. The appellant further submits that he is a person of no previous conviction against him, then it is prudent on the part of the learned Magistrate to have considered the circumstances and nature of offence and instead of sentencing him to pay fine ought to have released the accused / appellant on probation of good conduct under section 3 and 4 of the Probation of Offenders Act 1958. The learned Magistrate failed to see that the Judgment Crl. Appeal No.25248/2018 evidence of PW.1 and PW.2 contradicts on material points / issues. The accused appellant has himself conducted his case as 'Party in person' and such being the case/ fact, the learned Magistrate's observation that the accused has accepted major points / issues in U/S 313 Cr.PC statement is not correct. Mere admission in U/S 313 Cr.PC statement would not absolve the duty cast upon the complainant / PW.1 to prove his case beyond reasonable doubts. In a case of this type, a weakness in defence also would not absolve PW.1 to prove his case beyond reasonable doubt. The learned Magistrate grossly erred in not appreciating PW1 and PW.2's categorical admission that the "2009 accounts have been retrospectively altered in 2010 i.e., in a year of 'Unusual Auditor Transition', and the same is without any kind of explanatory notes or reasons in the notes of the ITC Ltd., annual report" The learned Magistrate has further erred in not appreciating the clear admissions made by both PW1 and 2 that unlike in ExP7, ExP8 and ExP9 [Annual reports of Hindustan Uniliver Ltd., Britania and Nestle, Judgment Crl. Appeal No.25248/2018 respectively], the word 'RESTATEMENT' or 'REGROUPED" is not shown / reflected in the ITC Ltd., annual reports. The learned Magistrate failed to acknowledge the appellant's contention that as per the generally accepted accounting principles [GAAP] which is commonly followed as accounting rules and standards for Financial Reporting, a 'Re-arrangement of Financial Figures' for purposes of presentation cannot extent to large change in Excise Duties or Taxation or Outward Freight and Handling or Net Income Manufacturing and selling expenses UNLESS such re-arrangement duly explained in the schedule and Notes to the annual reports. The learned Magistrate has not chosen to believe the accused version that apart from he being one of Sr. Management Member, he is also a share older of ITC Ltd., and in his capacity as the share holder of the company he had sent email in question / ExP4 to the Board of Directors of ITC Ltd., who are entrusted with its governance for the benefit of all share holders. The appellant further submits that the excerpts of Judgment Crl. Appeal No.25248/2018 ExP4/E-mail dated 8/10/2012 reads that "It is for you to cross check the facts as a part of supervisory oversight and gauge the lack of transparent disclosure and the misleading impression given to share holders. I am not approaching any other forum as of now" which demonstrably shows that appellant / accused as a whistle-blower and in good faith had addresses ExP4/E-mail to the Board of Directors of the company without any intention to defame or harm PW1s reputation, but to bring matters to the attention of Board of Directors. Appellant further submits that PW1 during his cross examination has admitted that "in ExP4 my E-mail ID was not mentioned. The witness voluntaries that ExP4 was forwarded to me by the company secretary. It is true that in ExP4 at this stage no annexure is found place" From unequivocal admission of PW.1 that ExP4 does not contain the email ID of the complainant/ PW1 and it was sent by the company secretary / PW.2 to PW.1. Hence it cannot be considered that merely as held by the learned Magistrate that the accused / appellant has not disputed or accepted in Judgment Crl. Appeal No.25248/2018 his statement U/S 313 Cr.PC. Further PW2 has denied that ExP4 is the copy of the email forwarded by him to the complainant/PW.1. The PW.1 also admits that the complainant's email address is not found in ExP4. From the admission of PW.1 and PW.2 it cannot be said or proved that ExP4 is alleged to have been directly sent by the accused to PW.1 complainant. The appellant further submits that PW.1 and 2 admitted that ExP4 was sent through email and the same does not contain the email ID of the appellant / accused as sender of the said mail. On the other hand when PW.1 has not claimed the same, it cannot be said that the image / reputation of PW.1 is lowered in the estimation of others. Further PW.1 during cross examination has stated that the ITC Board of Directors satisfied with the explanation given by him in respect of ExP4. When such being the case, the learned Magistrate ought to have inferred that the PW.1's reputation was not harmed / hampered before the company's board of directors to whom the ExP4 was allegedly sent to by the appellant / accused. PW1 has Judgment Crl. Appeal No.25248/2018 categorically admitted that post the alleged email transaction, there being no loss of remuneration or status/ reputation suffered by him. The appellant submits that ExP4 email alleged to have been sent to him by appellant / accused a copy of which was in turn sent by PW.2 to PW.1 that too without any forward note (in the form of derogatory / suspicious character) in the body of PW2's E-mail. The PW.2 further admits that he has not forwarded ExP4 copy to any one else. Hence it is PW.2 as a company Secretary of ITC Ltd., who has sent the same to PW.1, in which circumstances the onus could not have been fixed that ExP4 email was sent by appellant / accused to PW.1 / complainant to defame or to bring disrespect to him and on that account, the accused / appellant's mere acceptance of having sent an early warning email to the Board of Directors in statement U/S 313 Cr.PC statement cannot be held against him. The appellant further submits that ExP4/ email does not contain the indicated 'Attachments' and is truncated/ terminated abruptly. The PW.1 and PW.2 admits that ExP5 and 6 are Judgment Crl. Appeal No.25248/2018 copies without any specific page numbers and that the same are not the consolidated accounts of the company, this very admission shows that ExP5 and ExP6 are only loose pages without any specific page numbers. The PW.2 as Company Secretary has admitted in his cross examination that he has not signed ExP5 or ExP6 and the same did not have anything to do with them being sent to PW.1. Further in the absence of any evidence by Signatory [Deputy Secretary, ITC Ltd.] to ExP5 and ExP6 before the learned Magistrate, on a mere say of PW1 it cannot be accepted that ExP5 and ExP6 are genuine documents and believing the same basing the conviction is bad in law. The appellant further submits that if the evidence of PW.1 and PW.2 are weighed in its right, proper and perspective manner, the reasoning so given by the learned Magistrate holding the appellant guilty of the alleged offences, cannot be sustained. The appellant further submits that in order to convict a person for an offence U/S 500 of IPC one has to prove that accused / appellant with clear intention of malice / mar the reputation of PW1 had Judgment Crl. Appeal No.25248/2018 sent ExP4 / E-mail to PW.1. From the evidence on record it establishes that ExP4 was sent by PW.2 as a company secretary to PW.1, then how can it be drawn / held that the appellant / accused with the intention to defame / and to bring down the PW.1's reputation had sent ExP4. The Learned Magistrate has failed to appreciate that it is the handy work of PW.2 and not that of the appellant / accused. For this reason alone the email ID address of the accused / appellant is not appearing in ExP4 as its sender. The impugned judgment dated 1/12/2018 is silent with no figures although the subject matter of the alleged defamation concerns the accounts of the company. The appellant accused submits that PW.1 and PW.2 are highly interested and partisan witnesses. From their evidences it could easily be held that they were not in good terms with the appellant / accused and they were at longer-heads. Number of proceedings were initiated against accused / appellant apart form he being prematurely retired from the company's service. The learned Magistrate has erred in not discussing Judgment Crl. Appeal No.25248/2018 the evidence on record in its right, proper and prospective spirit. The learned Magistrate has not considered the question as to who has sent the email/ from where it was sent? By whom it was sent? By whom was it received, etc., with these lapses an adverse inference cannot have been drawn that the accused with the intention to defame / disrespect PW.1 had sent ExP4 to the complainant/ PW1. The appellant / accused submits that even if it is held that accused / appellant has sent ExP4, the same was sent to the Directors of the company in good faith and in the larger interest of the share holders of the public Limited company. Hence the appellant's case clearly and beyond any doubt falls within the first and eighth, ninth exception to section 499 IPC. The judgment of conviction and sentence passed by the Learned Magistrate is opposed to law, facts and probabilities of the case. The appellant / accused prays to allow the appeal setting aside the impugned judgment of conviction and sentence dated 01/12/2018 passed by the learned XLIII Additional Chief Metropolitan Magistrate, Judgment Crl. Appeal No.25248/2018 Bangalore in C.C.No.55631/2015 and acquit the appellant / accused for the offence punishable U/S 500 IPC. 

Judgment                           Crl. Appeal No.25248/2018

19)        Further PW.2 B.B. Chaterjee is examined and he

deposed evidence that on 08/10/2012 he was the Executive Vice President and Company Secretary ITC Ltd., The complainant was non Executive Director of ITC Ltd., Company. The accused was the senior manager and member of Corporate Management Committee. Every year the Audit of the company was done by the Auditor and it was approved by Board of Directors and thereafter it was approved by share holders in the Annual General Meeting. Even in the financial year of 2009 and 2010 same procedure in respect of audit was done. No irregularities were found during audit and the same was approved by Board of Directors and Share holders in Annual General Body Meeting in every financial years. The ExP5 and ExP6 are annual audited account pertaining to the year 2009 and 2010. PW2 further deposed that the accused has sent emails to complainant, various persons in the said company and also persons outside the company and to him[PW2] also. The PW.2 deposed that the said email originated from Judgment Crl. Appeal No.25248/2018 [email protected] and extract of said email is at ExP13. After seeing the said email he was alarmed and upset and immediately he has forwarded the email to the complainant on 17/10/2012. He further deposed that in view of allegations made by the accused, he requested the complainant and concerned authorities of the company to re- verify the accounts of the particular year. The PW.2 further deposed that the Corporate Auditors informed him that there was no manipulation of the accounts. The copy of the said email is at ExP14 which bears date 17/10/2012. The PW.2 further deposed that due to said allegation made by the accused the image of the company and image of the complainant, senior managers and all employees of the company was tarnished. The allegation made by the accused is defamatory allegation. The PW.2 further deposed that accused was provided with accommodation when he was working in the company and even after his retirement he has not vacated it. Therefore the company filed case against the Judgment Crl. Appeal No.25248/2018 accused and ExP1 is the copy of the judgment passed in the said case.

23) The complainant/PW.1 marked certified copies of balance sheet of the company at ExP5 dt/31/03/2009 and ExP6 dt.31/03/2010. In ExP4 dated 08/10/2012 it is mentioned that "The 2009 Accents have been retrospectively manipulated in 2010 in a year of unusual Auditor transition, with no explanatory note or reasons given in the schedules." The accused cross examined the complainant PW1 and his witness PW2. A suggestion made by the accused to the said witnesses discloses that the accused admitted regarding sending of emails. In the entire cross examination of PW1 and PW2 the accused has not denied regarding issuance of said email to the PW2, who is he company secretary mentioning about the manipulation of Judgment Crl. Appeal No.25248/2018 the accounts of he company for the year 2009-10. At that time the complainant K. Vaidyanathan, was the Executive Director of the company. The ExP4 is the email addressed to PW.2 discloses regarding allegations made by the accused relating to the company where the complainant as working as Executive Director at that time. But as on 08/10/2012 when EP4 email was sent by the accused to complainant company, he was not employee in the said company and already the accused voluntarily retired from the company in the year 2010. That as per the complainant the accused was provided with residential flat belonging to the company at Chennai when the accused was working in their company which is at Boat Club Road, Chennai and after voluntary retirement of the accused, he has not vacated the said flat and the accused has taken time to vacate the premises and the company also permitted him to stay in the flat till August 2010. But Afterwards also the accused has not vacated the premises. Therefore the company has filed EOCC No.122/2010 before the Additional Chief Metropolitan Judgment Crl. Appeal No.25248/2018 Magistrate (EOI) Egmore, Chennai and in the said case the court pronounced judgment on 28/07/2011 directing the accused to hand over the possession of the property in question namely Flat 2B, Bouganvillae, 5Adyar Club Gate Road, Chennai 28 to the complainant company within 30 days from the date of judgment and in default the accused is ordered to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for 2 months. Before that the complainant ITC Limited filed Crl.O.P.No.9462 of 2011 before the High Court of Judicature at Madras for setting aside the orders passed by the Magistrate Court at Egmore, Chennai allowing a petition moved U/S 311 Cr.PC by the respondent / accused R. Srinivasan seeking examination of certain persons named therein as defence witnesses. Thereafter the High Court of Judicature at Madras vide orders dated 22/06/2011 set aside the orders of Chief Metropolitan Magistrate at Egmore, Chennai dated 09/04/2011 and directed the Magistrate Court to dispose off the proceedings within one month. The accused Srinivasan Judgment Crl. Appeal No.25248/2018 has preferred Special Leave to Appeal (Crl) No.4849/2011 before the Hon'ble Supreme Court of India against the impugned judgment and orders dated 22/06/2011 in Crl OP No.9462/2011 of the High Court of Madras and the Hon'ble Supreme Court upon hearing the counsels dismissed the Special Leave petition on 22/07/2011 filed by the accused R. Srinivasan. The complainant marked orders of the Magistrate Court, Orders of the Hon'ble High Court of Madras and Hon'ble Supreme Court as per ExP1 to ExP3.