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Mahesh Kamat Vs. S. Vallabhdas Vishundas - Court Judgment

LegalCrystal Citation
CourtMumbai Goa High Court
Decided On
Case NumberCriminal Appeal N0.51 of 2009
Judge
AppellantMahesh Kamat
RespondentS. Vallabhdas Vishundas
Excerpt:
heard mr. menezes, learned counsel for the appellant and mr. coutinho, learned counsel for the respondent. 2. by this appeal, the appellant who is the 2 complainant in criminal case no.71/p/1998/d before the judicial magistrate, first class, margao takes exception to thejudgment and order of acquittal dated 16/12/2008 passed by learned judicial magistrate, first class, margao acquitting the respondent/ accused of the offence punishable under section 500 of i.p.c. 3. the parties shall hereinafter be referred to as per their status before learned magistrate. 4. the complainant who was employed with kadamba transport corporation as deputy finance controller filed the above criminal case against the accused for having committed offence of defamation punishable under section 500 of i.p.c......
Judgment:

Heard Mr. Menezes, learned Counsel for the appellant and Mr. Coutinho, learned Counsel for the respondent.

2. By this appeal, the appellant who is the 2 complainant in Criminal Case No.71/P/1998/D before the Judicial Magistrate, First Class, Margao takes exception to

thejudgment and order of acquittal dated 16/12/2008 passed by learned Judicial Magistrate, First Class, Margao acquitting the respondent/ accused of the offence punishable under Section 500 of I.P.C.

3. The parties shall hereinafter be referred to as per their status before learned Magistrate.

4. The complainant who was employed with Kadamba Transport Corporation as Deputy Finance Controller filed the above criminal case against the accused for having committed offence of defamation punishable under Section 500 of I.P.C. According to the complainant, on 27/03/1996, the accused lodged report with Porvorim Police Station which was registered under Crime No.28/1996 under Sections 419, 420, 468 of I.P.C. against the complainant. In the said report, the accused falsely alleged that the complainant in connivance with M/s. Sai Service, Porvorim wrote authority letter in the name of the complainant and by forging his signature presented the booking papers to M/s. Sai service and got the vehicle booked by the complainant 3 delivered to one Alirio Saldanha. Pursuant to the said report, on 31/10/1996, the complainant was arrested, but was released on the same day by the Court of Judicial Magistrate, First Class, Mapusa. Thereafter, the accused released press reports to the newspapers and the offences allegedly committed by the complainant, were highlighted in English daily 'Herald' dated 29/03/1996 and Marathi daily 'Gomantak' dated 29/03/1996 by publishing the news report. It was the stand of the complainant that the report lodged by the accused was investigated by the police and ultimately 'C' summary was filed. According to the complainant, the accused knowingly and with intent to defame the complainant, had lodged a false report with the Porvorim Police Station on 27/03/1996 and thereby committed offence of defamation.

5. After verification, learned Magistrate by order dated 11/08/1998 issued process against the accused holding that prima facie offence punishable under Section 500 of I.P.C. was made out. However, in the said order issuing process, reference was only made to publication of reports in 'Herald' and 'Gomantak' daily newspapers which were defamatory qua the complainant.

6. In Criminal Case No.71/98/D, the complainant examined following eight witnesses :

(i) PW1-Mahesh Kamat, the complainant.

(ii) PW2-Suresh G Poi Angle.

(iii) PW3-Ulhas Kerkar.

(iv) PW4-Suresh Pai Fondekar.

(v) PW5-N. M. Poi Kundekar.

(vi) PW6-Pramod Gaonkar.

(vii) PW7-Sanjay Ghate.

(viii) PW8-Prakash Gaunekar.

7. The statement of the accused under Section 313 of Cr.P.C. was recorded and the accused led defence evidence by examining four witnesses namely, DW1-Serafino Dias, DW2-Ajit Bapat, DW3-Anand Shirwaikar and DW4- P. Venugopala Rao. Both the parties also led documentary evidence.

8. Perusal of the statement of the accused under Section 313 of Cr.P.C. discloses that the accused did not dispute lodging of the report at Porvorim Police Station and also the fact that news reports were published in 'Herald' and 'Gomantak' daily newspapers. It also appears from the statement of accused under Section 313 of Cr.P.C. that the defence of the accused was that the news items published in the newspapers were true.

9. Learned Magistrate, upon appreciation of the evidence led by the parties, held that having regard to the case of the complainant and the accused, ninth and partly tenth exceptions to Section 499 of I.P.C. were attracted. Learned Magistrate further held that there was no mensrea on the part of the accused and it was not proved by the complainant that the accused intended to defame the complainant. Learned Magistrate also made reference to the oral and documentary evidence led by the complainant and the accused. Learned Magistrate further held that handwriting on the booking docket was that of the complainant and the involvement of the complainant stood fortified by the evidence of DW2-Ajit Bapat. Learned Magistrate further held that the case of the complainant that the accused had falsely implicated the complainant after taking delivery of the van, does not hold good and the involvement of the accused was also established. Learned Magistrate further held that the materials on record established that the accused believed that the complainant was involved in taking delivery of the car booked by him. Learned Magistrate further held that there was no material placed on record to show that as to what role the accused had played in publication of defamatory reports in the newspapers. Learned Magistrate further held that the accused had in good faith reported the incident to the police and therefore, the reports might have been published in newspapers and the role of the accused in doing so, was not established. Lastly, learned Magistrate held that the complainant had failed to prove the motive and mensrea on the part of the accused. With these findings, learned Magistrate acquitted the accused for the offence punishable under Section 500 of I.P.C.

10. Mr. Menezes, learned Counsel appearing for the complainant submitted that the findings recorded by learned Magistrate are totally perverse and learned Magistrate has wrongly held that ninth and partly tenth exceptions are attracted in the present case. According to learned Counsel, tenth exception is not at all attracted in the present case, having regard to the defence taken by the accused. On the contrary, the accused inter alia had taken defence of truth and as such, the accused had to prove that the case is covered by first exception which has neither been proved by the accused nor has been considered by learned Magistrate. Learned Counsel further submitted that the accused did not dispute lodging of the report with Porvorim Police Station, pursuant to which the complainant was arrested and also that defamatory articles were published in two daily newspapers i.e. 'Herald' and 'Gomantak'. According to learned Counsel, the accused had not proved that the allegations made by him in the report lodged at Police Station were true or that they were made in good faith for public good. Learned Counsel took me through relevant evidence and submitted that the accused has not discharged the burden of proving that the case is covered by first and ninth exceptions to Section 499 of I.P.C. In support of his submissions, learned Counsel relied upon the following judgments :

(i) SukraMahto Vs. Basudeo Kumar Mahto and another; 1971 STPL (LE) 5651 SC

(ii) TrichinopolyRamaswamy Ardhanani, Bombay and others Vs. Kripa Shanker Bhargava, non8 applicant; 1990 STPL (LE-Crim) 11844 MP (iii) Unreported judgment in the case of Shri Sopullo Datta Naik Dessai Vs. Shri Yeshwant Govind Dessai and another; Criminal Appeal No.28/2007 dated 10/09/2009.

11. Per contra, Mr. Coutinho, learned Counsel appearing for the accused fairly conceded that learned Magistrate was not justified in holding that partly tenth exception was attracted in the present case. According to learned Counsel, although the complaint was filed alleging defamation by filing false report and thereafter getting defamatory articles published in two daily newspapers, having regard to the order passed issuing process against the accused by learned Magistrate, it is evident that learned Magistrate issued process against the accused only on the ground of publication of defamatory reports in two daily newspapers and no evidence has been led by the complainant to show that the accused was responsible for publishing the said reports. According to learned Counsel, learned Magistrate having not issued process against the accused for lodging false report which is per se defamatory, the accused cannot be held liable for the offence punishable under Section 500 of I.P.C. for lodging report which according to the complainant, is defamatory. Learned Counsel further submitted that although in his statement under Section 313 of Cr.P.C. the accused has admitted that he has lodged report, in the absence of any finding in the order issuing process that offence punishable under Section 500 of I.P.C. was made out against the accused on account of lodging of false defamatory report, the accused cannot be convicted for lodging the report which according to the complainant, is defamatory. According to learned Counsel, the evidence led by the accused clearly establishes the involvement of the accused in the delivery of the vehicle to Mr. Alirio Saldanha and as such, by no stretch of imagination, it can be held that the offence punishable under Section 500 of I.P.C. has been proved beyond reasonable doubt against the accused. Learned Counsel further submitted that in the absence of specific finding in the order issuing process that the process was issued for lodging false defamatory report, the accused cannot be held guilty for the offence of defamation punishable under Section 500 of I.P.C. According to learned Counsel, voluminous evidence led by the complainant and evidence led by the accused in defence clearly establishes that no offence punishable under Section 500 of I.P.C. is made out against the accused. According to learned Counsel, the particulars and the manner in which the accused had committed offence of defamation, were not put to the accused and as such, the same is not sufficient to hold the accused guilty of the offence of defamation. Learned Counsel further submitted that it is well settled that unless the order passed by learned Magistrate is perverse, this Court would not interfere in the order of acquittal passed by learned Magistrate. Learned Counsel lastly submitted that no offence punishable under Section 500 of I.P.C. is made out against the accused and, therefore, the appeal deserves to be dismissed. In support of his submissions, Mr. Coutinho relied upon the following judgments :

(i) GanpatramDinaram Agarwal Vs. Rambai w/o Bechharam; AIR 1950 Bom 20.

(ii) State of Kerala Vs.Raman Nair; AIR 1962 Ker 78.

(iii) MulkrajBodhraj Chabra Vs. Nagpur Municipal Corporation, Nagpur; AIR 1965 Bom 30.

(iv) HarbhajanSingh Vs. State of Punjab; AIR 1966 SC 97.

(v) State of Maharashtra Vs. Sharad Keshav and Ors AIR 1967 Bom 52.

 (vi) SukhdeoVithal Pansare Vs. Prabhakar Sukhdeo Pansare and Anr.; 1974 CriLJ 1435.

(vii) State of Maharashtra Vs. D. R. Chatterjee; (1977)79 BOMLR 104.

(viii) L. C. Randhir Vs. Girdharilal and Anr.; 1978 CriLJ 879.

(ix) J. Rajmohan Pillai Vs. State of Maharashtra and Y. S. Vaze, Dy. Commissioner of Income Tax; 2004(2)MhLJ 323.

(x) ValmikiFaleiro Vs. Mrs. Lauriana Fernandes and Ors. etc.; 2005 Cri LJ 2498.

(xi) RajkumarBhimrao Gawali Vs. Union of India, New Delhi; MANU/MH/1535/1999.

(xii) K. Khushboo Vs. Kanniammal and another; (2010)5 SCC 600.

(xiii) Jeffrey J. Diermeier and another Vs. State of West Bengal and another; (2010)6 SCC 243.

(xiv) Unreported judgment in the case of Laxman J. Malvankar Vs. Smt. Reshma R. Narvekar in S.A.No.07/2005 dated 23/05/2012.

12. I have carefully considered the rival submissions, perused the record and the judgments relied upon.

13. I do not deem it necessary to refer to various authorities cited in the course of arguments by both sides, in view of the order which I propose to pass.

14. As stated above, learned Magistrate has held that in the present case ninth and partly tenth exception to Section 499 of I.P.C. are clearly attracted. They read thus :

“ NinthException – 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. Tenth Exception – Caution intended for good of person to whom conveyed or for public good- It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.”

15. From a bare reading of tenth exception to Section 499 of I.P.C., it is evident that having regard to the case set up by the accused, tenth exception is not at all attracted in the present case.

16. Mr. Coutinho, learned Counsel for the accused has fairly conceded that tenth exception to Section 499 of I.P.C. is not attracted in the present case. According to learned Counsel for the complainant, since the accused had taken a defence that statements in the report lodged at the Police Station were true, it was necessary for the accused to prove his case under the first exception which the accused has failed to prove. According to Mr. Coutinho, in the complaint, the complainant had alleged offence of defamation on account of lodging false defamatory report by the accused and also on account of publication of the defamatory reports in two daily newspapers, yet, having regard to the order dated 11/08/1998 passed by learned Magistrate issuing process under Section 500 of I.P.C. against the accused, it is evident that the process was issued against the accused only for publishing defamatory articles in two daily newspapers.

17. According to Mr. Menezes, learned Counsel for the complainant, the accused was very much aware that the complaint was filed also in relation to lodging of false defamatory report and even the question was put to the accused in the statement under Section 313 of Cr.P.C. As such, the accused is not entitled to contend that the accused cannot be held liable for defamation in respect of lodging of defamatory report by him.

18. Since learned Magistrate has appreciated the defence of the accused in the light of ninth and partly tenth exceptions to Section 499 of I.P.C. and having regard to the fact that tenth exception to Section 499 of I.P.C. is attracted in the present case, having regard to the defence taken by the accused and also having regard to the fact that it is the case of the complainant that the accused ought to have proved the defence under first and ninth exceptions to Section 499 of I.P.C., in my considered view, it would be just and proper to set aside the impugned order and remand the matter to learned Magistrate for fresh consideration.

19. The magistrate dealing with criminal case is bound to marshal the evidence led by the prosecution and the accused, if any, in the light of the stand taken by the accused in the cross-examination of the prosecution witnesses and his statement recorded under Section 313 of Cr.P.C., in the light of the law applicable. In the present case, learned Magistrate has proceeded on the footing that the present case is covered by ninth and partly tenth exceptions to Section 499 of I.P.C. which finding is incorrect insofar as applicability of tenth exception to Section 499 of I.P.C. is concerned. I, therefore, do not propose to consider the submissions on merit and analyse the voluminous evidence, oral and documentary, led by the complainant and the oral and documentary evidence led by the accused in the appeal against acquittal, more particularly having regard to the above referred submissions made by learned Counsel appearing for rival parties.

20. No doubt, this Court being the appellate Court is entitled to reappreciate the entire evidence in an appeal preferred against the acquittal by the complainant. It is also well settled that the appellate Court shall interfere with the order of acquittal passed by learned Magistrate only if the findings recorded by the trial Court are totally perverse. Under Section 386 of Cr.P.C., the appellate Court dealing with the appeal, is also entitled to set aside the order and remand the matter to trial Court. In the present case, the complainant has led voluminous evidence, oral and documentary and the accused also led oral and documentary evidence. I, therefore, deem it appropriate not to reappreciate the entire evidence in the light of the submissions made by learned Counsel for the parties and more particularly, having regard to the stand taken by learned Counsel for the complainant that the accused has not discharged the burden of proving first and ninth exceptions to Section 499 of I.P.C. which are attracted and also having regard to the stand taken by the accused that though the complaint was filed for lodging false report and for publishing defamatory reports, learned Magistrate passed order issuing process only in relation to publication of defamatory articles in the newspapers. In my view, it would be just and proper to set aside the impugned judgment and order of acquittal and remand the matter to learned Magistrate to decide all the contentions raised by the parties in the light of the evidence led by both sides. Therefore, the impugned judgment and order dated 16/12/2008 passed by learned Magistrate acquitting the accused of the offence punishable under Section 500 of I.P.C., is set aside and the matter remanded to learned Magistrate for fresh consideration. Bail bond executed by the respondent stands discharged.

21. It is made clear that I have not expressed any opinion on the merits of the rival contentions of the parties and all the contentions of the parties, are kept open.

22. Learned Magistrate shall give an opportunity of being heard to the complainant and the accused and after considering the evidence led by both the parties and statement of the accused under Section 313 of Cr.P.C., pass judgment in accordance with law, in the light of the observations made above.

23. The parties shall appear before learned Magistrate on 04/01/2013 at 10 a.m.. Considering that the complaint was filed in the year 1998, learned Magistrate shall dispose of the case expeditiously and in any case, on or before 31st May, 2013.

24. The appeal stands disposed of in aforesaid terms. No order as to costs.


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