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L.C. Randhir Vs. Girdharilal and anr. - Court Judgment

LegalCrystal Citation
CourtMumbai High Court
Decided On
Reported in1978CriLJ879
AppellantL.C. Randhir
RespondentGirdharilal and anr.
- - he was required to pay the fees of his two college going children and also to meet the electricity and water charges for the bungalow as well as to maintain the vehicles. randhir had to defend a criminal case for which he had engaged the services of one of the best and costliest criminal lawyer of nagpur and there is a query as to how he could afford to pay the legal fees of the said lawyer. that will be the subject matter of the discussion for finding out whether the accused had made the statements without due care and attention or recklessly and in bad faith. according to him, he had written the letter making the allegations in good faith. under eighth exception it is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority.....dighe, j.1. this is an appeal by the original complainant against the order of the judicial magistrate, first class (4th court), nagpur passed on 25-10-1972 by which the accused first respondent girdharilal was acquitted of the charge under section 500 of the i.p.c. the second respondent state has not filed any appeal against acquittal. during the arguments mr. salve, assistant government pleader supported the appellant.2. the appellant dr. l. c. randhir was a senior administrative officer holding class i post under the government of india in the indian bureau of mines. in addition to holding a degree of doctorate from punjab university, the complainant says that he is a story writer of all india repute and also composes poems in urdu. he has thus wide reputation not only because of his.....

Dighe, J.

1. This is an appeal by the original complainant against the order of the Judicial Magistrate, First Class (4th Court), Nagpur passed on 25-10-1972 by which the accused first respondent Girdharilal was acquitted of the charge Under Section 500 of the I.P.C. The second respondent State has not filed any appeal against acquittal. During the arguments Mr. Salve, Assistant Government Pleader supported the appellant.

2. The appellant Dr. L. C. Randhir was a Senior Administrative Officer holding Class I post under the Government of India in the Indian Bureau of Mines. In addition to holding a degree of Doctorate from Punjab University, the complainant says that he is a story writer of all India repute and also composes poems in Urdu. He has thus wide reputation not only because of his being a Government Officer, but because of his other social activities. Accused Girdharilal was also an employee in the Indian Bureau of Mines. It seems, however, that by about 1967 on the conclusion of departmental proceedings he was dismissed. On 2nd of June 1969 the accused addressed to the controller, Indian Bureau of Mines, Nagpur a letter stating certain facts about the financial position of the complainant and his financial dealings. It is the contention of the appellant that this constitutes defamation, the accused was prompted with illwill and malice to make such a representation when he was awaiting a chance for his promotion. As such he ought to have been found guilty of the offence Under Section 500 of the T.P.C.

3. That letter Exhibit 15 dated 2nd of June 1969 in the first paragraph refers to the interview the writer had with the controller of Indian Bureau of Mines on 23-12-1966 when it is alleged that he had informed the Controller that the administration of the Indian Bureau of Mines was not clean and he further alleges that he had placed before the Controller for perusal documentary evidence showing that Dr. Lalchand Randhir, the complainant, was accepting undue favours from his subordinates. He says that no heed was given to his complaint and although he waited for nearly two hours, no attention was given to him. In reference to that interview the accused claims to have written the lines that followed. In the first place, it was said that Dr. Lalchand Randhir purchased a Lambretta Scooter even when no loan was available to him. According to the information of the accused, one S. S. Sharma one Shri Gulati Contractor and one Shri Kohali had advanced some amounts by cheque for the purchase of the said Scooter. The cheques were negotiated through the Punjab National Bank, Kingsway Branch, Nagpur. The writer expressed his presumption that those loans must have been paid by the time the letter was written.

4. The second allegation related to the advance of Rs. 2,000/- taken by Dr. Randhir from the I. B. M. Thrift and Credit Society, Nagpur. It was said that Rs. 1,000/- were repaid by instalments, but for the remaining balance of Rs. 1,000/- a notice was served on him, but suddenly by September or October 1968 Dr. Randhir not only repaid the outstanding of Rupees 1,000/- but also deposited a further sum of Rs. 2,000/- in the fixed deposit of the society, thus showing that he had mysteriously got hold of the amount of Rs. 3,000/-.

5. The third allegation related to the purchase of a brand new Vespa Scooter in addition to the Lambretta Scooter on payment of Rs. 3400/- in the name of his son. It was also said that in addition Dr. Randhir had also purchased one Godrej Almirah and a Godrej Refrigerator each costing Rs. 500/- and Rs. 2500/- respectively. Consequently it was said that the assets of the complainant Dr. Randhir came to Rs. 9,600/- invested in the purchases and Rs. 3,000/- of the Thrift Credit Society making in all Rupees 12,600/-.

6. A further allegation was made that the son of the complainant was discharged from Army and at that time he did not receive more than Rs. 600/-. But recently prior to the writing of this letter he had opened a shop under the style of 'Chandra Agencies' at Nagpur. It is alleged that Dr. Randhir went on proclaiming about his investment of a sum of Rs. 14,000/-in that business. It is added that the son by himself was neither in a position to purchase a scooter, nor to make investments in the business,

7. In addition to this a reference is made to the withdrawal of Rs. 7200/-by Dr. Randhir in February, 1969 from his provident fund. The loan was sanctioned for the preparation of his daughter's marriage. It is suggested that the marriage was not settled and the loan was used for other purposes. The writer of the letter had made allowance for Rs. 7200/- from the assets of Rs. 12,600/- and Rupees 14,000/- referred to above and had queried about the remaining assets of Rs. 19,600/-.

8. In the next paragraph of the latter information is given that Dr. Randhir was drawing monthly emoluments of Rs. 350/-. He had to send Rs. 75/- to his wife at Delhi. Ten per cent was deducted for rent of the bungalow. He was required to pay the fees of his two college going children and also to meet the electricity and water charges for the bungalow as well as to maintain the vehicles. Besides there were several items of furniture in the bungalow. He had not drawn upon his fixed deposit.

9. A further reference was made that Dr. Randhir had to defend a criminal case for which he had engaged the services of one of the best and costliest criminal lawyer of Nagpur and there is a query as to how he could afford to pay the legal fees of the said lawyer. Ultimately the letter ends with the request to make a thorough enquiry into the matter.

10. In his statement before issuing of the process Dr. Randhir maintained that this complaint of 2-6-1969 was made by the accused out of vengeance. He further stated that the accused had moved among different sections of the society publishing the false contents of that letter and also falsely propagating that the complainant was placed under suspension or was being prosecuted. Thus he contended that there was damage to his reputation by the mala fide propaganda.

11. At the time of his examination he has tried to give details of how he could make different investments referred to in the letter. That will be the subject matter of the discussion for finding out whether the accused had made the statements without due care and attention or recklessly and in bad faith.

12. When the charge was framed against the accused, he pleaded not guilty. According to him, he had written the letter making the allegations in good faith. He is thus interested in claiming the benefit of exceptions Eighth and Ninth to Section 499 of the IPC 'Defamation' has been defined in Section 499 whereunder whoever makes out or publishes imputations concerning any person intending to harm or knowing or having reason to believe that such imputations will harm the reputation of the person is said to 'defame' that person. Under Eighth exception it is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation. The present letter has been addressed to the superiors of the complainant. As such if the accusations contained therein are made in good faith, there would be no defamation. Under Ninth exception, it is no 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 food.

13. In the letter Exhibit 15 there are imputations on the character of Dr. Randhir suggesting that in all probability he is collecting wealth by practising corruption. If, however, these accusations or these imputations are made in good faith and for public good, Ninth exception will be attracted. It need not be doubted that if the accusations in Exhibit 15 are in good faith, they would be easily looked upon as having been made for public good inasmuch as the complainant was occupying a supervisory position as an administrative officer in a Government concern and it could be always in the interests of public that office is without blemish and is not occupied by persons practising corruption.

14. Besides examining himself the complainant examined one Purushottamsingh Lokhathsingh. According to that witness in June 1969 he was working as an Upper Division Clerk in the I. B. M. Nagpur. While he was returning after taking tea in a Hotel he was called by the accused who was accompanied by one Abdullabhai referred to as an Advocate and it is alleged that letter Exhibit 15 was shown to him. When the witness asked the accused whether he had proof of the allegations it is said that he replied there was documentary proof. Witness also adds that he heard the accused speaking of the complainant getting arrested shortly. Witness further said that he had carried this information to others in the office. The witness was thus examined for showing circulation of the defamatory matter,

15. On behalf of the accused among other witnesses, witness No. 3 Madhusudanlal Ganeshsingh Sharma was examined to show that he had given the information to the accused regarding the complainant having invested a capital of Rs. 15,000/- in the business started by his son. Witness maintained that the information was gathered by him from Dr. Randhir himself under whom he was serving. That was in May 1969 and the same was conveyed to the accused.

16. Witness No. '4 Shantiswarup Pandit Dattaram Sharma was examined by the accused to speak of the alleged loan given at the time of purchasing the Lambretta Scooter. Witness in his examination-in-chief did not support the accused. He was not treated as hostile, but he was asked to come with certain papers at an adjourned hearing. He said that he never supplied stationery goods to the I. B. M. but admitted that his Firm used to do quarterly repairing works of the typewriters of the Central Government Offices including the I. B. M. He denied having advanced any loan to Dr. Randhir either by himself or by his firm. In cross-examination he wholeheartedly supported the case of the complainant that Dr. Randhir was a man of reputation and found to be upright. He had heard all the allegations against him from the mouth of the accused himself and that he had never intimated the accused regarding the advancing of any loan to Dr. Randhir. In the further statement on oath in his cross-examination his attention was drawn to Exhibit-85, the balance-sheet of his firm for the year 1967-68. An item of Rs. 600/- stands against the name of Dr. Randhir under sub-column 'loans' in column of assets. The witness has obviously prevaricated when he gave the explanation that such entry is made because like others Dr. Randhir used to make purchases and at the end of the year accounts of sale of goods were shown, Thus according to him this item is an outstanding of the transactions between the firm and Dr. Randhir. As a matter of fact, why there should have been such individual transaction is not known and the witness is further belied when his attention is drawn to another sub-column under the same column assets titled as 'Bills outstanding.' If his explanation were correct this item ought to have come under that sub-head where incidentally the outstanding items are against the firms or clubs or the offices. It has been taken from the mouth of this witness that since 7th of June 1972 his son was working in the I. B. M. of which the complainant happened to be the administrative head. This witness thus examined on behalf of the accused failed to support him in the examination-in-chief and gave most favourable answers to the complainant in cross examination. However he had to admit that Rs. 800/- were outstanding against Dr. Randhir during the crucial period 1967-68 when Lambretta Scooter was purchased.

17. The complainant Dr. Randhir has given explanations about the various items appearing in Exhibit-15 in which he admits purchase of Lambretta Scooter in the year 1968. He says that it was costing about Rs. 3000/- and that he had received an advance from Government of Rs. 2750/- and the balance was made up from his own savings. His cross examination has clearly established that the scooter was purchased in February. 1968. The advance was received in May, 1968. The payment was made on the date of the purchase, by cheque and as shown in Exh. 42 there were deposits of Rupees 1000/- Rs. 400/- and Rs. 640/- in cash in his account at the Punjab National Bank on 1st, 2nd and 3rd February 1968 respectively. Dr. Randhir maintained that he had not taken (my loan from any third party, but even before the sanctioned amount was received from Government, he had drawn upon his own resources and the resources of his son and mother.

18. Regarding the allegations in connection with the Thrift and Credit Society of the office, he denied having any time taken the loan of about Rs. 2000/- from the society, though it appears that off and on he was in the habit of borrowing from the society amounts less than Rs. 1000/-. He also denies the sudden payment of Rupees 1000/- or a deposit of Rs. 2000/- in the fixed deposit of the society as alleged in Exhibit-15. He however admits that he had deposited a sum of Rs. 1000/-in fixed deposit.

19. Regarding the Vespa Scooter according to the complainant his son was a Captain in the Army drawing about Rs. 950/- per month. He was on stations where messing was free. He left Army in 1968, but while he was in service he had purchased a Vespa Scooter from the Army quota. The payment was made from his own savings. Evidence produced shows that Vespa Scooter was purchased on 17-8-1968 from the Military quota. It would appear that this was just before the discharge of Captain Randhir.

20. The complainant denied owning any refrigerator of Godrej make or any almirah of Godrej make. He, however, admits that he had purchased an Allwyn refrigerator costing about Rs. 2000/- and an almirah costing about Rs. 600/-. He says, however, that this was from his own savings and indicates that he used to deposit Rs. 70/-pex month in the Cumulative Time Deposit Scheme of the Central Bank of India.

21. He admits that his son has opened a business in aluminium fittings of the buildings. He does not give any figure of the investment made by his son, but says that it was his mother who had given him some capital. Although, therefore, these items were possible to be within his own knowledge, he has preferred to keep them vague. At any rate, on solemn affirmation no case is made out which could have been substantiated in a far more firm way,

22. He admits that a loan of Rupees 7200/- was taken from the provident fund for preparation of the marriage of his daughters. The daughters are college going, but the cross-examination shows that their marriages were not settled till then. Obviously therefore, the loan was not utilised for the purpose for which it was drawn. When pointed questions were asked in cross-examination, he admitted that all of the loan was not repaid. He replied that he had adjusted it towards his final withdrawal. How such adjustment could be made is not elaborated. It seems that the whole of the amount ought to have been repaid when not spent for the purpose for which It was drawn. At any rate in Exhibit-15, the item of Rs. 7200/- is mentioned for calculating the assets which could have been in the hands of the complainant and as already noted query is made regarding how the other assets were available. The allegation that there was misuse of Rs. 7200/- is absent in Exh. 15.

23. Witness has spoken about Mb early in the year 1969 amounting to Rs. 950/- per month. He says that he was sending Rs. 55/- per month to his wife in Delhi but adds that it was his private arrangement and the woman has now started living with him. His cross-examination shows that probably there were some proceedings instituted by her for maintenance. The cross-examination regarding the salary etc. is directed to show that the net amount in the hands of the complainant was far less than the figure of salary spoken to by him. Exhs, 55 to 80 are the copies of the Pay Bills from March 1968 to Feb. 1970, both inclusive. The letter was written in June 1969 speaking of the previous transactions. In that respect if we have a look at Exhibits 55 to 65 covering the period of March to November 1968, the net amount received by him per month was always less than Rs. 235/-. It is In December 1968 that the net amount received is Rs. 489.75. It has again come down to Rs. 278.25 in February, 1969 and to Rs. 366.70 in March 1969, but thereafter again the remaining sums were at Rs. 337.75 till July, 1969.

24. In these circumstances, we have to find out whether the charge levelled against the accused has been brought home. We must also remember that the respondent has been acquitted by the Court below and it is now well established that although the High Court in an appeal against acquittal has full power to review at large the evidence and to reach the conclusions, before reaching its conclusions proper weight ought to be given to the considerations and the views of the learned trial Judge as to the credibility of the witnesses, the fact that the presumption of innocence is not weakened, the right of the accused to the benefit of any real and reasonable doubt and the justification of the appellate Court in disturbing a finding of fact arrived at by a Judge. In this particular case, the learned Magistrate assessing the evidence did not happen to be the Magistrate who recorded the depositions. He has, however, written the judgment giving reasons and his view will have to be taken into consideration so that if on the tests stated above two views are possible, there should be no interference with the finding arrived at the learned trial Judge.

25. On the appreciation of evidence in a case for defamation the leading case reported in Harbhajansingh v. State of Punjab : 1966CriLJ82 should be looked into. The relevant observations would be as follows:

Where an accused person pleads an exception he must justify his plea, but the degree and character of proof which he is expected to furnish in support of the plea, cannot be equated with the degree and character of proof expected from the prosecution which Is required to prove its case. The onus on the accused may well be compared to the onus on a party in civil proceedings; just as in Civil proceedings the Court which tries an issue makes its decision by adopting the test of probabilities, so must a criminal court hold the plea made by the accused proved, if a preponderance of probability is established by the evidence led by him.

26. In respect of the nature of belief the accused might have in the information received by him on the subject-matter of the defamation, the observations from paragraph 19 are as follows;

There is no doubt that the mere plea that the accused believed that what he stated was true by itself, will not sustain his case of good faith under the Ninth Exception. Simple belief or actual belief by itself is not enough. The appellant must show that the belief in his impugned statement had a rational basis and was not just a blind simple belief. That is where the element of due care and attention plays an important role. If it appears that before making the statement the accused did not show due care and attention, that would defeat his plea of good faith. But it must be remembered that good faith does not require logical infallibility.

27. It is particularly to be observed that simple belief or actual belief by itself is not enough. It must be belief inspired on rational basis and ought not to be just a blind belief.

28. In elaborating the element of 'good faith' the observations in paragraph 21 are as follows:

Thus, it would be clear that in deciding whether an accused person acted in good faith under the Ninth Exception, it is not possible to lay down any rigid rule or test. It would be a question to be considered on the facts and circumstances of each case what is the nature of the imputation made; under what circumstances did it come to be made; what is the status of the person who makes the imputation; was there any malice in his mind when he made the said imputation; did he make any enquiry before he made it; are there reasons to accept his story that he acted with due care and attention and was satisfied that the imputation was true? These and other considerations would be relevant in deciding the plea of good faith made by an accused person who claims the benefit of the Ninth Exception.

29. From these observations it would be apparent that the question has to be considered on the facts and circumstances of each case together with the allegations and the circumstances in which the imputation was made, the malice, the due care and attention and satisfaction as appearing in the case where defamation is alleged.

30. Mr. Salve for the State has relied upon the authority reported in Sukra Mahto v. Basudeo Kumar : 1971CriLJ1168 . Section 52 of the Indian Penal Code gives the definition of 'good faith' as follows:

Sec. 52. Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention.

31. In para. 7 of the reported decision to which he drew my attention, the citation from Harbhajan Singh's case : 1966CriLJ82 has been referred to and the following observations are made:

The person alleging good faith has to establish as a fact that he made enquiry before he made the imputation and he has to give reasons and facts to indicate that he acted with due care and attention and was satisfied that the imputation was true. The proof of the truth of the statement is not an element of the Ninth Exception as of the First Exception to Section 499. In the Ninth Exception the person making the imputati6n has to substantiate that his enquiry was attended with due care and attention and he was thus satisfied that the imputation was true. The accent is on the enquiry, care and objective and not subjective satisfaction.

32. Mr. Salve invited me to be watchful of the test that it should be the objective satisfaction and not the subjective satisfaction arrived and that the enquiry ought to be with due care and attention. We may also usefully refer to the observations relied upon by the learned trial Magistrate in Chamanlal v. State of Punjab : 1970CriLJ1266 . They are found in para. 10 and run as follows:

In order to establish good faith and bond fide it has to be seen first the circumstances under which the letter was written or words were uttered; secondly, whether there was any malice; thirdly, whether the appellant made any enquiry before he made the allegations; fourthly, whether there are reasons to accept the version that he acted with care and caution and finally whether there is preponderance of probability that the appellant acted in good faith.

33. In Gulabchand Bhudarbhai v. State of Gujarat : AIR1970Guj171 the Court was dealing with the accusations made in a Court proceeding and the relevant portion from para. 3 is as follows:

The Exception introduces a qualified privilege. The accused must, therefore, show that the accusations were preferred in good faith.... The plea of good faith may be negatived on the ground of recklessness indicative of want of due care and attention if the imputations in question, as in the instant case, have been made as categorical statements of facts.

34. The analysis of the evidence will have to be made bearing in mind these observations and we will have therefore to find out the circumstances in which the imputations were made whether they were fraught with malice; whether the accused had made any enquiry; whether it was with due care and attention or whether it was reckless so that it could be said that it was not in good faith or was in bad faith. It may have also to be remembered that if there is preponderance of probability that the accused acted in good faith, the element of good faith could be taken as proved.

35. Now as regards the circumstances in which the accusation is made, it is apparent from the record that sometimes in 1966 the accused had sought an interview with the Controller of the Indian Bureau of Mines complaining about Dr. Randhir. It appears that he was then having documentary evidence and as Exhibit 15 shows he had made a specific request for the recording of his interview through the P. A. to the Controller of I. B. M. There is no dispute that the accused was working in the same office as the complainant. In fact the complainant would like to emphasize that proceedings in the nature of departmental enquiry were taken against the accused and he was the investigating officer. He would thus like to suggest that the accused was actuated by malice in making those allegations. Apparently, however, by the time the interview was sought this situation was not existing. There is nothing to show that the accused was facing any enquiry. It could therefore be said with equal weight that the complainant himself had an evil animus against the accused who had shown the temerity to approach the higher officers against him. At the same time the accused seems to have been consistent in taking up the cudgels against the complainant and he has in para. 2 of his letter dated 2nd of June 1969 Exhibit 15, said that the instances he narrated down below were in continuation of his previous allegations. It appears to me worthwhile noticing that after tendering the various instances the accused had not in express words charged the complainant of practising corruption but has made the request to make a thorough enquiry into the matter.

36. As argued by Mr. Palshikar for the appellant an innuendo regarding corruption is necessarily seen in the communication. It also shows the guarded language and the possibility to face the result which could be otherwise than the inference sought by the accused, is also obvious which would, in my opinion, go to show at least the lack of recklessness, and therefore, the care and attention the accused was bestowing on the content of the communication he sent. In fact the entire communication speaks of the purchases and of the financial dealings of the complainant most of which in some form or the other are admitted. That will go in favour of the accused indicating that he must have made enquiries before writing Exhibit-15.

37. Now in respect of the purchase of Lambretta Scooter it is not disputed that in February 1968 the purchase was made and that at that time the complainant had not in his hand enough money. The Government loan was sanctioned to him some three months afterwards. The accused has named three persons who are said to have advanced to him that loan at the time of purchase and he has also added that this loan was given by cheques negotiated through the Punjab National Bank. The material on record does not show that the loan was taken by cheques and negotiated through the Punjab National Bank, but the material on record does show that some time immediately before the making of the purchase successively on 1st, 2nd and 3rd of February 1968 the amounts of Rs. 1000/-, Rs. 400/- and Rs, 640/- respectively were deposited in the Bank so that ultimately the cheque for the requisite amount could be preferred. Although the accused was not able to show that Gulati and Kohali had advanced money, the evidence shows that subsequently Gulati's niece was married to the son of the complainant and as discussed earlier evidence of S. S. Sharma is on record speaking about the loan transaction of Rs. 600/-. The complainant admits having taken loan, but he said that he had it from his mother and he had the savings.

38. In this connection, it has also to be remembered that the complainant on his own saying was making a deposit of Rs. 70/- per month some time before the relevant period regularly in the cumulative time deposit scheme of the Central Bank. This has to be understood on the total net emoluments he was receiving; the disbursement he was required to make towards the education of the children, towards the rent etc., towards maintenance of the family and all these circumstances are to be looked into to find out whether the plea of the savings could be appreciated or whether it could be said that the accused was not only not reckless in making the allegations but also substantiated what he said regarding the purchase of the Lambretta Scooter. I think a finding in favour of the accused will have to be given.

39. The other allegation is about the loan from the Thrift and Credit Society of Rs. 2,000/- balance of Rupees 1000/- and the payment in September or October 1968 clearing the outstanding as well as the crediting a sum of Rs. 2000/- in the fixed deposit. The learned Magistrate in para. 10 of his judgment has referred to the general financial position of the complainant as available from the material on record. I have also indicated that when the case of savings is not established satisfactorily the accused could not be stated to have acted without due care and attention. The pass book from the Thrift and Credit Society which is produced as Exhibit-42 shows that off and on there were borrowings. The complainant has also admitted his depositing Rs. 1000/- in the fixed deposit account. Although, therefore the exact allegations as mentioned in the relevant paragraph of Exhibit-15 do not appear to be proved, the cumulative picture sought to be presented by the statements in that paragraph cannot be said to have been made by the accused without making enquiries or without due care and attention.

40. There are the allegations about the purchase of the refrigerator and the almirah. The purchase prices mentioned by the accused in Exhibit-15 are not far away from the estimate given by the complainant. In fact when the accused has mentioned the almirah worth Rs. 500/- the complainant speaks of his spending Rs. 600/-over it. There is a difference that where as the accused has spoken about the purchases of Godrej Almirah and Godrej Refrigerator as a matter of fact the complainant is in possession of Allwyn refrigerator and also not Godrej cupboard.

41. When the accused is claiming the benefit of Ninth Exception and; when the preponderance of probability is to be looked into the difference between the make ought not to be of very much value in deciding against the accused. It is true that according to the complainant these items were purchased in the year 1961 and that too from his own savings. Such a general statement could have easily been made by the complainant. But we have observed about the saving position and it ought to be said that although it is the accused who had to prove the plea, there is also the general burden on the prosecution more so regarding the facts which are within the specific knowledge of the complainant. In the absence of his being able to produce any definite receipts of purchase of refrigerator and the almirah demonstrating the lie in the mouth of the accused, it cannot be said that the material on record shows that the accused had not made proper enquiries or did not act in good faith.

42. Then the next imputation is regarding the investment of Rs. 14000/-in the business of his son. The accused in Exhibit-15 has said that the son when discharged did not receive more than Rs. 600/-. We have also to note that Vespa Scooter has been purchased on 17-8-1968 from the Army quota. According to the complainant his son served in the Army services for about 2 years. Both purchases were from the resources of the son on the figures given by the accused in Exhibit-15, it would appear that more than Rupees 17,000/- were with the son when ha got the discharge, We are however to be aware of 2-3 facets of this subject-matter. They are the actual amount spent for purchasing the scooter, the actual investment in the business and whether as suggested by the complainant the part of the investment was given by his mother to the grandson. There is no clear evidence on each facet. But it may have to be observed that D. W. 3 Madhusudanlal, a person working under the complainant has spoken of giving the information to the accused suggesting that from the mouth of the complainant it was gathered that he had invested Rupees 14,000/- or so in the business of his son. Therefore, we will have to consider whether the accused, who had other information with him as looked into so far, was wrong in relying upon that communication made to him by D. W. 3. The complainant pleaded total ignorance about how much was invested in the business of his son. Nowhere he has given any figure, as having gathered from his son. Nowhere such a figure was suggested to the witnesses examined on behalf of the accused. He prefers to remain silent which could be said, as not trying to help the court in obtaining clearer picture about what was the investment by his son much less from what sources. He has barely mentioned that his mother advanced some amount. In the totality of these circumstances and in conjunction with the information received by the accused as well as in conjunction with the other items looked upon, if the accused has taken the figure given by D. W. 3 for purposes of calculating the total assets from which Rs. 7200/- are deducted, it would be risky to come to the conclusion that he was reckless.

43. It is thereafter that the accused in Exhibit-15 has referred to the receipt of Rs. 7200/-. He has taken it only for the purposes of making calculations without any allegation that it was not a regular transaction though on the evidence given by the complainant himself it looks to be so. The accused has further stated about the complaint of engaging the services of a costly lawyer thus indicating that the complainant had also probability to spend a pretty large amount in defending the litigation,

44. Considering all these aspects the circumstances in which the letter was written, non-proof of express malice, material showing that the accused was careful enough in making the enquiry which is in fact demonstrated by the admission that most of the articles shown as purchased have really been purchased during the period indicated by the accused, there should be enough ground for holding that the accused acted with due care and caution, at any rate, he was not reckless and as indicated in the authority Chamanlal v. State of Punjab : 1970CriLJ1266 there is preponderance of probability that he acted in good faith. If this is so, the conclusions arrived at by the learned Magistrate could not be taken to be perverse or such which ought not to have been arrived at. We are not concerned in finding out whether the charges against the complainant are true. They may not be so, but we are interested in finding out whether the accused ought never to have made such accusations because there was no substance at all. The letter could not be the inference on the material discussed. Hence I feel that he is rightly entitled to the benefit of doubt. Hence the following order:

The appeal is dismissed.

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