M.A.Rumugam Vs. Kittu
@ Krishnamoorthy [2008] INSC 1894 (7 November 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1749 OF 2008
[Arising out of SLP (Crl.) No. 237 of 2007] M.A. Rumugam ...Appellant Versus
Kittu @ Krishnamoorthy ...Respondent
S.B. SINHA, J :
1.
Leave
granted.
2.
Applicability
of the provisions of Section 482 of the Code of Criminal Procedure for quashing
of a complaint petition filed by the respondent herein against the appellant
under Section 500 of the Indian Penal Code is in question in this appeal which
arises out of a judgment and order dated 8.09.2006 passed by the High Court of
Judicature at Madras in Criminal O.P. No. 10819 of 2006.
3.
Appellant
herein is a retired teacher. He is said to be the owner of a land admeasuring
0.83 acres in new survey No. 246/1B at Naluvedapathi Village. About 180 numbers
of coconut tress are said to have been planted on the said land.
4.
On
3.06.2003, when the appellant allegedly visited his land, he found that 9
coconut trees were dead. Upon enquiry, he allegedly came to know that one
Namasivayam son of Rajagopal and Kaliappan son of Ramu of Naluvedapathi Village
had damaged the said coconut trees by pouring acid mixed with kerosene thereon
allegedly on the advice of the respondent herein.
5.
On
4.06.2003, the appellant filed a complaint before the Sub- Inspector of Police,
Thalaignayar Police Station, contending:
"...On
30.4.2003, the Panchayat Union Committee member and Panchayat Board President
approached me and wanted land on south side of my coconut grove to lay road
through the grove. I did not give consent for the proposal. In these
circumstances when I visited the grove on 3.6.2003 about 9 coconut yielding
trees on the south side were found slide down. When I enquired about this I
came to know that Namasivayam son of Rajagopal and Kaliappan son 3 of Ramu of
Naluvedapathi Village were standing on the south side of my coconut grove some
time back with tins on their hands. Met them and told that they were
responsible for the sliding of tender coconut trees as they were seen near the
trees by some people of the village. They confessed that they on the advice of
the Kittu alias Krishnamurthy son of Vedaiya Gounder of Naluvedapathi Village
along with him poured acid mixed kerosene into the coconut trees and that they
have done it since I did not give consent to lay road through my coconut
grove."
In the said
complaint, the appellant requested the Sub-Inspector of Police to take action
against those persons and sought protection for himself and his property.
6.
On
5.06.2003, the appellant filed a suit before the learned District Munsif Court
at Nagappattinam against the President, Union Council Member and other persons
for grant of permanent injunction against the defendants restraining them from
causing damage to the footpath in his property under the pretext of widening
and laying road. In the said suit, an Advocate Commissioner was appointed to
find out whether any coconut trees were found dead. The Advocate Commissioner
submitted its report on 15.06.2003 stating:
4 "Adjacent to
the path on east end 9 coconut trees were found dead with loss of chlorophyll.
There were 10 bunches carrying 100 to 150 coconuts.
There were in an
average 20 branches in each tree.
There were heap of
coconut under the 9 trees."
7.
On
25.06.2003, a First Information Report was lodged on the basis of the complaint
given by the appellant. In the said FIR, the names of the respondent herein and
two others were mentioned in the column of `doubtful persons' portion. As the
police authorities neither filed any chargesheet within six months nor sought
for extension of time for the purpose of conducting further investigation, the
learned Magistrate ordered stopping of further investigation and consequently
closure of the matter.
8.
On
6.09.2005, the respondent herein filed a private complaint, which was marked as
C.C. No. 179 of 2006, in the Court of the learned Judicial Magistrate,
Tiruthuraipoondi against the appellant for commission of the offence of
defamation under Section 500 of the Indian Penal Code.
Taking cognizance of
the said complaint, the learned Magistrate issued summons to the appellant.
5 Aggrieved by and
dissatisfied therewith, he filed a Crl. O.P. No. 10819 of 2006 before the High
Court of Judicature at Madras praying to call for the records pertaining to the
complaint petition filed by the respondent being C.C. No. 179 of 2006 and
quashing the same.
9.
Before
the High Court, a contention was raised that the backdrop of events and the
manner in which the complaint petition had to be filed by the appellant would
clearly establish that the action on his part was not in good faith.
The said contention
was negatived by the High Court stating:
"5. The
accusation have been made the accused (sic) and there are prima facie materials
to proceed against the petitioner. When there are specific allegations made in
the complaint against the accused, such allegation may have to be rebutted
during the course of trial. In such circumstances by invoking the inherent
powers under Section 482 Cr.P.C. the pending proceedings cannot be quashed at
the threshold, I do not find any merit in the case, hence the petition is
dismissed.
Consequently
connected Crl. M.Ps are closed.
However, the
petitioner is at liberty to establish that the statement has been made in good
faith, during the course of trial."
10.
Mr.
G. Sivabalamurugan, learned counsel appearing on behalf of the appellant, would
submit that the complaint preferred by the appellant against the respondent and
two others before the police authorities does not amount to `defamation' as the
ingredients of Section 499 of the Indian Penal Code are not satisfied.
The learned counsel
would contend that from a perusal of the complaint petition filed by the
appellant before the police authorities, it would be evident that he had taken
due care and caution before filing the same. He, thus, acted bonafide and in
good faith.
As the police
authorities were authorised to entertain the said complaint, no case has been
made out for proceeding against the appellant for alleged commission of an
offence under Section 500 of the Indian Penal Code.
11.
Mr.
P. Somasundaram, learned counsel appearing on behalf of the respondent, on the
other hand, would submit that the complaint was made by the appellant before
the police authorities on a wholly false premise, as 7 much prior thereto,
viz., on 27.05.2003, the respondent had left his village and in fact on
1.06.2003, he had left India for Malaysia and, thus, the question of his
remaining at the place of occurrence on 3.06.2003 did not arise.
It was urged that the
purported statement made by one of the co- accused in the earlier case, viz.,
one Namasivayam cannot be relied upon at this stage particularly when even
therein they were represented by different counsel and furthermore his
statement as a co-accused could not have been relied upon for the purpose of
securing conviction of the respondent.
12.
Section
499 of the Indian Penal Code reads, thus:
"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, the reputation of such person, is said, except in the
cases hereinafter expected, to defame that person."
Eight and Ninth
Exceptions, to which reliance has been placed by the learned counsel, read as
under:
8 "Eight
Exception.--Accusation preferred in good faith to authorised person 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.
Ninth
Exception.--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."
The word "good
faith" has been defined in Section 52 of the Indian Penal Code to mean:
"52 - "Good
faith"
Nothing is said to be
done or believed in "good faith" which is done or believed without
due care and attention."
13.
The
complaint petition filed by the respondent herein contained a statement that he
was implicated allegedly on the basis of an information received by the
appellant from one Namasivayam son of Rajagopal and Kaliappan son of Ramu of
Naluvedapathi Village that they had damaged 9 nine coconut trees by pouring
acid mixed kerosene on the respondent's advice.
The aforementioned
allegation against the respondent was published in various newspapers, viz.,
Maalai Murusu, Maalai Malar, Dhina Boomi, Dhina Karan, Dhina Malar as well as
in some weeklies.
On the aforementioned
backdrop, he alleged to have been defamed as thereby, "false propaganda
among the village people and implication his name in the complaint against the
enemies Kakliappan and Namasivayam besides publishing the same in the dailies
and weeklies" was made against him. It was furthermore stated:
"Since there was
no basic evidence in the complaint, it was given with the sole intention of
defaming the petitioner herein and the complainant did not cooperate for the
investigation the case registered in Thalaignayiru police station in Crime No.
360/2003 could not be proceeded further and the charge sheet could not be
filed. Therefore, the case on the file of the Judicial Magistrate
Tiruthuraipoondi was closed on 7.4.2005. Because of the illegal activities of
the respondent, the petitioner/ complainant herein is unable to make his
foreign trips and suffered heavy financial loss and lost his status among his
relatives and the people of the Village and suffered enormous mental
agony."
14.
Allegations
made in the said complaint petition, thus, in our opinion, make out a case for
proceeding against the appellant under Section 500 of the Indian Penal Code as
thereby imputation concerning the respondent had been made intending to harm or
knowing or having reason to believe that such imputation would harm his
reputation.
15.
For
the purpose of bringing his case within the purview of the Eight and the Ninth
Exception appended to Section 499 of the Indian Penal Code, it would be
necessary for the appellant to prove good faith for the protection of the
interests of the person making it or of any other person or for the public
good.
16.
It
is now a well-settled principle of law that those who plead exception must
prove it. The burden of proof that his action was bonafide would, thus, be on
the appellant alone.
17.
At
this stage, in our opinion, it would have been premature for the High Court to
consider the materials placed by the appellant before it so as to arrive at a
definite conclusion that there was no element of bad faith on 11 the part of
the appellant in making the said complaint before the police authorities.
18.
Respondent
was furthermore discharged by the learned Magistrate in exercise of its
jurisdiction under Section 167(5) of the Code of Criminal Procedure stating
that the police authorities could not complete the investigation within a
period of six months.
19.
Strong
reliance has been placed by Mr. Sivabalamurugan on a decision of this Court in
Rajendra Kumar Sitaram Pande Etc. v. Uttam and Another [1999 (1) SCR 580].
Accusation against the accused therein related to the conduct on his part
before the Treasury Officer. The learned Magistrate, when the complaint was
filed, instead of issuing process called upon the Treasury Officer to hold an
inquiry and submit a report in the court. Pursuant thereto and / or in
furtherance thereof, a report was submitted. In the said report, the Treasury
Officer clearly indicated that pursuant to the report made by the accused
persons against the complainant, a departmental enquiry had been made and the
complainant was found guilty. It was in the aforementioned situation, the Magistrate's
order refusing to issue summons was upheld by this Court.
20.
For
the reasons aforementioned, we do not find any infirmity in the impugned
judgment. Furthermore, the question, as to whether a totally false complaint
has been made as against the respondent or not as he was not even in India
prior to the date of occurrence, is required to be gone into by the learned
Trial Judge.
21.
Accordingly,
the appeal is dismissed.
...............................J.
[S.B. Sinha]
................................J.
[Cyriac Joseph]
New
Delhi;
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