CRLP/4229/2009 of Vantipalli Veera Venkata Satya Harischandra Prasad, Vs Surapuraju Ramesh, on 30 December 2011

ORDER:

This Criminal Petition has been taken out under Section 482Cr.P.C. by sole accused-Vantipalli Veera Venkata Satya HarischandraPrasad in C.C.No.611 of 2004 on the file of III Addl. JudicialMagistrate of First Class, Rajahmundry, East Godavari District, forquashing the proceeding therein.

2. Background facts, in a nutshell, are: 1[st] respondent SurapurajuRamesh worked in Godavari Grameena Bank from 1988 to May,2002. His wife G.Vasantha Kumari was employed in GodavariGreemana Bank, Rajahmundry, as clerk-cum-cashier. Whereas, thepetitioner was a Manager, Godavari Grameena Bank, Rajahmundry. Smt.G.Vasantha Kumari presented a complaint before the StationHouse Officer, I Town Police Station (Law & Order), Rajahmundry, on09.01.2004, alleging, inter alia, that the petitioner herein and oneK.Ramana Murthy, Chairman of the Godavari Grameena Bank,Rajahmundry, insulted her and tried to outrage her modesty on04.01.2004. Basing on the said report, the Station House Officer, ITown Police Station (Law and Order), Rajahmundry, registered a casein Crime No.13 of 2004 on 09.01.2004. After completing theinvestigation, he filed a final report referring the case as false. Pending investigation of the said crime, the petitioner herein, whofigured as A-2 in the said crime, moved an application under Section438 Cr.P.C. before the Sessions Court, East Godavari District,Rajahmundry, on 13.01.2004. He stated in the bail application that thecase has been foisted against him by Smt.G.Vasantha Kumari and herhusband S.Ramesh, who committed dereliction of duties and various other irregularities, for which, the bank officials conducted enquiries. For better appreciation, I may refer para.4 of the bail application movedby the petitioner under Section 438 Cr.P.C, which reads as hereunder:

“It is submitted that it is a false case given by the complainantaimed to come out of the various allegations and enquiries beingconducted by the Bank Officials for the misappropriations, derelictionof duties etc, committed by the defacto complainant and herhusband. Her husband previously used to work as branch managerin Grameena Bank at Rajahmundry from whom the petitioner tookcharge while assuming charge as manager. By then, the defactocomplainant was working as clerk in Grameena Bank, Head Officesituated in the upstairs of the same building. By the time of thepetitioner assuming charge, she was already appointed as clerk-cum-cashier in Grameena Bank, Rajahmundry which is functioning in thedown stair of the same building. The defacto complainant’s husbandwas transferred to the Head Office, Grameena Bank after givingcharge to the petitioner which institution is also located in the samebuilding. One year thereafter he resigned the job and took anotherjob elsewhere. While the petitioner is working at Rajahmundry theAndhra Bank inspection officials inspected the Grameena Bank,Rajahmundry specifically and found out serious irregularities allegedto have been committed during the tenure of the office of the defactocomplainant’s husband. There are certain allegations against thepetitioner also regarding the money transactions and loans for whichenquiries are being held by the concern. At that juncture there ischange of Chairmanship and the present Chairman assumed chargefor Grameena Bank.”

The bail application moved by the petitioner came to be allowed on20.01.2004. Smt.G.Vasantha Kumari, filed a private complaint againstthe petitioner and another. Sessions Case No.131 of 2005 on the fileof the Principal Assistant Sessions Judge, Rajahmundry, which arisesout of the private complaint filed by Smt.G.Vasantha Kumari, ended inacquittal on 31.10.2006. Pending trial of Sessions Case, the 1[st]respondent herein, who is the husband of Smt.G.Vasantha Kumari,filed a complaint before the III Additional Judicial Magistrate of FirstClass, Rajahmundry, under Section 190 (1)(a) Cr.P.C. for the offenceunder Section 500 IPC against the petitioner alleging that thepetitioner made false and malicious allegations against him and hiswife in the bail application with an intention to harm their reputationand thereby, he has been defamed and put to mental agony andhumiliation. He came to know of the defamatory accusations on obtaining the copy of the bail application moved by the petitionerbefore the Sessions Court from the Advocate appearing on behalf ofhis wife. The learned Magistrate recorded the sworn statements of the1[st] respondent-complainant and his wife Smt.G.Vasantha Kumari andtook cognizance of the offence under Section 500 IPC against thepetitioner and issued summons. The petitioner entered appearancebefore the learned III Additional Judicial Magistrate of First Class,Rajahmundry and filed Crl.M.P.No.3851 of 2008 under Section 251Cr.P.C. seeking discharge. The said application ended in dismissalon 22.04.2009. Hence, this Criminal Petition by the petitioner seekingthe prayer stated supra.

3. Heard Sri C.B.Ramamohan Reddy, learned counsel appearing forthe petitioner and Sri C.Padmanabha Reddy, learned Senior Counselappearing for the 1[st] respondent/complainant.

4. Learned counsel appearing for the petitioner submits that theaverments in the bail application filed by the petitioner do notconstitute imputations against the 1[st] respondent-complainant oragainst his wife and the said averments are made to justify his case forgrant of anticipatory bail. The averments are only to explain the motivefor the wife of the 1[st] respondent-complainant for making falseaccusations against the petitioner. Even otherwise, the saidaverments are made in the interest of the petitioner and they are madein good faith before the Sessions Judge, to secure anticipatory bail. He would also contend that even if the whole of allegations in thecomplaint are taken at their face value, they do not satisfy the essentialingredients of defamation, and therefore, there is no need of thepetitioner to face trial in C.C.No.611 of 2004 on the file of the IIIAdditional Judicial Magistrate of First Class, Rajahmundry. He wouldfurther contend that the Sessions Case No.131 of 2005, which arisesout of the private complaint of Smt.Goli Vasantha Kumari, ended in acquittal on 30.10.2006 and the said acquittal reached finality as therebeing no appeal by Smt.Goli Vasantha Kumari. In support of hissubmissions, reliance has been placed on the decisions of this Courti n Dr.Sabiha Sultana v. Dr.Mohd. Badruddin & Ors.[[1]];Reporter,Eenadu Daily v. Sahara India Commercial Corporation Ltd.[[2]]; and G.Janardhana Reddy v. A.Narayana Reddy & Anr.[[3]].Muchemphasis has been laid by the learned counsel on para.7 of thejudgment in G.Janardhan Reddy’s case (3 supra), which reads ashereunder:

“7.On the other hand, the Supreme Court in Rajendra Kumar Sitaram Pandeand others v. Uttam and another, 1999 (1) ALD (CRL.) 589 (SC) = 1999 Crl.LJ1620, held that issuing of process against the accused for the offencepunishable under Section 499 punishable under Section 500 of the Indian PenalCode can be questioned in higher Courts. Ultimately, the Supreme Courtquashed proceedings relating to prosecution of such a case in that reporteddecision by applying Exception 8 to Section 499 of the Indian Penal Code. Therefore, it cannot be said that application of exception cannot be consideredat pre-trial stage and by invoking Section 482 of the Code of CriminalProcedure.”

5. Learned Senior Counsel appearing for the 1[st]respondent/Complainant submits that even assuming that theimputation made could be covered by exception provided to Section499 IPC, it can be examined on the basis of evidence in the trial andnot in an application under Section 482 Cr.P.C. He would furthercontend that the learned Magistrate recorded the sworn statements ofthe complainant as well as the wife of the complainant before takingcognizance of the offence under Section 500 IPC, and therefore, itcannot be said that the learned Magistrate took cognizance of offenceunder Section 500 IPC without there being any material and withoutthere being a satisfaction of prima facie case against the petitioner. Learned senior counsel by referring the imputations made by thepetitioner in the bail application contends that the said imputations aredefamatory and if the petitioner pleads that the said imputations arecovered under any of the exceptions provided to Section 499 IPC, he has to face the trial and plead that he was protected under exceptionprovided to Section 499 IPC. The burden, such as, it is, to prove thathis case would come within that exception on him and therefore, theproceedings in C.C.No.611 of 2004 pending on the file of IIIAdditional Judicial Magistrate of First Class, Rajahmundry, cannot beinterdicted at this stage.

6. Section 499 IPC defines ‘defamation’ and it is thus:

“499. Defamation.—Whoever, by words either spoken orintended to be read, or by signs or by visible representations,makes or publishes any imputation concerning any personintending to harm, or knowing or having reason to believe thatsuch imputation will harm, the reputation of such person, issaid, except in the cases hereinafter expected, to defame thatperson.

Explanation 1.—It may amount to defamation to imputeanything to a deceased person, if the imputation would harmthe reputation of that person if living, and is intended to behurtful to the feelings of his family or other near relatives.

Explanation 2.—It may amount to defamation to makean imputation concerning a company or an association orcollection of persons as such.

Explanation 3.—An imputation in the form of analternative or expressed ironically, may amount todefamation.

Explanation 4.—No imputation is said to harm aperson’s reputation, unless that imputation directly orindirectly, in the estimation of others, lowers the moral orintellectual character of that person, or lowers the character ofthat person in respect of his caste or of his calling, or lowersthe credit of that person, or causes it to be believed that thebody of that person is in a loathsome state, or in a stategenerally considered as disgraceful.”

7. The essential ingredients of defamation are: 1) Making orpublishing any imputation concerning any person; 2) Such imputationmust have been made by (a) words, either spoken or intended to beread; or (b) signs; or (c) visible representations; 3) Such imputationmust have been made with the intention of harming or with knowledgeor reason to believe that it will harm the reputation of the personconcerning whom it is made.

8. In order to establish good faith and bona fides it has to be seenfirst the circumstances under which the defamatory matter was writtenor uttered; Secondly, whether there was any malice; Thirdly, whetherthe accused made any inquiry before he made the allegations;Fourthly, whether there are reasons to accept the version that he actedwith care and caution and finally whether there is preponderance ofprobability that the accused acted in good faith.

9. The question is whether reading of the complaint, prima facie,satisfy the essential ingredients of defamation?

10. The petitioner pleaded in the bail application filed under Section438 Cr.P.C. before the Sessions Judge, Rajahmundry, that thecomplainant as well as his wife committed several irregularities indischarge of their duties and that the Andhra Bank inspection officialsnoticed serious irregularities alleged to have been committed by them. The petitioner further pleaded in the bail application that the 1[st]respondent/complainant committed several irregularities while workingas Manager, Godavari Grameena Bank, Rajahmundry and when theaction was about to be taken by the management, he resigned the joband joined in other organization. The imputations made by thepetitioner in his bail application touching the integrity and honesty ofthe 1[st] respondent/complainant and his wife are, in my consideredview, prima facie defamative in nature.

11. It is contended by the learned counsel appearing for thepetitioner that the defamatory accusations contained in the bailapplication are not meant for publication and they are not accessible toany one other than the parties to the proceeding, in which case, itcannot be said that the alleged defamatory accusations affected thereputation of the 1[st] respondent/complainant. Learned counsel laidmuch emphasis on Explanation 4 of Section 499 IPC. In elaborating

his arguments, it is contended that even the 1[st]respondent/complainant was not aware of the alleged defamatoryaccusations made by the petitioner in the bail application till hesecured certified copy of the bail application moved by the petitionerfrom the advocate who appeared on behalf of his wife and that itself issufficient to infer that there was no publication, in which case,continuance of proceedings against the petitioner in C.C.No.611 of2004 on the file of the III Additional Judicial Magistrate of First Class,Rajahmundry, amounts to abuse of process of law.

12. The contention of learned counsel appearing for the petitionerappears to be impressive on first blush, but on close scrutiny of thecomplaint filed by the 1[st] respondent/ complainant, I do not detainmyself long to reject the same. The 1[st] respondent/complainantspecifically pleaded in the complaint that the defamatory accusationsmade by the petitioner in the bail application put him to mental agonyand humiliation and the contents of the bail application were madeknown to the advocates appearing for the parties, typist, who typed thebail application, the police and Public Prosecutor etc. He specificallypleaded in the complaint that the defamatory accusations made by thepetitioner in the bail application defamed him and he suffered mentalagony and humiliation. On a reading of the complaint, I do not thinkthat it will be justified at this stage to quash the complaint. It is not theprovince of this Court to appreciate, at this stage, the evidence andscope and meaning of the statement. Whether the defamatoryaccusations made by the petitioner against the 1[st]respondent/complainant are covered by any of the exception toSection 499 IPC is a matter for the petitioner to plead and prove thesame during the trial. In identical circumstances, the Supreme Courtin M.N.Damani v. S.K.Sinha[[4]], held that the burden is on the accusedto prove that his case would come within that exception under Section 499 IPC.

13. It is the settled legal position that a court has to read thecomplaint as a whole and find out whether allegations disclosedconstitute an offence under Section 499 IPC triable by the Magistrate. The learned Magistrate, in the instant case, recorded the swornstatement of the 1[st] respondent/complainant and his wife and aftergoing through the sworn statements, took cognizance of the offenceunder Section 499 IPC against the petitioner and issued process. Thestatements recorded by the learned Magistrate speak of as to how thedefamatory accusations leveled against the 1[st]respondent/complainant affected his reputation. The 1[st]respondent/complainant after resigning from the Godavari GrameenaBank, occupied a better position in some other private organization. Having regard to the facts of the instant case and in the light of thedecision of the Supreme Court in M.N.Damani’s case (4 supra), I haveno hesitation in holding that the complaint averments, prima facie,satisfy the essential ingredients of Section 499 IPC. Therefore, theproceedings in C.C.No.611 of 2004 on the file of the IIIAdditional Judicial Magistrate of First Class, Rajahmundry, EastGodavari District, cannot be quashed by this Court in exercise ofpowers under Section 482 Cr.P.C.

14. Accordingly, the Criminal Petition is dismissed.

Date:30[th] December, 2011.

______________________

B.SESHASAYANA REDDY, J.

Note:L.R. copy to be marked.B/Ocs

THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

Criminal Petition No.4229 of 2009

Date:30th December, 2011

[1]2008(1) ALD (Crl.) 252 (AP)2008(1) ALD (Crl.) 252 (AP)

[2]2010(1) ALD (Crl.)731 (AP)2010(1) ALD (Crl.)731 (AP)

[3]2010 (1) ALD (Crl.) 198 (AP)2010 (1) ALD (Crl.) 198 (AP)

[4]AIR 2001 S.C. 2037AIR 2001 S.C. 2037