CRLP/7751/2008 of Rajesh Bhatia, Vs C.R.Sudhinder Kumar, on 30 December 2011

ORAL ORDER:

This petition is filed under Section 482 Cr.P.C. seeking to quashproceedings in C.C.No.199 of 2008 on the file of the II Additional ChiefMetropolitan Magistrate, Nampally, Hyderabad registered for offencepunishable under Section 500 read with Section 499 IPC.

The petitioner is A1 and the respondents 1 and 2 are thecomplainants in the calendar case. For the sake of convenience, the partieshereinafter be referred to as they are arrayed in the calendar case.

According to the complainants, A1 lodged alleged imputation/falsecomplaint dated 17.5.2005 which are defamatory with the Income TaxDepartment while marking several copies of it to the Prime Minister,President of India, Union Home Ministry, Chief Minister of Andhra Pradesh,Central Vigilance Commission, concerned Police Stations, severalhundreds of customers of the complainants including few of its esteemedcustomers namely Andhra Bank, State Bank of India, ECIL etc., and on thebasis of that complaint, the State Home Department directed the concernedInspector General of Police to investigate into the matter and submit a reportand the Assistant Commissioner of Police, Sultan Bazar who wasdelegated with the power conducted a detailed enquiry and submitted areport to the Commissioner of Police, presumably stating that theallegations made in the complaint proved to be false, whereas no copy of itwas furnished to them (complainants) on the ground of confidentiality andA1 also made a representation to the Income Tax Department under theprovisions of Right to Information Act with regard to the consequential actiontaken by the department on the complaint and as no action was taken, hepreferred appeal before the Central Public Information Officer, office of theChief Commissioner of Income Tax, the first appellate authority under theRight to Information Act which was rejected, by reason of which, heapproached the Central Information Commission under R.T.I. Act. Further, in the imputation several baseless allegations were made against them andtheir family members in order to wreck vengeance against them and ruintheir business and cause financial loss to them with ulterior motives. Further, A1 also involved in making imputation in Vaartha Telugu DailyNewspaper i.e. A2 on 26.5.2002 under the caption “Illegal Profit by KirloskarDealer, Heavy Loss to Banks” against them (the complainants) and hencethe latter approached A2 and lodged their protest and in response to it, A2published another news item on the next day i.e. on 27.5.2002 clarifying thatthe news item published on 26.5.2002 was baseless and was issued at thebehest of A1 and in fact A2 also conducted an independent enquiry with theactive aid and assistance of the police of Sultan Bazar and also withKirloskar Electric Company Ltd. that the information provided by A1 wasfalse and baseless and to the said effect, A2 also published another newsitem on 30.5.2002.

The learned counsel for the complainants has drawn the attention ofthe Court to the following paragraphs in the complaint containing about 16pages in this context:

1. M/s AAR BEE Enterprises by Propreitor G.Parimala and herhusband Sudhinder Kumar at D.No.4-5-896/4/3A, Sultan Bazar,Hyderabad like Harshad Mehta and Natwarlal M/s AAR BEEEnterprises cheated State and Central Government and Banksand also duping Sales Tax and Income Tax by making taxevasion.

2. That Smt.G.Parimala W/o C.R.Sudhinder Kumar is convictedby the XV M.M. Court, in C.C.No.1259/01 for six months RigorousImprisonment and fine and even appellate Court i.e. II M.S.J.Hyderabad has confirmed the said punishment vide CriminalAppeal No.314/2003 and this proves that Prop: of M/s Aar BeeEnterprises is a confirmed, declared and proclaimed convict andincome tax officials i.e. Rajender Kumar Joshi and Lakshmi Joshiare still staying at the same house with them and appears out ofway supporting culprits.

3.

That it is common talk that Rajender Kumar Joshi consumescostly drinks like Red Knight Whisky and he is daily entertainingon an average 5 to 6 persons by going to different Bar andRestaurant i.e. Gokul, Suprabhat at Kachiguda Road and during lunch hour goes to Narmada Bar and Restaurant with friends andalso uses lift room at Terrace of I.T. office at Ayakar Bhavan toconsume liquor before leaving office thereby making mockery ofhis position and defaming I.T. Department. His dismissal is amust to keep the good image of I.T. Department. It appears he iscorrupt to the core of Natwarlal and protecting and harbouring thewhite collared crime of tax evasion by his brother-in-lawSudhinder Kumar and his wife G.Parimala. Probe where fromRajender Kumar Joshi is getting Rs.1,000/- for consuming liquordaily. Even if doctors check his blood the liquor contents will bedisclosed even in day time.

4. C.R.Sudhinder and G.Primala be held responsible as theabove persons are conspiring to kill the complainant by engagingcontract killers.

5. G.Parimala’s father to marry a divorcee Smt.Prema Bai and onrefusal by Gopinath Rao, Sudhinder Kumar threatened to divorcehis wife G.Parimala (daughter of Gopinath Rao) and under suchthreats Gopinath Rao of 60 years was forced to marry divorceeand later marriage broken by providing permanent alimony.

6. Hence, it is prayed in the interest of the justice that all theabove culprits be arrested and punished as per the law of theland. Early action is highly appreciated.

Further, copies of publications dated 26.5.2002, 27.5.2002 and30.5.2002 published in A2 and the notice dated 20.3.2007 issued by theCentral Information Commission to the Central Public Information Officer,office of the Chief Commissioner of Income Tax and the first appellateauthority under RTI Act, 2005 and the Chief Commissioner of Income Tax,Hyderabad to appear before it on 23.5.2007 in connection with the appealfiled by A1 under Section 19 of RTI Act, 2005 and also othercorrespondence are filed before the Court.

The learned counsel for A1 submits that there is no “to” address inthe complaint, whereas there is only “from” address of A1 and furthercontends that if any such material was sent to anybody by post and evencommunication of it to such persons against whom the alleged imputationwas made would not amount to defamation and even supposing that it was so made, it was made in good faith and without any malafide intention,which does not amount to defamation as it is covered by exception (9) toSection 499 IPC relying upon decisions in K.R.GOPALAKRISHNAN v.P.RAMAN NAMBOODIRI[[1]], RAJENDRA KUMAR SITARAM PANDEAND OTHERS v. UTTAM AND ANOTHER[[2]], SMT.Dr.NAGARATHNAMv. M.KALIRAJAN[[3]]and BASHIR ULLA KHAN v. MOHD. RAFI ANDANOTHER[[4]].

The learned counsel for the complainants has drawn the attention ofthe Court to certain admissions made by A1 in the grounds of petition withregards to the imputations made and claimed that in view of thosesubmissions, A1 got no right to claim that it was not addressed to anybodyand it was also not sent to anybody claiming that there is good material ofdefamation and in fact, in the grounds of petition, it is clearly asserted by A1that the complaint was made in good faith to the lawful authority havingjurisdiction to enquire into the matter and therefore, having made suchadmission, he cannot claim or he is estopped from claiming now that it wasnot addressed to anybody and as such non-mentioning of “to” addresstherein is not material by relying upon the decision in HARBHAJAN SINGH

v. STATE OF PUNJAB AND ANOTHER[[5]]

The point for consideration is whether the alleged imputation/thecomplaint was made in good faith or not and whether there is material aboutthe defamation to prosecute the accused.

In K.R.GOPALAKRISHNAN v. P.RAMAN NAMBOODIRI (1 supra), itwas held that publication of any defamatory material was defamation andcommunication of an official entry in a confidential report of a superior officerthrough the official channel cannot be described as publication to warrantinitiation of a prosecution for defamation. In Smt.Dr.NAGARATHINAM v.M.KALIRAJAN (3 supra), it was observed that unless necessary publicationwas made and the alleged defamatory statement was sent to thecomplainant by registered post it would not amount to defamation. Further,in BASHIR ULLA KHAN v. MOHD. RAFI (4 supra) it was held that whenever any investigation was made on information supplied in good faithor without any malafide intention then the person who made report could notbe prosecuted for the offence under Section 500 IPC. Similar observationswere made under similar circumstances in the other decisions cited.

Conclusion

Emphatically, the publication in A2 newspaper dated 26.5.2002 andthe corresponding reminders issued on 27.5.2002 and 30.5.2002 are barredby limitation under Section 468 Cr.P.C. with reference to the punishmentprescribed under the section, because the complaint was filed in the year2007, i.e. after five years thereafter. Therefore, those aspects cannot beconsidered with regards to the offence in question, whereas they can beconsidered for necessary clarification about the question of defamation. Therefore, the so-called imputations made on 17.5.2005 and 28.5.2007 areto be taken into consideration here. In fact, no material is filed before theCourt with regards to making copies of the material to the public and nomaterial is also filed before the Court with regards to marking copies of thematerial as claimed in the complaint, but what is significant is that there isno specific denial of marking of the alleged defamatory statements tovarious authorities and also several hundreds of the customers of thecomplainant including their esteemed customers State Bank of India, ECILetc., which therefore is to be taken as publication of it to the public. Furtherdefinitely the material is in the nature of defaming the reputation of thecomplainants personally and also in their business circles prima facie. Therefore, the contentions raised by the learned counsel for A1 are nottenable. I am of the view that unless necessary trial of the case isconducted, it is not possible to establish the complicity or innocence of A1 inthe matter.

For the foregoing reasons, I see no grounds to quash theproceedings and therefore the petition is liable to be dismissed. Accordingly, the criminal petition is dismissed.

________________________

G.KRISHNA MOHAN REDDY, J

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESHAT HYDERABAD

Date: December, 2011

Between:Rajesh Bhatia

.. Petitioner/A1

And

C.R.Sudhinder Kumar and others.

.. Respondents

[1]1985 Crl.L.J. 1035[2]AIR 1999 SC 1028[3]2001 Crl.L.J. 3007

[4]2006 Crl.L.J. 3549

[5]AIR 1966 SC 97