Chinnammal vs A. Subramanyan

Swamikannu, J.—This is a Criminal Revision Petition filed by the complainant against the order, dated 6th July, 1976 in C.C. No.15480 of 1976 on the file of the Court of the learned VIII Metropolitan Magistrate. George Town, Madras dismissing the complaint under S.203, Crl.P.C.

The complainant/Revision Petitioner herein had filed the private complaint against the accused for an offence under S.500, I.P.C. alleging that the accused filed a plaint in O.S. No. 7583 of 1973 on the file of the learned XII Assistant Judge, City Civil Court Madras and made therein certain defamatory allegations against him saying that,

the defendant''s house is constantly being visited by many persons, including many unwanted characters and rowdy elements of the locality. The nefarious activities of the defendant at her house has been a constant source of nuisance to the plaintiff and other neighbours.

It is further alleged by the complainant-Revision Petitioner herein before the Trial Court that the said allegations made by the accused in the plaint filed by him in the City Civil Court were totally irrelevant for the purpose of the said case and the said imputations were made intending to harm or knowing or having reason to believe that such imputations will lower the reputation of the complainant. The sworn statement of the complainant was recorded by the Trial Court on 6th July, 1976. The complainant submitted to the Trial Court that she had not brought any witness to examine before the Court on that date. On the point whether the complainant has made out a prima facie case against the accused for an offence under S.500, I.P.C., the Trial Court found that the plaint was filed in the year 1973 by the accused and the complainant has not come forward with any complaint promptly, but after a delay of nearly two years and eight months, has filed the complaint. The delay is not at all explained by the complainant. The Trial Court also found that even if the allegation made by the accused in the plaint is an imputation which was made long back, the complainant/Revision Petitioner has come forward with this complaint after a delay of two years and eight months and it is not at all explained and that the complainant tries to file this complaint by anticipating that certain imputations will be made on a future date of 4th August, 1975. It has also held that even if it is an imputation, the circumstances and the facts of the case show that it would clearly fall under the Ninth Exception to S.499, I.P.C. So the Trial Court held that the complainant/Revision Petitioner herein has not made out any prima facie case against the accused for an offence under S.500, I.P.C., and hence dismissed the complaint under S.203, Crl.P.C.

Aggrieved by the aforesaid decision of the Trial Court, the complainant/Revision Petitioner herein has come forward with this revision petition, inter alia contending that the Trial Court has failed to note that the imputations had been made in bad faith and hence not protected under Ninth Exception to S.499, I.P.C, that the imputations and allegations are totally irrelevant to the suit and the allegations were introduced in the plaint to lower the dignity of the complainant in the eyes of others. It is also contended on behalf of the complainant/revision petitioner herein that the Trial Court has failed to note that the publication of the defamatory matters starts from the time of filing of the plaint and continues as long as the plaint is on the file and only further publicity will be given to the allegations when the trial of the case takes place. It is stressed on behalf of the complainant/revision petitioner that the Trial Court ought to have found that the Ninth Exception to S.499, I.P.C., will not apply to this case.

The point for consideration is whether the order of the lower court, dismissing the complaint preferred by the complainant/revision petitioner herein, is vitiated by any error committed in the procedure adopted by it.

On 6th July, 1976 the complaint was filed and the complainant was also present in the court on that date. The sworn statement of the complainant was recorded by the Trial Court. The complaint was also dismissed under S.203, Crl.P.C. on the same day.

In the sworn statement, the complainant has stated that the accused is residing in the house adjacent to her house and he has filed a suit in the Court of the learned XII Assistant Judge, City Civil Court, Madras, alleging in the plaint against the complainant/revision petitioner herein as

She has also stated in her sworn statement that due to, the said allegations made in the plaint by the accused, her reputation has been lowered to a very large extent. On that day, no witness on behalf of the complainant had come to the Court.

In the complaint, the complainant/revision petitioner herein has alleged that the accused has made the following defamatory allegations in paragraph 2 of the plaint which is as follows:

The defendant''s house is constantly being visited by many persons, including many unwanted characters and rowdy elements of the locality. The nefarious activities of the defendant at her house has been a constant source of nuisance to the plaintiff and other neighbours.

The learned counsel for the complainant/revision petitioner herein submits that the Trial Court ought to have proceeded further with the complaint after having taken the sworn statement; but it had erroneously come to the conclusion soon after taking the sworn statement of the complainant, and that this complaint is liable to be dismissed under S.203, Crl.P.C. The learned counsel for the complainant revision petitioner submits that the finding of the Trial Court that even if it is an imputation, the circumstances and the facts of the case show that it will clearly fall under the Ninth Exception to S.499, I.P.C. is premature in that there is no material available on record by way of evidence for coming to such a conclusion; that merely on the ground that the witnesses were not brought on that day on which her sworn statement was recorded by the Trial Court, the complaint cannot be dismissed under S.203, Crl.P.C. and that an opportunity ought to have been given to the complainant/revision petitioner to put forward her case by letting further evidence by her, so as to corroborate her statement by allowing her to examine herself further, after giving a notice to the accused. But, without adopting any such comprehensive procedure, the Trial Court had come 1o the conclusion that the complainant has not made out any prima facie case against the accused for an offence under S.500, I.P.C. which according to the learned counsel for the complainant/revision petitioner herein is against law and the decision of this Court in Crl.R.C. No 138 of 1976, dated 31st March, 1978. In this regard, the learned counsel for the complainant/revision petitioner points out that on the ground of delay in filing the complaint, the Trial Court ought not to have dismissed the complaint. An opportunity ought to have been given to the complainant to explain the delay, during her evidence, when she examined herself as a witness, during the proceedings before the Trial Court, and to hold that the delay is fatal to the case of the complainant, soon after the recording of the sworn statement it against the law and procedure. I am unable to reject this contention as wholly unsustainable. It is seen that the Trial Court had given its finding that the imputation will fall under the Ninth Exception to S.499, I.P.C., soon after the recording of the sworn statement of the complainant. This, in my view, is not in accordance with the decision of this Court cited supra.

In the decision cited supra, the complainant therein alleged that the accused filed an affidavit in I.A. No. 26914 of 1977 in O.S. No. 10209 of 1977 on the file of the Court of the learned XI Assistant Judge, City Civil Court, Madras, in which the accused had made defamatory allegations against the complainant to the effect that the accused reliably understands from authentic sources which, he believed to be true that the complainant had borrowed heavily from the market to the tune of several thousands beyond his worth and capacity to repay back to his creditors and the creditors are heavily pressing him. The allegations are per se defamatory. The learned Magistrate, in the above case, after recording the sworn statement of the complainant dismissed the complaint under S.203, Crl. P.C. on the ground that the copy of the affidavit containing the defamatory allegations produced by the complainant did not bear the seat of the Court and was not a true copy signed either by the complainant or by his Advocate, and as such it cannot be taken as an authentic document. The second ground stated by the learned Magistrate is that the accused did not make the allegations voluntarily and be had intention to defame the complainant and his only intention was to attach the properties before judgment in a suit filed by him. The third ground mentioned by the learned Magistrate is that Exception 5 to S.499, I.P.C. would cover this case. This Court has held that during the course of the enquiry the complainant would certainly produce a certified copy of the affidavit so filed by the accused before the City Civil Court; but without there being any material, such materials in the complaint or in the sworn statement, it would be premature for the learned Magistrate to hold that one of the Exceptions to S.499, I.P.C. would apply. In the instant case also, the learned Magistrate has come to the conclusion that the complaint is liable to be dismissed under S.203, Crl. P.C. because the witnesses were not brought by the complainant on the date of the sworn statement and that on the contents of the complaint and the sworn statement, the case would come under any one of the Exceptions under S. 499, I.P.C.

The learned counsel for the complainant revision petitioner also cited another decision rendered by our High Court reported in Thangavelu Chettiar v. Ponnammal 1966 (1) M.L.J. 547 : 1966 L.W. (Crl) 115.

Describing an unmarried woman as the concubine of a particular person is per se defamatory unless the person making the statement had reasonable belief that she was kept as a concubine or the statement was made in good faith. The burden of proving that the accused comes under any of the Exceptions is on him.

Filing a copy of the plaint filed in Court in which such a statement is made is publication within the meaning of the section as the copy will necessarily have to be compared by the Court with the original before sending it to the defendant.

The learned Magistrate has found that Exception 9 to S.499, I.P.C. would cover this case. It has to be pointed out that the burden of proving any Exception in the Indian Penal Code is on the accused. No doubt that burden is not as great as it is on the prosecution to prove the guilt of the accused beyond reasonable doubt. But, that burden could be discharged by the preponderance of probabilities. Of course, if there are materials in the complaint or in the sworn statement which by themselves would bring the case within one of the Exceptions to S.499, I.P.C., the learned Magistrate would then be justified in finding that the case would come under one of those Exceptions. But, without there being any such materials in the complaint or in the sworn statement, it would be premature for the learned Magistrate to hold that Exception 9 to S.499, I.P.C, would apply in this case, I must also note at this juncture, the learned Magistrate is not right in thinking that Exception 9 to S.499, I.P.C. would apply. A careful reading of that Exception would clearly show that the Exception would apply to a case wherein in good faith, the imputation is made for the protection of the interest of the person making it or of any other person or for the public good. To arrive at a conclusion that the Ninth Exception to S.499, I.P.C. is applicable to the facts of the case soon after the recording of the sworn statement in my opinion, is not correct. I find that the order of the learned Magistrate dismissing the complaint under S.203, Crl. P.C. cannot be supported, and it is set aside and further enquiry into the complaint is ordered.