Doulat Shinandar vs P. Karuna Bai

Ratnavel Pandian, J.—The complainant in C.C. No. 5863/74 (sic) the file of the 17th Metropolitan Magistrate George Town, Madras-1, has preferred (sic) revision petition questioning the correctness propriety and legality of the order made (sic) the learned Magistrate on 8th September, (sic) in M.P. No. 735 A/75 holding that (sic) complaint filed by the petitioner-complainant against the respondent-accused for an (sic) under S.500, I.P.C. was not sustainable (sic) that the charge against the respondent (sic) groundless and consequently discharging (sic) respondent under S.253(2) of the Crl.P.C.(sic).

The petitioner-complainant filed private complaint against the respondent accused before the learned XVII Metropolitan Magistrate, George Town, Madras, for offence punishable under S.500, I.P.C (sic) that the respondent had made some defamatory allegations against him in an affidavit filed by the respondent in I.A. 2677/74 in O.S. 866/74 on the file of the City Civil Court, Madras. The laid said was filed by the respondent herein for recovery of the value of the battery and hire charges, since the petitioner herein failed to return the battery taken on hire charges from her on 8th November 1973, and also failed to pay the hire charges in spite of repeated demands. Along with the plaint, the respondent took out an application for attachment before judgment of the movables belonging to the petitioner on the basis of certain averments contained in the affidavit accompanying the said application. According to the petitioner-complainant, the imputations made against him by the respondent as plaintiff in O.S. No. 866/74 are: (1) that the petitioner played a mischief in disposing of the battery belonging to the respondent and appropriated the amount for himself, (2) that on enquiry it was brought to the respondent''s knowledge that the petitioner was not possessed of any valuable movable or immovable properties, (3) that the Act of the petitioner in disposing of the battery belonging to the respondent clearly showed that the petitioner was in financial difficulties, and (4) that the petitioner was likely to go out of the court''s jurisdiction. These averments contained in the affidavit filed by the respondent would, according to the petitioner, suggest that the petitioner is a criminal and that he is worthless and is likely to cheat his employees and customers by suddenly absconding, and the respondent, by making these imputations and by bringing a Bailiff from the Court for distraining the household goods, has harmed the petitioner''s reputation by lowering his character and integrity in the eye of the public and the petitioner was made to part with a sum of Rs. 2,108.20 to the Bailiff on the spot itself, so as to prevent the distraint. It was on these allegations that a criminal complaint was filed under S. 500, I.P.C., which was taken on file in C.C. 5863/74. Thereafter, the accused filed a petition in M.P. No. 735-A/75 under S.253(2) of the Criminal Procedure Code, 1898, stating that the averments in her affidavit filed in I.A. 2677/74 were made only to satisfy the court as required by Or. 38. R. 5, C.P.C., and the court was pleased to order attachment before judgment after having been fully satisfied about the bona fides of the averments contained in the affidavit. She would further state that inasmuch as the complainant had not denied the allegations by filing a counter-affidavit in that application, it would go to show that the circumstances which warranted the issue of attachment before judgment did really exist. She would further contend that the averments were made only in good faith for the protection of the interests of the accused herself and to enable her to realise the amount due and as such the said statements are well protected by Exception 9 to S.499, I.P.C., and they did not make out an offence of defamation outside the said exception. Therefore, by this Miscellaneous Petition the accused prayed for his discharge under S.253(2) of the 1898-Code whose verbatim reproduction is S.245(2) of the new Code.

The petitioner herein filed a counter to the petition filed by the accused making the following averments. It is true that no counter was filed in I.A. 2677/74 as there was no necessity since the attachment had been effected. The allegations were not made in the affidavit in good faith and as such they do not come within Exception 9 to S. 499, I.P.C.

The learned Magistrate, after considering the contentions of the respective parties and relying on the decisions in Bhagat Singh Sethi and Others v. Zinda Lal AIR 1966 J&K 106 and Srinivasa Rao v. Gulab Chand Kundan Mal AIR 1965 Mys. 276, observed as follows:

On a consideration of the decisions cited above, I have to necessarily arrive at the conclusion that the allegations made by the party in an affidavit made in good faith to protect her interest in a petition for attachment before judgment are privileged under Exception 9 to 499 I.P.C., and by any stretch of imagination they cannot be said to be defamatory in character and the maker could hardly be prosecuted for defamation or convicted for that.

Then, the learned Magistrate has considered the other contentions raised before him regarding the scope of the power of the Court to discharge the accused under S.253(2) and had finally discharged the accused.

Mr. S. Veeraraghavan, learned counsel appearing for the petitioner, would mainly submit that the accused is not at all entitled to seek protection under Exception 9 to S.500 as there are abundant circumstances to show that the accused filed the said affidavit without reasonable and probable cause and obtained the order of attachment maliciously. In the memorandum of grounds, one other legal question has been taken stating that the lower Court should have applied the provisions of the new Procedure Code instead of the old Code since the accused appeared before the Court only on 1st April 1974, i.e., on the date when the new Code came into force. It is indisputable that cognizance of this case has been taken by the Court on 22nd March 1974 under the old Code, The learned counsel also has not pressed this ground. Hence, there is no need for me to enter into a discussion on this point.

Coming to the merits of the case, Mr. Veeraraghavan would submit that his client is an affluent person having a bank balance of Rs.20,000/- as on the date of the passing of the order of attachment and that therefore he had no necessity either to dispose of or to remove the whole or any part of his properties from the local limits of the jurisdiction of the court. According to him, the imputations were made by the accused, knowing fully well that those imputations were not true to her knowledge, only for the purpose of obtaining the order of attachment, and the plea of good faith is negatived by the reckless statements made by the accused which are indicative of want of due care and caution on her part. Hence, the order passed by the learned Magistrate without holding an enquiry by examining the witnesses is erroneous.

Before entering into a discussion of the legal position as to whether the accused is protected under Exception 9 to S.499 or not, 1 shall refer to some admitted facts. In this connection, the counsel for the accused, during the course of hearing of this revision, filed a certified copy of the deposition of the petitioner herein in O.S. 866/74 and a printed copy of the judgment, dt. 23th January 1976 in the said case.

The accused, who was the proprietrix of Messes. Mallika Battery Service, filed a suit in O.S. No. 866/74 on the file of the City Civil Court, Madras for the recovery of charges towards the hire of the battery lent by her concern and the value of the said battery as it was not returned by the defendant (petitioner-complainant herein). In the said proceedings, the accused filed I.A. 2977/74 and obtained an order of attachment before judgment. When the bailiff took steps to distrain the household goods of the petitioner, the petitioner paid the total sum claimed by the plaintiff, viz., Rs.2,108.20 and averted the distraint. The petitioner did not file any counter to the application for attachment before judgment. But, he would explain this by stating that there was no need for him to do so since the attachment had already been effected. The suit was thereafter partly decreed, against which the petitioner has preferred an appeal in A.S. 307 of 1976 which is now pending before the Second Additional Judge, City Civil Court, Madras. The respondent has also filed a Memorandum of Cross-objections as against the judgment of the trial Judge partly dismissing his claim.

The only question for consideration in this case is whether the accused is protected under Exception 9 to S.499, I.P.C. Exception 9 reads as follows:-

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 interest of the person making it, or of any other person, or for the public good.

In dealing with ''good faith'' under this exception, the Supreme Court in Harbhajan Singh Vs. State of Punjab, has observed thus:-

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; axe 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.

The words "good faith" are defined in S.52 of the Indian Penal Code thus:

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

Therefore, in considering the question whether one has acted in good faith are not, we have to examine whether the said person acted with due care and attention. No doubt, a bald plea that the maker of the statement believed what he stated was true by itself would not sustain his case of good faith so as to attract the ninth exception. Simple belief or actual belief by itself is not enough. On the other hand, it must be shown that the belief in the impugned statement had a rational basis and was not just a blind simple belief. Therefore, the element of due care and attention plays an important role. If it is shown that the accused did not take due care and attention, then his belief of good faith will be defeated. But, at the same time, it should be remembered that good faith does not require logical infallibility. The question of good faith is necessarily a question of fact, whether the accused enters that plea and proves it or the prosecution gives proof to show the absence of it. The true test to be applied for the proof of the existence of good faith is whether there is no lack of good faith and it must be gathered only from the surrounding circumstances.

The petitioner''s counsel relied on Superintendent and Remembrancer of Legal Affairs Vs. Purna Chandra Ghosh, , Sudhangshu Sekhar Dey Vs. Haricharan Ghose, , Balasubramania Mudaliar and Anr. v. Sri Rajagopal Chariar 1944 M.W.N. Cri. 90, Talangare Mammunhi v. Abdul Rahiman 1948 M.W.N. Crl. 185, Nanjappa Chettiar v. Ganapathi Goundan ILR 35 Mad. 698 and Kumarasamia Pillai v. Udayar Nadan ILR 32 Mad. 170. Of the above-cited decisions, the first four deal generally with the burden of proof cast on the accused to establish that he acted with due care and caution. The last two decisions arose out of suits filed for damages for defamation on the ground that the defendant had obtained an attachment before judgment on the properties of the plaintiff maliciously and on insufficient grounds. In both the cases, it is pointed out by the learned Judges of this court that the plaintiff in such actions is bound to prove want of reasonable and probable cause on the part of the defendant while applying for attachment and malice in fact. Lastly, reliance was placed on Gaylord Restaurant v. Chabbrai 88 L.W. 405 wherein Mohan, J. has referred to the above decisions and made similar observations.

On the side of the accused, Mr. Panchapagesan, besides referring to the two decisions referred by the learned Magistrate in his judgment, would also refer to the decision in Anthony Udayar v. Veluswamy Thevar AIR 1948 Mad. 469 wherein Rajamannar, C.J., has held:

To secure the protection of Exception 9 to S.499 for allegations made in a written statement, it is necessary that the imputations should have been made in good faith and for the protection of the interest of the person making it or of any other person or for the public good. There cannot be any rule of thumb to determine in a particular case whether any imputation is made in good faith or not. Good faith is relative to a great extent and must be determined by the circumstances under which the imputation was made, the social status and the level of the education of the person making the imputation and his reasoning capacity. That the allegations contained in the written statement made by the makers are not established to be true, is not tantamount to absence of good faith.

I had the occasion to examine the nature and extent of the onus of proof expected from a person accused of an offence as contemplated under S.105 of the Evidence Act, in a case. Deivasigamani v. Kamrudeen Rowther 1977 M.L.J. Crl. 86 : 1976 L.W. Crl. 25 (S.N.) wherein I have pointed out that in cases of this nature where the burden of proving anything is on the accused, the said burden is less than the one cast on the prosecution in proving the guilt of the accused. In Srinivasa Rao v. Gulab Chand Kundan Lal AIR 1965 Mys. 276, it has been observed that the main object of an attachment before judgment is to enable the plaintiff to realise the amount of the decree, if one is eventually passed, from the defendant''s properties, that the law requires that the person seeking an order of attachment before judgment must relate the facts as required by O.38, R.5, C.P.C., and satisfy the Court by a petition or otherwise about them, and that therefore, when such statements as are required by law to be made are made bona fide, it would hardly be right to hold that the said statements are defamatory in character.

Bearing the above principles in mind let us examine the circumstances in this case and see whether there was any malice on the part of the accused and further whether he acted without probable or reasonable cause or whether he had taken the necessary care and caution before making the averments in his affidavit in support of his application for attachment before judgment. Mr. Veeraraghavan does not deny the fact that his client received a letter, dated 26th November, 1973 marked as Ex-B-1 in the civil suit, though he would deny the receipt of Ex.A-4. However, Mr. Veeraraghavan concedes that his client (petitioner herein) received a notice marked as Ex-A-1 in the civil suit, dated 2nd January, 1974, and would say that his client did not and could not send any reply since his client was on camp on his business at various places as it was Pongal season, and that the accused had taken action without waiting for his reply and obtained the ex parte order. He would admit that his client received the said notice, Ex A-1 even on 3rd January, 1974 and that the order of attachment was obtained in the last week of January, 1974. Therefore, the undeniable facts are that the accused was making demand from the petitioner herein for the payment of the hire charges and the return of the battery or its value, that she issued notice to the petitioner, that the petitioner did not send any reply to the notice though he would give some explanation and that the petitioner did not file any counter to the interlocutory application before the Court. It may be true that the petitioner was possessed of huge amounts in bank deposits as claimed by him and that he was a man of affluence. But, the above circumstances narrated above would indicate that the accused had taken the necessary care and precaution by sending the notice of demand to the accused and only after having failed to receive any reply from the accused, she had chosen to file the suit and in that process, to protect her own interests, had sought to attach the properties of the petitioner. Therefore, in such circumstances it cannot be said that the accused had acted in any way maliciously and without probable and reasonable cause. It is farfetched to expect the accused to make a thorough investigation about the bank deposits of the petitioner-complainant before she tried to recover the amount allegedly due to him by filing an application for attachment, before judgment. In the present cafe, the petitioner has not even cared to send a reply to the notice received by him from the accused, whatever might have been the reasons therefor.

Even if the learned Magistrate had taken evidence from both sides, the position and the circumstances would have been the same and the Lower Court has to pass orders only on the basis of such admitted facts and circumstances. Therefore, the mere fact that the evidence had not been recorded in this case does not in any way prejudice the case of the complainant.

From the above discussion, it is difficult for me to hold that the accused had any improper or indirect motive in securing the order of attachment before judgment against the complainant-petitioner and therefore I hold that there was no malice on that part of the accused. Irrespective of the result in the civil proceedings between the parties, in my view, the order of the learned Magistrate cannot be said to suffer from any illegality, much less manifest illegality.

Finally, Mr. Veeraraghavan would urge that unless there is some check against making false and defamatory statements in an application for attachment in respect of the properties of another, every person filing a suit for recovery of amounts would be emboldened to make any type of defamatory and false statements merely for obtaining attachment in respect of the properties of the defendant, and therefore, it is necessary that the court should take a serious view of the matter and punish the accused. According to him, this is one illustration of the case wherein false and defamatory statements are made. I have already held that the circumstances in the present case are not such as to warrant a conclusion that the accused had made the averments without taking proper care and attention so as to come within the mischief of S.500, I.P.C. But, coming to the general argument advanced by the learned counsel, I may point out that a Bench of this Court, to which I was a party, has observed in M/s. Exactum Tools (P) Ltd. v. C.I. Alexander & Another Contempt Appln. No. 14/75, Order dt. 15-12-1975 as follows:

...We are at pains to point out that the Tribunals below ought not to have exercised their discretion which in the ordinary course of things should have been done after a proper understanding of the relevant facts. The Tribunals below were only anxious to give ex parte orders. This practice has set in, in the precincts of City Civil Court and the Court of Small Causes and this has to be nipped in the bud. Even in the case of the issue of an ex parte order and though it contemplates the exercise of discretion such discretion ought not to be injudiciously exercised for the mere asking of it by the litigants. In cases like these, at any rate, which are under the circumstances before us a non-speaking order resulting in a series of directions, which are ambulatory, results in extreme prejudice to the public at large and causes the utmost inconvenience to the superior court which is called upon to consider the propriety or legality or regularity of such orders.

In the nature of things, it is impossible to lay down any such rigid or general rule on the subject by which the discretion of the court ought in all cases be regulated. But, if a plaintiff obtains an attachment before judgment by making such statements which are false and defaming the defendant, to his knowledge, certainly every court should in the interests of justice, punish the offender. Nonetheless, it is to be noted that unless the intention of the accused to defame the complainant is clearly proved, he cannot be punished under S. 500, I.P.C., merely on the complainant proving his status in life. At any rate, taking the cumulative effect of all the circumstances in this case, I feel that the order of the learned Magistrate cannot be said to be illegal or perverse.

The Supreme Court, in a recent judgment in Thakur Das (Dead) by Lrs. Vs. State of Madhya Pradesh and Another, has pointed out that the jurisdiction under S.401, Crl. P.C. has to be exercised in exceptional cases where there is a glaring defect in the procedure or there is a manifest error on a point of law, and consequently, there has been a flagrant miscarriage of justice. In the present case, there is neither any defect in the procedure, nor any manifest error on a point of law occasioning miscarriage of justice.

It is pertinent to note that the accused came before this Court with an application under S.482, Crl. P.C., to quash the entire proceedings in this case, namely, C.C. 5863/74, and Krisnaswami Reddy, J., while dismissing the application Crl. M.P. No. 3343/74 on 14th March, 1975, passed the following order:

It appears that the petitioner has a good point in his favour. He also states this before me. He is likely even to succeed. But that is not a ground for quashing the proceedings. The points raised by him here, the petitioner must have raised before the Court below and if he had not raised already he is permitted to raise these points and the Magistrate Will consider the case carefully and dispose of it according to law. With these observations this petition is dismissed.

Mr. Veeraraghavan would submit that this order was passed by the learned Judge without any notice to his party. Is not for me to go into the reasons and circumstances under which this order was passed. But, I can only say that the complainant has not taken up the matter on appeal.

For the foregoing discussions, I hold that this is not a fit case for my interference in revision with the order of the learned Magistrate. In the result, the revision is dismissed.