Dr. J. Sudarshan vs R. Sankaran

This application is by the accused in C.C. No. 450/90 on the file of the VII Metropolitan, Magistrate, George Town, Madras facing trial for an

offence u/S. 500, IPC, on a complaint filed by the respondent herein, invoking the inherent powers of this court u/S. 482, Cr.P.C. to quash the

above proceedings.

The complaint has been filed by the respondent on the allegation that after nearly 55 years of meritorious service in the Bank of Baroda in

various capacities, he relinquished his office for personal reasons and thereafter on 20-11-1988, he attended an interview before the petitioner for

a suitable placement for him. The petitioner informed him that a membership fee of Rs. 5,000/-, refundable in the event of the petitioner not being

able to provide a job, had to be paid and accordingly, he paid the same. Later on found that the interview was only a hoax and he demanded the

return of Rs. 5,000/-. To prevent the respondent from initiating action against the complainant for return of the above amount obtained on false and

fraudulent representation, the petitioner filed O.S. 9681/80 on the file of VII Assistant City Civil Judge, Madras against him at the 7th defendant

and others for a token damage of Rs. 400/- for alleged illegal and unlawful acts. In paragraph 5 of the plaint, the petitioner had alleged as follows :-

7th defendant claiming himself as General Manager of the Bank of Baroda forged the signature of the 8th defendant for obtaining top level

employment in the private sector having done malpractices in the Bank of Baroda.

The above allegations were per se defamatory and were totally false. The 8th defendant, who was a former Minister, had never been met by the

respondent. The respondent''s reputation had been greatly lowered in the estimation of others and hence the complaint u/S. 500, IPC. On process

being issued to the petitioner, the present application has been filed by him to quash the proceedings.

Dr. J. Sudershan the petitioner herein, who initially appeared as party-petitioner and later on enrolment as an advocate, would submit that the

civil suit he has filed must be allowed to be disposed of on merits and while it is still pending, there could be no parallel proceeding like a criminal

complaint of the present type as laid down by the Supreme Court in Ram Sumer Puri Mahant Vs. State of U.P. and Others, . It was further urged

that it is premature to file a criminal complaint and there was time enough for the respondent, if the suit is dismissed to initiate action against the

petitioner and whatever has been stated in the plaint, would be substantiated by the petitioner during trial of the civil suit and averments in the plaint

are absolutely privileged and cannot form the subject matter of a prosecution u/S. 500, I.P.C. Reference was made to certain decisions, which I

shall refer to in the course of discussion.

Per contra, Thiru A. Raghunathan, learned counsel for the respondent would urge that the averments in a plaint or court proceedings, are not

absolutely privileged and the passage being per se defamatory, it is for the petitioner to bring his case within any one of the exceptions to S. 499,

I.P.C., which would be done only during trial, that the allegations made were motivated and not necessary for the purpose of the civil suit, which

itself is a frivolous one and filed merely to blackmail parties, as is seen from the status of the various defendants, against each of whom, highly

defamatory statements are made. The learned counsel relied upon a judgment of a Full Bench of this Court in Tiruvengada Mudali Vs.

Tripurasundari Ammal, and also upon other decisions.

The question that arises for consideration is whether the proceedings in O.C. No. 450/90 pending before the VII Metropolitan Magistrate,

George Town, Madras have to be quashed.

It is settled law that at this stage, when a mere process has been issued to the accused, all that the learned Magistrate has to see, is to find out

whether the averments made in the complaint, if accepted, constitute an offence. If they do not or if there is any legal impediment to the

commencement or continuance of the trial, it would be an abuse of the process of court and this court will have to invoke its inherent powers to

quash the proceedings. If the averments make out an offence and there is no legal impediment to the trial, this court cannot stifle a prosecution at its

very threshold. Every opportunity has to be given to a complainant to prove his case. Dr. J. Sudershan, rightly relies upon a decision of the

Supreme Court in State of West Bengal and Others Vs. Swapan Kumar Guha and Others, for accepting the above proposition of law.

Let us take the first contention of Dr. J. Sudershan that what is stated in the plaint absolutely privileged and can never be the subject matter of

prosecution for defamation. The definition of ''defamation'' in S. 499 of the Indian Penal Code, does not exclude averments made in pleadings in

judicial proceedings. However, if the particular defamatory passage was made in such circumstances as would fall under any one of the 10

Exceptions to S. 499, the prosecution cannot succeed, though this is a matter which could be gone into only during trial. The illustration to

Exception 8 would seem to indicate, that it could be the possible Exception under which, the question of privilege to statements made in judicial

proceedings can be brought. Exception 8 is as follows :-

Accusation preferred in good faith to authorised person. - Eighth Exception. 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 of accusation.

It would now be useful to refer to certain decisions on this aspect. Considering this Exception, a Five-Judge Full Bench of this Court in

Tiruvengada Mudali Vs. Tripurasundari Ammal, held that no absolute privilege attaches to averments in a criminal complaint made in court but that

the privilege is qualified in the sense, that the defamatory statement must have been made in good faith. In the case before the Full Bench,

Tiruvengada Mudali had filed a private complaint against three persons for different offences, in which he described the first of them as being a

paramour of the second-Thirupurasundari Ammal. This led to a complaint by Tirupurasundari Ammal against Tiruvengada Mudali for an offence

u/S. 500, IPC. A reference was made by the Division Bench to the Full Bench, as to whether the privilege to the statement made in the complaint,

was absolute or qualified. The Full Bench made it clear that u/S. 499, IPC, which alone would have to be looked into, without importing into it

common law principles proof of good faith, being one of the ingredients of Exception 8, the privilege is not absolute but only qualified.

The Supreme Court in M.C. Verghese Vs. T.J. Poonan and Another, referred to and accepted the law laid down in the above decision and

reiterated that a person making a libellous statement in his complaint filed in court, is not absolutely protected in a criminal proceeding for

defamation, for under Exception 8 and as seen from illustration to S. 499, IPC the statements are privileged, only when they are made in good

faith. The petitioner, therefore, cannot contend that the averments have been made by him in a plaint and are therefore absolutely privileged. In the

event of the petitioner claiming the benefit of Exception 8, which could be done only during trial, since the averment is per se defamatory, he would

have to establish good faith as required under the above Exception.

The learned counsel for the respondent also relied upon a decision in Bhagat Singh Sethi and Others Vs. Zinda Lal, wherein also, the decision

in Tiruvengada Mudali Vs. Tripurasundari Ammal, has been followed to hold, that the privilege is not absolute but only qualified and proof of good

faith is necessary.

A learned Judge of this court in Thangavelu Chettiar Vs. Ponnammal, , confirmed the conviction of the accused for the offence u/S. 500, IPC

relating to a defamatory statement made in his plaint in Small Cause No. 349/93 on the file of the District Munsif, Tirunelveli, wherein the plaintiff

had described one Ponnammal, as concubine of Namasivaya Udayar. Ponnammal had filed the criminal complaint for defamation. The trial Court,

as well as the appellate Court, had held that there was absence of good faith and since the findings were concurrent, this Court in the revision,

declined to interfere with the conviction.

These decisions would show that averments made in the plaint, if they are defamatory, can form the subject matter of a criminal prosecution

and the privilege is only a qualified one.

The next contention of Dr. J. Sundershan is that, the present prosecution is premature and the respondent would have to wait till the civil suit is

ultimately disposed of and in the event of the suit being dismissed, the petitioner could be subjected to any criminal prosecution. This contention is

totally untenable. The allegation in the plaint is that the agents, servants and workmen of the defendants entered the office of the petitioner on

several occasions, threatened to dispossess him and to cause injury, damage, alienate and remove valuable property, including important case

documents. Nothing more is averred in the plaint. In this context reliance is placed by the petitioner on the decision in Ram Sumer Puri Mahant Vs.

State of U.P. and Others, to contend that when the civil suit is pending, a parallel prosecution for defamation, could not be proceeded with. Such a

proposition of law cannot be deduced from the above decision. In that case, the Supreme Court held that, when a civil court is seized of the

question of disputed possession between rival parties, parallel proceedings by the Executive Magistrate u/S. 145, Cr.P.C. also to decide

possession ought not to be proceeded with. This has no bearing on the case before us. The offending passage is per se defamatory and it is open

to the respondent to choose to prosecute the petitioner, irrespective of the pendency or the result of the civil litigation. The Civil Court would

confine its decision to the trespass, threat of injury and damage by the servants, agents and workmen of the various defendants and the entitlement

of token damages by the respondent, while the criminal Court, the passage being per se defamatory, would proceed to find out whether any one of

the 10 Exceptions to S. 499, I.P.C. would apply. The scope of the two proceedings is entirely different. They are not parallel.

Dr. J. Sundershan then relied upon a judgment of the Supreme Court in State of Bihar and Others Vs. Kripalu Shankar and Others, wherein,

the Supreme Court held that there could be no contempt or defamation even if the notings in the office internal files are derogatory of Court''s

order, since they are privileged under Ss. 123 and 162 of the Evidence Act. Reliance was also placed on a decision in Dhulabhai and Others Vs.

The State of Madhya Pradesh and Another, , wherein the Supreme Court held that under the Madhya Pradesh Sales Tax Act, (30 of 1950) the

jurisdiction of the Civil Courts was excluded. These decisions have no relevancy to the issue before us.

Finally Dr. J. Sudershan, referred to a decision of a learned Judge of this Court in Duraiswami Thevan Vs. K.N.K.L. Lakshmanan Chettiar,

wherein the learned Judge held that the statements made before a tribunal exercising judicial functions, were absolutely privileged and could not

form the basis for a tortious claim in a civil suit for damages for defamation. We are presently concerned not with the law relating to tortious liability

but only with the ambit of a criminal prosecution under S. 499, I.P.C. Even the Full Bench in Tiruvengada Mudali Vs. Tripurasundari Ammal, while

answering the reference made it clear, that the question referred to them related solely to criminal proceedings against a complaint and that they

were saying nothing, as to how far one might be protected from civil proceedings. The Bench added that this was apparently anomalous, that while

one should be protected against civil proceedings, he would still be exposed to criminal proceedings, but that this was so, in view of the fact that

criminal law in India is codified and the law of civil wrong is not. The above decision, therefore, does not help the petitioner, this being a criminal

prosecution.

Not being able to accept any of the contentions of Dr. J. Sudershan, this petition is dismissed. It is however, made clear that the observations

made by this Court in this order, touching the merits of the case, will not affect the parties either in the civil litigation or in the criminal prosecution.

They have been made for the limited purpose of disposing of this application.

Petition dismissed.