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Judgment
A. Gopal Reddy, J.—Lodging a caveat by the petitioner herein in the court of Principal District Judge, Eluru, West Godavari District lead to filing a private complaint in C.C. No. 1163 of 2004 on the file of II Additional Judicial First Class Magistrate, Eluru for the offence u/s 500 IPC which was taken on file and issued process by the magistrate. On issuance of process the petitioner who is accused filed the present petition u/s 482 Cr.P.C. to quash the proceedings initiated against him.
The compliant allegations briefly stated as under: On complainant receiving caveat petition filed by the accused along with affidavit making wild allegations touching the character, conduct, image and reputation of the complainant and his father and another respondent with an evil intention to defame the complainant and damage the reputation knowing fully well that the allegations made by in the caveat petition are false and baseless, the compliant has been field. The allegations made in the caveat petition are as under:
On 15-07-2004 I went to the house of the said Ganesh and settled my account with him. I took returned of the blank cheques and pronotes and returned my home. By the time I returned my house respondent Nos. 1 and 2 were came to have some discussion about the termination of their relative. I got down my car and put the cover containing pronotes and cheque in my table in the office room. On the next day when I wanted to account for the amount and to destroy the cheques and notes, they found missing. I was under the impression that they might be kept it somewhere else in my house. I searched the entire house for 3 days. But I could not found those documents. Meanwhile one suit was filed against me and got attached my property. I do not know who is the plaintiff in the above suit. Thus I have been making enquiries. Meanwhile the respondents informed that they took the pronotes and challenged that they would file the suits at various places until I settle the disputes with them with regard to the service. On 31- 07-2004 another notice was issue to me, which shows that one Nandivada Ganiraju got issued the same....
...The respondent proclaiming in the locality that they would file some false suits against me in the name of their relatives and obtain some ex-parte orders attaching my properties before judgment, and thereby defame my reputation in the eye of the public. They file the suits to have wrongful gain and to cause wrongful loss to me. I will be the affected person if the respondent files any suit I am entitled to oppose any such move that may taken by the respondents or any person against me....
The accused is not justified in making such allegations touching the character and morale of the complainant. Since the caveat petition filed by the accused has been published, the reputation of the complainant has been badly damaged in the eye of public and the public are viewing him with suspicion. Therefore, he got issued legal notice to the accused on 07-08-2004 calling upon him to tender unconditional apology and also pay damages for making baseless allegations and painting the complainant and his father as thieves.
Learned Counsel for the petitioner, Sri C. Rama Chandra Raju contends that allegations made in the caveat petition falls under Exceptions 5 and 9 to Section 499 IPC which are made in good faith to protect the interest in the suit schedule property. Therefore, prosecuting the petitioner for the offence is nothing but abuse of process and the same is liable to be quashed. Further, he contends that civil court has not given any finding with regard to defense set up by him, namely, cheques which were returned were stolen and on which basis the suits were filed. Therefore, until the civil court gives a finding that the defense set up by the accused is false, prosecuting him for the offence does not arise and the proceedings are liable to be quashed.
Per contra, leaned counsel for the 2nd respondent would contend that prima facie, the allegations made in the caveat petition touching the character of the complainant and his father and describing them as thieves took away the blank cheques on which basis suits were filed. Therefore, at this stage proceedings cannot be quashed and complainant should be given opportunity to prove his case. For the said proposition, he placed reliance on the judgment of the Kerala High Court in Prabhakaran Vs. Gangadharan, and judgment of this Court in C. Padmaiah v. Mandadi Venkata Reddy 2006(1) ALD (Cri.) 796 (AP).
The allegations made in the caveat petition, referred to above indicates that the petitioner took the returned blank cheques and pronotes from Ganesh after settling the account and by the time he returned to his house, respondents 1 and 2 were came to have some discussion about the termination of their relative. He put those cheques and pronotes in his table in the office, on the next day he found that the cheques were missing. Meanwhile, he received the suit notice attaching the property and also phone call from the respondents that they took the pronotes and challenge that they would file suits at various places.
In Ramakanth v. Devilal 1969 L.L.J. 968 the plaintiff filed a case against the defendant when a news item was published in the issue of daily newspaper Inquilab alleging the candidate who won the district congress Presidentship election of Chhindwara spent Rs. 5,500/- in bribing the voters. The defendant who lost the case in the court below filed appeal in the High Court of Madhya Pradesh. While considering the meaning of the news item the learned Judge observed: Before considering the meaning of the news item in controversy certain well known principles have to be noticed. First rule is that the whole of the statement must be read and not only part of it. The second rule is that words are to be taken in the sense which is their natural and ordinary meaning. The third rule is that in determining the natural and ordinary meaning the court must have regard to what the words would convey to the ordinary man. The third rule which has been explained by the House of LORDS in Lewis v. Associated Newspapers Ltd. (1983) 2 All.E.R. 151 and lastly after the words have been construed according to rules stated above, the question whether the statement is defamatory should be answered by applying the test, namely, would the words tend to lower the plaintiff in the estimation of right-thinking members of society.
In Sim v. Stretch (1936) 2 All.E.R.1237 (H.C.) Lord Atkin has noticed the quotation of the Salmond, The law of Torts 13th edition page 355 which reads as follows:
The test of defamatory nature of a statement is its tendency to excite against the plaintiff the adverse opinion or feelings of other persons. The typical form of defamation is an attack upon the moral character of the plaintiff attributing to him any form of disgraceful conduct....
The essentials of defamation generally must be proved by the plaintiff:
The words must be defamatory.
They must refer to the plaintiff.
They must be "maliciously" published.
In the case of Prabhakaran Vs. Gangadharan, the Kerala High Court held once a statement has been filed in the court of law that statement can be taken as published. If such a statement amounts to per se defamatory, it is duty of accused to establish that they are justified in making such a statement under any of exceptions to Section 499 IPC. Without considering the evidence to be adduced and the defence to be set up, it is not possible to come to a finding whether the statements contained in the written statement are defamatory or not.
This Court in C. Padmaiah''s case 2006(1) ALD (Cri.) 796 (AP) (supra) held that the applicability of Exception 9 of Section 499 IPC, predominantly a question of fact and same may have to be decided at appropriate stage. Holding so refused to quash the proceedings at the initial stage.
I have gone through the averments made in the caveat petition. I have no doubt that the words used by the petitioner cannot be said to be inappropriate or untrue in describing the complainant''s conduct. No doubt, words used by the petitioner in his caveat petition causes assertion on the complainant about their stealing the cheques in the office and whether the same were made to defend in actionable claim that will be by the persons who are responsible for stealing the cheques is a matter which has to be gone into by the trial court on the basis of evidence let in by the parties. Once the allegations made in the caveat are published which has to be decided by the Magistrate.
In view of the same, it is not desirable to scuttle the legitimate prosecution at the initial stage.
Criminal Petition is accordingly dismissed.