Kanti Prasad Sharma vs Snmed Kumar Gupta

N.N. Sharma, J.—This appeal is directed against order dated 20-4-1978 by which Chief Judicial Magistrate, Dehradun acquitted accused opposite party in Kanti Prasad Sharma v. Sumed Kumar Gupta, Criminal Case No. 237 of 1974 u/s 500 of Indian Penal Code.

Admittedly complainant Sri Kanti Prasad Sharma was employed in LIU Department of Police as Head Constable and his services were terminated under Article 311 of Constitution of India after a departmental enquiry.

Thereafter, he was employed as a Supervisor in Digvijai Talkies, Dehradun with the help of Sri Bhagat Ram Sharma; Sri Sumed Kumar Gupta is the publisher, Editor and printer of Local Weekly Hindi News Paper, Dehradun, he was displeased with complainant as he refused his entry in the cinema hall without ticket. So he published an article in column No. 17 dated 21-4-1974 containing imputation to harm the reputation of complainant in following terms ;--

(1) Sri Kanti Sharma, Sri Bhagat Ram Sharma and one Sandeep Mukherjee are intimate from the period when the complainant was employed in LIU and this intimacy continued even after termination of his service vide Ext. Ka-2.

(ii) Sri Sandeep Mukerjee, Sri Kanti Sharma and Sri Bhagat Ram Sharma have mysterious connection with foreigners youth, male and female which is a menace to the security of nation.

(iii) In Digvijai talkies, Sandeep Mukherjee and Madan Silvana are on regular visiting terms as Sri Bhagat Ram Sharma took much interest in securing employment of on the post of Supervisor of complainant which is a matter of rumour in public vide Ext. Ka-4.

The aforesaid imputations were false and wrong which have lowered the reputation of complainant in public eyes and he has suffered damage on account of the said imputations and he had to resign the present post.

In support of these allegations, he examined himself as PW 1, and PW 2 Nilamber Dutta who testified that after perusal of the said article, the reputation of complainant was lowered; he also informed Kanti Prasad about it.

In his statement accused conceded to have been the author and publisher of the said article but he denied that he was actuated with any malice or intent to cause harm to complainant-Appellant. He also pleaded exceptions 1 and 10 of Section 499 of Indian Penal Code by alleging that that imputation was true and in public interest, it was simply a caution intended for the public good.

I have heard learned Advocates for the parties and perused the record.

Sri Banarsidas, learned Advocate for the complainant-Appellant referred to G. Chandrasekhara Pillai Vs. K. Karthikeyan, and pointed out that in that case, it was for the accused to discharge the burden which lay upon him to prove that his case was covered by the exceptions appended to Section 499 of IPC.

It appears in that case the complainant was an Ex-Minister, a member of the Kerala Legislative Assembly and President of Trivandrum District; accused Sri Karthikeyan was Editor, Printer and Publisher of the evening daily paper ''Pothujanam'' published at Trivandrum which is said to have a wide circulation. In the issue of the paper dated 27th March 1962, an article was published purporting to be from the Newspaper''s own corRespondent entitled "Bogus Company for nine lakhs" with sub-headings printed in bold headlines "Kumbhakhamgalum Thattippukalum" (Swindles and frauds); one Ex-Minister and two high ranking officers, Industries Minister privy to the swindle (Kumbhakonam). The complainant''s case was that the allegations contained in the article, in so far as it refers to him, were all absolutely false and baseless and published with intent to defame him and lower him in the estimation of the public. In that connection it was pointed out that the said imputation was not justified on the pleading put forward by the accused.

The next authority relied upon by learned Advocate for complainant-Appellant has been reported in Sardar Amar Singh Vs. K.S. Badalia, which posited:-

Where, therefore, the Respondent wrote a letter to the President of Managing Committee of Takht Harmandirji containing defamatory matter about one of the members of Supervising Committee, with the word ''Personal'' appearing on the letter and the President made a note on it and directed the General Secretary to report to him about the affairs of the Gurudwara, and the General Secretary put up that letter before the Managing Committee and sent a reply to the President:

Held, that there was ''publication'' as contemplated in Section 499 of the Penal Code. The steps which the President and the General Secretary took after the receipt of the letter were not very material, inasmuch as the Respondent might not have intended that the letter should be placed before the members of the Managing Committee but even without that there was communication of the defamatory statements to the President.

The next authority relied upon by learned Advocate for complainant-Appellant has been reported in Chaman Lal Vs. The State of Punjab, which posited:-

In order to establish good faith and bona fide it has to be seen first the circumstances under which the letter was written or words were uttered; secondly, whether there was any malice; thirdly, whether the accused made any enquiry before he made the allegations; fourthly, whether there are reasons to accept the version that he acted with care and caution and finally whether there is preponderance of probability that the accused acted in good faith.

The facts as laid in that case briefly stated are ;--

The case started on a complaint filed by Bishan Kaur on 23rd October, 1963. The complaint was that the Appellant Chaman Lal who was at that time President of Municipal Committee, Sujanpur in the District of Gurdaspur had made defamatory remarks against her character at a public meeting held at Sujanpur on 29th July, 1962 and that he further wrote a letter on 2nd August, 1962 to the Civil Surgeon, Gurdaspur which contained defamatory statements against her character and further that on 27th August, 1962 the Appellant repeated those defamatory allegations before the Civil Surgeon.

The Appellant pleaded justification under Exceptions 1, 8 and 9 to Section 499 of Indian Penal Code.

The last authority relied upon by learned Counsel for the complainant-Appellant has been reported in Sukra Mahto Vs. Basdeo Kumar Mahto and Another, which laid down:-

In order to claim good faith in prosecution for defamation accused must show that before making alleged imputation he had made enquiry with due care and attention and that he was satisfied about the truth of that imputation-Emphasis is on enquiry, care and objective (not subjective) satisfaction.

I have carefully perused the authorities which are not in point for the following reasons.

There is denial of accused-opposite party that he entertained any malice towards the complainant-Appellant; he also denied that he was actuated by any motive or he ever visited Digvijai talkies free payment of charge or without purchase of any ticket and was obstructed by complainant; he further conceded that complainant, Sri Bhagat Ram Sharma and Sri Sandeep Mukherjee were intimate since long and there was nothing wrong about the allegations made by him; it is significant to note that complainant himself admitted that during his tenure in LIU, he was well acquainted with Sri Sandeep Mukherjee; in connection with his duties, he had to keep an eye on the activities of Sri Sandeep Mukherjee for a period of five or six years; there was suspicion that Sri Sandeep Mukherjee had connection with foreigners and was receiving financial assistance from them. At that time, Miss Silvana had no connection with Sri Sandeep Mukherjee. However, subsequently he learnt about his connection with Miss Silvana when a talk about their marriage took-place; he himself did not talk with Miss Silvana as he was not conversant with foreign language. He did not know if Sri Mukherjee was an accused in a case u/s 420 of Indian Penal Code. He did not know about the visits of Mukherjee and Miss Silvana to Digvijai talkies; he applied for the post of supervisor and he was called for an interview; he was selected by the Governing Director; Sri Bhagat Ram Sharma used to be Manager of Digvijai talkies. He did not know if Sri Bhagat Ram Sharma was Mukhtar-am of Raja Sahib; he further conceded that his son was employed in the cinema after his resignation. He knew accused-opposite party for the last 12 or 13 years. He also knew the dispute of management with accused Sumed Kumar for the last 12 or 13 years. It was wrong that Sumed Kumar Gupta never approached him to see any picture.

Sri Jyoti Bahuguna (DW 1) testified that in Digvijai talkies as well as in the office of Sri Bhagat Ram Sharma, he had often found Sandeep Mukherjee, Miss Silvana and Sri K.P. Sharma sitting together. He also saw them sitting once or twice in the office of Manager. He also saw Sandeep Mukherjee and Miss Silvana in ebriate ; Sri Sandeep Mukherjee was deeply intoxicated at that time ; there was a common talk about these visits and this intimacy in public ; he also talked with the accused about the bad reputation which was being acquired by the cinema on account of these frequent visits. He conceded that in one case filed by Sri Bhagat Ram Sharma, he figured as a defence witness. He did not know if any apology was tendered in that case by accused-opposite party.

He is an independent witness and was believed by the learned trial Magistrate who recorded a finding of fact on the alleged imputation.

DW 3 Sri Vishan Singh, S.O. Kotwali, Dehradun testified that he did not orally remember if he submitted any report against Sri Sandeep Mukherjee to the Superintendent of Police, Dehradun ; after perusal of paper No. 29, he conceded that it might have been the same report but he could not vouch about its genuineness without the perusal of the original.

I have carefully gone through the reasoning employed by learned trial Magistrate. I do not find that said reasoning suffers from any perversity or illegality. In an appeal against acquittal, it is not possible to lightly interfere with the order unless it is clearly perverse. The burden of pro(sic) always lies on the prosecution to establish their case to the hilt. Even in cases where any exception is pleaded by an accused person and evidence is adduced to support such plea, but such evidence fails to satisfy the court affirmatively of the existence of circumstances bringing the case within the general exception pleaded, the accused person is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the said general exception) a reasonable doubt is created in the mind of the court whether the accused person is or is not entitled to the benefit of the said exception vide Parbhoo and Others Vs. Emperor, .This view was reiterated in Rishi Kesh Singh v. State 1970 CriLJ 166.

In the instant case also, it is obvious that accused-opposite party had no malice or ill-will towars the complainant-Appellant. There is no cogent evidence that complainant ever obstructed the entry of accused opposite party to the cinema without any ticket which could have offended Sri Sumed Kumar Gupta. Even in the extract referred to in the complaint and in the questions put to the accused at the time of his examination; there is no imputation amounting to such defamation which may constitute an offence of Section 499 of Indian Penal Code. Mere association of complainant with a debauch under the aforesaid circumstances and its publication about the cinema getting a bad name on account of such persons visits in intoxicated state could not have constituted such defamation which was intended to cause any harm to the complainant as observed by learned trial Magistrate. It is correct that in order to attract the attention of public, news papers always try to exaggerate such news. Such articles give an exaggerated version but to a reasonable extent liberty of press has also to be kept in mind while judging propriety of such publications. So the view taken by learned trial Magistrate in recording a finding of fact when the evidence adduced creates reasonable doubt in the prosecution version about fastening the guilt to the hilt on the accused cannot be regarded as illegal or perverse so as to justify interference by this Court.

In the result, the appeal fails and is dismissed.