N.R. Sankara Narayanan vs R. Manoharan

Honourable Ms. Justice R. Mala

The criminal appeal arises out of the judgment of acquittal dated 28.10.2003, made in C.C.No.24 of 1999 on the file of the Judicial

Magistrate''s Court No. VII, Coimbatore. The appellant herein as a complainant filed a private complaint u/s 200 Cr.P.C. stating that when the

appellant herein as a Trustee of the Karuppanna Nadar Trust, filed a Trust O.P.No.233 of 1995 before the First Additional District Court,

Coimbatore, seeking permission for alienating the trust property and the respondent/accused herein had filed an application in I.A.No.218 of 1998

to implead himself as a party in that proceedings and he had specifically mentioned in the affidavit filed in support of that application, the

appellant/complainant is an habitual offender and he sold the property worth more than a crore without obtaining permission from the Court.

Therefore, the appellant herein issued a notice to the respondent/accused on 30.12.1998 sought for a written unconditional apology, since the

respondent/accused made a defamatory statement against the complainant. On receiving the same, the respondent/accused sent a reply on

4.1.1999 stating that there is no necessity for asking apology. Since the respondent herein intended to be make imputation concerning the appellant

to harm, or knowing to believe that such imputation will harm the reputation of the appellant and the respondent defamed the

appellant/complainant, he filed a private complaint against the respondent u/s 500 IPC.

The learned Magistrate issued summons for their appearance and after following the procedure, framed necessary charges. The accused

pleaded not guilty. Hence, on the side of the complainant, P.W.1 and P.W.2 were examined and Exs.P1 to P6 were marked. The trial Court

placed the incriminating evidence before the accused and the accused denied the same in toto. The trial Court after considering the oral and

documentary evidence, acquitted the respondent/accused, against which, the present appeal has been preferred.

The learned counsel for the appellant/complainant would submit that the respondent herein is none other than the brother''s son of the appellant

and he is an Advocate and he is fully aware of the consequences of his defamatory statement made in the affidavit filed in support of the application

in I.A.No.218 of 1998. But the trial Court has not considered this aspect and acquitted the respondent and hence, he prayed for setting aside the

order of acquittal and allowing of this appeal.

Resisting the same, the learned counsel for the respondent submitted that the appellant sold the trust properties without obtaining permission

from the Court of law. But the respondent had made such a defamatory statement against the appellant only in good faith and bona fide, which is

not published and the same would not affect the reputation of the appellant. To substantiate his argument, he relied upon the decision reported in

Chaman Lal Vs. The State of Punjab, and prayed for dismissal of the appeal.

Considered the rival submissions made on both sides and the materials available on record.

Now this Court has to consider the defamatory statement made by the respondent against the appellant in the affidavit filed in support of the

application in I.A.No.218 of 1998 and it reads as follows:

8..... These Respondents are habitual offenders and have Already sold away properties belonging to the temples worth several crores of rupees

with or without the permission of this Honourable court.

''Defamation'' is defined u/s 499 of IPC and it contains 10 exceptions. It is appropriate to incorporate Section 499 of IPC, which reads as follows:

Defamation: Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any

imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such

person, is said, except in the cases hereinafter expected, to defame that person.

Explanation 1- It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if

living, and is intended to be hurtful to the feelings of his family or other near relatives.

Explanation 2- It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.

Explanation 3- An imputation in the form of an alternative or expressed ironically, may amount to defamation.

Explanation 4- No imputation is said to harm a person''s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers

the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit

of that person, or causes it to be believed that the body of that person is in a loath some state, or in a state generally considered as disgraceful.

It is pertinent to note that P.W.1/complainant/appellant in his cross-examination, he fairly conceded that he sold the properties of the trust

without obtaining permission from the Court of law. Since the respondent/accused filed an application in I.A.No.218 of 1998 to implead himself as

a party and the same was allowed, the appellant herein had not proceed further in the trust O.P. and hence, trust O.P.No.233 of 1995 was

dismissed for default. The copy of the trust O.P. has been marked as Ex.P1; Affidavit filed by the respondent/accused was marked as Ex.P2; The

counter statement filed by the respondent was marked as Ex.P3; Appellant issued a notice on 30.12.1998 through his counsel was marked as

Ex.P4; Respondent sent a reply notice dated 4.1.1999 to the appellant was marked as Ex.P5; The grandfather of the appellant had executed a Gift

deed in favour of the Mariamman Temple on 30.01.1927 was marked as Ex.P6. It is an admitted fact that the properties are belonging to the

temple and they are trust property.

At this juncture, it is appropriate to consider the evidence of P.W.1. In his cross-examination, he fairly conceded that Trust O.P.No.233 of

1995 has been dismissed for default, but he did not take any steps to restore the same. He also fairly conceded that from 1983 onwards, the

properties belonging to Mariamman temple were in his custody. While considering his chief and cross examination, it shows that the appellant sold

22 house sites without obtaining permission from the Court of law. He also fairly conceded that the object of the trust has not been fulfilled. One of

the objects of the trust is to perform Thanneer pandal at Ramanathapuram, where a shopping complex is running now and that the trust has

received amount from the rented shops. But they are not conducting Thanneer pandal. Considering the entire cross-examination of P.W.1, it shows

that the appellant is one of the trustees and he did not perform the charities mentioned in the deed. A suggestion was posed to him that since the

appellant herein sold the properties under several documents without obtaining permission from the Court and for the reason, the respondent was

stated that the appellant is an habitual offender to enlighten the Court and he has no intention to defame the same. But it was denied by the

appellant. It would clearly prove that the respondent herein is not having any intention to defame the appellant.

P.W.2/Thirumoorthy, who is the relative of both the appellant and the respondent, deposed that the respondent informed to him that all the trust

properties have been sold by the appellant for his own purpose. In his cross-examination, he stated that he came to know that the properties

belonging to the Mariamman temple. He further stated that he does not know P.W.1 has filed a petition before the Court of law seeking permission

to alienate the property. He knows P.W.1/complainant, for the past 40 years. But the evidence of P.W.2 is no way supporting the case of the

complainant. In para-4 of Ex.P2, the respondent had given such a statement. While perusing Ex.P2, it is a Court document and it would not be

published in any paper, so there is no chance for the public for knowing the same. The appellant himself admitted that he sold the trust properties,

which is against law and for the reason only, the respondent mentioned him as an habitual offender, which is not amounting to defamation.

It is appropriate to incorporate Explanation-4 of Section 499 IPC, which is extracted hereunder:

Explanation 4- No imputation is said to harm a person''s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers

the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit

of that person, or causes it to be believed that the body of that person is in a loath some state, or in a state generally considered as disgraceful.

Considering the above explanation along with the evidence of P.W.1, the appellant/P.W.1 himself admitted that he sold 22 house sites belonging to

the trust without obtaining permission from the Court of law to several persons. Therefore, the respondent herein had mentioned him as an habitual

offender. There is no evidence to show that the above defamatory statement made by the respondent to harm the person''s reputation, which was

admittedly one line in the affidavit and there was no publication. However, P.W.2, who is the relative of both the parties, was examined, he never

stated that he gone through the affidavit filed by the respondent. Even though the appellant in his chief examination stated that the respondent had

defamed him in the presence of the public residing at Nanjundapuram viz., Thirumurthy, Namachivayam, Karunamoorthy and others and they

intimated the same to him, but except Thirumurthy, others were not examined. P.W.2 is not supported the case of the appellant/P.W.1.

Thirumurthy in his cross-examination, fairly conceded that for the past three years he is not having any talking terms with the respondent. He further

deposed that he does not know whether the properties are belonging to the trust. In such circumstances, except ipse dixit of P.W.1, no evidence

was available to show that the respondent made the defamatory statement against the appellant to harm his persons reputation. In such

circumstances, I am of the view, the learned trial Judge considered the aspects in proper perspective and came to the correct conclusion that

merely because the respondent herein stated that appellant is an habitual offender, which will not defame his reputation, since he sold the trust

properties more than 22 times without obtaining permission from the Court of law.

At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the respondent reported in Chaman Lal Vs.

The State of Punjab, it reads as follows:

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.

He submitted that the imputation of truth of public good, truth of imputation and publication of imputation for public good must be proved by the

accused. In the case on hand, the appellant sold the trust properties more than 22 times, without obtaining permission from the Court of law. But

the respondent had made such a statement only in good faith and bona fide, which is not published and the same would not affect the reputation of

the appellant. Therefore, I am of the view, the appellant has miserably failed to prove that the respondent is guilty u/s 500 IPC and hence, the

respondent is not guilty u/s 500 IPC. I do not find any perversity in the judgment of acquittal passed by the trial Court and hence, it is hereby

confirmed. In fine,

(i) Criminal Appeal is dismissed.

(ii) The judgment of acquittal dated 28.10.2003, made in C.C.No.24 of 1999 on the file of the Judicial Magistrate''s Court No. VII, Coimbatore,

is hereby confirmed.