DATED: 15.04.2009

C O R A M

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

Crl.A.No.764 of 2002

A.Perumal Pillai ... Appellant

Vs.

1. V.Masilamani

2. P.Mani

3. S.Seshadri

4. A.Marimuthu

5. K.Sundaramurthi ... Respondents

This Criminal Appeal has been filed under Section 378 of Criminal Procedure Code as against the judgment dated 13.03.2002 made in C.C.No.102 of 1999 by the Judicial Magistrate No.II, Cheyyar, Tiruvannamalai District.

For Appellants : Mr.Haroon

for T.S.Gopalan & Co. For Respondents: Mr.Amizhdu

J U D G M E N T

This criminal appeal has been preferred against the judgment of the learned Judicial Magistrate No.II, Cheyyar, Tiruvannamalai District, dated 13.03.2002 pronounced in C.C.No.102 of 1999 acquitting the accused therein (respondents herein) in respect of the charge for an offence of defamation punishable under Section 500 IPC. The appeal has been entertained after granting special leave under Section 378(4) Cr.P.C. by an order dated 06.06.2002 made in Crl.M.P.No.12257/2002.

2. The appellant herein preferred a private complaint under Section 200 Cr.P.C. on the file of the court below alleging commission of an offence of defamation punishable under Section 500 IPC by the respondents herein. The learned Judicial Magistrate No.II, Cheyyar, after following the procedure prescribed for taking cognizance of the offences on private complaint, took it on file as C.C.No.102 of 1999. On appearance, the respondents herein/accused denied the allegations made against them in the complaint, pleaded not guilty and wanted the case to be tried.

3. In the trial, that followed the plea of innocence made by the respondents herein/accused, 6 witnesses were examined as P.Ws.1 to 6 and 8 documents were marked as Ex.P1 to P8 on the side of the appellant herein/complainant, in order to substantiate the averments made in the complaint. Two witnesses were examined as D.W.1 to 2 and 12 documents were marked as Ex.D1 to D.12 on the side of the respondents herein/accused.

4. At the conclusion of trial, the learned Judicial Magistrate No.II, Cheyyar considered the evidence brought before him, in the light of the arguments advanced on either side and upon such consideration, acquitted all the respondents herein/accused holding them not guilty of the offence with which they stood charged. Aggrieved by and questioning the correctness of the said judgment of the trial court dated 13.03.2002, the appellant herein/complainant has brought forth this appeal on various grounds set out in the appeal petition.

5. This court heard the submissions made by Mr.Haroon, learned counsel appearing on behalf of the appellant and by Mr.Amizhdhu, learned counsel appearing on behalf of the respondents. The entire records and the judgment of the trial court impugned in this appeal were also considered by this court.

6. The following are the admitted facts:

(a) The appellant herein/complainant is the Chairman of the Board of trustees constituted for Arulmighu Lakshmi Narasimha Swamy Temple at Avaniyapuram, Tiruvannamalai District. The said temple is now managed by the Board of trustees consisting of five trustees appointed by the HR&CE authorities. There is also an Executive Officer for the said temple. On an earlier occasion, namely in 1994, the appellant herein/complainant had been appointed as a trustee and was elected as the Chairman of the Trust Board and was functioning as such till he was suspended on 27.02.1996. Thereafter, without any finality being attached to the enquiry contemplated in the said suspension order, the appellant/complainant was again appointed as a trustee on 09.04.1999 and was again elected as the Chairman of the Trust Board. Pursuant to the said appointment and his consequential election as Chairman of the Board of trustees, a number of people from the area having allegiance to various political parties raised their protest and organised a token fast agitation proposed to be held on 30.04.1999 at Avaniapuram road junction. For the above said agitation, bit notices containing imputations capable of tarnishing the reputation of the appellant/complainant were printed and distributed. Contending that the respondents were the persons instrumental for the same and that they were the persons, who not only caused the pamphlets printed but also personally published the scandalous materials by distributing the pamphlets to the public, the appellant/ complainant preferred the above said private complaint on the file of the learned Judicial Magistrate No.II, Cheyyar praying that the respondents herein/accused should be prosecuted and punished for the offence of defamation. (b) However, the court below, after trial, held that the appellant/complainant failed to prove that the respondents/accused had caused the printing of the pamphlets containing defamatory materials. The court below also held that even if it is assumed that the respondents/accused had published the defamatory materials, their act would come well within the exceptions provided under Section 499 IPC. In view of the said finding, the respondents herein/accused were acquitted of the offence with which they stood charged. Hence the appellant has brought forth the present appeal.

7. Advancing arguments on behalf of the appellant, Mr.Haroon, learned counsel submitted that the court below committed a grave error in disbelieving the evidence of P.W.4 and in holding that the appellant/complainant failed to prove the printing and publishing of the bit notices by the respondents/accused; that the court below failed to note the fact that the respondents, who had taken the plea of truth in the matter of publication and good faith in effecting publication, have not discharged the burden of proving the same and that in any event, the court below ought to have held the respondents/accused guilty of the offence of defamation and convicted them with appropriate punishment.

8. Per contra, it is the contention of the learned counsel for the respondents/accused that the onus of proving the charge had not been discharged by the appellant/complainant at all; that only in case of discharge of the said initial onus, the question - whether the respondents/accused have proved their defence plea of truth and good faith shall be taken into consideration; that even assuming that the initial onus had been discharged by the appellant/complainant, the degree of proof of the defence plea shall not be comparable with the degree of proof required against the accused; that it shall be sufficient to establish on probabilities of the defence plea of the accused and that in an action in a criminal court for defamation, the accused is expected only to prove that he had reason to believe that the statements made by him were true. It is his further argument that in the instant case, the respondents/accused have adduced more than sufficient evidence to show that they had reason to believe the truth in the imputations and that they were justified in publishing the same in a bona fide belief that the same would invite action on the part of the appropriate authorities to safeguard the interest of the temple.

9. The learned counsel for the respondents/accused has relied on the judgment of the Hon'ble Supreme Court in Chaman Lal v. The State of Punjab reported in 1971 LW (Crl) 21. In the said case, the accused therein claimed to come under exception Nos.8 and 9 to Section 499 IPC. It was held that the onus of proving truth of the imputation and publication of the imputation for the public good was on the accused. Exception-1 to Section 499 IPC itself says whether or not the imputation is for public good is a question of fact. In the case on hand, the imputations are based on records. The publication was with a view to safeguard the interest of the temple and ensure the better administration of the temple. So, it cannot be denied that the publication was made for public good and in good faith.

10. It is the contention raised on behalf of the appellant/complainant that the evidence of P.W.4 and the production of Ex.P1-bit notice containing the defamatory materials are enough to prove beyond reasonable doubt his contention that Ex.P1-bit notice was caused to be printed by the respondents herein/accused. It is a fact that cannot be disputed that none of the respondents herein (by name) has been shown to the person who ordered the printing of the bit notice for distribution. On the other hand, the organizers of the agitation are shown to be the villagers of Avaniyapuram belonging to all political parties. Of course, it is true that the first respondent is show in Ex.P1-bit notice to be one of the two persons who would preside over the token fast agitation. The name of the second respondent appears in the said bit notice as one of several persons in whose presence the token fast agitation was scheduled to be observed. The name of the third respondent is found as one of the persons designated for closing the token fast agitation at the end of the day. Including the fourth respondent, three persons are shown to be the persons assigned with the job of welcoming the gathering. The fifth respondent is shown to be one among the felicitators. The mere fact that the names of the respondents/accused are found in the bit notice shall not be enough to show that the respondents have caused the printing of the same.

11. In fact, one Vadivelu supposed to be one of the persons presiding over the agitation has been examined as P.W.6. He has disowned any part played by him in organising the agitation and printing and publishing the bit notice for the said purpose. He has taken a stand that the respondents 1 to 3 wanted him to preside over the token fast agitation but he declined the offer and informed them that his name should not be printed in the bit notice. It is his further evidence that without his consent and against his advice, his name was printed as one of the two persons presiding over the agitation. When P.W.6 was allowed to take such a stand and the said stand was accepted by the appellant/complainant, this court is at a loss to understand why the respondents/accused should not be allowed to do so. The names of the respondents/accused as well as the name of P.W.6 appeared in the bit notice. When that is so, we cannot apply two different yardsticks, one for P.W.6 and the other for the respondents/accused persons. The respondents/accused have totally denied their involvement in the printing of the pamphlets and distribution of the same. When that is the plea of the respondents/accused, strict proof of the allegation made against them is needed.

12. The appellant/complainant relies on the evidence of P.W.4 for the proof of the allegation that accused Nos.1 to 3 were the persons who placed orders for the printing of pamphlets. The appellant/complainant seems to have issued a notice on 10.05.1999 calling upon the owner of Om Shakthi Press and Screens, Setthupattu, Tiruvannamalai District to furnish the details of the persons who had placed orders for the printing of notices. The same was received on 13.05.1999 and a reply was sent on 15.05.1999 stating that the respondents 1 to 3 were the three out of several persons who came to the press for placing order for the printing of the pamphlets. Copies of the said notice, acknowledgment and the reply notice have been marked as Ex.P2 to P4. P.W.4 is the owner of the above said printing press. He would state in his evidence that on 23.04.1999, respondents 1 to 3 came to his press along with 10 or 15 other persons and placed orders for printing the pamphlets. It is also his statement in his evidence that the respondents 1 to 3 collected the printing charges from the others and brought it to him. However, it is an admitted fact that the hand written script containing the materials for printing is not available with P.W.4. It is not his case that the same was returned. There is not even a piece of paper to show that the order for the printing of the pamphlets was placed by any one of the accused. The bill for collection of the printing charges (duplicate should be available with the printer) also has not been produced. Under such circumstances, this court is of the considered view that relying on the above said evidence of P.W.4 shall not be safe.

13. Further more, the token fast agitation as per Ex.P1-bit notice was scheduled to be held on 30.04.2009. But, there is evidence in the form of Ex.P8-copy of the resolution passed in the peace committee meeting held on 04.05.1999 to show that the token fast agitation proposed to be held on 30.04.1999 was given up. If it is true, then a serious suspicion as to whether Ex.P1-bit notice could have been printed by the respondents/accused for holding a token fast hesitation on 30.04.1999 would arise. It is not the case of the appellant/complainant that the agitation originally scheduled to be held on 30.04.1999 was postponed to a further date and later on, the same was given up, pursuant to the decision made in the peace committee meeting. If at all the date for the agitation was originally fixed as 30.04.1999 and postponed to a particular date beyond 04.05.1999, then the appellant/complainant could have stated the altered date of the token fast agitation. As it is not forthcoming from the appellant/complainant or from any one of the witnesses examined on behalf of the appellant/complainant, this court is of the considered view that there is a reasonable doubt regarding the case of the appellant/complainant that Ex.P1-bit notice was printed at the instance of the respondents herein/accused.

14. Similarly, the evidence adduced through P.W.2 and 3 to the effect that the accused themselves distributed the pamphlets are not free from suspicion. The very same reasons assigned for disbelieving the evidence of P.W.4 shall be applicable to the evidence of P.W.2 and 3 regarding the distribution of the pamphlets by the accused persons. In addition to that, it is quite unnatural for the persons, who are chosen to be presiding over the functions, to go to the streets and distribute the pamphlets. Therefore, this court sees no defect or infirmity in the decision arrived at by the court below that the allegation of the appellant/complainant to the effect that the bit notice containing defamatory materials was printed and distributed by the accused had not been proved beyond reasonable doubt regarding the said allegation. For the said reason alone, the appeal is bound to fail.

15. Even assuming that the bit notices containing the alleged defamatory materials were printed and distributed by the villagers belonging to various political parties and the respondents/accused were also some among such persons who did it, the act on the part of the accused can be excused, as it comes under the exceptions provided to Section 499 IPC, as rightly contended by the learned counsel for the respondents/accused. It is not in dispute that there were some allegations of mismanagement by the appellant/complainant as the Chairman of the Board of Trustees of Arulmighu Lakshmi Narasimha Swamy Temple during his tenure after he was appointed as a trustee and his election as Chairman of the Board of Trustees in the year 1999. Pursuant to the said allegations, enquiries were made and based on the report of the Inspector of HR&CE, he was placed under suspension as evidenced by Ex.D7 dated 27.02.1996. However, further action could not be pursued the reasons for which are not made known to court. No specific order dropping further proceedings was passed as revealed by the evidence of D.W.1 and 2. It transpires, further action was dropped because of lapse of time, as the term for which the appellant/complainant had been appointed had come to an end in the mean time. Despite the said fact, the appellant/complainant was again re-appointed as trustee under Ex.D8 dated 09.04.1999. Pursuant to the re-appointment of the appellant/complainant, the Avaniapuram villages belonging to various political parties seem to have organised an agitation protesting against the appointment of the appellant/complainant as trustee of the temple. Ex.P5 is the copy of the resolution passed in the Trust Board by which the appellant as the then Chairman of the Trust Board was directed to hand over the jewels of the temple to the Executive Officer of the temple. However, evidence has been led to the effect that the temple did not have any jewel, that the villagers alone had the jewels in common and that the said jewels were directed to be handed over to the Executive Officer by the above said resolution. On the other hand, the documents produced on the side of the appellant/complainant would show that the said jewles belonged to the deity.

16. There had been allegations that the appellant/complainant himself used the common fund of the village and also mismanaged the hundi collection of the temple which are evident from Ex.P8-copy of the resolution made in the peace committee meeting. Under such circumstances alone, in order to highlight those aspects and invite action ton the part of the authorities concerned to revoke the order of appointment of the appellant/complainant as trustee and for streamlining the management of the temple, the villagers seem to have organised the agitation. Under such circumstances, the imputations, if any, made can be justified on the ground that there is truth in it and that the publication of the same was made only in good faith, in order to see that the administration of the temple was fine-tuned. In this regard also, the court below has come to a correct conclusion that so far as the plea of defence in a criminal action is concerned, though the law casts the burden on the accused to prove the defence plea, in certain circumstances, especially when the accused relies on the exception as provided under the penal provision, the degree of proof required from the prosecution and that it shall be sufficient for the accused to prove the defence plea of coming under the exception provided under the penal provision on broad probabilities rather than proof beyond reasonable doubt.

17. In this case, the evidence adduced on the side of the respondents/accused and also some of the evidence adduced on the side of the appellant/complainant are enough to arrive at a conclusion that the respondents/accused have proved that the case come under exception No.1 to Section 499 IPC on broad probabilities. Therefore, this court is able to find no defect or infirmity in the conclusion arrived at by the court below that the charge against the respondents/accused has not been proved beyond reasonable doubt and that they are entitled to the benefit of doubt and entitled to be acquitted holding them not guilty of the offence with which they stood charged. There is no scope, whatsoever, for interference with the well considered judgment of the court below. The appeal deserves to be dismissed as there is no merit in it.

18. Accordingly, the appeal is dismissed confirming the judgment of the trial court dated 13.03.2002 made in C.C.No.102 of 1999.

asr/

To

The Judicial Magistrate No.II,

Cheyyar

Tiruvannamalai District