High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 22.2.2008.CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULCrl.O.P.No.33831 of 2007Dr.R.Venkatapathy,Partner,Dinamalar Tamil Daily Newspaper,219, Anna Salai, Chennai 600 002. Petitioner vs. Sun TV Network Ltd.,rep by its Authorized Person, L.Jotheeswaran,367 & 369 Anna Salai,Teynampet,Chennai 600 018. RespondentCriminal Original Petition filed under section 482 Cr.P.C. tocall for the records in C.C.No.7707 of 2007 pending on the file ofXVII Metropolitan Magistrate Court, Saidapet, Chennai and quash theComplaint filed by the respondent.For petitioner : Mr.S.Shyam KumarFor respondent : Mr.J.RavindranORDERThe petition is filed seeking to quash the criminal proceedingsas against the petitioner ranked as fourth accused in C.C.No.7707 of2007 on the file of the learned XVII Metropolitan Magistrate,Saidapet, Chennai. 2. The petitioner ranked as fourth accused in C.C.No.7707 of2007 is a Partner of the daily Tamil Newspaper viz., Dina Malar.The complainant Sun TV Network Limited laid a complaint as againstthe Publisher, Editor and Partners of Dinamalar Tamil DailyNewspaper for the alleged defamatory article published in the https://hcservices.ecourts.gov.in/hcservices/ Dinamalar Daily dated 30.9.2007. 3. It has been alleged in the private complaint laid as againstthe petitioner and other partners, Publishers and Editors ofDinamalar Daily for offences under sections 500 and 501 of theIndian Penal Code that the petitioner being one of the partners ofDinamalar Tamil Daily was also in a position to take the decisionwhether to publish or not to publish any article in his DailyNewspaper. The defamatory article was published as against themanagement of the complainant only due to the business enmity thepartners had with the complainant. The partners also are well awareand conscious of the allegation contained in the defamatorypublication dated 30.9.2007. 4. The petitioner, one of the partners of Tamil Daily Newspaperwould contend that the statements made in the article were not perse defamatory. The alleged news item does not whisper anything aboutthe role of the complainant. Only an aggrieved person can move thecourt to charge a person for the offences covered by sections 499 to502 of the Indian Penal Code. The complainant is not the aggrievedperson. Therefore, no complaint can be laid by the complainant asagainst him. Section 7 of the Press Act draws presumption onlyagainst the Editor or Resident Editor being the persons solely incharge of and responsible for the day to day reporting. Therefore,the partner cannot be directed to face the prosecution based on thecomplaint of defamation. It is only the Editor who controls theselection of the matters that are being published in Newspapers.Therefore, the petitioner being one of the partners of the DailyNewspaper has no role to plea. He has been implicated in the caseof defamation only in his capacity as partner. The complaint, assuch, does not disclose any essential ingredients that are necessaryto make out an offence against the petitioner. A Company cannotfile a complaint of injury of its feeling but, it has to prove thatit has suffered damage resulting in loss of business because of thealleged imputation. Therefore, the petitioner would contend thatthe entire proceedings as against him will have to be quashed. 5. The complainant filed a counter stating that the news itempublished in Dina Malar dated 30.9.2007 clearly indicates that thepetitioner/accused had published a defamatory item against thecomplainant. Similar petition was also filed by the other twoaccused in Crl.O.P.No.33138 of 2007 before this court and the samewas dismissed holding that the Company was a person as defined undersection 499 of the Code of Criminal Procedure. The complaint wouldread that the accused had knowledge of publication of the allegeddefamatory matters and that they were also responsible for suchpublication. Therefore, the question of quashing the proceedings https://hcservices.ecourts.gov.in/hcservices/ does not arise. 6. Learned counsel appearing for the fourth accused wouldsubmit that a complaint laid against a partner of a Newspaper isnot at all sustainable. Only the Editor or the Resident Editor whohas the discretion to publish or not to publish an article alone canbe prosecuted if at all a defamatory article was published in thenewspaper. The complaint does not disclose the role of thepetitioner in the alleged defamatory article. Therefore, thecomplaint is not sustainable as against the petitioner. 7. Learned counsel appearing for the respondent/complainantwould submit that this court has already decided that a Company canvery well lay a private complaint alleging defamation and that primafacie case has been made out for launching prosecution as againstthe other accused. Further, necessary allegation has been madein the complaint attributing knowledge of the petitioner being oneof the partners in the Daily Newspaper. It has also been allegedthat out of business motive, such an article was published.Therefore, it is only the Trial Court which has to decide whetherthe defamatory charges have been proved. The question of quashingthe criminal proceedings in the face of necessary allegation foundin the complaint does not arise. 8. The complaint would specifically read that the petitionerwho is also one of the partners of Dinamalar Tamil Daily Newspaperwas in a position to take a vital decision as to whether an articlecan be published. It has been further alleged that only due tobusiness enmity with the management of the complainant, such adefamatory article was published. To top it all, it has been statedin the complaint that the petitioner also was aware that theallegations contained in the said defamatory publication was nottrue. 9. The averment found in the complaint referred to above wouldindicate prima facie that the defamatory publication was made onlydue to business enmity. The business enmity will have direct impacton the management and administration of the business. Further,personal knowledge about the publication of the news item also wasalleged in the complaint. It has been further stated therein thatthe petitioner also was in a position to take concrete decision asto the publication of the article concerned. 10. It is not as if the petitioner was implicated only in hiscapacity as a partner of a Newspaper. Only after making theaforesaid allegations reflecting his role in the matter of https://hcservices.ecourts.gov.in/hcservices/ publication of the defamatory article, the complaint has been laid. 11. This court has also held in Crl.O.P.No.33138 of 2007 filedby A2 and A3, the Editor and Publisher of Dinamalar Tamil DailyNewspaper that sufficient allegation is there to take the case onfile for the alleged defamatory article. Further, it has been heldtherein that a Company can prosecute for the defamatory articlepublished against it. Therefore, the petitioner herein cannot beheard to say against such a verdict invited by the other two accusedin this case.12 In BHAGAT SINGH v. LACHMAN SINGH (AIR 1968 CALCUTTA 296), ithas been held as follows:-"The owner in order to be liable under thissection has to have direct responsibility for thepublication of the defamatory statement and hemust also have the intention to harm or knowledgeor reason to believe that the imputation will harmthe reputation of the person concerned. The ownerof a journal qua-owner has thus no responsibilityunder the section. The editor of the paper, eventhough he might not be directly responsible for adefamatory statement published in his paperattracts the responsibility by virtue of section 7of the Press and Registration of Books Act byvirtue of his registration as editor under the Actwhich registration is sufficient evidence that hewas also the printer or publisher or printer andpublisher of the paper concerned. The printer andpublisher by virtue of their duties as such cannotof course avoid the legal liability fordefamation. The owner's liability will beattracted provided it can be shown that he wasresponsible for the publication with the necessaryintent, knowledge or reasonable belief in thematter."13. Firstly, it is found that the said case has arisen out ofthe acquittal recorded by the Trial Court in a defamation case undersection 499 of the Indian Penal Code. As there was no material toestablish direct responsibility for the publication of thedefamatory statement intended to harm the reputation of the personconcerned, the court has held that Proprietor of the Journal in hiscapacity as owner cannot be held responsible under section 499 ofthe Indian Penal Code. https://hcservices.ecourts.gov.in/hcservices/

14. The complaint should contain some reasonable allegationthat the partner also was liable for the defamatory action. Justbecause a person was a partner of some Newspaper business, he cannotbe imputed with any knowledge about the publication of thedefamatory statement nor can he be made responsible for the same.But, in this case, it is found that there is a concrete allegationthat the petitioner being one of the partners of the Newspaperbusiness was at the helms of affairs taking decisions as to whatsort of articles could be published in the Newspapers. Businessmotive also was attributed for the impugned publication. It has alsobeen alleged that the petitioner has knowledge that the defamatoryarticle was not true. It is found that the petitioner has not beenimplicated just because he was one of the partners of the publishinghouse. 15. When there is a clear averment as to the role played by thepetitioner, who was allegedly in charge of and responsible for theconduct of the business, he cannot avoid prosecution saying that hehad no responsibility in publication of the alleged defamatoryarticle. The Honourable Supreme Court in K.M.MATHEW v. K.A.ABRAHAM& OTHERS (2002(5) SUPREME 511) has categorically held that where acomplaint specifically alleges that a person had knowledge about thepublication of the alleged defamatory matter and he was alsoresponsible for such publication, cognizance shall be taken holdingthat prima facie case was made as against the person concerned. 16. As sufficient allegation constituting the offence ofdefamation is found in the complaint as against the petitioner alsoto take the case on file by the XVII Metropolitan Magistrate,Saidapet, Chennai, the question of quashing the criminal proceedingsas against him does not arise for consideration. Therefore, thepetition seeking quashment stands dismissed. Sd/Asst.Registrar/true copy/Sub Asst.Registrarssk. https://hcservices.ecourts.gov.in/hcservices/ To1.XVII Metropolitan Magistrate, Saidapet, Chennai. 2.thro' The Chief Judicial Magistrate,Chennai.+1cc to Mr.S.Shyamkumar, Advocate Sr 9686GG (CO)km/4.3Crl.O.P.No.33831/2007