A.Perumal Pillai v. V.Masilamani & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 15.04.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.764 of 2002A.Perumal Pillai...Appellant/ComplainantVs.1. V.Masilamani2. P.Mani3. S.Seshadri4. A.Marimuthu5. K.Sundaramurthi...Respondents/AccusedThis Criminal Appeal has been filed under Section 378 of CriminalProcedure Code as against the judgment dated 13.03.2002 made inC.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.AmizhduJ U D G M E N TThis criminal appeal has been preferred against the judgment ofthe learned Judicial Magistrate No.II, Cheyyar, TiruvannamalaiDistrict, dated 13.03.2002 pronounced in C.C.No.102 of 1999acquitting the accused therein (respondents herein) in respect of thecharge for an offence of defamation punishable under Section 500 IPC.The appeal has been entertained after granting special leave underSection 378(4) Cr.P.C. by an order dated 06.06.2002 made inCrl.M.P.No.12257/2002.2. The appellant herein preferred a private complaint underSection 200 Cr.P.C. on the file of the court below allegingcommission of an offence of defamation punishable under Section 500IPC by the respondents herein. The learned Judicial MagistrateNo.II, Cheyyar, after following the procedure prescribed for takingcognizance of the offences on private complaint, took it on file asC.C.No.102 of 1999. On appearance, the respondents herein/accuseddenied the allegations made against them in the complaint, pleaded https://hcservices.ecourts.gov.in/hcservices/ not guilty and wanted the case to be tried.3. In the trial, that followed the plea of innocence made by therespondents herein/accused, 6 witnesses were examined as P.Ws.1 to 6and 8 documents were marked as Ex.P1 to P8 on the side of theappellant herein/complainant, in order to substantiate the avermentsmade in the complaint. Two witnesses were examined as D.W.1 to 2 and12 documents were marked as Ex.D1 to D.12 on the side of therespondents herein/accused.4. At the conclusion of trial, the learned Judicial MagistrateNo.II, Cheyyar considered the evidence brought before him, in thelight of the arguments advanced on either side and upon suchconsideration, acquitted all the respondents herein/accused holdingthem not guilty of the offence with which they stood charged.Aggrieved by and questioning the correctness of the said judgment ofthe trial court dated 13.03.2002, the appellant herein/complainanthas brought forth this appeal on various grounds set out in theappeal petition.5. This court heard the submissions made by Mr.Haroon, learnedcounsel appearing on behalf of the appellant and by Mr.Amizhdhu,learned counsel appearing on behalf of the respondents. The entirerecords and the judgment of the trial court impugned in this appealwere also considered by this court.6. The following are the admitted facts:(a) The appellant herein/complainant is the Chairman of the Boardof trustees constituted for Arulmighu Lakshmi Narasimha Swamy Templeat Avaniyapuram, Tiruvannamalai District. The said temple is nowmanaged by the Board of trustees consisting of five trusteesappointed by the HR&CE authorities. There is also an ExecutiveOfficer for the said temple. On an earlier occasion, namely in 1994,the appellant herein/complainant had been appointed as a trustee andwas elected as the Chairman of the Trust Board and was functioning assuch till he was suspended on 27.02.1996. Thereafter, without anyfinality being attached to the enquiry contemplated in the saidsuspension order, the appellant/complainant was again appointed as atrustee on 09.04.1999 and was again elected as the Chairman of theTrust Board. Pursuant to the said appointment and his consequentialelection as Chairman of the Board of trustees, a number of peoplefrom the area having allegiance to various political parties raisedtheir protest and organised a token fast agitation proposed to beheld on 30.04.1999 at Avaniapuram road junction. For the above saidagitation, bit notices containing imputations capable of tarnishingthe reputation of the appellant/complainant were printed anddistributed. Contending that the respondents were the personsinstrumental for the same and that they were the persons, who not https://hcservices.ecourts.gov.in/hcservices/ only caused the pamphlets printed but also personally published thescandalous materials by distributing the pamphlets to the public, theappellant/ complainant preferred the above said private complaint onthe file of the learned Judicial Magistrate No.II, Cheyyar prayingthat the respondents herein/accused should be prosecuted and punishedfor the offence of defamation.(b) However, the court below, after trial, held that theappellant/complainant failed to prove that the respondents/accusedhad caused the printing of the pamphlets containing defamatorymaterials. The court below also held that even if it is assumed thatthe respondents/accused had published the defamatory materials, theiract would come well within the exceptions provided under Section 499IPC. In view of the said finding, the respondents herein/accusedwere acquitted of the offence with which they stood charged. Hencethe 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 graveerror in disbelieving the evidence of P.W.4 and in holding that theappellant/complainant failed to prove the printing and publishing ofthe bit notices by the respondents/accused; that the court belowfailed to note the fact that the respondents, who had taken the pleaof truth in the matter of publication and good faith in effectingpublication, have not discharged the burden of proving the same andthat in any event, the court below ought to have held therespondents/accused guilty of the offence of defamation and convictedthem with appropriate punishment.8. Per contra, it is the contention of the learned counsel forthe respondents/accused that the onus of proving the charge had notbeen discharged by the appellant/complainant at all; that only incase of discharge of the said initial onus, the question - whetherthe respondents/accused have proved their defence plea of truth andgood faith shall be taken into consideration; that even assuming thatthe initial onus had been discharged by the appellant/complainant,the degree of proof of the defence plea shall not be comparable withthe degree of proof required against the accused; that it shall besufficient to establish on probabilities of the defence plea of theaccused and that in an action in a criminal court for defamation, theaccused is expected only to prove that he had reason to believe thatthe statements made by him were true. It is his further argumentthat in the instant case, the respondents/accused have adduced morethan sufficient evidence to show that they had reason to believe thetruth in the imputations and that they were justified in publishingthe same in a bona fide belief that the same would invite action onthe part of the appropriate authorities to safeguard the interest ofthe temple. https://hcservices.ecourts.gov.in/hcservices/

9. The learned counsel for the respondents/accused has relied onthe judgment of the Hon'ble Supreme Court in Chaman Lal v. The Stateof Punjab reported in 1971 LW (Crl) 21. In the said case, theaccused therein claimed to come under exception Nos.8 and 9 toSection 499 IPC. It was held that the onus of proving truth of theimputation and publication of the imputation for the public good wason the accused. Exception-1 to Section 499 IPC itself says whetheror not the imputation is for public good is a question of fact. Inthe case on hand, the imputations are based on records. Thepublication was with a view to safeguard the interest of the templeand ensure the better administration of the temple. So, it cannot bedenied that the publication was made for public good and in goodfaith.10. It is the contention raised on behalf of theappellant/complainant that the evidence of P.W.4 and the productionof Ex.P1-bit notice containing the defamatory materials are enough toprove beyond reasonable doubt his contention that Ex.P1-bit noticewas caused to be printed by the respondents herein/accused. It is afact that cannot be disputed that none of the respondents herein (byname) has been shown to the person who ordered the printing of thebit notice for distribution. On the other hand, the organizers ofthe agitation are shown to be the villagers of Avaniyapuram belongingto all political parties. Of course, it is true that the firstrespondent is show in Ex.P1-bit notice to be one of the two personswho would preside over the token fast agitation. The name of thesecond respondent appears in the said bit notice as one of severalpersons in whose presence the token fast agitation was scheduled tobe observed. The name of the third respondent is found as one of thepersons designated for closing the token fast agitation at the end ofthe day. Including the fourth respondent, three persons are shown tobe the persons assigned with the job of welcoming the gathering. Thefifth respondent is shown to be one among the felicitators. The merefact that the names of the respondents/accused are found in the bitnotice shall not be enough to show that the respondents have causedthe printing of the same.11. In fact, one Vadivelu supposed to be one of the personspresiding over the agitation has been examined as P.W.6. He hasdisowned any part played by him in organising the agitation andprinting and publishing the bit notice for the said purpose. He hastaken a stand that the respondents 1 to 3 wanted him to preside overthe token fast agitation but he declined the offer and informed themthat his name should not be printed in the bit notice. It is hisfurther evidence that without his consent and against his advice, hisname was printed as one of the two persons presiding over theagitation. When P.W.6 was allowed to take such a stand and the saidstand was accepted by the appellant/complainant, this court is at aloss to understand why the respondents/accused should not be allowed https://hcservices.ecourts.gov.in/hcservices/ to do so. The names of the respondents/accused as well as the nameof P.W.6 appeared in the bit notice. When that is so, we cannotapply two different yardsticks, one for P.W.6 and the other for therespondents/accused persons. The respondents/accused have totallydenied their involvement in the printing of the pamphlets anddistribution of the same. When that is the plea of therespondents/accused, strict proof of the allegation made against themis needed.12. The appellant/complainant relies on the evidence of P.W.4 forthe proof of the allegation that accused Nos.1 to 3 were the personswho placed orders for the printing of pamphlets. Theappellant/complainant seems to have issued a notice on 10.05.1999calling upon the owner of Om Shakthi Press and Screens, Setthupattu,Tiruvannamalai District to furnish the details of the persons who hadplaced orders for the printing of notices. The same was received on13.05.1999 and a reply was sent on 15.05.1999 stating that therespondents 1 to 3 were the three out of several persons who came tothe press for placing order for the printing of the pamphlets.Copies of the said notice, acknowledgment and the reply notice havebeen marked as Ex.P2 to P4. P.W.4 is the owner of the above saidprinting 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 otherpersons and placed orders for printing the pamphlets. It is also hisstatement in his evidence that the respondents 1 to 3 collected theprinting charges from the others and brought it to him. However, itis an admitted fact that the hand written script containing thematerials for printing is not available with P.W.4. It is not hiscase that the same was returned. There is not even a piece of paperto show that the order for the printing of the pamphlets was placedby any one of the accused. The bill for collection of the printingcharges (duplicate should be available with the printer) also has notbeen produced. Under such circumstances, this court is of theconsidered view that relying on the above said evidence of P.W.4shall not be safe.13. Further more, the token fast agitation as per Ex.P1-bitnotice was scheduled to be held on 30.04.2009. But, there isevidence in the form of Ex.P8-copy of the resolution passed in thepeace committee meeting held on 04.05.1999 to show that the tokenfast agitation proposed to be held on 30.04.1999 was given up. If itis true, then a serious suspicion as to whether Ex.P1-bit noticecould have been printed by the respondents/accused for holding atoken fast hesitation on 30.04.1999 would arise. It is not the caseof the appellant/complainant that the agitation originally scheduledto be held on 30.04.1999 was postponed to a further date and lateron, the same was given up, pursuant to the decision made in the peacecommittee meeting. If at all the date for the agitation wasoriginally fixed as 30.04.1999 and postponed to a particular date https://hcservices.ecourts.gov.in/hcservices/ beyond 04.05.1999, then the appellant/complainant could have statedthe altered date of the token fast agitation. As it is notforthcoming from the appellant/complainant or from any one of thewitnesses examined on behalf of the appellant/complainant, this courtis of the considered view that there is a reasonable doubt regardingthe case of the appellant/complainant that Ex.P1-bit notice wasprinted at the instance of the respondents herein/accused.14. Similarly, the evidence adduced through P.W.2 and 3 to theeffect that the accused themselves distributed the pamphlets are notfree from suspicion. The very same reasons assigned for disbelievingthe evidence of P.W.4 shall be applicable to the evidence of P.W.2and 3 regarding the distribution of the pamphlets by the accusedpersons. In addition to that, it is quite unnatural for the persons,who are chosen to be presiding over the functions, to go to thestreets and distribute the pamphlets. Therefore, this court sees nodefect or infirmity in the decision arrived at by the court belowthat the allegation of the appellant/complainant to the effect thatthe bit notice containing defamatory materials was printed anddistributed by the accused had not been proved beyond reasonabledoubt regarding the said allegation. For the said reason alone, theappeal is bound to fail.15. Even assuming that the bit notices containing the allegeddefamatory materials were printed and distributed by the villagersbelonging to various political parties and the respondents/accusedwere also some among such persons who did it, the act on the part ofthe accused can be excused, as it comes under the exceptions providedto Section 499 IPC, as rightly contended by the learned counsel forthe respondents/accused. It is not in dispute that there were someallegations of mismanagement by the appellant/complainant as theChairman of the Board of Trustees of Arulmighu Lakshmi NarasimhaSwamy Temple during his tenure after he was appointed as a trusteeand his election as Chairman of the Board of Trustees in the year1999. Pursuant to the said allegations, enquiries were made andbased on the report of the Inspector of HR&CE, he was placed undersuspension as evidenced by Ex.D7 dated 27.02.1996. However, furtheraction could not be pursued the reasons for which are not made knownto court. No specific order dropping further proceedings was passedas revealed by the evidence of D.W.1 and 2. It transpires, furtheraction was dropped because of lapse of time, as the term for whichthe appellant/complainant had been appointed had come to an end inthe mean time. Despite the said fact, the appellant/complainant wasagain re-appointed as trustee under Ex.D8 dated 09.04.1999. Pursuantto the re-appointment of the appellant/complainant, the Avaniapuramvillages belonging to various political parties seem to haveorganised an agitation protesting against the appointment of theappellant/complainant as trustee of the temple. Ex.P5 is the copy ofthe resolution passed in the Trust Board by which the appellant as https://hcservices.ecourts.gov.in/hcservices/ the then Chairman of the Trust Board was directed to hand over thejewels of the temple to the Executive Officer of the temple.However, evidence has been led to the effect that the temple did nothave any jewel, that the villagers alone had the jewels in common andthat the said jewels were directed to be handed over to the ExecutiveOfficer by the above said resolution. On the other hand, thedocuments produced on the side of the appellant/complainant wouldshow that the said jewles belonged to the deity.16. There had been allegations that the appellant/complainanthimself used the common fund of the village and also mismanaged thehundi collection of the temple which are evident from Ex.P8-copy ofthe resolution made in the peace committee meeting. Under suchcircumstances alone, in order to highlight those aspects and inviteaction ton the part of the authorities concerned to revoke the orderof appointment of the appellant/complainant as trustee and forstreamlining the management of the temple, the villagers seem to haveorganised the agitation. Under such circumstances, the imputations,if any, made can be justified on the ground that there is truth in itand that the publication of the same was made only in good faith, inorder to see that the administration of the temple was fine-tuned.In this regard also, the court below has come to a correct conclusionthat 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 defenceplea, in certain circumstances, especially when the accused relies onthe exception as provided under the penal provision, the degree ofproof required from the prosecution and that it shall be sufficientfor the accused to prove the defence plea of coming under theexception provided under the penal provision on broad probabilitiesrather than proof beyond reasonable doubt.17. In this case, the evidence adduced on the side of therespondents/accused and also some of the evidence adduced on the sideof the appellant/complainant are enough to arrive at a conclusionthat the respondents/accused have proved that the case come underexception No.1 to Section 499 IPC on broad probabilities. Therefore,this court is able to find no defect or infirmity in the conclusionarrived at by the court below that the charge against therespondents/accused has not been proved beyond reasonable doubt andthat they are entitled to the benefit of doubt and entitled to beacquitted holding them not guilty of the offence with which theystood charged. There is no scope, whatsoever, for interference withthe well considered judgment of the court below. The appeal deservesto be dismissed as there is no merit in it.18. Accordingly, the appeal is dismissed confirming the judgmentof the trial court dated 13.03.2002 made in C.C.No.102 of 1999. Sd/-Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ /true copy/Sub Asst. Registrar.To1. The Judicial Magistrate No.II, Cheyyar Tiruvannamalai District.2. Do thro the Chief Judicial Magistrate, Tiruvannamalai3. The Public Prosecutor, High Court, Madras.+ 1 CC To M/s.R.Amizhdhu, Advocate SR NO.14884 JUDGMENTin Crl.A.No.764/2002SR {CO}TP/18.5.2009.