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2004 DIGILAW 961 (AP)

P. Pushpalatha v. P. Manohar

2004-09-07

P.S.NARAYANA

body2004
( 1 ) HEARD Sri M. N. Narasimha Reddy, the learned Counsel representing the appellant. The matter is coming up for admission today. The appellant/complainant preferred this appeal as against an order of acquittal made by the first Additional Judicial First Class magistrate, Kadapa in C. C. No. 91 of 2003 dated 28-6-2004. ( 2 ) THE facts in brief are that the first respondent/accused No. 1 filed a suit against the appellant/complainant for permanent injunction, wherein respondent No. 2/a2 figured as a witness on behalf of A. 1 in o. S. No. 704 of 2001 on the file of the iv Additional Junior Civil Judge, Kadapa. It is also the version of the prosecution that on 6-2-2003, the trial had commenced and a. 1 filed an affidavit duly attested through his advocate. The said affidavit had been filed in view of the amended provisions of the Code of Civil Procedure. Both A. 1 and A. 2 filed their affidavits by way of chief-examination. The case of the prosecution is that these affidavits filed by way of chief-examination contain certain allegations lowering the status of the appellant/ complainant in the society and had affected her reputation in the society. It is the specific case of the prosecution that these allegations are irrelevant for the purpose of the civil proceedings and the allegations are "quarrelsome nature and she wants to hoodwink other for collecting rowdy mamools. I do not like to have any physical quarrel with defendant since she is the lady and that she may misuse any kind of protest in a form of criminal case. " It is further stated that A. 2 also specified in the affidavit that "the defendant is of the quarrelsome nature, riff-raff and wagabond because of her unsocial activities, she was deserted by her husband". The evidence of PW. 1 was recorded and Exs. P. 1 and P. 2 were marked. Likewise, the evidence of DWs. 1 and 2 was also recorded and the learned Magistrate after recording reasons came to the conclusion that the respondents/accused nos. l and 2 are entitled for acquittal. Aggrieved by the same, the present appeal is filed. The evidence of PW. 1 was recorded and Exs. P. 1 and P. 2 were marked. Likewise, the evidence of DWs. 1 and 2 was also recorded and the learned Magistrate after recording reasons came to the conclusion that the respondents/accused nos. l and 2 are entitled for acquittal. Aggrieved by the same, the present appeal is filed. ( 3 ) SRI M. N. Narasimha Reddy, learned counsel representing the appellant would contend that the view expressed by the learned Magistrate that inasmuch as the suit is pending disposal, the complaint cannot be entertained at this stage, definitely is unsustainable. Learned Counsel also would contend that these allegations are totally irrelevant either in the context of the civil proceedings or even otherwise, and hence, per se the allegations made in these affidavits are defamatory attracting the ingredients of Section 499 I. P. C. and accordingly liable to be punished under section 500 I. P. C. The Counsel also would submit that none of the exceptions are attracted and the view expressed by the learned Magistrate that exception 5 is attracted also is not correct. Learned Counsel would conclude, at any rate, that when these reckless allegations are not all necessary for the civil proceedings, such allegations if permitted to be made, definitely would cause lot of prejudice to the appellant/complainant. ( 4 ) HEARD the Counsel at length. ( 5 ) IT is no doubt true that the learned magistrate had recorded certain reasons while recording acquittal and it may be that exception 5 referred to by the learned magistrate in relation to Section 499 I. P. C. as such may not be applicable. ( 6 ) HERE is a case where a suit O. S. No. 704 of 2001 for the relief of permanent injunction filed by A. 1 against the appellant/ complainant on the file of the IV Additional junior Civil Judge, Kadapa, is pending disposal and these affidavits are filed evidently on instructions of the Counsel in support of the case of the plaintiff in the said suit. It is needless to say that the affidavit evidence is permitted under the present Code of Civil Procedure. It is no doubt true that the Indian Evidence act, 1872 as such in the commencement itself specifically excludes affidavit evidence. It is needless to say that the affidavit evidence is permitted under the present Code of Civil Procedure. It is no doubt true that the Indian Evidence act, 1872 as such in the commencement itself specifically excludes affidavit evidence. This Court need not further dwell into the said controversy in detail in the present appeal inasmuch as this is an appeal as against an acquittal in a criminal case. It is suffice to state that Section 155 of the indian Evidence Act, 1872 deals with impeaching credit of witness. ( 7 ) THE relevancy or irrelevancy of character or conduct may be limited to some extent and evidently when affidavit evidence is permitted on instructions of the counsel, the parties would be filing the affidavits in the form of evidence. It is no doubt true that both the Counsel and also the person swearing to these affidavits to be careful and cautions while swearing to these affidavits and to avoid making irrelevant, irresponsible and reckless allegations. There cannot be any two opinions relating the same. ( 8 ) HERE is a case where in the affidavits filed by both the respondents/ accused Nos. 1 and 2 certain allegations relating to nature of the party, the defendant in O. S. No. 704 of 2001, were made. In the considered opinion of the learned Magistrate, these were made in good faith. It is no doubt true that it may not fall under the exception as specified by the learned magistrate, but definitely it may fall under exception 9 of Section 499 I. P. C. ( 9 ) IN Bhimanagouda v. Malleshappa, 1980 (1) Karnataka Law Journal 123, wherein the accused in the plaint, and in the affidavit seeking ex parte injunction to prevent interference with their possession had used the expressions rowdy type of man and ex convict against the defendant complainant. The expression rowdy type is not per se defamatory. By using the word rowdy, the character of the person is not touched. Using these expressions was in the interests of the accused within Exception 9 to Section 499 I. P. C. and in good faith. The expression rowdy type is not per se defamatory. By using the word rowdy, the character of the person is not touched. Using these expressions was in the interests of the accused within Exception 9 to Section 499 I. P. C. and in good faith. That the plaint had been prepared by a lawyer and these expressions in the affidavit and application had their source in the plaint was sufficient to provide preponderance of reasonable probability in favour of the accused in discharging the burden bringing the case under Exception 9 to Section 499 i. P. C. Consulting a lawyer before using the expressions amounted to good faith. ( 10 ) THE earliest case on point in Re muthusami Naidu, (1914) ILR Madras 110, a Division Bench while dealing with the alleged defamatory statement made by one person regarding another in a complaint presented by the former against the latter, following the view of the Full Bench in in re Venkata Reddy, (1913) ILR 36 Madras 216 (FB), had arrived at a conclusion that the aspect of privilege may have to be extended and it would not constitute defamation. ( 11 ) IN Aravamuda Aiyangar v. Santhanakrishnan, (1951) II Madras LJ 229, wherein the statements made in an affidavit in support of an application for transfer will be allegations made for the protection of the interest of the party making it and if made in good faith is clearly covered by exception 9 of Section 499 I. P. C. and an acquittal of the person making such defamatory statement is justified. ( 12 ) IN Girish Kakkar v. Dhanwantri, 1991 Crl. LJ 5, wherein in the eviction proceedings, landlord in reply application merely denying the relationship of husband and wife between tenant and complainant, the question was whether it would constitute defamation. The Delhi High Court while dealing with the case under Section 482 cr. P. C. held that "where in reply to application of the complainant for restoration of possession or for setting aside the eviction order, the relationship pleaded by the complainant with the tenant as her husband was merely denied by the landlord, without anything more, such vague and general denial which was attributed to the landlord, could not constitute defamation. The imputations attributed to the petitioner landlord in the complaint are not capable of being understood in a defamatory sense. The imputations attributed to the petitioner landlord in the complaint are not capable of being understood in a defamatory sense. The context in which the alleged denial is made, no defamatory intention, knowledge or belief can be attributed to the petitioner when in the complaint no such intention, knowledge or belief has been alleged against the petitioner and only a general allegation that petitioner defamed the complainant has been attributed to him. Such vague and general imputation, without anything more, cannot constitute defamation. ( 13 ) RELIANCE was also placed on Chaitan charan Das v. Raghunath Singh, 1959 crllj 1006 (Ori. ). ( 14 ) IN Gopi R. Mallya v. Pushpa, 1998 (1) ALT (Crl.) 28 (Karn.), wherein the question was when the adultery was taken as a ground in a matrimonial proceeding, whether a complaint by the wife before the magistrate under Section 500 IPC for defamation alleging adultery could be maintained. The learned Judge expressed the opinion that the same cannot be permitted and the same is liable to be quashed. ( 15 ) HERE is a case where civil proceedings are pending between the parties and in good faith on instructions of the counsel, these affidavits in the form of chief-examination were filed before the court making certain allegations relating to the nature of the party, which will be relevant upto same extent. Inasmuch as in a suit for perpetual injunction, the unauthorized interference would be complained of at least to the limited extent. It cannot be said that these allegations are totally irrelevant especially in the light of the nature of the evidence let in the course of chief- examination and cross-examination and also re-examination, as permitted by the provisions of the Indian Evidence Act, 1872, exs. P. l and P. 2, the certified copies of the affidavit filed in O. S. No. 704 of 2001, were marked. Apart from these, the evidence of dws. 1 and 2 also is available. DW. 2 is none other than A. 1 in the said case. It may be that the reasons recorded by the learned magistrate may not be correct approach. Apart from these, the evidence of dws. 1 and 2 also is available. DW. 2 is none other than A. 1 in the said case. It may be that the reasons recorded by the learned magistrate may not be correct approach. But, at the same time, as far as recording of acquittal is concerned, in the considered opinion of this Court, especially in the light of the views expressed above, recording of acquittal is well justified and this Court does not see any reason to interfere with the recording of acquittal by the learned magistrate and the same is hereby confirmed though slightly on different grounds. The criminal appeal is dismissed.