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2008 DIGILAW 366 (MAD)

K. Pannai Sethuraman v. A. R. Sethupathy

2008-02-01

A.SELVAM

body2008
JUDGMENT Challenge in this criminal appeal is to the judgment dated 24-12-1999 passed in C.C. No. 65/94 by the Judicial Magistrate, Nilakottai. 2. The appellant herein as complainant has filed a private complaint, wherein, the present respondent has been shown as accused. It is stated in the complaint that the complainant has assisted the complainant in Cr. No. 22/1989 and the same has been instituted against the accused, his father and brothers. As a measure of talion, the accused has defamed the complainant in paragraph No. 8 of the plaint filed in O.S. No. 1031/1993. On 25-1-1994, so many persons have met the complainant in Gowri Tourist Home and stated that the accused and his brother have acted against his reputation. Under the said circumstances, the present complaint has been filed. 3. On the side of the complainant, P.Ws. 1 to 4 have been examined and Exs. P1 to P9 have been marked. 4. The Court below, after considering the contentions raised on either side has dismissed the complaint and thereby acquitted the accused under S. 255(1), Cr. P.C. Against the judgment passed by the trial Court, the present criminal appeal has been filed. 5. The learned counsel appearing for the appellant/complainant has repeatedly contended that the appellant/complainant is having high reputation and he helped the complainant in Cr. No. 22/1989 which has been registered against the accused, his father and brothers and in order to wreck vengeance, the accused as an advocate has drafted the plaint filed in O.S. No. 1031/93, wherein, at paragraph No. 8, he has defamed the appellant/complainant and in order to prove the malice of the accused on the side of the appellant/complainant, voluminous evidence have been adduced. But the trial Court, without considering the evidence adduced on the side of the appellant/complainant has erroneously acquitted the accused and, therefore, the order of acquittal passed by the trial Court is liable to be set aside and consequently, the accused is liable to be punished suitably. 6. But the trial Court, without considering the evidence adduced on the side of the appellant/complainant has erroneously acquitted the accused and, therefore, the order of acquittal passed by the trial Court is liable to be set aside and consequently, the accused is liable to be punished suitably. 6. Per contra, the learned counsel appearing for the respondent/accused has also equally contended that the respondent/accused as an advocate has drafted the plaint filed in O.S. No. 1031/93 and he stated all the averments made by the plaintiff therein and the respondent/accused had no malice against the appellant/complainant and the respondent/accused is entitled to get 9th Exception of S. 499, I.P.C. The trial Court, after considering all the divergent contentions raised on either side has rightly acquitted the respondent/accused and, therefore, the order of acquittal passed by the trial Court is not liable to be interfered with. 7. For considering the rival submissions made by either counsel, the Court has to look into Ex. P. 5. Ex. P. 5 is a copy of the plaint filed in O.S. No. 1031/1993. One S.K. Subramanian as plaintiff has instituted O.S. No. 1031/93, wherein, the present appellant/complainant has been shown as the first defendant. In the plaint at paragraph No. 4, it has been clearly stated that the plaintiff and the defendants are the brothers. O.S. No. 1031/1993 has been filed for the reliefs of partition, separate possession and also for mesne profits. In Ex. P. 5, at para No. 8, it has been stated like thus : "The plaintiff submits that till the 2nd defendant surrendered possession, the 1st defendant was promising to pay the mesne profits for the period from 1976 to 1991. But when the plaintiff pressed him for payment of the mesne profits, he dodged and told the plaintiff that since he has managed the properties for more than 15 years and obtained the income, the plaintiff also can manage the entire properties for another period of 15 years and enjoy the entire income." 8. But when the plaintiff pressed him for payment of the mesne profits, he dodged and told the plaintiff that since he has managed the properties for more than 15 years and obtained the income, the plaintiff also can manage the entire properties for another period of 15 years and enjoy the entire income." 8. In paragraph No. 8, it has been specifically stated that taking advantage of his residence at Periakulam, which is very near to Adukkam and also his political influence, the 1st defendant prevented the licencees from enjoying the usufructs and further, it is stated that the first defendant is very cunning and bent upon grabbing the entire income from the suit properties to the detriment of the plaintiff. Only subsequently, the plaintiff realised that the very offer made to him for enjoying for 15 years is nothing but a drama played by the 1st defendant. 9. In paragraph No. 9, it has been specifically stated that the first defendant just gives false promises to pay and continues to enjoy the suit properties and swallows the entire income. 10. The learned counsel appearing for the appellant/complainant has repeatedly quoted the words mentioned in paragraph Nos. 8 and 9 of Ex. P. 5. As adverted to earlier, the plaint in O.S. No. 1031/1993 has been filed by the brother of the appellant/ complainant by name S. K. Subramanian. The respondent/accused has drafted the plaint filed in O.S. No. 1031/93 only on the basis of the instruction given by the plaintiff therein. In each and every paragraph, it has been specifically stated that the "plaintiff submits." Therefore, it is pellucid that the entire averments found in the plaint have been made only as per the instruction of the plaintiff therein. If at all, the words mentioned in the plaint are causing imputation to the fame of the appellant/complainant, the plaintiff is the only person against whom, this type of complaint can be filed. But the appellant/complainant has failed to take any action against the plaintiff found in O.S. No. 1031/93. The respondent/accused as an advocate has narrated the entire averments as per the instructions of the plaintiff. Therefore, the respondent/accused cannot be mulcted with the punishment. 11. But the appellant/complainant has failed to take any action against the plaintiff found in O.S. No. 1031/93. The respondent/accused as an advocate has narrated the entire averments as per the instructions of the plaintiff. Therefore, the respondent/accused cannot be mulcted with the punishment. 11. The learned counsel appearing for the appellant/complainant has drawn the attention of the Court to the following decisions : i) The first and foremost decision is reported in 2002 MLJ Cri 351 : (2003 Cri LJ 61) (Beem Singh v. S. Ramayajam) wherein, this Court has held that S. 499, I.P.C. requires the intention or knowledge of the person to defame the complainant. In other words, it must be specifically stated in the complaint or in the sworn statement that the said person had knowledge of the contents of the publication and published the same with intention to defame the person. In fact, this Court has clearly dealt with the provision of S. 499; I.P.C. in the decision referred to supra. ii) The second decision is reported in 2006 (2) Crimes 683 : (2006 Cri LJ 1872) (Prabhakaran v. Gangadharan), (Kerala High Court), wherein, it has been held that once a statement has been filed in Court of law, that statement can be taken as published and if such a statement amounts to per se defamatory, it is duty of accused to establish that they are justified in making such a statement under any of exceptions to S. 499, I.P.C., 1860. 12. In the instant case, it has already been pointed out that if at all, the words mentioned in the plaint filed in O.S. No. 1031 of 1993 have impinged the reputation of the appellant/complainant, he has to file this type of complaint only against the plaintiff therein. But he has not done it. On that ground alone, the complaint filed by the appellant/complainant is liable to be rejected in limine. But he has not done it. On that ground alone, the complaint filed by the appellant/complainant is liable to be rejected in limine. iii) The third decision is reported in AIR 1970 SC 1372 : (1970 Cri LJ 1266) (Chaman Lal v. State of Punjab), wherein, the Apex Court has held that 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. 13. In the instant case, even at the risk of jarring repetition, this Court would like to point out that all the words found in the plaint filed in O.S. No. 1031/1993 have been averred only on the basis of the instructions given by the plaintiff therein. Therefore, the respondent/accused has written the plaint as an advocate and he cannot be made responsible for the words uttered in the plaint filed in O.S. No. 1031/1993. In the light of the discussion made earlier, it is very clear that the entire argument advanced by the learned counsel appearing for the appellant/ complainant cannot be accepted. 14. The learned counsel appearing for the respondent/accused has also drawn the attention of the Court to the following decisions : i) The first and foremost decision is reported in 1981 Cri LJ 117 (Goa, Daman and Diu) (Filomeno Pereira v. Jao Lourenco Fernandes), wherein it has been stated that affidavit drafted by advocate for his client under latter's instructions, complaint against advocate for defamation is not maintainable. ii) The second decision is reported in 1994 MLJ Reports (Criminal) 384 (J. P. Chandra Bose v. V. Palani, Inspector of Police (L and O), Ambur Circle), wherein, this Court has held that in a case where the advocate acted on behalf of his client and had made defamatory statements on the instructions of his client, it is to be presumed that he did so in good faith and he would come within Exception 9 to S. 499, I.P.C., and would not be liable for the offence punishable under S. 500, I.P.C. in the absence of any allegation against the advocate that he was actuated by malice. 15. In the instant case, it has been pointed out in various places that the respondent/accused has acted only as per the instructions given by the plaintiff found in O.S. No. 1031/1993 and, therefore, as per the decisions referred to by the learned counsel appearing for the respondent/accused, the respondent/accused cannot be punished under S. 500, I.P.C. 16. Further, it is a settled principle of law that a lawyer conducting a case on behalf of his client enjoys certain privileges and latitudes and the presumption will be that he has acted in good faith unless, contrary is alleged or established. An advocate will come within the 9th Exception to S. 499, I.P.C. and it will be presumed that he acted in good faith and in the interest of the protection of his client unless contrary is alleged or established. 17. The respondent-accused in his capacity as an advocate and in discharging professional duties on the instructions of his client has incorporated the aforesaid averments in plaint filed in O.S. No. 1031/1993 and his acts are bona fide and he cannot be fastened with criminal liability. Therefore, viewing from any angle, the present criminal appeal deserves dismissal. 18. In fine, this criminal appeal deserves dismissal and accordingly, is dismissed. The judgment passed in C.C. No. 65 of 1994 by the Judicial Magistrate, Nilakottai is confirmed. Appeal dismissed.