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Andhra High Court · body

2009 DIGILAW 465 (AP)

T. Venkatram Reddy v. N. Venkata Narayana

2009-07-17

G.BHAVANI PRASAD

body2009
Judgment :- The 4th and 5th accused (4th and 3rd accused) in C.C. No.797 of 2008 on the file of the III Additional Chief Metropolitan Magistrate, Nampally, Hyderabad filed the criminal petition to quash the further proceedings against them therein. An advertisement stated to have been issued by one Sri K.S. Vadivelu, Advocate, B.T.M. Layout, Bangalore, dated 05-10-2007, was published in Deccan Chronicle, Hyderabad edition on 15-10-2007, which was styled as a Caution Notice issued under the instructions of the client of the said counsel, M/s. Jewargi Power Private Limited. The advertisement brought to the notice of the general public that the complainant in C.C. No.797 of 2008 ceased to be the Director of the said company with effect from 23-05-2007 and that the Board of Directors of the company had revoked/cancelled all powers and authorization accorded earlier to him to negotiate and finalise any take over deals of the company. The advertisement further stated that they received feedback from their clients and general public that the complainant in C.C. No.797 of 2008 was attempting to negotiate and finalise the take over deal of the company and impeding the setting up of Coal Based Power Plant on behalf of the company, promoting himself as one of the Directors of the company despite his cessation. The advertisement seeks to put the general public to notice, as a matter of abundant caution, that the complainant in C.C. No.797 of 2008 is not authorized for any action whatsoever on behalf of the company, its Board of Directors or any of the company's shareholders to deal, negotiate or enter into any contracts on behalf of the company or represent the company before any relevant authorities. It was also stated that the said complainant has no claims on any assets or projects of the company and is no longer associated with the company and the company proposes to initiate legal actions against the said complainant for misrepresentation and attempting to cheat the public. By the advertisement, the company informed and cautioned their unwary clients and public at large that the company shall not be responsible for any obligation arising out of any contract or agreements entered into by anyone with the said complainant, whose photograph was also published above the written content of the advertisement. By the advertisement, the company informed and cautioned their unwary clients and public at large that the company shall not be responsible for any obligation arising out of any contract or agreements entered into by anyone with the said complainant, whose photograph was also published above the written content of the advertisement. The complaint gave a detailed account of the complainant being made a Director of M/s. Jewargi Power Private Limited to bring in investment from third parties and his own group of companies and the complainant and his group of companies accordingly investing Rs.371.58 lakhs and being allotted shares by the company. The complaint further stated about the complainant and the 1st accused alone remaining as the Directors on the Board of the company and the 2nd accused being later inducted as a Director and being allotted shares in violation of the company law without the knowledge of the complainant. The complaint stated the complainant to have been taken by utter shock and surprise by the offending advertisement in Deccan Chronicle, managed and represented by the petitioners. The complaint proceeds further to state how accused 1 and 2 conspired to get rid of the complainant and his companies and also about the career of the complainant as an entrepreneur and a technocrat with a reputation for honesty, integrity and uncompromising attitude, which were injured by the offending, false and defamatory statement. In so far as the petitioners are concerned, it was stated in the complaint that they published the statement containing the imputations without due care and attention or any attempt at verification and the publication not in good faith did not even publish or verify the complete address of the advocate. The petitioners did not care to cross check with the complainant and the failure to exercise due diligence and caution in publication is mala fide and motivated to improve circulation by publication of utterly false, sensational and defamatory matter for momentary monetary gains. The newspaper is the largest circulated English newspaper in the State of Andhra Pradesh with a considerable readership in Tamil Nadu and Karnataka also. Consequently, the petitioners are also sued as accused for the offence of defamation under Sections 499 and 500 of the Indian Penal Code. The newspaper is the largest circulated English newspaper in the State of Andhra Pradesh with a considerable readership in Tamil Nadu and Karnataka also. Consequently, the petitioners are also sued as accused for the offence of defamation under Sections 499 and 500 of the Indian Penal Code. The petitioners challenge the criminal proceedings against them contending that even if the allegations in the complaint are taken at face value, they do not constitute any offence under Sections 499 and 500 of the Indian Penal Code against them. The 1st petitioner is only the Chairman of the Board of Directors of Deccan Chronicle Holdings Limited, which is a public limited company and he has nothing to do with the printing and publishing of the daily newspaper and any presumption under Section 7 of the Press and Registration of Books Act, 1867 cannot be drawn against him. They further claim that the 1st petitioner's name was not subscribed as printer and publisher of the newspaper and hence, taking cognizance of the complaint against him is impermissible. While the complaint itself does not disclose that the 1st petitioner has any knowledge of the publication, even the 2nd petitioner, who is the Editor of the newspaper, was not positively and specifically alleged to be having any mala fides or malice or illwill in making the publication and the editor cannot be made liable or responsible for the advertisement by way of a Caution Notice by the advocate on behalf of his clients, accused 1 and 2. The 2nd petitioner has no control over the publication of advertisements and hence, the petitioners contended that the continuance of criminal proceedings against them is an abuse of process of law. Sri C. Padmanabha Reddy, learned senior counsel for the petitioners and Sri D. Seshadri Naidu, learned counsel for the 1st respondent reiterated their respective contentions with reference to the precedents respectively cited by them. Sri C. Padmanabha Reddy, learned senior counsel for the petitioners and Sri D. Seshadri Naidu, learned counsel for the 1st respondent reiterated their respective contentions with reference to the precedents respectively cited by them. In the Law of Press by D.D. Basu, it was stated that a Press is not only a medium of expression but also a business, in so far as it publishes advertisements from advertisers of different categories, for monetary consideration and this may bring the Printer and Publisher of a newspaper under legal control, where the matter, which is advertised, is illegal because it is defamatory etc., even though such advertisement had been sent by a third party, and the Press was not, in any way, responsible for its authorship. It was pointed out that the offence of the advertiser and the offence of printing or publishing an illegal advertisement are distinct offences, with separate ingredients and where the publication of an advertisement constitutes defamation of a third person because of any wrong statement in the advertisement or because the matter is contemptuous of the person referred to, the publisher may be held liable for publication of the defamatory advertisement. This principle concerning the liability of the Press has to be read together with Section 7 of the Press and Registration of Books Act, 1867, which lays down that in any legal proceeding whatever, as well civil as criminal, the production of a copy of the declaration under Sections 5 and 6 thereof, attested by the seal of some Court empowered by the Act to have the custody of such declaration, or, in the case of editor, a copy of the newspaper containing his name printed on it as that of the editor, shall be held, unless the contrary be proved, to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, or printed on such newspaper, as the case may be, that the said person was Printer or Publisher or Printer and Publisher of every portion of every newspaper, whereof the title shall correspond with the title of the newspaper mentioned in the declaration or the editor of every portion of that issue of the newspaper of which a copy is produced. Thus, a declaration with reference to Sections 5 and 6 leads to a rebuttable presumption in respect of the Printer, Publisher and Editor under Section 7. Thus, a declaration with reference to Sections 5 and 6 leads to a rebuttable presumption in respect of the Printer, Publisher and Editor under Section 7. If there are circumstances to prove that such Printer, Publisher and Editor were not responsible for the publication or that they had no knowledge of the publication, the presumption may stand rebutted. Dealing with the question in Dasari Narayana Rao v. R.D. Bhagvandas (1986 CRL. L. J. 888), a learned Judge of this Court, with reference to the precedents on the aspect, concluded that the Chairman of the Board of Directors of the company, who was the founder or the chief promoter of the company and nothing more, cannot be attributed with any knowledge of the contents of the publications in the daily newspaper in which the person's name was not subscribed as the Printer or Publisher or Editor. The presumption under Section 7 was held unavailable against him or even the owner of a newspaper unless such Chairman or owner can be shown to be responsible for publication with necessary interest, knowledge or reasonable belief in the matter. The Apex Court in K.M. Mathew v. K.A. Abraham (AIR 2002 SUPREME COURT 2989) construed the provisions of the Press and Registration of Books Act, 1867 pointing out that each copy of the publication of any newspaper shall contain the names of the owner and the editor who printed and published that newspaper and Section 7 enables the Court to draw a presumption that the person whose name was printed as Editor was the Editor of such newspaper, who can still show that he was not really the Editor and had no control over the selection of the matter that was published in the newspaper. The definition of the word 'Editor' as the person who controls the selection of the matter that is published in a newspaper under Section 1 (1) of the Press and Registration of Books Act, 1867, was also referred to. The definition of the word 'Editor' as the person who controls the selection of the matter that is published in a newspaper under Section 1 (1) of the Press and Registration of Books Act, 1867, was also referred to. In Sodhi Gurbachan Singh Koshan v. Babu Ram (AIR 1969 PUNJAB AND HARYANA 201), a learned Single Judge of Punjab and Haryana High Court pointed out the duty of an editor of a newspaper to check up the news or the information that is supplied to him, before publishing the same in his paper, especially when the news might be of a defamatory nature, because ultimately it is the Editor who would be held responsible for publishing any defamatory material in his paper. These precedents apart, the learned counsel for the 1st respondent also referred to American and English case law commencing from Vizetelly v. Mudie's Select Library, Limited ([1900] 2 QB 170), wherein the principle laid down in Emmens v. Pottle ((1885) 16 Q. B. D. 354) was referred to by the learned Judges and followed by Lord Justice Vaughan Williams who stated that what he understood from the said precedent really to decide is that the innocent publication of defamatory matter, i.e., its publication under such circumstances as rebut the presumption of any malice, is not a publication within the meaning of the law of libel. In Norman Douglas Norwood v. Soldier of Fortune Magazine, Inc. (651 F. Supp. 1397), the Arkansas Western District Court concluded that the defendant magazine had no special privilege to invade the rights and liberties of plaintiff, and it had no special immunity from the application of general laws. Sir William Blackstone was quoted saying that the liberty of the Press is indeed essential to the nature of a free state, but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matters when published. That was also a case of advertisements, which had a substantial probability of ultimately causing harm to some individual. In James M. Rejent v. Liberation Publications, Inc. (197 A.D.2d 240) from the Supreme Court of New York, the advertisement was construed as reasonably susceptible of the defamatory connotation and such a publication was held to make the Publisher subject to liability to the aggrieved without proof of any special harm. In L. Charles Perret v. New Orleans Times Newspaper (25 La. Ann. (197 A.D.2d 240) from the Supreme Court of New York, the advertisement was construed as reasonably susceptible of the defamatory connotation and such a publication was held to make the Publisher subject to liability to the aggrieved without proof of any special harm. In L. Charles Perret v. New Orleans Times Newspaper (25 La. Ann. 170), the Supreme Court of Louisiana laid down that the law implies malice in the publisher from the act of publishing the libel; not malice in the sense of spite, antipathy or hatred towards the party assailed, but the evil disposition, the malus animus which induced him wantonly, recklessly or negligently, in disregard of the rights of others, to aid the slanderer in his work of defamation by the potent enginery of the public press. It was made clear that the Proprietor of a newspaper is not exonerated from responsibility because the libelous matter appearing in his paper was inserted without his knowledge or approbation, or even against his wishes. He was held responsible in damages for the acts of his agents and employees. It was also held that in an action for a libel against the Printer of a newspaper, it is not a justification that the publication was made at the instance of a person whose name was given at the time, and who paid for it in the usual course of business, though it may go in mitigation of damages. That was also a case of an advertisement in wanton violation of the sacredness of personal character and good name of the aggrieved. In Dominic S. Rinaldi v. Village Voice, Inc. (47 A. D. 2d 180), the New York Supreme Court considered an advertisement to support a cause of action for libel and to be not privileged even which privilege would not survive a malicious publication. In Godfrey v. Demon Internet Ltd. ([2001] QB 201), the Queen's Bench was considering the substantial question of publication as a question of fact, which must depend on the circumstances in each case, whether or not the publication has taken place and it was pointed out that once publication was established, the publisher was guilty of publishing the libel unless he could establish, and the onus was upon him, that he was an innocent disseminator. Lastly, in McKillip v. Grays Harbor Pub. Co. (100 Wash. Lastly, in McKillip v. Grays Harbor Pub. Co. (100 Wash. 657), the Supreme Court of Washington pointed out that even in respect of a paid advertisement, every editor or proprietor of a newspaper and every manager of a copartnership or corporation by which any newspaper is issued, is chargeable with the publication of any matter contained in any such newspaper. That was with reference to the provisions of law in force in that regard and that was also a case of paid advertisement. Keeping in view these illustrative cases from foreign jurisdictions and in the light of the binding precedents from the Apex Court, this Court and another High Court cited above, the facts of the present case may not show the possibility for successfully implicating the 1st petitioner in the criminal proceedings. The 1st petitioner claims to be only the Chairman of the public limited company, owning the newspaper in question, unconnected with the actual printing and publishing of the daily newspaper. He obviously does not come within the statutory presumption under Section 7 of the Press and Registration of Books Act, 1867, even which presumption is rebuttable and in the light of the principle laid down in Dasari Narayana Rao v. R.D. Bhagvandas (1 supra), which still holds the field, further aided by K.M. Mathew v. K.A. Abraham (2 supra), the 1st petitioner does not appear susceptible to the prosecution herein. The allegations in the complaint with reference to the 1st petitioner or the company do not specifically suggest any absence of due care and attention on the part of the 1st petitioner or the company in respect of the advertisement, as the duty of verification, if any, before publication cannot be laid at the 1st petitioner's door. In fact, in K.M. Mathew v. State of Kerala ( (1992) 1 SCC 217 ), an averment too general in nature but with no positive averments as to the knowledge about the objectionable character of the matter, was held insufficient to proceed against a person and when the complaint does not disclose that the 1st petitioner or the company has any knowledge of the publication, the absence of any positive and specific allegations to involve the 1st petitioner should be taken as showing the untenability of the complaint against him, the continuance of which can be considered to be an abuse of process of law. However, in so far as the Editor is concerned, the petitioners themselves stated that the 2nd petitioner is the Editor of the newspaper and has been so shown in the newspaper, unlike the 1st petitioner who was not mentioned as the Editor or Printer or Publisher, to be brought within the scope of Section 7 of the Press and Registration of Books act, 1867. The presumption under Section 7 thereof is, undoubtedly, available against the 2nd petitioner, though rebuttable it may be, and as held in Sodhi Gurbachan Singh Koshan v. Babu Ram (3 supra), the duty of the Editor to verify before publication cannot be negatived even before an enquiry or trial on merits. The principles laid down in the decisions from foreign jurisdictions, not inconsistent with the Indian law, suggest that there is no absolute immunity to the Press in this regard, which is subject to the ordinary laws of the land like any other citizen and by virtue of Section 7 of the Press and Registration of Books Act, 1867, the consequential presumption arising against the 2nd petitioner thereunder, the admitted status of the 2nd petitioner as the Editor of the newspaper and the contents of the publication in question, though by way of a paid advertisement, being, undoubtedly, offensive to the complainant (while whether they are defamatory in character or not has to be still established during trial), any premature termination of the criminal proceedings against the 2nd petitioner may not be in tune with the settled principles. It may be that the 2nd petitioner may ultimately prove himself to be entitled to be absolved of any criminal liability due to absence of any mala fides or malice or illwill or knowledge or due to the publication having been made in spite of his due diligence, care and caution or otherwise due to such other sustainable defence, but the trial Court could not have refused to take cognizance of the offence against him at the preliminary stage itself. Hence, the criminal petition cannot succeed in respect of the 2nd petitioner. Therefore, the further proceedings in C.C. No.797 of 2008 on the file of the III Additional Chief Metropolitan Magistrate, Nampally, Hyderabad against the 1st petitioner are quashed and the criminal petition is allowed accordingly in respect of the 1st petitioner and is dismissed in respect of the 2nd petitioner. Therefore, the further proceedings in C.C. No.797 of 2008 on the file of the III Additional Chief Metropolitan Magistrate, Nampally, Hyderabad against the 1st petitioner are quashed and the criminal petition is allowed accordingly in respect of the 1st petitioner and is dismissed in respect of the 2nd petitioner. However, it is made clear that the trial of the 2nd petitioner in the said case shall be uninfluenced by any observation made in this order.