ORDER 1. Petitioner seeks to quash proceedings pending in C.C. No. 5457 of 2011 on the file of learned Chief Metropolitan Magistrate, Egmore, Chennai. 2. The case relates to a complaint preferred by the respondent against the petitioner alleging commission of offence under Section 499 of Indian Penal Code. 3. The respondent/complainant is an Advocate and in the complaint preferred by him, he has informed that in answer to a notice issued under Section 138 of the Negotiable Instruments Act on behalf of the petitioner, he had caused a reply on behalf of his clients on 27.05.2011. A rejoinder has been caused by the petitioner on 04.06.2011. The offending portions of the said rejoinder is as under: “My client states that the defence theory set by your client is purely an after thought and your client had chosen the reply notice as a tool for defence. Your client is thinking himself as smart and intelligent and is acting cleverly with an ulterior motive and criminal intention to escape from the clutches of law. Only after the receipt of my clients notice, your client is running here and there throwing false allegations, foisting frivolous complaints against my client without any basis and trying to threaten him with his political and muscle power. The police complaint mentioned in your notice is only to safeguard your clients from the criminal offence u/s.138 of N.I.Act. Your clients are put to strict proof of the same. My client states that your clients had called our client to a common place and had authorized you to handle the issue. With good intention our clients had abided with and came with his wife to the common place of MP’s house at Delhi on 24th May 2011. Instead of handling the issue, you had manhandle in a rude manner. While negotiation was going on you had behaved violently and rushed towards my clients wife and pulled her mobile from her hand suspecting that she is recording the incident which she did not. My client’s wife was insulted to the maximum core. They were confined with threat. Further our clients are threatened with dire consequences by your clients and your clients had created fear in the mind of our clients from coming down to Tamil Nadu, his native place. My client’s wife was insulted to the maximum core. They were confined with threat. Further our clients are threatened with dire consequences by your clients and your clients had created fear in the mind of our clients from coming down to Tamil Nadu, his native place. Your clients had abused my clients with unparlimentary words and are trying to tarnish the image and damage the name and reputation of our clients and ruin his life and carrier. My client is constrained to initiate appropriate criminal proceedings against your client for the unfair, illegal acts which are staged on the date of so called negotiation. My client reiterates once again that your client is liable to pay the amount as stated in our legal notice and further the alleged cheque was issued by your client for the alleged legally enforceable debt. By dishonouring the cheque, your client has committed the offence under Section 138 of the Negotiable Instrument Act and your client is liable to be prosecuted for the alleged offence.” 4. In the complaint, the respondent contended that the said communication was read by others and as a result thereof, he came to be held in very low esteem by them. He sought cognizance of the offence. The complainant in seeking to inform the loss of reputation has also informed various facts to show that he was held to be an individual of some standing in society. 5. Learned counsel for petitioner submitted that the rejoinder has been addressed under RPAD personally to the respondent. The same was meant to be read only by the respondent. The fact that it came to be read by others cannot be read as publication of defamatory imputations by the petitioner so as to attract offence under Section 499 IPC. Thus, the imputation therein was to be read as those of the Advocate. He further submitted that even otherwise a communication made by petitioner to his counsel would fall within the category of privileged communication protected against action, under Section 126 of the Indian Evidence Act. 6. Learned counsel for petitioner submitted that the petitioner preferred complaint against the respondent under Section 354 IPC before the Metropolitan Magistrate, Patiala House, Delhi, which has been taken cognizance of. Though raised, learned counsel rightly did not press the submission that the rejoinder notice caused by the Advocate had not been countersigned by the petitioner. 6. Learned counsel for petitioner submitted that the petitioner preferred complaint against the respondent under Section 354 IPC before the Metropolitan Magistrate, Patiala House, Delhi, which has been taken cognizance of. Though raised, learned counsel rightly did not press the submission that the rejoinder notice caused by the Advocate had not been countersigned by the petitioner. The decision in (Dr. Mir) Anwaruddin v. Fathim Bai Abidin and Another AIR 1927 Mad 379 : (1927) 1 MLJ 269 states that when a complaint is made against an Advocate or Legal Practitioner for defamation in respect of a statement made in the course of a judicial proceeding, it is duty of the Court to presume that the statement was made on instruction and in good faith and for the protection of his client’s interest, and that unless circumstances clearly show that the statement complained of as defamatory was made wantonly or from malicious or private motive, the complaint should not be entertained. The reasoning equally would apply in respect of notice issued by counsel on behalf of his client. 7. Learned counsel referred to judgment of the Bombay High Court in Sukhdeo Vithal Pansare v. Prabhakar Sukhdeo Pansare and Another 1974 Crl LJ 1435 (V.80, C.527) (1) wherein it was reasoned that communication of the defamatory matter by an Advocate to his typist would not amount to publication made to a person other than the complainant so as to attract offence under defamation. The reasoning informed inBoxsius v. Goblet Freres 1894 (1) QB 842 that the occasion was privileged, since the communication if made by the solicitor direct to the plaintiff would have been privileged, and the publication to his clerks was necessary and usual in the discharge of his duty to his client, and was made in the interest of client, has been followed. Learned counsel sought further support for his submission in the decision of the Kerala High Court in P.R. Ramakrishnan v. Subbaramma Sastrigal and Another AIR 1988 Ker 18 where again following the decision in Boxsius v. Goblet Freres (supra) and the decision of the Bombay High Court above cited, it was informed thus: “8. The making of imputation involves the translation of the imputation into some form. If the libel is in writing, the making of the libel is incomplete without writing it down. The making of imputation involves the translation of the imputation into some form. If the libel is in writing, the making of the libel is incomplete without writing it down. The author himself can be its scribe or it can be a different person. Dictation by a lawyer to his clerk is part of his professional exercises and merely because the clerk in the course of his professional work heard it, cannot amount to factual publication. The privilege attached to the professional communications between a lawyer and his client is further fortified by providing S.127 of the Evidence Act as per which the ban against disclosure is extended to clerks and servants of the lawyer. The clerk of a lawyer, in the professional sphere, has to maintain confidence regarding matters conveyed to him, if it relates to communication between the counsel and the client. If a notice, or a letter or even a pleading is dictated to the clerk by a lawyer, it does not, in practical sense go beyond the lawyer’s professional range. The fact that the clerk, as a different human being, comes to know of the contents of the notice cannot make it publication to a third person. 9. In Pullman v. Walter Hill, (1891) 1 QB 524, a letter was dictated by the Managing Director of a company to a shorthand clerk who transcribed it with the help of a typewriting machine, and the letter was sent by post addressed to the plaintiff. The trial Court held that it did not amount to publication, but court of appeal reversed the finding. Lord Esher M.R. and Lopes LJ, wrote separate judgments holding that the dictation to the shorthand clerk will amount to publication. But their Lordships inBoxsius v. Goblet, (1894) 1 QB 842 distinguished Pullman’s case on the ground that when a solicitor dictated to a clerk in his office a letter containing defamatory statements, the occasion was privileged and the dictation to the clerk “was necessary and shall in the discharge of his duty to his client and was made in the interest of client.” In Edmondson v. Birch, (1907) 1 KB 371 Collins M.R. and Lopes L.J., reiterated the principles laid down in Boxsius v. Goblet (supra) case. A single Judge of the Bombay High Court in Sukhdeo Vithal v. Prabhakar Sukhdeo, 1974 Cri LJ 1435 accepted the contention that the advocate dictating to his clerk or typist any matter which the typist or clerk transcribes in the discharge of his duties does not make publication of that matter. These decisions lend support to the view that the dictation given by a lawyer to his clerk and transcription made by him of a per se libellous matter cannot amount to publication.” (emphasis supplied) The decision of this Court to similar effect in B.P. Bhaskar v. B.P. Shiva 1993 Cri.L.J.2685 : has also been relied upon. 8. Learned senior counsel for respondent submitted that the rejoinder caused by the counsel on behalf of the petitioner came to be issued upon instructions of petitioner; the allegations per se are defamatory; protection under Section 126 of the Indian Evidence Act was a limited one; the same could only be availed in respect of matters, which came within the scope of the engagement of an Advocate; the same cannot be used as a shield for publication of matters defamatory. Learned senior counsel relied on the decision of this Court in S. Antony v. G.S. Naidu 1967 Cri.L.J. 1527 (Vol.73, C.N.417) : (1966) 2 MLJ 443 : (1966) 1 MLJ (Crl) 797. 9. This Court finds that in the decisions relied upon by learned counsel for petitioner, the question of whether the defamatory matter communicated to counsel fell within the scope of engagement did not arise for consideration. In the instant case, the primary dispute between the petitioner and the respondent’s client arose out of an action under Section 138 of the Negotiable Instruments Act. The allegation against the respondent/ complainant spoken to in the rejoinder notice of the petitioner is of the respondent/ complainant, an Advocate, having misbehaved, particularly, against a woman. The decision of this Court in S. Antony v. G.S. Naidu (supra) explains thus: “5. Further, it is clear from Section 126 of the Indian Evidence Act, that the privilege in respect of professional communications is intended only to protect the interests of a client in respect of any action or prosecution for any prior act or offence. The privilege is not intended for committing any offence. 6. Further, it is clear from Section 126 of the Indian Evidence Act, that the privilege in respect of professional communications is intended only to protect the interests of a client in respect of any action or prosecution for any prior act or offence. The privilege is not intended for committing any offence. 6. In K.C. Sonrexa v. State of U.P. AIR 1963 All 33 at p.37 it was held that the right given to a client under Section 126 of the Evidence Act is restricted in its operation to the purpose of defending him or presenting his case and the protection extends no further and that it is restricted in its scope by the two provisions contained in the section itself. It was held in that decision that the defamatory imputation in the instructions to the advocate would not be a privileged communication as the case would fall under proviso (i) to S.126 of the Evidence Act. Taking the facts of the present case, if the accused wanted to commit the offence of defamation by putting the defamatory questions through his advocate P.W.4 he cannot obviously claim any privilege under Section 126 of the Evidence Act having regard to proviso (1) of that section. 7. It is clear that the privilege of a party to make a defamatory statement in proceedings in court or to make defamatory suggestions to witnesses is not an absolute one under the Indian Penal Code , as the first Exception requires that it should be true and for the public good and the other Exceptions require good faith as defined in Section 52 I.P.C. For the foregoing reasons, the accused, who made the false accusations without any good faith, cannot claim the privilege under S.126 of the Evidence Act.” This Court may add that proviso (1) to Section 126 of Indian Evidence Act permits disclosure of any such communication made in furtherance of any illegal purpose. 10. Learned counsel for petitioner submitted that it is in the course of negotiations relating to the issue under Section 138 of the Negotiable Instruments Act that the respondent/complainant misconducted himself and the recording thereof through the rejoinder caused by the petitioner would fall within the scope of engagement of counsel, particularly when upon complaint of the petitioner, an offence under section 354 IPC stands taken cognizance of by learned Metropolitan Magistrate, Patiala House, Delhi. The difficulty in accepting such submission lies in that any person having made public matters defamatory, can avoid actions there against, by resorting to preference of complaint. It would amount to permitting one wrong to defend another. If the communication of the defamatory matter is found to be within the scope of engagement of counsel, the protection under section 126 of the Indian Evidence Act would be available to the petitioner. If not, it would not. The same necessarily is a question, which calls for an answer at the hands of the trial Court. 11. Learned senior counsel for respondent has also raised a contention of privilege under Section 126 of the Indian Evidence Act not being available in respect of matters already made public. In this regard, he has relied on the decision of the Andhra Pradesh High Court in Pratti Rajamma v. Pratti Chintaiah 1973 Cri.L.J.1489 (V.79 C.450) : (1972) 1 MLJ (Crl) 652 . The question in such case was whether an Advocate could be called upon to tender evidence in an action for defamation against his client. It was found that the matter informed by the client had already been communicated by way of reply notice sent by the Advocate, thus there already was a disclosure and hence, the bar against disclosure under Section 126 of the Indian Evidence Act would not apply as ‘disclosure’ implies that which was not already made known to others. 12. This Criminal Original Petition shall stand dismissed. Consequently, connected miscellaneous petitions are closed. 13. Oral request for leave to appeal stands refused. 14. Learned senior counsel for respondent submitted that owing to the pendency of this petition before this Court, the case in C.C. No. 5457 of 2011 on the file of Chief Metropolitan Magistrate, Egmore, Chennai has seen no progress. In view of the same, the trial Court is directed to dispose of the case in C.C. No. 5457 of 2011 as expeditiously as possible. Petition dismissed.