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2016 DIGILAW 223 (KER)

P. J. JOHNY v. PAUL VAREED CHERUVATHOOR

2016-02-25

B.KEMAL PASHA

body2016
ORDER : The petitioners are A10 and A11 in C.C.No.45 of 2010 of the Chief Judicial Magistrate's Court, Thrissur, for the offence under Section 500 IPC read with Section 34 IPC. 2. The 1st respondent herein was working as the Senior Manager at the Regional Office of the South Indian Bank Ltd. at Mumbai. While working so, serious allegations of financial misappropriation and misconduct were raised against him by the Bank and he was issued with memo dated 21.08.2004, alleging that he had defrauded and cheated a customer of the Bank at Mumbai, Bandra Branch for an amount of Rs.3.20 lakhs by misusing his official position, and further that without submitting necessary TA bills pertaining to the journeys undertaken by him, he had drawn an amount of Rs.74,586/- from the Bank, thereby defrauding the Bank. A domestic enquiry was conducted and the 1st respondent was found guilty in the domestic enquiry, and consequently he was dismissed from service. 3. The aforesaid facts are admitted. At the same time, according to the 1st respondent, he has never defrauded or cheated either the customer of the Bank or the Bank as alleged. The case is that his dismissal from service is presently under challenge before the Deputy Commissioner of Labour, Thiruchirappally and therefore, the same has not become final. After the dismissal of the 1st respondent from the Bank, when the instalments towards the housing loan availed by the 1st respondent from the Bank fell in arrears, the Bank initiated SARFAESI proceedings against the 1st respondent and notice was issued against the 1st respondent through notice issued by the 2nd petitioner herein. The SARFAESI proceedings were challenged by the 1st respondent before this Court through W.P.(C) No.9619 of 2006. In the said W.P.(C), the 1st petitioner herein representing the Bank filed a counter. According to the 1st respondent herein, certain matters contained in the counter are per se defamatory and the same defamed him. By alleging the same, he has preferred the present private complaint, which is being proceeded at present as C.C.No.45 of 2010 before the Chief Judicial Magistrate's Court, Thrissur. The petitioners are A10 and A11 in the private complaint. 4. According to the 1st respondent herein, certain matters contained in the counter are per se defamatory and the same defamed him. By alleging the same, he has preferred the present private complaint, which is being proceeded at present as C.C.No.45 of 2010 before the Chief Judicial Magistrate's Court, Thrissur. The petitioners are A10 and A11 in the private complaint. 4. The alleged defamatory matter has been reproduced by the 1st respondent in paragraph 4 of the private complaint, which reads "Departmental enquiry was initiated against the petitioner for alleged acts of misconduct involving defrauding the customer of the Bank to the tune of Rs.3.20 lakhs, defrauding the bank to the extent of Rs.74,586/-......................". These are the materials on which the 1st respondent claims that he has been defamed by the petitioners herein. On a close scrutiny of the alleged defamatory matter, it can be seen that the 1st petitioner has never stated that the 1st respondent had defrauded the customer of the Bank or the Bank. In the so-called defamatory matter, what has been stated is that departmental enquiry was initiated against the 1st respondent for the alleged acts of misconduct. 5. What was stated in the counter was that on the alleged acts of misconduct involving defrauding of the customer of the Bank as well as the Bank, domestic enquiry was initiated against the 1st respondent. The 1st respondent is not challenging the fact that there was departmental action against him. The 1st respondent is not challenging the fact that a domestic enquiry was conducted against him based on the said charges of alleged misconduct, and that he was found guilty in the enquiry. It is an admitted case of the 1st respondent that he was dismissed from service of the Bank based on the enquiry report by which he was found guilty. 6. Matters being so, the case herein clearly comes within the ambit of truth. When such an assertion is made by this 1st petitioner herein in the counter, it was nothing but truth. 6. Matters being so, the case herein clearly comes within the ambit of truth. When such an assertion is made by this 1st petitioner herein in the counter, it was nothing but truth. Over and above it, it squarely falls within the Ninth Exception to Section 499 IPC; wherein it is stated that: "It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good." 7. Here as a responsible officer of the Bank, the 1st petitioner was duty bound to file a counter for and on behalf of the Bank in the Writ Petition. In the said counter, he has clearly narrated the fact that the 1st respondent was proceeded against departmentally for the alleged acts of misconduct. Apart from truth, that statement is made with a view to protect the interest of the Bank within the meaning of the Ninth Exception to Section 499 IPC. 8. At any stretch of imagination, the said imputation allegedly made in the counter filed by the 1st petitioner herein for and on behalf of the Bank, will not amount to defamation and therefore, it cannot invite an offence punishable under Section 500 IPC. Matters being so, no fruitful purpose would be served in proceeding with the matter as against these petitioners in C.C.No.45 of 2010 of the Chief Judicial Magistrate, Thrissur. Therefore, all further proceedings in the matter as against these petitioners are liable to be quashed. In the result, this Crl.M.C. is allowed and all further proceedings in C.C.No.45 of 2010 of the Chief Judicial Magistrate's Court, Thrissur, as against the petitioners, are hereby quashed.