Research › Search › Judgment

Madras High Court · body

2017 DIGILAW 2083 (MAD)

K. Panneerselvam v. R. Rajasudhakar

2017-07-17

R.SURESH KUMAR

body2017
ORDER : 1. This Criminal Revision Case has been filed against the order passed by the learned Judicial Magistrate No. I, Tindivanam in Criminal Miscellaneous Petition No.662 of 2016 by order dated 29.09.2016. 2. The case of the petitioner is that, he is an Advocate by profession. In respect of a land related dispute the petitioner had filed a Original Suit in O.S.No.400 of 2012 on the file of the Principal District Munsif Court, Tindivanam and obtained a decree in his favour. The suit claims to have been filed against the Respondents 2 and 3. 3. In order to require some compliance, pursuant to the said decree obtained by the petitioner, as according to the petitioner, the Respondents 2 and 3 allegedly had violated the orders of the Civil Court, the petitioner had sent a legal notice to the Respondents 2 and 3 on 31.01.2015 called upon them to do some compliance as has been sought for in the said legal notice. 4. In response to the said legal notice, the Respondents 2 and 3 have caused a reply, through their lawyer, who is none other than the first Respondent herein, to the petitioner, on 17.02.2015. 5. It is the further case of the petitioner that, in the said reply dated 17.02.2015 issued by the first Respondent on behalf of the Respondents 2 and 3, instead of giving reply only to the issue raised in the legal notice dated 31.01.2015, the Respondents had uttered some unconnected issues, whereby some unfounded allegations were made against the petitioner. 6. On seeing the said reply received by the petitioner, since he thought of giving a rejoinder, he had also sent a rejoinder on 04.03.2015 to the Respondents. In the said rejoinder, the petitioner had demanded the Respondents to convene the Advocate Association Meeting of Tindivanam Bar, before which, it was demanded by the petitioner, through the said rejoinder that, the first Respondent should seek for a public apology and also to give a written commitment that this kind of activities would not be undertaken by the first respondent in future. 7. Thereafter, since nothing had come from the respondents as he demanded, the petitioner had chosen to approach the Court below by filing a Private Complaint under Section 200 of the Criminal Procedure Code (hereinafter referred to as 'the Code'), for the alleged offences punishable under Sections 499, 500 and 501 of IPC. 7. Thereafter, since nothing had come from the respondents as he demanded, the petitioner had chosen to approach the Court below by filing a Private Complaint under Section 200 of the Criminal Procedure Code (hereinafter referred to as 'the Code'), for the alleged offences punishable under Sections 499, 500 and 501 of IPC. 8. On receipt of the said complaint, the learned Magistrate had examined upon oath of the complainant and also examined two other persons on behalf of the complainant. 9. After having considered the statement given by the complainant and other two persons, through the said examination conducted by the lower Court, the learned Magistrate through the impugned order dated 29.09.2016, has rejected the said Private Complaint, as there is no prima facie case made out for the alleged offence, for which the said complaint was given. 10. Challenging the said order dated 29.09.2016, the present Revision has been filed. 11. I have heard Mr. Gnanasekar, learned counsel appearing for the petitioner, who has taken me to the notice sent by the petitioner on 31.01.2015, the reply given by the Respondents on 17.02.2015 and the rejoinder of the petitioner dated 04.03.2015. 12. By relying upon these documents, Mr. Gnanasekar would submit that, since the petitioner had obtained a decree in his favour, in order to compel the respondents 2 and 3 to strictly adhere to the terms of the said decree, had issued a legal notice. If at all the respondents 2 and 3 had to rebut by way of sending reply through the first respondent, the said reply should have confined only to the facts, which are warranted to be traversed in the said reply notice. 13. However, the reply notice dated 17.02.2015 issued by the first respondent on behalf of the respondents 2 and 3, has made so many unwarranted allegations against the petitioner, not only in the context of the issue raised in the notice, but also about the professional conduct of the petitioner, as an Advocate. In this regard, the learned counsel for the petitioner drew the attention of this court in respect of some of the portions of the reply notice dated 17.02.2015 which are reproduced hereunder:- xxx 14. In this regard, the learned counsel for the petitioner drew the attention of this court in respect of some of the portions of the reply notice dated 17.02.2015 which are reproduced hereunder:- xxx 14. The learned counsel would submit that the said allegations uttered against the petitioner in the reply notice sent by the first respondent on behalf of the Respondents 2 and 3, was totally unwarranted, and the same, according to the learned counsel for the petitioner, had been made by the first respondent on his own without the instructions of the respondents 2 and 3. 15. The learned counsel for the petitioner would also submit that, since the petitioner is an Advocate by profession and had been leading a respectable life in the society, could not have been treated, especially, like the way in which he had been dealt with by the first respondent, on behalf of the respondents 2 and 3 in the said reply notice. 16. The learned counsel would also submit that the first respondent not stopped with that by sending reply notice with unprovoked allegations, but had been instrumental, by sending copies of the said reply notice to a number of members of the Tindivanam Bar Association. One of the Advocates, who received a copy of the said reply notice from the first respondent, had in fact been inquired by the learned Magistrate. The said Advocate in fact had stated before the Magistrate that the copy of the reply notice dated 17.02.2015 had been sent to the said Advocate by name Thiru. K. Vijayan, who is no way connected with the issue raised by the petitioner, through his notice. 17. It is also the submission of the learned counsel that, the counsel, who had in fact sent the notice to the respondents on 31.01.2015, also had been examined by the learned Magistrate, who also deposed saying that, on seeing the averments made in the reply notice dated 17.02.2015, he was shocked and when the said notice was shown to the petitioner, petitioner also was shattered. 18. 18. The learned counsel would also contend that, all these statements have been recorded by the learned Magistrate and in spite of these statements, the learned Magistrate has rejected the complaint of the petitioner, by stating that there is no prima facie case made out to take the complaint of the petitioner on file and proceed the matter in accordance with the procedure established in the Code. Therefore, the learned counsel for the petitioner would submit that the impugned order is completely unsustainable and it is not in consonance with the materials placed before the Magistrate concerned, to take the complaint of the petitioner, on file. 19. Per contra, Mr. K. Elangovan, learned counsel, even at the admission stage of this Revision, has appeared on behalf of the first respondent and argued that the learned Magistrate has considered the issue in right perspective especially in the context of Sections 499, 500 and 501 of IPC and after considering the materials placed before the Magistrate, she had come to the right conclusion that there is no prima facie case made out to constitute the offencce punishable under the said Sections of the Penal Code. 20. Mr. K. Elangovan, learned counsel appearing for the first respondent has also submitted that the Revision is not entertainable one as absolutely there is no ground to interfere with the order impugned herein. In support of his contention Mr.K.Elangovan has relied upon the judgment reported in AIR 1971 Supreme Court 1389 in the matter of Balraj Khanna and others vs Moti Ram. The learned counsel would rely upon para 11 of the said judgment which reads thus:- “11. Before we refer to the decisions cited by Mr. Daphtary and the respondent on merits, it is necessary to clear the ground by appreciating the nature of the jurisdiction exercised by the Magistrate under Sections 202 and 203 Cr. P. C. In Chandra Deo Singh v. Prokash Chandra Bose and another, [1964] 1 S.C.R, 639, it has been held by this Court that the object of the provisions of Section 202 Cr. P. C. is to enable the, Magistrate to form an opnion as to whether process should be issued or not. At that stage what the Magistrate has to see is whether there is evidence in support of the-allegations made in the complaint and not whether the evidence is sufficient to warrant a conviction. P. C. is to enable the, Magistrate to form an opnion as to whether process should be issued or not. At that stage what the Magistrate has to see is whether there is evidence in support of the-allegations made in the complaint and not whether the evidence is sufficient to warrant a conviction. It been further pointed out that the, function of the Magistrate holding the preliminary inquiry is only to be satisfied that a prima facie case is made out against the accused on the materials placed before him by the complainant. Where a prima facie case has been made out, even though much can be said on both sides, the committing Magistrate is bound to commit the accused for trial and the accused does not come into the picture at all till the process is issued.” 21. The learned counsel for the first respondent would also relied upon yet another judgment of the Supreme Court reported in [ (2004) 13 SCC 374 ] in the matter of Hydru vs. State of Kerala. The learned counsel relied upon para 3 of the judgment cited supra that reads thus:- “3. From a bare perusal of the impugned order, it would appear that the High Court upon reappraisal came to a conclusion different from the one recorded by the appellate court. It is well settled that in revision against acquittal by a private party, the powers of the Revisional Court are very limited. It can interfere only if there is any procedural irregularity or material evidence has been overlooked or misread by the subordinate court. If upon reappraisal of evidence, two views are possible, it is not permissible even for the appellate court in appeal against acquittal to interfere with the same, much less in revision where the powers are much narrow. No procedural irregularity has been found by the High Court in the order of the Sessions court whereby the appellant was acquitted. Therefore, we are of the view that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional powers, as such the same is liable to be interfered with by this Court.” 22. Therefore, we are of the view that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional powers, as such the same is liable to be interfered with by this Court.” 22. By relying upon the aforesaid decisions, the learned counsel for the first respondent would argue that, it is the Magistrate concerned to satisfy that whether there are sufficient grounds in the Private Complaint given by the petitioner to proceed further in the matter and only on the said satisfaction the Magistrate can proceed further. If the Magistrate does not find any such ground to proceed further, he has no option except to dismiss the said complaint under Section 203 of the Code. 23. The learned counsel for the first respondent would also submit that whatever has been stated by the first respondent in his reply notice dated 17.02.2015 issued on behalf of the respondents 2 and 3 is only based on the instructions given by the respondents 2 and 3 and therefore, in this regard, the learned counsel would submit that, the first respondent has got his professional immunity and therefore, at any rate he cannot be proceeded against, assuming that there are grounds to proceed, against the first respondent. 24. Therefore, the learned counsel for the first respondent would submit that the learned Magistrate after having taken into account of all these aspects, has come to a right conclusion by thus rejecting the complaint of the petitioner through the order impugned, therefore, the same need not be interfered with by this Court. 25. I have considered the said rival submissions made by both sides and also I have perused the materials placed before this Court for consideration. 26. Under Section 200 of the Code, a Magistrate on taking cognizance of an offence on complaint shall have to examine on oath of the complainant and also the witnesses present if any. On taking such oath of the complainant as well as the witnesses, further, if the Magistrate thinks fit that for the purpose of deciding whether or not sufficient ground for proceeding, he can ask the police to investigate and file a report if need be. On taking such oath of the complainant as well as the witnesses, further, if the Magistrate thinks fit that for the purpose of deciding whether or not sufficient ground for proceeding, he can ask the police to investigate and file a report if need be. After taking statements on oath of the complainant and of the witnesses and the result of such inquiry or even by investigation if any under Section 202 if the Magistrate form an opinion that there is no sufficient ground for proceeding, under Section 203 of the Code, he shall dismiss the complaint and in every such case the Magistrate shall briefly record such reasons for such dismissal. 27. This is how the procedure has been contemplated in Chapter XV i.e Section 200 to 203 of the Code. 28. Herein the case in hand the Private Complaint was given by the petitioner against the respondents for the alleged offence punishable under Sections 499, 500 and 501 of IPC. 29. Explanation 4 of Section 499 of IPC represents thus:- “Explanation 4-No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.” 30. Section 501 of IPC speaks about the printing or engraving the matter known to be defamatory. Herein the case in hand whether there are materials to satisfy prima facie that the respondents have committed offence under Sections 499 or 501, have to be looked into. 31. The allegations against the respondents through the complaint filed by the petitioner is that, in the reply notice dated 17.02.2015 something which were unwarranted or unconnected with the issue raised between the petitioner and the respondents 2 and 3, had been stated or uttered, by the first respondent, issued on behalf of the respondents 2 and 3. It is alleged that the said statement or averments were purposely given to defame or intended to harm the reputation of the petitioner in the estimation of the public. 32. It is alleged that the said statement or averments were purposely given to defame or intended to harm the reputation of the petitioner in the estimation of the public. 32. It is also the case of the petitioner that the said reply notice had not only been sent to the petitioner's counsel but also has been sent to the number of persons, most of them were members of the Bar Association of Tindivanam, where the petitioner is also practicing and one of such Bar member, in fact, had given an oath before the Magistrate and thereby the reputation of the petitioner has been come down in the public domain or in the public mind. 33. In order to testify these apprehensions, as projected by the petitioner, the ingredients of Section 499 and 501, as has been extracted above, have to be looked into. As per Explanation 4 to Section 499, unless the reputation of a person, in the estimation of others, lowers directly or indirectly, or lowers the moral or intellectual character of that person or the credit of that person, it can not be considered to be a defamation. 34. Like that if any one prints or engraves any matter, knowing well that the matter is defamatory of any person, then only the offence stated under Section 501 of the Penal Code would constitute. 35. In this context the learned Magistrate after having considered the contents of the complaint, as well as the contents of the oath recorded from the petitioner as well as the other two persons who were examined by the Magistrate on behalf of the petitioner, has given her reasons by stating that the content of the reply notice dated 17.02.2015, since had not been published, it cannot be said that it has lowered down the reputation of the petitioner, in the eye of public or in the public domain. 36. Moreover, in respect of the petitioner's conduct, as a lawyer practicing at Tindivanam Court and claiming to be a member of the Tindivanam Bar Association, it can be noticed that the petitioner has in fact been removed from the membership of the Bar Association of the Tindivanam, and as a sequel, the petitioner had been prevented from exercising vote in the Bar Association Election conducted on 27.08.2015. These factors have been mentioned, in the reply sent by two junior lawyers of the first respondent in their reply dated 09.12.2015 addressed to the petitioner. This factor has not been denied by the petitioner anywhere. 37. Thus, it is obvious that the petitioner's continuation as a member of the Bar itself has been terminated or he has been removed from the membership of the Bar, the petitioner no more can claim any reputation among the members of the Bar at Tindivinam. Therefore, the petitioner's case that he is maintaining good reputation at the Bar as a lawyer practicing law, and because of the reply notice dated 17.02.2015 his reputation has come down in the eye of the public and in the public domain, is not sustainable. Therefore, the contention, that action on the part of the respondent in sending the said reply notice amounts to be an offencce punishable within the meaning of Section 499 and 501 of IPC, cannot have any basis. 38. Moreover, as has been rightly pointed out by the learned counsel appearing for the first respondent, it is for the Magistrate concerned to satisfy herself as to whether there are grounds to proceed further, at least prima facie, any Private Complaint for the alleged offence and without the said satisfaction no Magistrate, who empowered to proceed further to deal with the Private Complaint in accordance with the Code, can be expected to take the complaint on file and to proceed further. 39. In the case in hand, on perusal of the aforesaid materials as well as the order impugned, this Court finds that there is no material to show that, by virtue of the said reply notice dated 17.02.2015, the reputation of the petitioner has come down in the public domain. Moreover, there is no proof to show that the said reply notice has been printed and published to have knowledge or access of the general public, at least to constitute the offence to be punishable under Section 501 of IPC. 40. Even the one person who has given his oath in support of the petitioner also did not speak about the lowering down the reputation of the petitioner. In fact the said individual in his oath statement has stated good about the petitioner and he has not stated anything about the alleged degradation of the reputation of the petitioner in the public mind. In fact the said individual in his oath statement has stated good about the petitioner and he has not stated anything about the alleged degradation of the reputation of the petitioner in the public mind. This issue in fact has been rightly pointed out and has been considered in proper perspective by the learned Magistrate before passing the impugned order. 41. In view of the afore stated discussions and foregoing reasons this Court is of the considered view that there is no plausible reason to interfere with the impugned order passed by the learned Magistrate and hence this Revision Case fails and accordingly it is dismissed.