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2017 DIGILAW 5 (CAL)

Deba Brata Chatterjee v. Maya Kanrar

2017-01-03

JOYMALYA BAGCHI

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JUDGMENT : Joymalya Bagchi, J. 1. The appeal is directed against the judgement and order dated 6.4.1992 passed by the learned Sub-Divisional Judicial Magistrate, Howrah in Case No. 553-C of 1987 (T.R. No.28 of 1987) acquitting the opposite party no.1 from the accusation of having committed offence punishable under Section 500 of the Indian Penal Code. 2. Prosecution case, as alleged, against the opposite party no.1 is to the effect that the appellant was an Inspector of Police posted as O/C to the D.G. & I.G.’s Control Room, Writers’ Buildings, Calcutta and he resided in the same locality as the opposite party no.1. On 16.8.1986 the opposite party no.1along with others were assaulting one Basanti Adhikary and upon hearing her shout for help the appellant along with others went to the place of occurrence and rescued her from further assault. Being aggrieved of such conduct of the appellant, the opposite party filed a complaint case on 29.8.2986 bearing no. 939/C of 1986 wherein she falsely alleged that the appellant being a married man had an intimacy with the said Basanti Adhikary and used to come to her room and spend the night therein. It was alleged that such imputation had lowered the reputation of the appellant in the estimation of his friends, family members and colleagues. Cognizance was taken on the said petition of complaint and process was issued upon the opposite party no.1. Substance of accusation was read over and explained to her to which she pleaded not guilty and claimed to be tried. 3. In the course of trial, the appellant himself and three other witnesses were examined. The defence of the opposite party no.1 was one of innocence and false implication. It was her specific defence that the said Basanti Adhikary was a licencee in her premise and an eviction suit had been instituted against her. The said Basanti Adhikary was introduced to the opposite party no.1 by the appellant herself who used to regularly visit her. It was also her plea that such imputation was protected under Exception 4 and 8 of Section 499 of the IPC. 4. Upon consideration of evidence on record, the trial court by the judgement and order was pleased to acquit the opposite party as aforesaid. 5. Nobody appears on behalf of the appellant. 6. Mr. Gupta, learned counsel, is requested to appear on behalf of the State. 4. Upon consideration of evidence on record, the trial court by the judgement and order was pleased to acquit the opposite party as aforesaid. 5. Nobody appears on behalf of the appellant. 6. Mr. Gupta, learned counsel, is requested to appear on behalf of the State. He submits that the imputation of the appellant used to visit the house of the said Basanti Adhikary and spend night therein is in the nature of an innuendo which had tarnished the reputation of the appellant who was a public servant and a family man. The trial court ought to have considered the materials on record and the order of acquittal was liable to be set aside. 7. I have perused the evidence on record. 8. P.W.1, Debabrota Chatterjee, is the complainant in the instant case. He deposed that on 16.8.1986 the opposite party no.1 was assaulting Basanti Adhikary who was her tenant and he had come to rescue the said Basanti Adhikary whereupon the said opposite party filed a case against him on 29.8.1986. In the said case it was alleged that he had developed intimacy with Basanti Adhikary and had spend night in the room of Basanti Adhikary. He was a married man and had a son. He was also an Inspector of Police. The said case is ended in acquittal. The aforesaid allegation lowered his estimation in the eyes of friends, family members and associates. There was an attempt for amicable settlement of the matter and as a result there was delay in lodging the complaint. 9. In cross-examination, he deposed that in the complaint case lodged by the opposite party no.1 his witnesses had deposed that he was in his office on the date of the incident. The said witnesses had produced papers regarding his attendance at the office. In the present complaint he, however, had stated that he was present at the place of occurrence and had saved Basanti Adhikary. He admitted that in the petition of complaint filed by Maya Kanrar there was no imputation of illicit connection between him and Basanti Adhikary. 10. P.W.2, Basanti Adhikary, deposed that she was a tenant under the opposite party. She used to work in the house of the appellant as maidservant and called him ‘Dada’. She had no relation with him. The complainant had found out the room for her residence under the opposite party no.1 as a tenant. 10. P.W.2, Basanti Adhikary, deposed that she was a tenant under the opposite party. She used to work in the house of the appellant as maidservant and called him ‘Dada’. She had no relation with him. The complainant had found out the room for her residence under the opposite party no.1 as a tenant. For the last 14-15 years, the complainant used to look after her. On 16.8.1986 the opposite party no.1 drove her out of tenanted premises. At the time of assault the complainant along with para people came to her rescue. The opposite party no.1 filed a criminal case against her. In the said case, she alleged that the complainant used to come to her room and spend night there. As a result of such imputation she felt defamed. 11. In cross-examination, she admitted that she had filed a police case, complaint case as well as a proceeding under Section 107 Cr.P.C. against the opposite party no.1. She could not say whether the opposite party no.1 had been acquitted in the police case. She could not say whether the proceeding under Section 107 Cr.P.C. was decided in favour of the opposite party no.1. She used to work in the house of the complainant. She was only 9 years old. When she was 13-14 years old the complainant searched for a room for her. She arranged for her own food and lodging and the appellant did not pay her anything apart from her salary as a maidservant while she was residing in the house of the opposite party no.1. She used to work as a maidservant in the house of the complainant. She was still work in the house of the complainant as a maidservant. The complainant told her about the case filed by the opposite party no.1 against him. 12. P.W.3, Samarendra Nath Sarkar, is a police officer attached to Writers’ Building under Inspector General and Director General of Police, West Bengal. He stated that he deposed in the case instituted by the opposite party no.1 against the complainant. The summons issued upon him was accompanied with the petition of complaint. He had gone through the petition of complaint. Reading the petition of complaint he lost his regard for the complainant. 13. In cross-examination, he admitted that in the earlier case he deposed regarding the attendance of Debabrata babu as directed by his senior officer. 14. The summons issued upon him was accompanied with the petition of complaint. He had gone through the petition of complaint. Reading the petition of complaint he lost his regard for the complainant. 13. In cross-examination, he admitted that in the earlier case he deposed regarding the attendance of Debabrata babu as directed by his senior officer. 14. P.W.4, Sankar Prasad Patra, deposed that he heard from the complainant that the opposite party no.1 had filed a case against him. In the said complaint it was alleged that the complainant used to spend night in the room of Basanti Adhikary. Basanti Adhikary was a tenant under the opposite party no.1. He lost his respect for the complainant after knowing the said case. He is attached to Bally Municipality. 15. In cross-examination, he stated that the petition of complaint bearing seal of Court was shown to him. The complainant is not known to him but both of them reside in the same locality. Over that incident there was a meeting in the locality to settle the matter of dispute between Maya Kanrar and Debabrata babu. There was a talk of compromise but the compromise was not effected. He personally read the paper. 16. From the evidence on record, it is clear that the crux of the case is an alleged defamatory imputation pleaded in the petition of complaint alleging that the appellant who was a married person had developed intimacy with one Basanti Adhikary and used to go to her room and spend night with her. No doubt, if such allegation was untrue and had been knowingly made with requisite mens rea it would amount to defamation. 17. It has also come on record that the aforesaid criminal case wherein such imputation was made and had ended in an acquittal. I have perused the said judgement and order of acquittal passed by the trial Court. It has not been held therein that the aforesaid imputation was an untrue one or had been maliciously made by the opposite party no.1 to malign the appellant. On the other hand, the trial Court in the said case had dealt with such imputation in the following words: “naturally it is clear that the accused person (i.e. the appellant herein) is interested for the welfare of the Basanti Adhikary. On the other hand, the trial Court in the said case had dealt with such imputation in the following words: “naturally it is clear that the accused person (i.e. the appellant herein) is interested for the welfare of the Basanti Adhikary. The order of acquittal in the said case, was recorded on the premise that the appellant had probabilised, that he was present at his place of work on 16.8.1986 when the alleged altercation between Basanti & opposite party no.1 took place. On the other hand, in the present case, the appellant had portrayed a completely different picture. He deposed that he was present at the place of occurrence on 16.8.1986 and had intervened in the altercation between the opposite party no.1 and Basanti and consequentially the said opposite party no.1 had defamed him by making the aforesaid imputation. The motive for making the defamatory imputation against the appellant therefore appears to be hollow and unconvincing in the face of the prevaricating stances adopted by him in both the proceeding. That apart, evidence of P.W.2, 3 and 4 do not show that they had read the alleged imputation by way of publication made by the opposite party no.1 in her petition of complaint. P.W.2 admitted that she had been informed of the imputation by the appellant himself. It is therefore clear that the publication of the contents of the petition of complaint to P.W.2 had not been made by the opposite party no.1 or in ordinary course of business but was a volitional and intentional act on the part of the appellant himself. Evidence of publication to P.W.3 is highly improbable as he was a witness to the previous case and it was his plea that a copy of the petition of complaint was annexed with the witness’s summon served on her. Such version is patently absurd and cannot be held to be believable. One cannot also lose sight of the fact that P.W.3 is a colleague of the appellant and therefore had exaggerated the service of the complaint upon him alongwith the witness summons in the said case. Evidence of P.W.4 with regard to the publication is also at the behest of the appellant as he has tried an amicable resolution of dispute between himself and the opposite party no.1 and thereby had voluntarily caused publication of the said imputation in the petition of complaint to the said witnesses. Evidence of P.W.4 with regard to the publication is also at the behest of the appellant as he has tried an amicable resolution of dispute between himself and the opposite party no.1 and thereby had voluntarily caused publication of the said imputation in the petition of complaint to the said witnesses. It is therefore clear that the publication of the imputation contained in the petition of complaint to the aforesaid witnesses were not at the behest of the opposite party no.1 or in ordinary course of business but due to the volitional act on the part the appellant himself who circulated such imputation to the said witnesses for reasons best known to him. The appellant had merely averred the imputation in the petition of complaint and had not made any further publicity of the same at any quarter whatsoever. It is wroth reiterating in that the order of acquittal there is no finding that such imputation was either untrue or maliciously made by the opposite party no.1. On the other hand, the trial Court interpretated such imputation mean that the appellant was interested in the welfare of Basanti Adhikary. In the aforesaid factual matrix, I am therefore of the view that such imputation made in the petition of complaint before the judicial authority is clearly protected under Exception 4 & 8 of Section 499 of Cr.P.C. as the opposite party no.1 had not made any effort to republish or circulate such imputation in any quarter whatsoever. On the other hand, publication of such imputation to the witnesses in the instant case was a volitional act at the end of the appellant himself who chose to circulate such imputation to his friends and associates so as to create a cause of action for institution of a proceeding for defamation against the opposite party no.1. 18. In the aforesaid factual backdrop, I am of the opinion that the order of acquittal is well merited and does not call for any interference. 19. Accordingly, the appeal is dismissed. 20. Copy of the judgment along with LCR be sent down to the trial court at once. 21. Certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities.