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2020 DIGILAW 2030 (KAR)

D. C. Peter v. Mohan S Bendekar

2020-10-12

K.S.MUDAGAL

body2020
JUDGMENT K.S.Mudagal, J. - Aggrieved by the concurrent orders of conviction and sentence of the petitioner by the trial Court and the First Appellate Court for the offence punishable under Section 500 of IPC, the accused has preferred the above revision petition. 2. The petitioner is the accused and the respondent is the complainant before the trial Court. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the trial Court. 3. Accused was the editor and the publisher of Tharate Kannada weekly printed and published from Shimoga city. The complainant worked as Senior Town Planning Officer in the Town Planning Office of Shimoga. 4. Accused published an article against the complainant titled as Nagara Yojanege Bendekar Yemba Joker Adhikaari means Bendekar a joker officer of Town planning . In the highlight column also it was mentioned as Bendekar needs to be tamed and controlled, he came empty handed and amassed the money like anything and adorned his wife and children with gold chains. If an enquiry is conducted through high level officers of the department, his mischiefs will unfold, it is appropriate that the Government shall conduct the investigation in the matter. 5. In the article which was more than page, the following imputations were made: (i) The complainant is indulging in serious corrupt practice in the office. He does not attend the office promptly. He amassed gold for his family members. He managed to get another person transferred from the said post and get himself installed there. (ii) Being frustrated by the conduct of the complainant, one of the officers in the said office assaulted him like anything. He behaved in a manner unbecoming of a public servant and was greedy for money. 6. Though the main allegations as aforesaid were made, they were elaborated in sensationalizing manner. Along with the article, the accused had printed the photo of the complainant in the article. 7. The complainant retired from his post on 28.02.2001. The article was published in May 2001. Thereafter, the complainant issued notice Ex.P4 dated 14.06.2001 calling upon the accused to tender unconditional apology for the defamation committed by him and pay damages of Rs.1,00,000/-. The notice was served on the accused on 19.06.2001. Ex.P4(b) is the postal acknowledgement. Accused did not issue any reply to the said notice. 8. The article was published in May 2001. Thereafter, the complainant issued notice Ex.P4 dated 14.06.2001 calling upon the accused to tender unconditional apology for the defamation committed by him and pay damages of Rs.1,00,000/-. The notice was served on the accused on 19.06.2001. Ex.P4(b) is the postal acknowledgement. Accused did not issue any reply to the said notice. 8. Thereafter, the complainant filed the complaint under Section 200 of Cr.P.C. against the accused before J.M.F.C, Shimoga to prosecute him for the offence punishable under Section 500 of IPC/defamation alleging that the imputations made in the publication were false, malafide and to disrepute him, thereby his reputation was seriously affected. He further alleged that by such publication not only himself, his wife and other family members were subjected to humiliation and defamation. 9. The trial Court after taking cognizance summoned the accused and tried him. The complainant was examined as PW.1 and examined one Girish as PW.2 and got marked Ex.P1 to Ex.P4. Accused did not lead any defence evidence. 10. On hearing the parties, the trial Court by the judgment and order dated 23.01.2010 convicted the accused for the offence punishable under Section 500 of IPC and sentenced him to undergo simple imprisonment for one month and fine of Rs.5,000/- in default to pay fine to undergo simple imprisonment for a period of one month on the following grounds: (i) The contents of the paper publication were defamatory in nature. (ii) Though the accused tried to take the defence of Exception 1 to 3 to Section 499 of IPC, he failed to substantiate the same. (iii) The complainant not prosecuting the reporter does not exonerate the accused as he is the editor of the newspaper. Out of the total fine amount, Rs.3,000/- was ordered to be paid to the complainant as compensation 11. Accused challenged the said judgment and order before the Sessions Judge, I Fast Track Court, Shimoga in Crl.A.No.12/2010. The learned Sessions Judge by the impugned order concurred with the findings and the reasonings of the trial Court and dismissed the appeal on 13.04.2011. 12. Sri Umesh Moolimani, learned Counsel for the petitioner seeks to assail the impugned judgments of the Courts below on the ground that to prove defamation the only independent witness examined by the complainant was PW.2. 12. Sri Umesh Moolimani, learned Counsel for the petitioner seeks to assail the impugned judgments of the Courts below on the ground that to prove defamation the only independent witness examined by the complainant was PW.2. But PW.2 s evidence does not show that he had read the paper before the complainant informed him and on reading the article he was influenced to believe about the conduct of the complainant. He submits that the trial was vitiated since the reporter of the newspaper was not arrayed as accused in the complaint. 13. Per contra, Smt.K.Vani, learned Counsel for the respondent submits that the non circulation of the paper to the public or act not amounting defamation was not canvassed before the trial Court or the First Appellate Court. Therefore, she submits that the said contention is not open to the accused at this stage. She further submits that apparently the article is defamatory and accused failed to establish that the said article was true statement and published in good faith or in the interest of larger public. 14. Accused admitted that he was the editor of Tharate weekly newspaper. He further admits the publication of the article as per Ex.P1. The article imputes serious allegations of corruption, misconduct and indiscipline to the complainant in discharge of his official work. Apparently, the contents in Ex.P1 were defamatory. 15. Then the only question is whether the said article was published with an intention and with the knowledge that such article will harm the reputation of the complainant. In the cross-examination of PW.1 and PW.2, accused did not claim that the article was not defamatory. But his defence was that he had received several letters from several persons about the integrity and conduct of the complainant and several complaints were filed to the high level officers against the complainant, based on that he published the report. He does not even say that he cross verified the veracity of the alleged complaints with the high level officers of the complainant or in his office. 16. When the accused claims that his case lies under Exception 1 to 3 to Section 499 of IPC, the burden was on him to prove the same. He does not even say that he cross verified the veracity of the alleged complaints with the high level officers of the complainant or in his office. 16. When the accused claims that his case lies under Exception 1 to 3 to Section 499 of IPC, the burden was on him to prove the same. If really the article was published in good faith and for the public good, soon after receipt of notice as per Ex.P4, the accused should have raised the same defence which was not done. Therefore, it becomes clear that only for the sake of defence, later the accused raised the defence of good faith or for public good etc. 17. Accused did not even choose to enter the witness box to probabalize his defence. Even in his examination under Section 313 of Cr.P.C., accused did not make any statement of publication of the article in good faith or for public good. Considering such evidence and circumstances, the trial Court and the First Appellate Court rightly rejected the defence of the accused and held him guilty. 18. So far as not arraying the reporter of the article as accused, whenever the reporter submits the report to the editor and publisher of newspaper respectively, it is for him to verify the correctness of the same and then publish. Otherwise he is also responsible for tortuous act. Therefore, the Courts below rightly rejected the contention that the trial was vitiated for not arraying the reporter as accused in the case. 19. Considering the material on record and the legal position, by no stretch of imagination, it can be said that the impugned orders of the trial Court and the First Appellate Court suffer any illegality, impropriety or incorrectness. Therefore, the petition is dismissed. Registry shall transmit the records to the trial Court forthwith.