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Madras High Court · body

2022 DIGILAW 2806 (MAD)

K. Gopalaswamy v. K. Ramesh

2022-08-18

N.SATHISH KUMAR

body2022
JUDGMENT (Prayer: Petition filed under Section 482 of Cr.P.C.to call for the records in C.C.No.685 of 2022 on the file of the learned Judicial Magistrate No.III, Coimbatore and quash the same. Petition filed under Section 482 of Cr.P.C.to call for the records in C.C.No.684 of 2022 on the file of the learned Judicial Magistrate No.III, Coimbatore and quash the same. Petition filed under Section 482 of Cr.P.C.to call for the records in C.C.No.686 of 2022 on the file of the learned Judicial Magistrate No.III, Coimbatore and quash the same. Petition filed under Section 482 of Cr.P.C.to call for the records in C.C.No.687 of 2022 on the file of the learned Judicial Magistrate No.III, Coimbatore and quash the same. Petition filed under Section 482 of Cr.P.C.to call for the records in C.C.No.683 of 2022 on the file of the learned Judicial Magistrate No.III, Coimbatore and quash the same.) Common Order: 1. Following Criminal Original Petitions have been filed by the Petitioners who are the office bearers of the Association viz., Springfield Rivera Owners Association to quash the private complaints filed by the Respondents. The learned Judicial Magistrate N.III, Coimbatore, took cognizance for the offence under Section 500 I.P.C. Sl.No. Crl.O.P.No. C.C.No. 1 Crl.O.P.No.15021/2022 C.C.No.685 of 2022 2 Crl.O.P.No.15028/2022 C.C.No.684 of 2022 3 Crl.O.P.No.15031/2022 C.C.No.686 of 2022 4 Crl.O.P.No.15038/2022 C.C.No.687 of 2022 5 Crl.O.P.No.15859/2022 C.C.No.683 of 2022 2. Since the allegations in the Private Complaint are one and the same, this Court is inclined to dispose of all the above Criminal Original Petitions in a common order. The allegations set out in the private complaints are as follows: 3. The accused had addressed an e-mail containing scandalous statements to all the members of the M/s. Springfield Rivera Owners Association. According to him the  following contents in the letter was sent to all the members: “a. The Association has gravely infringed and tresspassed into the legal and un-encumbered possession rights. Hence, the action of the Association in installing this gate is consdiered a “criminal and perverse” action, with ulterior motive. b. With fraudulent and obscure intentions, the office bearers of the Association, on the pretext of sanction of five water connections in some individual owners names, attempted to steal water from Corporation mainlines into the above sump. c. This cheap action of the Managing Committee has put the whole community to shame and suspicion in the minds of the Corporation. b. With fraudulent and obscure intentions, the office bearers of the Association, on the pretext of sanction of five water connections in some individual owners names, attempted to steal water from Corporation mainlines into the above sump. c. This cheap action of the Managing Committee has put the whole community to shame and suspicion in the minds of the Corporation. d. As per the previous month's Income and Expenditure statement, circulated to members, it was noticed that an amount of about Rs.45000/- was spent on the illegal water tapping. e. Thus we find that large amounts are spent on illegal activities by the Managing Committee which is ultravires their powers. f. In addition, the financial transactions, accounts and major decisions pertaining to the Association are continued to be taken by a few of the Managing Committee members leaving huge suspicion in the minds of all members on the genuineness of these expenses. This is also against the Orders of the Registrar of Societies, By-laws and undertaking given by the Committee that accounting and banking records will be kept open for members view and scrutiny as per the Act and By-law. g. As our hard-earned money is misappropriated instead diligently used for welfare of the members. This will continue till such time the Managing Committee rectifies all their mistakes and deposit the amount incurred on the above illegal actions, into the Bank account of the Association and provide proof thereof to all members.” 4. Hence it is contended that such letter is nothing but scandalous and defame the reputation of the complainant in the eyes of public. Even in the reply statement the accused have admitted that the statement can be construed as defaming the complainants. Hence, the above private complaints have been filed which have taken cognizance by the learned trial Court. 5. Learned counsel appearing for the petitioner would submit that merely raising certain grievance against the Association by the members of the Association and e-mail was circulated to all the members, the same would not amount to defamation. Further the learned counsel stated that what they circulated is only truth in good faith. According to him the Corporation also taken action against the association for erecting illegal gate and also tapping water illegally. Further the learned counsel stated that what they circulated is only truth in good faith. According to him the Corporation also taken action against the association for erecting illegal gate and also tapping water illegally. Therefore, it is his contention that when the e-mails are sent to the other members raising the genuine grievances of the residence association, at no stretch of imagination such statement would amount to defamation. Further it is the contention of the learned counsel that complainant name was not mentioned individually in the e-mail. Therefore, seeking an explanation for the unethical procedures adopted by members of an association does not fall within the ambit of defamation. Hence, the complaints filed under Section 500 I.P.C.are not maintainable. Therefore the complaints against the petitioners are bereft of materials and the same are liable to be quashed. 6. Learned counsel appearing for the Respondents would submit that defamation has been made as against the Executive Committee and office bearers of M/s. Springfield Rivera Owners Association by the e-mail dated 15.08.2021, which has been printed and signed by all the petitioners and has been circulated to all the members of the association, even to the prior owners of the property. Whether such letter has been sent in good faith are all matter of evidence, the same cannot be decided in exercising the power under Section 482 of Cr.P.C. Hence prayed for dismissal of the complaint 7. Heard both sides. 8. Perused entire materials. The following statement have made in the email dated 15.08.2021 “a. The Association has gravely infringed and tresspassed into the legal and un-encumbered possession rights. Hence, the action of the Association in installing this gate is considered a “criminal and perverse” action, with ulterior motive. b. With fraudulent and obscure intentions, the office bearers of the Association, on the pretext of sanction of five water connections in some individual owners names, attempted to steal water from Corporation mainlines into the above sump. c. This cheap action of the Managing Committee has put the whole community to shame and suspicion in the minds of the Corporation. d. As per the previous month's Income and Expenditure statement, circulated to members, it was noticed that an amount of about Rs.45000/- was spent on the illegal water tapping. e. Thus we find that large amounts are spent on illegal activities by the Managing Committee which is ultravires their powers. d. As per the previous month's Income and Expenditure statement, circulated to members, it was noticed that an amount of about Rs.45000/- was spent on the illegal water tapping. e. Thus we find that large amounts are spent on illegal activities by the Managing Committee which is ultravires their powers. f. In addition, the financial transactions, accounts and major decisions pertaining to the Association are continued to be taken by a few of the Managing Committee members leaving huge suspicion in the minds of all members on the genuineness of these expenses. This is also against the Orders of the Registrar of Societies, By-laws and undertaking given by the Committee that accounting and banking records will be kept open for members view and scrutiny as per the Act and By-law. g. As our hard-earned money is misappropriated instead diligently used for welfare of the memebrs. This will continue till such time the Managing Committee rectifies all their mistakes and deposit the amount incurred on the above illegal actions, into the Bank account of the Association and provide proof thereof to all members.” 9. It is relevant to note that though the individual has not been named, the statement made against the association at the relevant point of time. Explanation 2 of Section 499 I.P.C. provides that an imputation concerning a company or an association or collection of persons also amount to defamation. Since the complainants in all cases are in the helm of association, they are identified body. The entire association office bearers have been targeted from the alleged defamatory remarks by the rest of the community. It is also submitted by the learned counsel for the Respondent that even the communication has been sent to one of the complainants who is Chartered Accountant of India, based on which explanation also called for. A copy of the show cause notice also produced before the Court. 10. Considering the fact that the office bearers against whom such statements have been made, whether the statement have made in good faith or only contain the truth is the matter of evidence. Though, the notice said to have been issued by the corporation against the association for removing some illegal encroachments, it is relevant to note that these are all subsequent communications whereas the email was sent on 30.09.2021. 11. It is relevant to extract Section 499 of I.P.C. “499. Though, the notice said to have been issued by the corporation against the association for removing some illegal encroachments, it is relevant to note that these are all subsequent communications whereas the email was sent on 30.09.2021. 11. It is relevant to extract Section 499 of I.P.C. “499. Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person. Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation. 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. 12. Explanation 2 makes it very clear that even a statement contained defamatory made against company or association or collection of persons made an offence. First explanation relating to imputation of truth. Any matter it is a truth which is made for public good is not defamation. However, whether such statement is made for public good is also question of fact. 8th and 9th Exceptions relating to the statement made in good faith to an aurhtorised person for protecting his or others interest. Even assuming that statements have been made to the Corporation and imputation has been caused with regard to certain truth, whether such statement have made for protection of interest of the association members or others is a matter of fact. The “good faith” is matter of evidence. Even assuming that statements have been made to the Corporation and imputation has been caused with regard to certain truth, whether such statement have made for protection of interest of the association members or others is a matter of fact. The “good faith” is matter of evidence. Therefore, at this stage veracity of the statements cannot be gone into whether such statements have made in “good faith” or fall within any of the explanations to Section 499 I.P.C. 13. In Jeffrey J. Diermeier & Another vs. State of West Bengal and Another [Crl.A.No.1079 of 2010 arising out of SLP.(Criminal) No.898 of 2009) dated 14.05.2010- Supreme Court of India] the Apex Court has held that without any evidence it is not possible to record a finding whether or not the accused has satisfied the requirement of “good faith” and “public good” so as to fall within the ambit of the exception and it is also held that it will neither be possible nor appropriate for the Court to comment on the allegations levelled by respondent and record a final opinion while exercising power under Section 482 of Cr.P.C. Accordingly, affirmed the order of the High Court and refused to quash the Complaint under Section 500 I.P.C. 14. In such a view of the matter this Court is of the view that whether such statement was made in “good faith” is the matter of evidence, as the complainants are identified body, the complaints are maintainable. Accordingly, quash proceedings, at this stage, will not arise at all. 15. In the result, Crl.O.P.Nos.15021, 15028, 15031, 15038, 15859 of 2022 are dismissed. Consequently, connected Criminal Miscellaneous Petitions are closed. However, Considering the nature of the statements and allegations, the Petitioners presence before the trial Court is dispensed with, except for receiving copies, initial questioning, questioning under section 313 Cr.P.C., at the time of judgment or any other date that may be fixed by the trial Court. It is well open to the Petitioners to raise all their defence for “good faith” and “public good” before the trial Court.