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2025 DIGILAW 1819 (KER)

George Roy, S/o K. K John v. UNION of INDIA

2025-07-03

P.V.KUNHIKRISHNAN

body2025
JUDGMENT : P.V.KUNHIKRISHNAN, J. These two cases are connected and therefore I am disposing of these cases by a common judgment/order. 2. Petitioners in these cases are accused Nos.1 and 2 in C.C. No.489 of 2019 on the file of the Judicial First Class Magistrate Court-IX, Ernakulam. The above complaint was filed by one Cyriac Thomas alleging offences punishable under Sections 499 and 500 r/w 34 of the Indian Penal Code , 1860. The learned Magistrate taken cognizance of the offences and issued summons to the petitioners. According to the petitioners, even if the entire allegations in the complaint are accepted in toto, no offence is made out. 3. Heard the learned counsel appearing for the petitioners. Even though notice is issued to the complainant in these cases, there is no appearance for the complainant. 4. The short point raised by the petitioners is that, even if the entire allegations in the complaint are accepted in toto, it will hit by explanation No.4 of Section 499 IPC . The counsel also submitted that there is no defamation even if the allegations in the complaint are accepted because it is published in a close Gmail group and it was not published on a public platform. 5. I think there is force in the argument of the petitioners. The allegations in the complaint are mentioned in paragraph Nos. 6 to 15 of the complaint. The same is extracted hereunder: “6. In the mean time the accused and a few others have colluded with the builders who have suffered the above orders to promote an association under the Travancore Cochin Literary Scientific And Charitable Societies Act, with the name “Moonstone Apartment Owners Association". It is to be noted that The action of forming an association under the Travancore Cochin Act, was a steep deviation from the earlier position to promote an association under the Kerala Apartment Ownership Act. 7. The Complainant has approached the District Court Emakulam (Vacation Court) in IA NO. 1812/17 seeking an Injunction restraining the respondents and others including Moonstone Apartment Association from preventing him from using common area facilities attached to his apartment including use of lift, staircase and other common facilities and two covered car parking until further orders. 8. The respondents are aggrieved by the interim order of injunction passed against them and others. In the back drop of the interim injunction dated 27.04.2017 in IA NO. 8. The respondents are aggrieved by the interim order of injunction passed against them and others. In the back drop of the interim injunction dated 27.04.2017 in IA NO. 1812/17 passed by the District Court Ernakulam, they have written and published emails containing defamatory statements to moonstoneapt@googlegroups.com. It is a group mail facility, whereby the email send by the members of the group can be accessed by all the members of the group. The complainant and the respondents are the members of the group. There are 34 other members in the group, going by the mail IDs added to the group. It includes the mail IDs of the owners of the apartments as well as outsiders. All the members of the group are not the members of the association formed by the first accused under the Travancore Cochin Act. 9. The first in the 5 th paragraph of the email dated 06 /05/2017 has stated as follows: “Mr.Cyriac, on whom we had tremendous hope to use his expertise & experience for the betterment of the flat owners & guiding us through our legal case against the builders had completely deceived us." The statement gives an impression to the readers of the email that the complainant had deceived them. It is to be noted that the complainant was one among the aggrieved owners who have taken recourse to legal remedies. The complainant was not entrusted with the obligation to conduct the legal case against the builders, on the other hand it was handled by the accused and two other office bearers of the Association formed under the Travancore Cochin Act. The complainant has never given anyone the hope in the nature mentioned in the imputation. The imputation itself is false and was made with the intention to show the complainant in bad light before unsuspecting members of the email group, who are unaware of the truth of the matter. 10. The complainant has never given anyone the hope in the nature mentioned in the imputation. The imputation itself is false and was made with the intention to show the complainant in bad light before unsuspecting members of the email group, who are unaware of the truth of the matter. 10. The first accused in 5 th paragraph, second sentence has stated as follows; "Instead of helping all flat owners to get justice from the wrong doings of the builders he has fooled all of us by seeking injunction in the hope to enjoy the common areas & facilities at the expense of we gullible 30 flat owners of the Moonstone Apartments.” A reading of the above statement again gives the impression to the members of the group that the complainants have footed them by obtaining an injunction from a competent court. According to the first respondent, the complainant has approached the court, with the hope to enjoy the common area & facilities at the expense of the other flat owners. The imputation is incorrect, misleading and is otherwise targeting at the judicial process and the court, and it may even go to the extent of undermining it. 11. The first accused in 6 th paragraph of the email has stated as follows: "Just to enjoy the common area, facilities, services including common area electricity, security, operational lifts, at the expense of others without paying the maintenance fees Mr. Cyriac has staged soon a contemptible gimmick.” In the above imputation the complainant has described the complainant as having committed a 'contemptible gimmick by filing the case before a competent court. He has repeated the imputation that the complainant has instituted the legal proceedings to enjoy the common area facilities, at the expense of others and without paying maintenance fees. The term contemptible would mean deserving contempt. It may also mean in ordinary parlance as shameful and disgraceful. The term gimmick would mean ‘a concealed, usually devious aspect or feature of something as a plan or deal’. The institution of a litigation cannot at any stretch of imagination be considered a shameful or a trick. However, when the above imputations are read by other members of the group who are placed in various parts of the world would get an impression that the complainant is a person with bad character. The institution of a litigation cannot at any stretch of imagination be considered a shameful or a trick. However, when the above imputations are read by other members of the group who are placed in various parts of the world would get an impression that the complainant is a person with bad character. 12.The first accused in the 7 th paragraph of the email has stated as follows: “Mr. Cyriac with his malafide intentions, conceit & clandestine act has deceived each one of us." The first accused would describe the complainant’s act of instituting the original petition, as malafide, conceit and clandestine. The term malafide intention would mean ulterior motive, conceit would mean an excessively favourable opinion about once own ability importance or wit etc, and clandestine means ‘...characterised by, done in or executed with secrecy or concealment especially for purposes of subversion or deception: private or surreptitious. It may be recalled that the first accused has described the complainants action of instituting a civil proceeding is described in such an uncharitable manner so as to demean him and to cause serious loss of reputation in the minds of the persons who read the email. 13. The first accused in the last paragraph has stated as follows; “As we say charity begins at home, let our charity begin with permitting Mr. Cyriac to enjoy the common facilities, services with the maintenance fund pooled from our hard earned income." The complainant in this paragraph is described as person who is receiving a charity. The statement is sarcastically couched to give an impression that the complainant is a person who lives on the donations of others. 14. The second respondent, in response to the email dated 06/05/2017 of the first accused has send a response email dated 06/05/2017 which is more defamatory, which reads as follows; “I would like to spend my hard earned money to feed some stray dogs than giving charity to one of our most respected moonstone members.” The second complainant has paraphrased the complainant as equivalent to stray dogs or even worse. The imputation on the very bare reading is abusive and indented to defame the complainant. 15.The above said e-mails were written and published in the mail group 'moonstoneapt@googlegroups.com, whereby the email send by the members of the group can be accessed by all the members of the group. The imputation on the very bare reading is abusive and indented to defame the complainant. 15.The above said e-mails were written and published in the mail group 'moonstoneapt@googlegroups.com, whereby the email send by the members of the group can be accessed by all the members of the group. A perusal of the mail group has revealed that other members of the group have read the e-mail. Reading of the emails of the respondents has harmed the reputation of the complainant in the minds of the other owners and users of the email group. Those who read the emails containing imputations had gathered an impression that the complainant has committed cheating on the apartment owners and is a person living in the charity of others. The respondents have acted in furtherance to common intention in causing disrepute to the complainant, hence they have committed an offence punishable under Sec.499 and Sec. 500 read with Section 34 IPC . This complaint is filed without prejudice to the right of the complainant to take recourse to civil proceedings for recovery of damages.” 6. I fail to understand how the offences under Sections 499 and 500 IPC are made out in these cases. Admittedly, it is published in the mail group moonstoneapt@googlegroups.com. Certain opinions are given by the accused. Even if the allegations mentioned in the complaint are accepted, I think the offences under Sections 499 and 500 of the IPC are not made out. Moreover, Explanation 4 of Section 499 IPC is extracted hereunder: “4. No imputation is said to harm a person’ 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.” 7. I am of the considered opinion that Explanation 4 of Section 499 is attracted in this case. No defamation is made out, even if the entire allegations in the complaint are accepted. Therefore, I think the proceedings against the petitioners can be quashed.