IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 CRL.A.No. 620 of 2001() ----------------------- ST.1176/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... APPELLANT: -------------- HARSHAN, S/O KATTOOR PANAN VELUKUTTY, AZHAKAM DESOM, KOADKARA VILLAGE., MUKUNDAPURAM TALUK (PROPRIETOR, SREEMON GAS AGENCY, KODAKARA) BY ADV. MR.P.VIJAYA BHANU MS.P.MAYA RESPONDENTS: ---------------------- 1. P.V. PRABHAKARAN, S/O PARAKKAL VEETTIL VELU, 'CHANDRAPRABHA', NO. IV/175, KAVIL DESOM, KODAKARA VILLAGE, MUKUNDAPURAM. 2. STATE OF KERAL REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA R1 BY ADV. MR.DINESH MATHEW J.MURICKEN R2 BY GOVERNMENT PLEADER SMT. LAKSHMI RANI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K. MOHANAN, J. ~~~~~~~~~~~~~~~~~~~~~~~~ Crl. .Appeal No. 620 OF 2001 ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 13th day of February, 2009 JUDGMENT Having failed in a prosecution for the offence punishable under Section 500 of IPC, the complainant before this Court by preferring the present appeal, as the court below acquitted the accused under Section 255(1) of Cr.P.C. 2. The appellant, who is the complainant, is the proprietor of Sreemon Gas Agency of Kodakara. According to him, a letter to the Editor of 'The Express' a Malayalam daily news paper published from Trichur, published letter written by the accused in the issue of the said daily dated 19.2.1997. In the said letter, it is stated that complainant who is the proprietor of gas agency supplied gas cylinders after breaking the seal. It is also alleged in the letter that the complainant is supplying gas in a lesser weight. The letter also reads that because of the threat from the gas agency nobody is intended to prefer the complaint against the complainant and if anybody made complaint, the reply to them was that they would not get gas thereafter. Thus, the complainant approached the Court of the Judicial First Class Magistrate II, Thrissur by filing a complaint for the offence under Crl. Appeal. 620 of 2001 : 2 : Section 500 of IPC and after recording the sworn statement of the complainant, complaint was taken on file as S.T. 1176/1997 for the said offence. On appearance of the accused, substance of accusation and particulars of offence were read over and explained to the accused to which he pleaded not guilty, pursuant to which the trial was further proceeded, during which PW1 to PW4 were examined on the side of the complainant and Ext.P1 to Ext.P4 were marked as documentary evidence from his side. The accused on questioning under Section 313 Cr.P.C. denied all the incriminating circumstances which brought on evidence. The defence set up by the accused is that he did not publish any news item so as to defame the complainant and according to him he had only complained against the illegal activities of the complainant and a false complaint lodged against him. DW1 to DW3 were examined from the side of the accused and Ext.D1 to Ext.D7 were marked. After framing appropriate issues for consideration, the trial court found that the accused has made imputation on the character of business carried on in the complainant's gas agency and that publication was made in good faith for the protection of the interest of the public good. Therefore, according to the court below, imputation will not be defamation as defined under Section Crl. Appeal. 620 of 2001 : 3 : 499 of IPC. Finally the court below found that accused is not guilty and accordingly he is acquitted under Section 255 (1) of Cr.P.C. 3. I have heard the learned counsel appearing for the appellant as well as the respondent. 4. The learned counsel for the appellant submitted that news published and contained in Ext.P4 is a publication with malafide intention so as to defame the complainant and contends of the same itself is false and the same incorporated in the defamed article with view to malign the complainant. It is also the case of the counsel for the appellant that if actually the accused was interested and concerned with the public interest and welfare, instead of the publication of the said article, he should have approached other competent legal authorities. As he has no bonafide and his only intention was to defame the complainant, he had chosen to publish the article in a Malayalam daily instead of approaching any of the such authorities stated above. According to the learned counsel, the court below failed to take note of the above facts and thus according to him the impugned order is liable to be reversed and to convict the accused. 5. Per contra, the learned counsel appearing for the the accused/respondent submitted that the trial court after Crl. Appeal. 620 of 2001 : 4 : considering the evidence and materials on record and after appreciating the factual position came into a conclusion that the letter contained in Ext.P4 daily is protected as per the first and ninth exceptions under Section 499 of IPC. Therefore, according to the learned counsel while exercising the appellate jurisdiction of this court, the factual finding of the court below cannot be interfered with. 6. I have carefully considered the contentions of both the counsel for the appellant as well as respondent. The only point to be considered is whether the letter published in Ext.P4 is made with a malafide intention of defaming the complainant and whether by publication of such clause an offence will lie under Section 500 of IPC. Going by the contents in Ext.P4, it can be seen that the crux of the allegation is something related to the business of supply of gas cylinders through the concern of the complainant and there is no allegation affecting the character or reputation of the complainant. PW1 himself had admitted that there is Legal Consumer Forum for the settlement or redressal of grievance of the consumers of gas cylinders. The evidence of Dw1 and Ext. D2 to D3 further supported by documentary evidence such as Ext. D4 that there were complaints regarding the Crl. Appeal. 620 of 2001 : 5 : misuse of the licence and grievance of consumers with respect to the supply of gas cylinders. Going through Ext. D6 letter it can also be seen that the company itself is fed up with the complaints against the complainant. It is also the admitted case of PW1 that petitions are pending before the MRTP Commission against the malfunction of the gas agency. The trial court after considering the above materials and evidence on record came into the conclusion that the imputation is saved by first and ninth exceptions to Section 499 of IPC. On the basis of the above finding, the trial court found that the above letter was sent to the daily to protect the interest of the consumers and the same was done in good faith. The above finding of the court below is not liable to be interfered as I also endorse same view. 7. In this juncture, it is also relevant to note that by the order of acquittal in favour of the accused, the innocence of the accused again reinforced by a competent court and the appellant is miserably failed to point out that the court below is overlooked any material in evidence in favour of the complainant. The Apex Court in decision in Ghurey Lal Vs. State of U.P. [2008 (4) KLT S.N. 17 (C. No.17) S.C.] laid down that appellate court can interfere with an order of acquittal. In the said decision it is Crl. Appeal. 620 of 2001 : 6 : also held that unless compelling and substantial grounds are made out, the order of acquittal shall not interfere with. Following the same dictum, Batcu Venkateshwarlu and Ors Vs. Public Prosecutor of High Court of A.P (2009 (1) Supreme 67), the Apex Court held that in a case of acquittal there is a double presumption in favour of the accused and there must be substantial and compelling reasons for holding that the trial court was wrong. Going by the materials and impugned judgment, I find no compelling and substantial reason to interfere with the order of acquittal. In the result, there is no merit in the appeal and the same is dismissed accordingly. V.K. MOHANAN, JUDGE kmd