THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Criminal Petition No.523 of 2009 ORDER: 1. This petition is filed to quash proceedings in Calender Case No.1140 of 2008 on the file of the Court of X Additional Chief Metropolitan Magistrate, City Criminal Courts, Secunderabad, registered for offences punishable under Sections 500, 420, 426 and 109 I.P.C. 2. The petitioners are A1 to A3 and the respondent No.1 is the complainant in the calender case. For the sake of convenience, I refer the parties as arrayed in the calender case. 3. The complaint was filed by the complainant for the prosecution of A-1 to A-3 for the alleged offences. At the end he also requested the Court to forward the complaint to the concerned SHO for necessary investigation and report under Section 156(3) Cr.P.C. The admitted facts of the case are as follows. A1 to A3 are the residents of an apartment namely Meghana Gardens situated at East Marredpally, Secunderabad. A1 was the President, A2 was the Secretary and A3 was the Member of Meghana Gardens Residents Association. During the year 2004-2005, the complainant was residing in Flat No.10, which was originally belonged to one Mr.S.Sridhar as tenant. 4. According to the complainant, A1 to A3 failed to provide necessary amenities to him and harassed him following which he gave a report before Thukuramgate Police Station for necessary action against them. In spite of that A1 to A3 continued to harass the complainant by not providing necessary amenities in the flat and also filed false suit for damages for Rs.50,000/- and defamation against him by reason of which he suffered mentally and physically and hence they are liable for punishment for the alleged offences. 5. It is necessary to note the details of the suit. In the suit it is pleaded and alleged as follows. The defendant (complainant herein) after receiving the notice dated 10.2.2005 wrote a letter dated 13.2.2005 to the Station House Officer, East Marredpally Police Station, Secunderabad alleging that A1 to A3 (herein) being the President, Secretary and Member of the Society misappropriated the funds of the society and cheated its members showing false accounts and tried to rule the residents of the society and involved in continued enjoyment of the funds of the society and also supported illegal members of the society and so on which would amount to defamation. Subsequently that suit was numbered as O.S. No.858 of 2005 on the file of XI Junior Civil Judge at Secunderabad. 6. The (complainant) defendant filed written statement in that suit denying the allegations made specifically, however admitting to be the tenant of Flat No.10. Further, he claimed that he was not a member of the society and he was not aware of its bye-laws. He further claimed that the owner of the Flat No.10 was collecting maintenance from him for that plot. He also claimed that A1 to A3 (the plaintiffs) relying on two letters filed false suit to make him suffer. According to him, he gave report to the police against A1 to A3 (the plaintiffs) for their conduct following which A1 to A3 (the plaintiffs) were summoned and then the plaintiffs gave apology for their acts informing that they were not aware of the terms between him and his landlord. 7. Consequently, the suit was transferred to the Court of Additional Rent Controller-cum-XVIII Junior Civil Judge, Secunderabad, where it was renumbered as O.S. No.1303 of 2007. In that suit, A3 herein was examined as PW.1 and Exs.A-1 to A-4 were marked on their behalf and the complainant was examined as DW.1 and Exs.B-1 to B-3 were marked on his behalf. Ultimately, the suit was dismissed by the said Court with exemplary costs of Rs.1,000/- holding it to be false, those costs were not paid. According to the complainant, in fact the judgment passed in the suit became final. 8. Learned counsel for A1 to A3 contends that in order to properly appreciate the criminal case, it is necessary to examine the findings arrived at in O.S.No.1303 of 2007. The civil suit was dismissed mainly on the ground that A1 to A3 (the plaintiffs) failed to file any documents to prove that they were the President, Secretary and Member of the Society, which fact was thus not proved. Further to prove that in fact the complainant (the defendant) gave the alleged report to the police and no explanation was given by P.W.3 (A3) in his evidence about it and in fact P.W.1 admitted that no criminal case was registered in that context and hence A1 to A3 (the plaintiffs) failed to establish their claim. According to him, the relevant documents were in the possession of the complainant (the defendant) or the office bearers of the association or the police and when it was not possible for A1 to A3 to produce those accounts, no adverse inference could be drawn against them. According to him, when the suit was dismissed only on the ground that necessary documents were not produced, the question of taking any criminal action against A1 to A3 for defamation does not arise at all. He has placed reliance upon a decision of this Court in P. Pushpalatha v. P.Manohar[1] in support of his plea. 9. Therefore, it is to be seen as to whether the complainant made sufficient grounds prima facie to prosecute A1 to A3 in respect of the alleged offences and whether the cognizance taken by the Court below is tenable or not. 10. Before going into the merits of the case, I feel it appropriate to examine as to whether the plea to forward the complaint to the SHO of the police station for necessary investigation and report is proper or not. This is subject to Section 200 of Chapter XV Cr.P.C. Section 200 Cr.P.C. contemplates that – “200. Examination of complainant.—A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses — (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.” However, this provision is subject to the provision incorporated under Section 202(1) Cr.P.C., which contemplates that “any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.” However, clauses (2) and (3) thereunder are not relevant in the present context. 11. Section 203 Cr.P.C. provides “Dismissal of Complaint.— If, after considering the statements on oath if any of the complainant and of the witnesses and the result of the inquiry or investigation if any under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.” 12. Therefore, under Section 200 Cr.P.C., the Magistrate can take cognizance of the case subject to the provisos made thereunder, but however this is subject to Section 202(1) Cr.P.C. which gives option to the Magistrate to postpone the issue of process against the accused and enquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding to take necessary action. On the other hand Section 203 Cr.P.C. gives power to the Magistrate to dismiss the complaint, however, after considering the statements on oath of the complainant and his witnesses and the result of the enquiry or investigation under Section 202, if he is of the opinion that no sufficient grounds are made out for proceeding with the case. Therefore, whether proceeding with necessary enquiry by himself or forwarding the complaint to the concerned SHO for necessary investigation and report is within the discretion of the Magistrate and accordingly he has to exercise the discretion judiciously. In consequence of this it is against the spirit of this provision to seek the learned Magistrate to forward the complaint to the police and the learned Magistrate accordingly accepted the request and acting in compliance of the request under Section 156(3) Cr.P.C. is nothing but acting against the spirit of these provisions. As such when a complaint is filed with such request, that should be returned without numbering it for proper re-presentation. 13. Emphatically, it is alleged in the civil suit by A1 to A3 as plaintiffs; “The defendant after receiving the notice dated 10.2.2005 written a letter dated 13.2.2005 to the Station House Officer, East Marredpally, Secunderabad by mentioning in the subject; case of restrictions to excess self accommodation against President Mrs.Srinivas, Member R.Ravi, Secretary Zinda Fernes by duly enclosing bye-law by stating misappropriation of funds and cheating the members by false accounting of statement try to rule residents and lastly resist to step down from Executive Committee because of continued enjoyment of funds for self living and have supporting illegal member of Executive Committee, as there is no provision or no amended byelaws; damaging the image, reputation, defamatory against the plaintiffs”. 14. Thereby it is to be examined as to whether this accusation would amount to defamation against the complainant as enshrined under Section 499 IPC subject to the limitations enshrined therein. 15. This provision defines defamation as “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 No.4 thereunder contemplates that “no imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral and 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.” Consequently the passage noted above must contain imputation. The essence of the offence of defamation consists in its tendency to cause pain to a person who knows himself the object of it. It includes both libel and slander. The defamatory matter must be published i.e., must be communicated to some person other than a person to whom it is addressed. The publication should have been made to others with an intention to defame some person. Mere communication of defamatory matter only to the person claimed to be defamed is not publication. Imputation means accusation against a person and it implies an allegation of fact and not merely an abuse. If an imputation is made in the pleadings filed in the suit, definitely it amounts to publication of it to others because many persons concerned with the suit including the Court staff and counsel for the opposite party would have an occasion to go through the matter. 16. By virtue of Exception No.9 under Section 499 IPC, “it is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it or of any other person, or for the public good.” In other words the imputation made on the character of the complainant in the suit is not defamation, provided that it was made in good faith for the protection of their interest. 17. The passage in question now is definitely in the nature of accusing the complainant of misappropriation of funds and cheating the members of the society by giving false statements of accounts, and trying to rule the residents and resisting to step down from the executive committee because of continued enjoyment of funds for personal advantage supporting illegal member of Executive Committee in violation of the relevant bye-laws and thereby damaged the image and reputation of the plaintiffs. This definitely amounts to slander or libel against the complainant unless it is proved to be true and correct and thereby it falls within Exception No.9. 18. When such imputations were made by A1 to A3, it was for them to substantiate their claim. There should be some basis for the allegations made by them against the complainant. It is not their specific claim that they had gone through the letter or report dated 13.2.2005 said to be given by the complainant to the Station House Officer, East Marredpally, Secunderabad with allegations, which constituted the ingredients of defamation against them. Then the question arises as to on what basis they came to know about that letter and on what basis they filed the suit. If in fact such a letter was given to the Station House Officer, it was not difficult for them to take necessary steps to cause production of it or to cause production of a certified copy of it. There is no material to the effect that they made efforts to obtain the document, but they could not succeed. If what they claim is true, they would have taken necessary steps by approaching the Civil Court also. Therefore, the contention of the learned counsel for A1 to A3 that as the latter was in the custody of the Station House Officer or the complainant, it was not possible for A1 to A3 to cause production of the same before the Civil Court is not tenable. The complainant should not be burdened with causing production of such letter in order to disprove the claim of A1 to A3 unless A1 to A3 who got an obligation to place sufficient evidence at the outset to establish their claim prima facie succeeded in doing so. 19. In P.Pushpalatha’s, the first respondent/first accused therein filed a suit against the appellant/complainant therein for permanent injunction and the accused filed their affidavits in lieu of their chief examination, but before recording necessary evidence, the civil suit was disposed of. Consequently the complaisant filed the criminal case on the ground that the affidavits contained defamatory statement which would come within the ambit of Section 499 IPC read with Section 500 IPC. However, the criminal case ended in the acquittal of the accused on the ground that they were given in good faith. Taking into consideration the overall circumstances of the case, this Court observed that the allegations made in the affidavits were relevant to the nature of relief sought and hence recording of acquittal by the trial Court could not be interfered with. The facts of that case are totally different in order to apply the same analogy here. 20. On the other hand, in Jeffrey J.Diermeier v. State of West Bengal[2], the Apex Court observed with reference to relevant facts and circumstances as follows: “It is trite that where to the charge of defamation under Section 500 IPC, the accused invokes the aid of Tenth Exception to Section 499 IPC, ”good faith” and “public good” have both to be established by him. The mere plea that the accused believed that what he had stated was in “good faith” is not sufficient to accept his defence and he must justify the same by adducing evidence. However, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. It is well settled that the degree and the character of proof which an accused is expected to furnish in support of his plea cannot be equated with a degree of proof expected from the prosecution in a criminal trial. The moment the accused succeeds in proving a preponderance of probability, onus which lies on him in this behalf stands discharged. Therefore, it is neither feasible nor possible to lay down a rigid test for deciding whether an accused person acted in ”good faith” and “public good” under the said Exception. The question has to be considered on the facts and circumstances of each case, having regard to the nature of imputation made; the circumstances on which it came to be made and the status of the person who makes the imputation as also the status of the person against whom imputation is allegedly made. These and a host of other considerations would be relevant and required to be considered for deciding appellants' plea of ”good faith” and “public good”. Unfortunately, all these are questions of fact and matters for evidence. In the instant case, the stage for recording of evidence had not reached and, therefore, in the absence of any evidence on record, we find it difficult to return a finding whether or not the appellants have satisfied the requirements of ”good faith” and “public good” so as to fall within the ambit of the Tenth Exception to Section 499 IPC. Similarly, it will neither be possible nor appropriate for this Court to comment on the allegations levelled by respondent No.2 and record a final opinion whether these allegations do constitute defamation. Reading the complaint as a whole, we find it difficult to hold that a case for quashing of the complaint under Section 482 of the Code has been made out. At this juncture, we say no more lest it may cause prejudice to either of the parties.” 21. By virtue of this judgment of the Apex court, A1 to A3 should have succeeded in proving the preponderance of the probabilities of the allegations made and good faith in doing so. When once that is made, the onus which lies on them in the matter would stand dispatched. What is significant is that A1 to A3 filed the suit making certain allegations referred above and adduced oral and documentary evidence, but failed to place any evidence to establish the preponderance of probabilities to uphold their claim, whereas in the absence of any such material, it cannot be said that they acted in good faith while making those specific allegations. Another significant factor is that the Civil Court with the appraisal of the evidence recorded came to the conclusion that the suit was filed without any basis and it was frivolous in nature and dismissed the suit and on the other hand, awarded exemplary costs against the complainant for doing so, coming to the conclusion that in fact the impugned statements made by A1 to A3 were defamatory in nature. Thereby necessary trial is to be conducted in order to establish the charge of defamation by adducing necessary evidence. There are no grounds to quash the proceedings at this stage. 22. Accordingly, the criminal petition is dismissed. __________________________ G.KRISHNA MOHAN REDDY, J Date: 14-08-2012 DA/YCR [1] 2005(2) ALD (Crl.) 158 (AP) [2] 2010(3) ALT (Crl.) 8 (SC)