IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 Crl.MC.No. 912 of 2004-D ------------------------ CC.611/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... PETITIONER: ACCUSED. -------------------- 1. ELIZEBATH GEEVARGHESE, W/O.GEEVARGHESE, KAITHAVANA, CHANAPPALLY P.O. ANGADICKAL VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. 2. GEEVARGHESE @ KUNJUMON, KAITHAVANA, CHANDANAPPALLY P.O. ANGADICKAL VILLAGE, ADOORTALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: STATE AND COMPLAINANT. ----------------------------------- 1. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKUALAM. 2. JOICE BABU, KAITHAVANA, ANGADICKAL VADAKKEKARA MURI, ANGADICKAL VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.SAJJU.S FOR R2 BY PUBLIC PROSECUTOR MR. NOBLE MATHEW THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/06/2008, THE COURT ON 11-7-2008 PASSED THE FOLLOWING: M.C. HARI RANI,J ============================== CRL.M.C. NO. 912 OF 2004 ============================ DATED THIS THE 11TH DAY OF JULY 2008 ORDER The Crl.M.C.is filed by the accused in C.C.No.611/2003 on the file of the Judicial First Class Magistrate Court, Adoor. Brief facts of the case are as follows: 2. Petitioners 1 and 2 herein are accused Nos.1 and 2 respectively in C.C.No.611/2003. The first petitioner is the wife of the second petitioner. Second respondent is the wife of the brother of the second petitioner. Petitioners are employed in South Africa. During January 1999, the first petitioner was admitted in Medical Mission Hospital, Thiruvalla from 7-1-1999 to 22-1-1999. Before returning to South Africa, the first petitioner entrusted certain gold ornaments to the second respondent for keeping in safe custody. The second respondent did not return the gold ornaments when the petitioners came back to Kerala, inspite of repeated requests. Hence, the petitioners suffered a loss of Rs.25,000/- for which the first petitioner filed a private complaint dated 11-1-2002 before the Judicial First CRL.M.C.NO. 912/2004 -2- Class Magistrate Court, Adoor against the second respondent alleging commission of offence under Section 406 of the Indian Penal Code, a copy of which is produced as Annexure-I, which was referred to police under Section 156(3) of the Code of Criminal Procedure and Crime No.14/2002 of Koduman Police station was registered against the second respondent. Copy of the F.I.R. is produced as Annexure-2. The police, after investigation, filed a refer report 62/02 before the Judicial First Class Magistrate Court, Adoor. Thereafter, the first petitioner filed a protest complaint dated 20-1-2003 against the refer charge, copy of which is produced as Annexure-3. After filing the refer report, the second respondent filed a complaint dated 30-11-2002 and C.M.P.No.16370/2002 against the petitioners before the Judicial First Class Magistrate Court, Adoor alleging that petitioners filed a false complaint against her and also told to several people that second respondent misappropriated gold. According to the second respondent, her goodwill and moral status were affected. The second respondent alleged that the petitioners committed offences under Sections 499,500 and 501 read with Section 34 of the Indian Penal Code. Copy of the complaint dated 30-11-2002 is produced as Annexure-4. Copies of the sworn statement of the second respondent CRL.M.C.NO. 912/2004 -3- and others are produced as Annexures 5,6 and 7. The learned Magistrate has taken cognizance of the offences and C.C.No.611/2003 has been taken on the file of the Judicial First Class Magistrate Court, Adoor against petitioners/ accused 1 and 2 respectively. Thus the allegation against the petitioners in Annexure-4 is that they defamed the second respondent by filing Annexure-1 complaint regarding misappropriation of gold ornaments and spread news about it among the villagers. It is alleged in this petition that Annexure-4 complaint has been filed by the second respondent against petitioners 1 and 2 malafidely to harass and to wreak vengeance against them with the attempt to see that the petitioners are prevented from return to India so as to avoid legal proceedings against the 2nd respondent. The petitioners are taking steps to pursue the protest complaint,Annexure- 3, filed by them against the refer report 62/2002. In the circumstances, this petition is filed by petitioners 1 and 2 under Section 482 of the Code of Criminal Procedure with the prayer to quash Annexure-4 and all further proceedings pursuant thereto including the proceedings in C.C.No.611/2003 on the file of the Judicial First Class Magistrate Court, Adoor. 2. Heard the learned counsel appearing for the petitioners, the CRL.M.C.NO. 912/2004 -4- second respondent and the learned Government Pleader. 3. It is submitted by the learned counsel appearing for the petitioners that even assuming the allegations in the complaint, Annexure-4, is correct, it will not constitute an offence under Section 499 of the I.P.C.for the reason that the exact nature of words were not extracted and no proceedings can be initiated against the petitioners. It is also submitted that the proceedings were initiated against the second respondent herein in good faith and the same was referred by the police after investigation. Hence, the petitioners are entitled to get the benefit of 8th exception to Section 499 as the accusation was made by them before a court of law in good faith. The learned counsel for the petitioners has stated that the petitioners are taking steps to pursue the protest complaint, Annexure-3 dated 20-1-2003 filed by them. 4. According to the learned counsel appearing for the second respondent, a frivolous complaint, Annexure-1 was filed against the second respondent which was referred by the police after investigation as revealed from the refer report. It was in such circumstances, the second respondent filed the complaint, Annexure-4 before the Court of Judicial First Class Magistrate Court, Adoor against the petitioners CRL.M.C.NO. 912/2004 -5- herein. It is also submitted by the learned counsel appearing for the second respondent that the prayer in this petition to quash Annexure- 4 may not be allowed. 5. Whether an offence under Section 499 I.P.C. has been made out in the complaint, Annexure-4 against the petitioners herein and whether the statements in the complaint, Annexure-1 were made by the first petitioner against the second respondent in good faith etc.have to be decided on the facts and circumstances of the case after evaluating the evidence adduced by the parties. Proof of exception to Section 499 as claimed by petitioners herein will arise only when the offence is established. It is the exception that takes away the act from the purview of the penal provision and makes it not an offence. Burden is on the accused to prove the benefit of any exception which takes away his act from the penal provisions. It is within the powers and functions of the Magistrate during trial to evaluate the evidence and decide whether any of the exceptions are attracted. The party who gets defeated in that respect must have the opportunity to challenge that finding in the appropriate forum. The functions and powers of the Magistrate in that respect cannot be usurped by this Court in exercise of the inherent powers especially when the CRL.M.C.NO. 912/2004 -6- availability of the exception itself is in dispute and the matter requires evidence. As regards the allegations made against the petitioners in the complaint before the court of Judicial First Class Magistrate, Adoor, a copy of which is produced as Annexure-4, on a reading of it, I do not think that it will be justified at this stage to quash the complaint as prayed for in this petition. At this stage, I cannot embark upon weighing the evidence and come to any conclusion to hold, whether or not the allegations made in the complaint constitute an offence punishable under Section 500 I.P.C. It is the settled legal position that a court has to read the complaint as a whole and find out whether the allegations disclosed therein constitute an offence under Section 499 triable by the Magistrate. The Magistrate after taking sworn statement of the complainant and others, prima facie, came to the conclusion that the allegations might come within the definition of “defamation” under Section 499 of the Indian Penal Code and could be taken cognizance of and initiated proceedings against the petitioners herein in C.C.No.611/2003. But these facts are to be established at the time of trial and to be decided after evaluating the evidence adduced by both parties. In the circumstances, I find that at this stage, it is not proper to quash the complaint,Annexure-4, and further CRL.M.C.NO. 912/2004 -7- proceedings in C.C.No.611/2003 on the file of the Judicial First Class Magistrate Court, Adoor by exercising the inherent jurisdiction under Section 482 of the Code of Criminal Procedure and this petition is liable to be dismissed. In the result, the Crl.M.C.is dismissed. M.C. HARI RANI JUDGE ks.