1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 386 OF 2009 Balkrishna Narayant Gurav & Ors. .. Petitioners V/s State of Maharshtra & Anr. .. Respondents Mr. S.V. Marwadi i/b Vaibhav & Associates for the petitioners. Mr. A.P. Bagwe for respondent no.2. Mr. S.N. Gawade, A.P.P. for the State. CORAM : D.G. KARNIK, J. DATE : 1ST DECEMBER 2009 ORAL ORDER : 1. By this writ petition, the petitioner prays for quashing of the complaint (criminal summary case no. 199 of 2007) pending in the Court of Judicial Magistrate, First Class, Lanja. 2. The respondent no.2 claims to be a social worker and a former sarpanch of a village panchayat. A news item appeared in the newspaper "Konkan Garjana" on 28th January 2005 making several imputations about the alleged misconduct of the respondent no.2. The respondent no.2 has alleged that pamphlets were published and distributed by the petitioners in the village containing similar defamatory 2 allegations against him. According to him, the contents of the news item and the pamphlets are per se defamatory. He therefore filed a criminal complaint against the petitioners. 3. Learned counsel for the petitioners submitted that whatever has been stated about the respondent no.2 and his conduct is true and “truth” is his defence. He further submitted that the case of the petitioners fall within the eighth exception to section 499 of the I.P.C. Eighth exception says that it is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation. Publication of a news item in a newspaper and distribution of the pamphlets, if proved, would not prima facie amount to making of an accusation to the persons who have lawful authority over the respondent no.2. In any event, under section 105 of the Evidence Act, the burden of proving that the petitioners fall under the eighth exception to section 499 of I.P.C. or any other exception as provided under the I.P.C., lies on the petitioners. That burden would be required to be discharged by them at the trial and the complaint cannot be quashed at the stage of institution itself. 4. Learned counsel for the petitioners then submitted that the respondent no.2 has also filed a civil suit for damages against the 3 petitioners. In my view, that cannot be a ground for quashing the complaint. Defamation being both a civil wrong and a criminal offence, both the proceedings can be initiated simultaneously. 5. For these reasons, there is no merit in the writ petition which is hereby dismissed summarily. (D.G. KARNIK, J.)