HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2420 OF 2004 Date: 17-08-2011 Between: Namilikonda Janardhan. --- Appellant/ Complainant. Ands R. Chandra Prabhakar and another and the State of A.P., Rep. By its Public Prosecutor, High Court of A.P. Hyderabad. --- Respondents/ Accused. This Court made the following : HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2420 OF 2004 JUDGMENT: The Respondents 1 and 2/A-1 and A-2 were acquitted by the lower appellate Court of offence punishable under Section 500 I.P.C. by reversing judgement. According to the Appellant/Complainant, Ex.P-1 news item dated 03-04-1999 published in Karimnagar tabloid of Eenadu telugu daily news paper is defamatory of the Complainant-institution. The Additional Judicial Magistrate of the First Class, Karimnagar found favour with the complainant and the II Additional Sessions Judge, Karimnagar did not accept the complaint. A-1 and A-2 are President and Secretary of Karimnagar Consumers’ Council (which is mistakenly referred as Consumer Forum in Ex.P-1 as well as in the complaint). In the news item Ex.P-1, it was stated that A-1 and A-2 as President and Secretary of Karimnagar Consumers’ Council reported and requested the Government to take action against Kakatiya Tutorials, Karimnagar for collecting a total sum of Rs.20,00,000/- from students in the last ten days promising to provide them with B.Ed., certificates. It is contended by the Appellant’s counsel that because of the said false imputation in Ex.P-1, the Complainant-institution was closed. 2. It is mainly contended by the Petitioner’s Counsel that when Ex.P-1 news item is ex-facie defamatory, it is for the accused to plead and prove that they made enquiries about the allegations against the Complainant before going for the press and to satisfy themselves about truth of the said allegations and that the accused herein did not lead any evidence to show that they made any such enquiries before going to the press. This proposition of the Appellant’s counsel may not be totally correct. It is only after proof of the ingredients/statutory facts required under Section 499 I.P.C. constituting defamation, the burden shifts on the accused to prove that their action in going to the press falls under any of the exceptions contained in Section 499 I.P.C. Without proof of the offence under Section 499 I.P.C. it may not be necessary for the accused to plead and prove the exceptions thereto; and even if any plea was taken or proof was let in by the accused in that regard, it has to be considered only after the complainant proving beyond all reasonable doubt that the act of the accused amounted to defamation as defined in Section 499 I.P.C. The main ingredient required under Section 499 I.P.C. is presence of intention for the accused to harm reputation of the complainant. In other words, the accused should have made the imputation against the complainant with an intention to harm his reputation. On this aspect, the lower appellate Court after considering oral evidence on record came to the conclusion that there was no malice on the part of A-1 and A-2 in associating with Ex.P-1 news item. Admittedly there were no prior disputes between the complainant and the accused. PWs. 2 and 3 who are the old student of the complainant and clerk of the complainant deposed in cross-examination that A-1 and A-2 as office bearers of the voluntary organization fight against misdeeds in the society. Therefore, the lower appellate Court found that there was no bad faith on the part of A-1 and A-2 in associating themselves with Ex.P-1 news item. In the absence of any malice or bad faith for the act, it cannot be said that the accused made the imputation with an intention to harm reputation of the complainant. When the complainant is not able to prove mens rea on the part of the accused in associating themselves with Ex.P-1 news item, there was no need for the accused to take shelter under any exceptions to Section 499 I.P.C. 3. In spite of it, the accused made some exercise by way of leading evidence touching exception 9 to Section 499 I.P.C. DWs. 1 and 3 are the students who claim themselves to be victims of the complainant-institution. DW.3 in fact filed a complaint before the District Forum under the Consumer Protection Act, 1986 at Karimnagar against the complainant-institution alleging that he made payment of Rs.30,000/- to the institution on false promises and seeking refund of the amount of Rs.30,000/- collected by it. Though the complainant as PW.1 denied the fact of DW.3 filing a complaint before the District Forum, Karimnagar for refund of the amount paid by him, in further cross-examination admitted that he filed counter affidavit in the District Forum in the complaint filed by DW.3. Exs.D-1 and D-4 are katcha receipts issued by the complainant-institution namely Kakatiya Tutorials on slips containing heading of Kakatiya Ads. DW.s 1 and 3 speak to the collection of amounts from them by the complainant-institution. DW.2 is an elder who functioned as President in open forum meeting held subsequent to Ex.P-1 news item and subsequent to exchange of notices between the parties, in which there were interse challenges made by each other for public debate. DW.2 was selected as President for the open forum meeting held in Press Club of Karimnagar in connection with the present subject not only by the accused as well as by the complainant. It is evidence of DW.2 also that the accused have no malice in this subject and that they were doing service by their voluntary organization called Karimnagar Consumers’ Council. In the light of the said evidence on record it cannot be said that the complainant was successful in proving that Ex.P-1 constitutes the offence of defamation as defined in Section 499 I.P.C. as against A-1 and A-2. The offence of defamation under Criminal Law cannot be equated with the tort of defamation under Civil Law, difference between the two being presence of mens rea for the crime. In the absence of mens rea, the complainant cannot succeed in Criminal action against A- 1 and A-2 for defamation. In my opinion, the lower appellate Court came to the correct conclusion and recorded acquittal of A-1 and A-2. There are no grounds either in law or on facts to come to a different conclusion in this Appeal. Accordingly, the Appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J. Date: 17-08-2011. B/o.DSH.