1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO.64 OF 2005 Shri Goculdas Kashinath Naik, Major, married, r/o. Neur-O- Grande Tenants Association, having its office ast Neura, Ilhas, Goa. ....... APPELLANT Versus 1. Shri. Kishore Sada Naik, Reporter of the Daily Gomantak, r/o. Gavah Moula, Goa Velha, Tiswadi, Goa. 2. State Through Public Prosecutor Panaji, Goa. ........ .. RESPONDENTS Mr.S.D. Lotlikar, Senior Advocate with Mr. Ryan Menezes,Advocate for the appellants. Mr. C.A. Ferreira, Public Prosecutor for the Respondent No.2. Mr. Nitin Sardesai with Mr. Vivek Rodrigues, Advocate for the respondent No.1. Coram :- R.M.S. KHANDEPARKAR,J. Date : - 08th February, 2008. ORAL JUDGMENT : Heard. The present appeal arises from the order passed by the Lower Appellate Court in Criminal Appeal No.19/2005 delivered on 2 30th July, 2005 whereby the appeal filed by the respondent No.1 against the judgment of the trial Court dated 14.3.2005 in a private Criminal case No.146/1998/C, was allowed and the trial Court's judgment holding the respondent No.1 to be guilty of the offence punishable U/s.500 of I.P.C. with imposition of sentence of one month's imprisonment with fine of Rs.5,000/- was set aside. 2. The appellant is the Chairman of the Neura-O-Grande Tenants Association and claims to be a well known public leader with no criminal background and his reputation being without blemish. The respondent No.1 is a teacher by profession and also a reporter of the Marathi Newspaper 'Daily Gomantak'. Some of the articles published in 'Daily Gomantak' at the instance of the respondent No.1 as its reporter were found to be objectionable to the appellant, as according to the appellant they were defamatory in the nature, and the appellant, therefore, filed a private criminal complaint being Private Criminal Case No.146/1998/C in the Court of J.M.F.C., Panaji. After hearing the appellant and his witnesses, by its judgment dated 14.3.2005, the trial Court held the respondent to be guilty of the offence punishable U/s.500 of I.P.C. and imposed punishment of simple imprisonment for a period of one month with fine of Rs.5,000/- and out of the fine amount, a sum of Rs.4,000/- was directed to be paid to the appellant as the compensation. In fact, the prosecution was also against a teacher / 3 reporter of the Newspaper 'Daily Gomantak', however, during the pendency of the trial, the said accused person expired. Being dissatisfied with the judgment of the trial Court, the respondent preferred an appeal before the learned Sessions Judge which came to be heard by IInd Additional District Judge, Panaji, who by her order dated 30.07.2007 set aside the order passed by the trial Court and acquitted the respondent. Hence, the present appeal. 3. Placing reliance upon the decision in the matter of Sewakram Sobhani Versus R.K. Karanjiya, Chief Editor,reported in AIR 1981, S.C. 1514 and Alex Pimento and another Versus Emperor, reported in AIR 1920, Bombay, 339 the learned senior Counsel appearing for the appellant submitted that the Lower Appellate Court has arrived at a clear finding that though the evidence on record discloses that the articles published in relation to the appellant clearly revealed doubt about the integrity of the appellant, in view of the statements of the witnesses that they did not believe in those articles, wrongly applying the explanation clause 4 of of Section 499 of I.P.C. to the facts of the case, the Lower Appellate Court set aside the judgment passed by the trial Court ignoring the import of the said explanation clause, and virtually misconstrued the said provision. On the other hand, the learned Counsel appearing for the respondent submitted that in the absence of proper evidence on record, the Lower Appellate Court 4 has rightly set aside the conviction of the respondent and, therefore, there is no case for interference in the order passed by the Lower Appellate Court. 4. The perusal of the impugned judgment passed by the Lower Appellate Court discloses that applying the provisions of law comprised in the explanation clause 4 of Section 499 of I.P.C. to the evidence placed on record, it was held that the appellant had failed to prove that the publications in that 'Daily Gomantak' had lowered the reputation of the appellant in the eyes of others and, therefore, had failed to make out a case that the reputation of the appellant was harmed and hence, the appellant had failed to prove that the respondent had committed an offence U/s. 499 punishable U/s.500 of I.P.C. 5. The analysis of the evidence on record by both the Courts below clearly disclose that the articles published in 'Daily Gomantak' at the instance of the respondent apparently disclosed certain imputations against the appellant and the same expressed doubt about the integrity of the appellant and were sufficient to lower the reputation of the appellant in the eyes of the people known to him. This is a clear concurrent finding arrived at by both the Courts below. The respondent is unable to point out in any manner the said finding to be contrary to the materials on record. Bare perusal of the said articles in the Newspaper discloses that certain statements were made in those articles 5 which cast doubt about the integrity of the appellant. The learned Counsel for the respondent has also fairly submitted that the findings arrived at by the Courts below in that regard cannot be disputed. 6. In the circumstances, the only point which remains for consideration is as to whether merely because some of the witnesses had stated that they did not believe in those articles that by itself would be sufficient to hold that there was no case of defamation for holding the respondent to be guilty of the offence punishable U/s.500 of I.P.C., more particularly in view of the explanation clause 4 of Section 499 of I.P.C. ? 7. The Division Bench of this Court in Alex Pimento' case while dealing with the explanation clause 4 to Section 499 referring to its earlier decision in Anandrao Balkrishna Versus Emperor reported in1915, Bom. 28 had held that “ Explanation 4 points out as to when the imputation is said to harm the person's reputation within the meaning of this Section. But what is necessary to complete the offence is that there must be an imputation with reference to a person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of the person against whom the imputation is made.” It was further observed that the expression used in the Section 499 of I.P.C. is “ intending to harm or knowing or having reason to believe that such imputation will harm” and not “harming”. Further it was held 6 that there is an obvious difference between the meanings of these two expressions and the argument based upon explanation 4 involves the result that there is difference between the expressions. Such a result cannot be accepted. If the legislature intended that it was of essential part of the offence of defamation that harm should be caused to the reputation of the person against whom the imputation was made, the words “intending to harm or knowing or having reason to believe that such imputation will harm” could have been omitted and the word“harming” could have been easily substituted, therefore, to convey the meaning which is now sought to be put upon the section.” 8. The decision of this Court in Alex Pimento's case, therefore, is to the effect that in order to bring the case within the parameters of Section 499, it is not necessary that the imputation has actually caused the harm to the reputation of the complainant. It is sufficient if the article is published with the intention to cause the harm or knowing or having reason to believe that such imputation would cause harm to the person in relation to whom the imputation is made. In the case in hand, undisputedly, the evidence on record does disclose that the publication was with intention to cause harm and there is concurrent finding to that effect by both the Courts. The only ground on which the Lower Appellate Court interfered with the order passed by the trial Court is that some of the witnesses had disbelieved the allegations in the publication and on that count, the Lower Appellate 7 Court concluded that there was no evidence on record to establish that the publication had caused harm to the reputation of the appellant. Once the Courts had found that the publication was with intention to cause harm, there was no occasion for the Lower Court to misconstrue the explanation clause 4 of Section 499 and to hold that there was no evidence regarding the actual harm having been caused to the reputation of the appellant on account of publication by the respondent. The appellant, therefore, is justified in contending that the impugned judgment is contrary to the provisions of law and hence, is not sustainable and is liable to be set aside. 9. The Apex Court in Sewakram Sobhani's case had clearly held that “The journalists do not enjoy any special kind of privileges nor the greater freedom than others to have any imputation or allegations against the other sufficient to ruin the reputation of such a person. It was also observed that even the truth of an allegation would not permit justification under first Exception to Section 499 of I.P.C. unless it is proved that same was in public good. The freedom of journalists is minor part of freedom of the subject and would have privileges which are sought to be available to the journalists, cannot be allowed to be misused or nor can be allowed to humiliate the citizens.” 10. Being so, merely because the respondent was journalist 8 apart from being a teacher, he was not justified in publishing the articles with the intention to cause harm to the reputation of the appellant and on that count, therefore, the appellant is justified in contending that the Lower Appellate Court erred in interfering with the judgment and order passed by the trial Court. 11. Though for the above reasons, I am inclined to interfere in the impugned order, at the same time, in the facts and circumstances of the cases, I do not find any justification to sustain the order of the trial Court so far as it relates to the quantum of punishment. Undoubtedly, the respondent No.1 has been found to be guilty of the offence punishable under Section 500 of IPC and is liable to be punished. But the punishment to the extent of one month imprisonment is totally disproportionate to the offence established. In the facts and circumstances of the case, it would meet the ends of justice if the punishment is confined to imprisonment till rising of the Court and fine of Rs.10,000/-. 12. In the circumstances, while allowing the appeal, the impugned judgment is set aside; however, the punishment imposed by the trial Court is hereby modified, whereby the imprisonment shall be till the rising of the Court and the fine shall be to the extent of Rs.10,000/-. The sum of Rs.7,500/- out of the said fine amount, shall be payable to the appellant. Order accordingly. 9 13. The fine of Rs.10,000/- to be deposited within four weeks. The appeal stands disposed of. R.M.S.KHANDEPARKAR,J. SMA 10