*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU +Crl.P. No.1324 of 2007 %02-12-2009 # G. Janardhana Reddy. ….petitioner Vs. $ A. Narayana Reddy and another …. Respondents !Counsel for the petitioner: Sri P. Govind Reddy Counsel for the 1st Respondent: Sri P.V. Vidyasagar Counsel for the 2nd Respondent : Public Prosecutor <Gist : >Head Note: ? Cases referred: [1] A.I.R 1966 Orissa 15 2 1999 (Crl.) Law Journal 1620 3 1997(Crl.) Law Journal 3851 4 2006 (Crl) Law Journal 720 5 2005 (Crl) Law Journal 2498 THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU CRIMINAL PETITION NO.1324 OF 2007 Date:02.12.2009 Between: G. Janardhana Reddy ……Petitioner And: A. Narayana Reddy and another ….. Respondents. THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU CRIMINAL PETITION NO.1324 OF 2007 ORDER: This petition is filed by the accused under Section 482 of the Code of Criminal Procedure for quashing proceedings in C.C. No.3 of 2006 of the V Additional Judicial Magistrate of the First Class, Chittoor relating to the offence punishable under Section 499/500 of the Indian Penal Code. The first respondent filed private complaint in the lower Court against the petitioner alleging the offence punishable under Section 499/500 of the Indian Penal Code on the basis of written statement, counter and affidavit filed in lieu of examination-in-chief filed by the petitioner as defendant in O.S.No.966 of 1998 of the III Additional Junior Civil Judge, Chittoor filed by the complainant as plaintiff for removing compound wall in the plaint schedule property therein and for delivery of possession. Subject matter of the suit is Ac.0-03 cents of site in S.No.210/2 of Nangamangalam village of Gudipala Mandal. It is the first respondent’s contention in the suit that Ac.0- 03 cents of site covered by the disputed wall is part of his ancestral property. The petitioner had no personal or pecuniary interest in that site of Ac.0-03 cents. His family members have been acting as Trustees and doing Poojari service in three temples of Moogaputallamma Diety, Panchala Devata and Bhajanamandiram located in the village. The villagers constructed temples and were performing Poojas and festivals in the temples by raising funds from the public. The disputed wall and the disputed site of Ac.0-03 cents enclosed by the wall are contended to be part of the temple site and in possession of the temple since more than 30 years prior to filing of the suit. In support of his claim, the 1st respondent filed cist receipt, copies of revenue records like 10(1) accounts, Adangals, Re-survey and settlement register, F.M.B sketch, village plan etc., in the suit along with the plaint and also marked them as exhibits. It is contention of the petitioner as the 7th defendant in the suit that all the documents filed by the 1st respondent as plaintiff are fabricated and forged using his position as revenue official. At this stage, it may be noted that the 1st respondent retired from service as Mandal Revenue Officer in the same district. He also worked in the Collector’s Office, Chittoor and also in then Chittoor Taluk Office in several capacities during his service. The petitioner is working as Head Master in Higher Secondary School. Firstly, it has to be seen whether averments or allegations contained in pleading and oral evidence of the parties constitute defamatory statements. Even though the 1st respondent claimed disputed land of Ac.0-03 cents as his ancestral property, he could not produce any title deed for the said land standing in the name of any of his ancestors. Mainly for that reason, the civil Court dismissed the 1st respondent’s suit O.S. No.966 of 1993 with costs by judgment and decree dated 13.09.2004. The 1st respondent relied upon only revenue records in his favour in support of his claim for disputed land of Ac.0- 03 cents. The defendants in that suit particularly the petitioner as 7th defendant therein has no other go except to attack those revenue records. That is the reason why the petitioner contended in the civil suit and filed pleadings as well as affidavit in lieu of his examination-in-chief stating that those revenue records are fabricated and forged. Without stopping there, the petitioner further pleaded in the civil suit that the 2nd respondent fabricated those records taking advantage of his official position as a revenue officer. The civil Court in its judgment in O.S. No.966 of 1993 did not give any finding whether revenue records filed by the 1st respondent as plaintiff were genuine or fabricated. The civil Court without going into that controversy came, to the conclusion that even copies of revenue records filed by the plaintiff/1st respondent show existence of temple in the disputed land. The 1st respondent did not make any endeavour before the civil Court to prove truth of copies of those revenue records by summoning original records from the offices concerned and by examining persons who prepared those original revenue records. Of course, as the matter now stands, judgment dated 13.09.2004 in O.S. No.966 of 1993 did not become final as appeal in A.S. No.155 of 2004 is pending in the District Court, Chittoor. After the 1st respondent lost his civil suit, he filed C.C. No.3 of 2006 in the lower Court on 10.03.2005. It is evident that the criminal case is filed by the 2nd respondent with a malafide intention and with a view to harass the petitioner and to coerce him for terms in the pending appeal and also with oblique motive. Without the petitioner contending in the suit that revenue records filed by the 1st respondent as false, fabricated and forged, there is absolutely no other case which can be put forward by the petitioner in the civil suit in order to attack claim of the 1st respondent therein. Prima facie, such allegations in the pleadings in civil suits are not per se defamatory, unless the petitioner had any previous score with the 1st respondent. Except this civil litigation, which the 1st respondent himself started, the petitioner has no other dispute with the 1st respondent. Therefore, it cannot be said that the petitioner had any intention to defame the 1st respondent or that the petitioner maliciously made those allegations in his pleadings. Secondly, those allegations in the petitioner’s pleadings and affidavit in the suit cannot be termed as defamatory. Thirdly, it is not a case where the alleged defamatory statements were published by way of any public notice or public statement or in any public meeting. They were made in Court proceedings in writing and no outsider had any occasion to read the same. It is alleged in the complaint that the alleged imputations would have been read by his advocate, junior advocates of his advocate, the petitioner’s advocate and juniors of that advocate and also presiding officers of the III Additional Junior Civil Judge Court and Principal District Judge, Chittoor. No doubt, what all written in pleadings and evidence is expected to be read by presiding officers of the court in which they were filed. The advocates appearing on both sides have no independent interest or entity in court proceedings except as representing the parties for whom they are appearing. They are only agents of the parties who engaged them. Thus, there is absolutely no general publication of the alleged imputations when they were made in pleadings and evidence in a court of law. Further, Section 499 of the Indian Penal Code contemplates making or publication of imputation with an intention to harm reputation of the other person. In the case on hand, intention of the petitioner is evident that he made the same with an intention to preserve the disputed site to the deity and not with an intention to harm reputation of the first respondent. In that view of the matter, pleadings i.e., written statement, counter and appeal grounds and evidence by way of affidavit in this case cannot be defamatory in nature. Assuming for a moment for the sake of argument that imputations made in this case are defamatory in nature, the petitioner alternatively contended that he is covered by Exception 9 to Section 499 of the Indian Penal Code as he made the same in good faith for protecting the temple’s interest in the property as its trustee. No doubt, as laid down in Dhruba Charan Khandal Vs. Dinabandhu Patri[1], burden of proving exception is on the accused. It is contended by the 1st respondent’s counsel by citing a passage at page 1508 of Ratnlal & Dhirajlal’s ‘The Code of Criminal Procedure’ Sixteenth Edition 2002 Reprinted in 2003 that question of application of exception does not arise unless the offence under Section 499 of the Indian Penal Code is made out and that it cannot be considered in pre-charge stage and cannot be gone into under Section 482 of the Code of Criminal Procedure. On the other hand, the Supreme Court in Rajendra Kumar Sitaram Pande and others Vs. Uttam and another[2] held that issuing of process against the accused for the offence punishable under Section 499 punishable under Section 500 of the Indian Penal Code can be questioned in higher courts. Ultimately, the Supreme Court quashed proceedings relating to prosecution of such a case in that reported decision by applying Exception 8 to Section 499 of the Indian Penal Code. Therefore, it cannot be said that application of exception cannot be considered at pre-trial stage and by invoking Section 482 of the Code of Criminal Procedure. I n Vedurumudi Rama Rao Vs. Chennuri Venkat Rao and another[3], this Court considered applicability of Exception 9 to Section 499 of the Indian Penal Code and held that truth of imputation need not be probed by such accused while claiming privilege under Exception 9; and finally quashed proceedings in criminal case relating to the offence punishable under Section 500 of the Indian Penal Code. The Gujarat High Court in Darusing Durgasing Vs. State of Gujarat and another [4] followed the above said reported decision of the Supreme Court and quashed criminal proceedings for the offence punishable under Section 500 of the Indian Penal Code in view of Exceptions 7, 8 and 9 to Section 499 of the Indian Penal Code. In an examination fact situation, the Bombay High Court in Valmiki Faleiro Vs.Mrs. Lauriana Fernandes and others[5] went to the extent of holding a paper publication containing certain imputations as one saved by Exception 9 because intention of the accused was predominantly to protect his rights in the property and not to harm reputation of the complainant. Thus, on reading of Exception 9 to Section 499 of the Indian Penal Code and the above case law, I have absolutely no doubt in my mind that the alleged imputations contained in pleadings and evidence in civil suit OS No.966 of 1998 and A.S.No.155 of 2004 are covered by Exception 9 of Section 499 of the Indian Penal Code, even assuming that the imputations are prima facie defamatory in nature. Viewed from in any angle, complaint filed by the 1st respondent in the lower court cannot stand to legal scrutiny by this Court. In the result, the Criminal Petition is allowed quashing proceedings in C.C.No.3 of 2006 of V Additional Judicial Magistrate of the First Class, Chittoor. ___________________________________ SAMUDRALA GOVINDA RAJULU,J 2nd December, 2009 Gk. THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU CRIMINAL PETITION NO.1324 OF 2007 2nd December, 2009 Gk. [1] A.I.R 1966 Orissa 15 [2] 1999 (Crl.) Law Journal 1620 [3] 1997(Crl.) Law Journal 3851 [4] 2006 (Crl) Law Journal 720 [5] 2005 (Crl) Law Journal 2498