IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 Crl.MC.No. 1830 of 2009() ------------------------- CC.2085/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... PETITIONER(S): ACCUSED: ----------------------------------------- 1. REKHA, AGED 37, SECRETARY, CHERPU SERVICE CO-OPERATIVE BANK, PERUMBILLISHERRY P.O., CHERPU, THRISSUR. 2. SMITHA, AGED 37, BRANCH MANAGER, CHERPU SERVICE CO-OPERATIVE BANK, PERUMBILLISHERRY P.O. CHERPU, THRISSUR. 3. MAHESH, AGED 27, PEON, CHERPU SERVICE CO-OPERATIVE BANK, PERUMBILLISHERRY P.O., CHERPU, THRISSUR. BY ADVS. MR.G.KRISHNAKUMAR, SMT.M.P.RETNAM. RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------------------------------------- 1. T.S.VINODAN, S/O.SANKUNNI, THOTTIPPAL VEEDU, POOCHINNIPADAM, OORAKAM P.O., THRISSUR. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV.MR.N.MAHESH R2 BY PUBLIC PROSECURTOR MR. B.VINOD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 1830 OF 2009 ------------------------------------------ Dated 27th July 2009 O R D E R Petitioners are accused in C.C.2085/2008 on the file of Judicial First Class Magistrate, Thrissur. First respondent is the complainant. First petitioner is the Secretary and second petitioner the Branch Manager and third petitioner the Peon of Cherpu Service Co-operative Bank, Perumbillisherry. Admittedly first respondent availed a loan from Cherpu Service Co-operative bank on 7/1/2004. For realisation of that amount arbitration case was filed on 13/4/2007. An arbitration award was passed on 28/6/2007. First respondent subsequently admittedly discharged the entire debt. Annexure-C lawyer notice was sent by first respondent on 27/2/2007 to the petitioners alleging that on 24/2/2007 at 5 p.m petitioners trespassed into his house and spoken abusive words and hearing the sound neighbours gathered there and to the hearing of the neighbours petitioners disclosed that respondent cannot be CRMC 1830/09 2 believed and they are persons of black money and he is a person who is not returning the amount borrowed. It is contended that by the said words reputation of first respondent has been effected and petitioners thereby committed an offence under Section 500 of Indian Penal Code and if they are not be prosecuted they have to tender apology. Annexure-B complaint was thereafter filed before Judicial First Class Magistrate, Thrissur alleging that petitioners committed offence under Section 499 punishable under Section 500 of Indian Penal Code. Learned Magistrate after recording Annexure-D sworn statement of the first respondent and Annexure-F sworn statement of a witness took cognizance of the offence. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings. 2. Learned counsel appearing for petitioners and learned counsel appearing for first respondent were heard. 3. Learned counsel appearing for the petitioners argued that Annexure-A complaint is maliciously instituted and it is only an abuse of process of court and is to be quashed. It is pointed out that when in Annexure-B notice alleged defamatory CRMC 1830/09 3 words were spoken to by petitioners to the neighbours who gathered there. What is alleged in paragraph 4 of the complaint is that the alleged defamatory words were spoken to the neighbours as well as pedestrians who gathered there at the time of incident and the case in Annexure-D sworn statement was that it was disclosed to his friends whose name was not disclosed who came to his house and asked to first petitioner and the case of the witness, as is clear from Annexure-F sworn statement, is that hearing the sound being an neighbour, he came to the house of first respondent and then it was told to the witness that first respondent is a person who is not repaying loan and a person of black money who cannot be believed and a contrary case is disclosed in the complaint to foist a false case. It was also argued that even if the allegations raised is accepted ,in the absence of a case in the complaint disclosing the ingredients of an offence under Section 499, learned Magistrate should not have taken cognizance of the offence. It is argued that there is no allegation in the complaint that the alleged words were spoken with the intention to defame or with the knowledge that it would result in defamation and in the absence of such CRMC 1830/09 4 a case, the case can only be quashed. Learned counsel also pointed out that even though the complaint is filed against three persons, there is no allegation with regard to respective words spoken to by each of them and it cannot be believed that all the three persons would repeat the same words like parrot and therefore on the facts, learned Magistrate should not have taken cognizance. It is finally pointed out that as instructed in Annexure-G circular issued by the Co-operative departments, being employees of Co-operative societies petitioners are bound to collect the amount due to the society and that too without initiating attachment proceedings and therefore petitioners approached first respondent only for realising the amount due and not for committing any defamation and the allegation in the complaint itself is that petitioners went there and spoken the words to compel first respondent to pay the amount due to the society and if that be so, under Section 106 of Co-operative Societies Act when the Act allegedly committed by the petitioners were for realisation of the amount due to the society, they are protected and no prosecution will lie and hence it is to be quashed. Learned counsel also relied on the CRMC 1830/09 5 decisions in State of Haryana v. Bhajan Lal (1992 Supp (1) 335), Punjab National Bank and others v. Surendra Prasad Sinha (1993 Supp (1) SCC 499) and Pepsi Foods Ltd. and another v. Special Judicial Magistrate & others (1998 (5) SCC 749). 4. Learned counsel appearing for first respondent argued that there is no contradictions in the notice issued or the complaint lodged or the sworn statement and therefore there is no reason to quash the complaint, when prima facie on offence under Section 499 is made out. 5. Section 499 of Indian Penal Code provides that whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said to defame that person except in cases covered by explanations 1 to 4 provided therein. Therefore, as rightly pointed out by the learned counsel appearing for petitioners in order to attract an offence under Section 499, there should be an allegation that words spoken or published were made CRMC 1830/09 6 with an intention to harm or knowing or having reason to believe that such imputation will harm the reputation of the person. Annexure-A complaint does not contain an allegation that petitioners uttered the alleged words either with an intention to harm the reputation of first respondent or with the knowledge that it would result in harming the reputation. On the other hand, what is stated is that words were spoken with the intention of realising the amount due to the society and as a result of conspiracy the words were uttered. Therefore as per the complaint the intention behind uttering the alleged words is not harming the reputation of first respondent but to realise the amount defaulted by first respondent who admittedly availed a loan from the society. If that be so, it cannot be said that ingredients of an offence under Section 499 is made out in the complaint. If so, the learned Magistrate should not have taken cognizance of the offence when ingredients of an offence is not made out either in the complaint or in the sworn statements. 6. If the alleged action of the petitioners was to realise the amount due to the society and that CRMC 1830/09 7 too in their capacity as officers of the society as pointed out by the learned counsel appearing for petitioners Section 106 of Co-operative Societies Act will grant immediately to first petitioner from prosecution. Section 106 provides that no suit, prosecution or other legal proceeding shall lie against any officer or the Government for anything which is in good faith done or purporting to be done under the provisions of this Act or Rule or bye-laws. Officer is defined in the Act as inclusive of President, Vice- President Chairman, Vice-Chairman, Secretary, Manager, member of committee or Treasurer and includes a Liquidator, Administrator and any other person empowered under the rules or the bye-laws to give directions in regard to the business of a co-operative society. But protection will not be available to petitioners 2 and 3. 7. If the incident is as alleged in Annexure-C notice, it occurred when petitioners went to the house of first respondent for realisation of the amount due. What is alleged is that at that time they abused first respondent and then neighbours came there and to the neighbours petitioners disclosed the defamatory words. There is no case in Annexure-C CRMC 1830/09 8 notice that any of the friends of first respondent came there and to the friends petitioners disclosed the alleged defamatory words. Similarly in Annexure-A complaint, though it is contended that petitioners uttered defamatory words when neighbours and pedestrians were near the house, there is no case that CW2 the witness who had given evidence was present or petitioners disclosed to the said witness the defamatory words. The sworn statement of first respondent is that defamatory words were disclosed by first petitioner when friends who came there asked about the cause and it was repeated by others. On the other hand, what is stated by the witness is that hearing the sound being neighbour he went to the house and then the words were uttered. All on contradictory evidently complaint was foisted by first respondent as petitioners attempted to collect the amount due to the society. The complaint is only an abuse of process of court. Hence C.C.2085/2008 on the file of Judicial First Class Magistrate, Thrissur is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.