Criminal Revision No.711 of 2004 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Revision No.711 of 2004 Date of Decision: May 04, 2009 Phool Chand ...........Petitioner Versus State of Haryana and another ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mrs.Baljeet Mann,Advocate, for the petitioner Mr.Sidharath Sarup, Assistant Advocate General, Haryana. Mr.K.S.Dhaliwal,Advocate for respondent No.2 ** Sabina, J. Petitioner was convicted under Section 500 of the Indian Penal Code (`IPC' for short) vide judgment dated 8.10.1998 by the Chief Judicial Magistrate Kurukshetra. Vide order dated 9.10.1998, petitioner was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.2000/- under Section 500 IPC. Aggrieved by the same, petitioner preferred an appeal. Vide judgment dated 4.3.2004, the Additional Sessions Judge, Kurukshetra, while upholding the conviction and sentence of the petitioner modified the sentence from rigorous imprisonment to simple imprisonment. Hence, the present revision petition. Criminal Revision No.711 of 2004 2 The brief facts of the case, as noticed by the Appellate Court in para 3 of its judgment, are as under:- “ The brief facts of case are:Som Nath Kapoor, printed and published a news item captioned, “D.D.P.O. Shri Pardeep Kasni Ne Mangi Rishwat” in Hindi fortnightly STHANU TIMES (issue No. 19 and 20) on 3.8.1992 to the effect that complainant Pardeep Kasni had demanded a sum of Rs.25,000/- from Phool Chand (respondent No.3) as illegal gratification for leasing out the Panchayat land. Phool Chand got an affidavit executed and attested in this regard and sent the copies of affidavit to the publishers of newspaper and other higher officers of the department. It is further alleged that on 3.9.1992 a similar news item was published in the fortnightly STHANU TIMES (issue No.20 and 21) to the effect that Smt.Neelam Kasni, wife of complainant Pardeep Kasni, exercising her powers of Administrator of Municipal Committee, Thanesar, got refused and rubbish thrown in front of the premises of STHANU TIMES, owned and possessed by editor of STHANU TIMES, at the instigation of complainant. It was also alleged that the complainant had dealing with a contractor of bad repute, who used to supply girls to the higher officers and had embezzled lakhs of rupees of the Municipal committee. The complainant was also seen in the company of a woman kept in a separate house. The contractor is alleged to have been seen roaming with higher officers and exploiting their position. The two issues containing imputation against the complainant were distributed Criminal Revision No.711 of 2004 3 and sold to the public at large and to the persons known to the complainant in the area, Government offices in the State and market with an intention and knowledge to harm the reputation of the complainant and his wife. The imputation, it is alleged, have lowered down his intellectual character in the estimation of others, particularly the officers colleagues, friends and relations including Om Singh, resident of House No.1386/12 Kurukshetra, Sh.Mahaveer Parshad Dahiya, Housing Board Colony, Kurukshetra Makan Lal son of Sat Pal, Chhota Bazar, Thanesar and Sh.Pardeep Kumar Kamboj, Advocate, Kurukshetra and others. It was also alleged that Som Nath Kapoor (respondent No.1) was annoyed with the complainant because complainant did not issue any advertisement for publication in the fortnightly STHANU TIMES and Phool Chand (respondent No.2) was annoyed when the complainant detected a case of fraud and embezzlement of money while working as Social Education and Panchayat Officer,Pehowa. The complainant lodged a complaint to summon and punish the respondents according to law for publishing distributing derrogatory and defamatory material under Section 499, 500,501 and 502 of the Indian Penal Code.” Learned counsel for the petitioner has submitted that the Courts below while basing conviction of the petitioner under Section 500 IPC has placed reliance on photocopy of affidavits Exhibit DA. The said affidavit was never relied upon by the complainant nor it was put to the petitioner when his statement under Section 313 Cr.P.C. was recorded as by that time, the affidavit Exhibit DA was not on record. Criminal Revision No.711 of 2004 4 Learned counsel for the respondents, on the other hand , has submitted that both the Courts below have rightly convicted and sentenced the petitioner under Section 500 IPC after appreciating the evidence on record. In the present case, the complainant-Pardeep Kasni lodged a complaint against the petitioner and his co-accused for publishing defamatory news item against him in the newspaper STHANU TIMES. The complainant, while appearing in the witness box as CW1 deposed that the accused persons with an intention to defame him and lower his character published false news item in the newspaper Exhibit C1 and Exhibit C2. These news papers were widely circulated and sold in Kurukshetra as well as outside Kurukshetra to public at large and persons close to him. Accused has intentionally damaged his reputation and prestige. Accused has also defamed his wife, who was an HCS Officer and was posted as Administrator,Municipal Committee, Thanesar. The complainant examined CW2 Makhan Lal and CW3 Om Singh in support of his case. The allegations against the petitioner is that he had furnished false information against the complainant to Som Nath Kapoor and Bansi Lal co-accused and they in turn published news item Exhibit C1 in their newspaper to defame the complainant. In order to prove himself to be innocent, co-accused -Som Nath Kapoor brought on record the photocopy of affidavit alleged to have executed by the petitioner. It is the case of the co-accused- Som Nath Kapoor that on the basis of Exhibit DA, he had published the news item, Exhibit C1. Since the said affidavit is merely a photocopy, the same could not have been relied upon by the Courts below for basing the conviction of the petitioner. Moreover, DW1 Subhash Chander Sharma who had Criminal Revision No.711 of 2004 5 attested the affidavit, in his cross-examination, deposed that he could not tell whether he had made the entry of affidavit in his register or not. He had not mentioned the number of his register on the affidavit. The Exhibit DA was not prepared in his presence. He had not seen the original Exhibit DA as it was not shown to him on the day he was examined in the Court. In a criminal case, the complainant is required to prove its case against the accused beyond reasonable doubt. An accused is presumed to be innocent till proved guilty. However, in the present case, reliance has been placed on photocopy of the affidavit. The complainant was, in fact, duly required to prove on record the affidavit on the basis of which the news items in question Exhibit C1 was published. The affidavit-Exhibit DA is on a stamp paper but on its back side, no entry made by the stamp vendor appears. In these circumstances, the Courts below had erred in convicting the petitioner under Section 500 IPC. Accordingly, this petition is allowed. Impugned judgments of the Courts below qua petitioner are set aside. Petitioner is acquitted of the charge framed against him. (Sabina) Judge May 04, 2009 arya