Criminal Appeal No.28 of 2007

10th September, 2009

Petitioner Counsel: Shri. RYAN MENEZES
Respondent Counsel: Shri. ARUN BRAS DE SA

Cases Cited:
M. K. Prabhakaran Vs. T. E. Gangadharan, 2006 Cri.L.J. 1872 [Para 12,20]
Sukra Mahto Vs. Basudeo Kumar Mahto, AIR 1971 SC 1567 [Para 12,21,27]
Chaman Lal Vs. State of Punjab, AIR 1970 SC 1372 [Para 12]
Kanwal Lal Vs. State of Punjab, AIR 1963 SC 1317 [Para 12]
Trichinopoly Ramaswamy Ardhanani Vs. Kripa Shanker Bhargava, 1990 Cri.L.J. 2616 [Para 12,19]
Shri. Goculdas Kashinath Naik Vs. Shri. Kishore Sada Naik, 2009 ALL MR (Cri) 1060 [Para 12,24]
Thangavelu Chettiar Vs. Ponnammal, AIR 1966 Madras 363 [Para 19]
Sukhdeo Vithal Pansare Vs. Prabhakar Sukhdeo Pansare, 1974 Cri.L.J. 1435 [Para 22]
Dilip Ranjan Sinha Vs. Manojbhai Bhaishankar Chandaliya, 2002 Cri.L.J. 3229 [Para 22]
Queen Empress Vs. Mc Carthy, 1887) ILR 9 All 420 [Para 23]
John Thomas Vs. Dr. K. Jagadeesan, (2001)6 SCC 30 [Para 25]

JUDGMENT

JUDGMENT :- This appeal is directed against Judgment dated 22-12-2006 of the learned JMFC, Canacona, acquitting the Accused/Respondent under Sections 499/500, IPC.

2. The appellant/complainant is a Government Primary School teacher and the accused is a contractor by profession and both are Mahajans of Mallikarjun Devalaya, and both had been the Presidents of the Managing Committee of the said Devalaya. Elections to the Managing Committee were scheduled on 28-2-2004 and the complainant as well as the accused along with two others filed their nominations to be elected as President of the Managing Committee of the said Devalaya. The other two were one Dayanand Faldessai/DW-2 who withdrew his nomination and one Ulhas Dessai whose nomination was held to be invalid. The accused was the President of the said Devalaya as on the date of the said election. The complainant's nomination came to be rejected, and according to the complainant, as told to him, because the complainant was a Government primary teacher but according to the accused it was rejected because the nomination was not signed by the complainant, and also because the serial number was not correct. The accused produced the nomination form at Exh.17 claiming it to be the one filed by the complainant but according to the complainant that was not the form which was submitted by him. After two nominations were rejected, and the third having been withdrawn, the accused got elected as President of the said Devalaya, unopposed.

3. The complainant filed a representation to the Mamlatdar who is the Administrator of Devalayas under the relevant provisions of law in force in this State. The Mamlatdar called for the say of the respondent but the respondent instead of assigning the said two reasons on account of which the complainant's nomination was rejected made several allegations against the complainant including that (1) "the complainant entered in the "sabhamandap" of the Devalaya under the influence of liquor" on the date of election of the Managing Committee, (2) that whenever the complainant came for the General Body Meetings or other meetings of Mahajans, the complainant created trouble amongst the Mahajans under the influence of liquor, (3) "and even when he was the President the complainant came in the same fashion and the Mahajans had filed a complaint to the Mamlatdar against the said behaviour of the complainant" and (4) he was arrested by Police and was kept in the lock-up being involved in "goondagiri", about ten years back during drama festival.

4. The accused also stated in the said reply dated 15-3-2004 that there were only two applications in the format supplied by the Committee for the election for the post of President, one of which was withdrawn, and the complainant who was in the above said mood, handed over one application having five to six names which was rejected and was asked to submit his application in the format supplied by the Committee but instead of doing that he started arguing with the accused for about 10 minutes and left the sabhamandap threatening that he would teach a lesson, and the said representation was nothing but a result of threat.

5. The complainant sent a notice to the accused dated 3-2-2005 seeking compensation in the sum of Rs.5,00,000/-, failing which, the complainant informed the accused that he would initiate civil and criminal proceedings. The notice was not replied to nor complied, and the complainant filed his complaint on 11-3-2005. In between, the representation of the petitioner to the Mamlatdar was rejected by Order 15-12-2004, and neither of the parties have produced a copy of the said Order to show as to why the said representation was rejected.

6. The complainant examined himself in support of the complaint and three more witnesses which included two Mahajans and the nominee of the Mamlatdar who was present at the said election. The accused also examined himself and two more witnesses to support his case.

7. The learned trial Court after considering the evidence produced by the prosecution as well as the defence came to the conclusion that the case of the accused was covered by Ninth Exception to Section 499 of I.P.C. The learned Magistrate also noted that the accused had only conveyed to the Mamlatdar as to what exactly had happened, without knowing the consequences. It may be stated here that the accused as a reasonable and prudent man ought to have known the consequences of the allegations made by him to the Mamlatdar. The learned Magistrate further held that the reply by the accused was filed only in the Office of the Mamlatdar, and it was not exposed to the general public at large except the complainant, his lawyer and the staff of the Office of the Mamlatdar. Here, it may be noted that there was no lawyer at all appearing on behalf of the parties, whose presence is reflected in the evidence led on behalf of both parties. The learned Magistrate appears to have ignored the evidence of Pravin Dessai/PW-2 who was a Mahajan known to both the parties and who claimed that he was not only present for the election but who had also been to the office of the Mamlatdar, and who having made inquires as to why the new Committee was not administered oath of office, was shown the reply filed by the accused, and came to know from the said reply, the allegations made by the accused against the complainant, to the said Mamlatdar. The learned Magistrate ultimately held that there was no publication and that the allegations were made in good faith and proceeded to acquit the accused under Ss.499/500, IPC.

8. There is no doubt that this is an appeal against acquittal, and being so, this Court as an appellate Court has full power to review the evidence led by the parties and come to its own conclusion, and in case the view held by the Magistrate is reasonably possible than this Court is not required to interfere with the same.

9. The complainant in his evidence before the Court has stated that he was working as a Government primary teacher and was enjoying good reputation in the village. The complainant had further stated that his two brothers were engaged in business and another brother was in private service, and one of his brothers had been a Sarpanch of the Village Gaondongrem, and for two terms his said brother was a Member of the Village Panchayat. He has also stated that he was a President of the Managing Committee of the said Devalaya for two terms i.e. from the year 1995 to 2001, and he was also elected as a Director of Canacona Taluka Farmers Co-operative Credit Society. That much was stated by him presumably to show that he had a very good reputation. The complainant has also stated that the allegations made against him by the accused were false and were made to defame him and put him in trouble in his job. In cross-examination the complainant has stated that he had nothing to show that his nomination for the post was rejected because he was a Government servant. He had further stated that he had asked for reasons with the accused but his application was refused. He had also stated that he had not made any application to the Devalaya asking for reasons. He had further stated that the accused was not writing any Minutes at the time of the said election. In further cross-examination he denied the suggestion that his application came to be rejected because it was not signed and because he had not quoted the correct serial number. In further cross-examination he admitted that he was arrested by the Police in an alleged matka incident along with five to six persons, and along with them, and in another case he was arrested by the police without any reasons and at that time the brother of the accused was a President of the Devalaya and had taken revenge on him. He had further explained by stating that there was a fight in the village and the persons who were involved in the fight had come to take food in his house, and, therefore he was implicated but the case was decided in his favour. He denied the suggestion that the case was filed against him because he was fighting near the temple and further stated that besides the said two cases he was not arrested by the police in any other case.

10. The accused in his evidence stated that the complainant had contested for the post of President and he and one Faldessai had also contested for the post of President. He produced a format Exh.17 stating that, that was the form filed by the complainant and identified the signatures thereon of one Arjun Gaonkar and one of Bashu Velip who was the Treasurer, and further stated that the said application was rejected as the complainant had not signed the same and serial number was missing, and after it was rejected the complainant started arguing with the Committee Members in the hall and after the said elections he became the President and after the complainant filed the complaint he was called by the Mamlatdar, and he explained to the Mamlatdar about the facts and thereafter filed his reply which was drafted by his friend Sudhakar Dessai. The accused stated that by filing the said reply he had not cast any imputation on the reputation of the complainant and further stated that the charge against him should be dropped. In cross-examination the accused stated that he had filed the said reply dated 15-3-2004 without consulting the Committee Members and admitted that the said reply was drafted by the said Sudhakar as per his say. The accused further admitted that normally all the decisions are taken in consultation with Committee Members in respect of the Devalaya. He also admitted that the nomination form of the complainant for contesting to the post of the President was rejected by the Committee of the temple. In further cross-examination his attention was drawn to the written statement filed in the civil suit filed by the complainant and he stated that he did not remember whether he had mentioned in the written statement that the complainant had come in the temple under the influence of liquor. He also stated that he did not remember whether in the said written statement he had averred that Sudhakar Dessai had written the said reply and given to the Mamlatdar. He further stated that Vasudev Deshmukh/PW-4 was not present when scrutiny of the applications was done.

11. Dayanand Faldessai/DW-2 stated that he knew both the parties and he had contested for the post of President and besides him there were three more contestants, and in due course he withdrew his application. According to him, the complainant's application was rejected as there was no serial number mentioned, and because it did not bear his signature. He produced the nomination form filed by him at Exh.C-28 and further stated that after the accused was declared President the complainant made a grievance about the method of election and started talking and thereafter abused the accused in filthy words and thereafter the brother of the complainant took him away. Vaman Velip/DW-3 stated that Janu Gaonkar/PW-3 was not present for the said election. According to him, besides the Accused there were five contestants, namely the accused, Yeshwant Dessai/DW-2, complainant, Ulhas and Dayanand, and the complainant's application was rejected because it was not properly filled in and serial number was not proper and the application was not signed. He stated that the application of Ulhas was rejected because it did not bear any date. He further stated that after the accused was declared as President, the complainant started giving bad words to the Committee Members, and thereafter he was taken away by his brothers. In cross-examination he claims to have seen the form filled in by the complainant and at the same time he admitted that it was not shown to all the Mahajans. He further stated that he was in the said Committee as second attorney. He admitted that he was extracting the stones from the property of the Devasthan but denied the suggestion that he had deposed falsely because he was allowed to extract stones.

12. Shri. Ryan Menezes, the learned Counsel appearing on behalf of the complainant submits that it is not the case of the accused or of any of his witnesses that the complainant was drunk or under the influence of liquor on the date of election, and, therefore there was no evidence to support the plea taken by the accused under Exception 9 to Section 499, IPC. Learned Counsel further submits that complainant's witness Janu Gaonkar/PW-3 has deposed that on the date of election the complainant was normal and was not under the influence of alcohol and has further confirmed that the complainant had very good relations among the people in the village. Learned Counsel further submits that the accused has not at all substantiated the allegations in the reply, in his evidence before the Court, with a view to claim the benefit of the Ninth Exception, and in the absence of any such evidence the benefit of the exception could not be given to the accused. Learned Counsel further submits that at the most after the result of election was declared in favour of the accused there might have been some exchange of words but again there is no evidence to show that the complainant was under the influence of liquor either on the date of election or any time earlier as alleged by the accused in the said reply. To support the contention that the filing of the said reply by the accused before the Mamlatdar amounted to publication, and that the allegations were not made in good faith, learned Counsel has placed reliance on the case of M. K. Prabhakaran and another Vs. T. E. Gangadharan and another (2006 Cri.L.J. 1872) and on the case of Sukra Mahto Vs. Basudeo Kumar Mahto and another (AIR 1971 SC 1567). Reliance has also been placed on the case of Chaman Lal Vs. The State of Punjab (AIR 1970 SC 1372) and Kanwal Lal Vs. State of Punjab (AIR 1963 SC 1317). Reliance has also been placed on Trichinopoly Ramaswamy Ardhanani and others Vs. Kripa Shanker Bhargava (1990 Cri.L.J. 2616) and on an unreported decision of this Court dated 8-2-08 in the case of Shri. Goculdas Kashinath Naik Vs. Shri. Kishore Sada Naik and another in Criminal Appeal No.64 of 2005 [since reported in 2009 ALL MR (Cri) 1060].

13. On the other hand, Shri. Arun Bras De Sa, learned Counsel on behalf of the accused, refers to the explanation below Section 499, IPC, and submits that the complainant has neither averred nor proved in the complaint nor proved that the complainant's reputation was lowered in the estimation of others. Learned Counsel further submits that the admissions brought out from the evidence of the complainant that he was arrested twice by the police are sufficient to show that the allegations made by the complainant were true and further submits that since they were made by the accused to defend the proceedings filed by the complainant before the Mamlatdar they were made in good faith. Learned Counsel further submits that the proceedings before the Mamlatdar were not judicial proceedings, and, therefore the said reply could not be considered as publication. Learned Counsel further submits that taking alcohol is not prohibited and is culturally accepted, and, therefore referring to a person as having been under influence of alcohol would not amount to defamation. Learned Counsel further submits that the fact that the proceedings were dropped by the Mamlatdar fortifies the case of the complainant in the said reply.

14. Section 499 defines defamation, and has four explanations and ten exceptions. It states 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, except in the cases hereinafter accepted, to defame that person.

15. The first explanation provides that it may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living and is intended to be hurtful of the feelings of his family or other near relatives. The second explanation provides that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. The third explanation provides that an imputation in the form of an alternative or expressed ironically, may amount to defamation. The fourth explanation provides that no imputation is said to harm a person's reputation, unless that reputation directly or indirectly, in the estimation of others, lowers the moral or intellectual, character of that person, or lowers the character of that person in respect of his caste or his calling or lowers the credit of that person or causes it to be believed that the body of that person is in a loathsome state or in a state generally considered as disgraceful.

16. The Ninth Exception states that it is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.

17. At the outset it must be stated that the accused has failed to prove that Exh.17 is the nomination filed by the complainant. As per the accused, the complainant's nomination had five to six names and Exh.17 does not have so many names. There is also no explanation as to why Exh.17 was not sent to the Mamlatdar, to justify the stand now taken by the accused. The accused also did not examine any of the signatories to the said nomination except himself. Likewise, the statement of the accused cannot be accepted as to the number of nominations. As per the reply Exh.18 there were two nominations. As per the evidence of the accused there were three, when, in fact there were four. Vaman Velip/DW-3 stated that Janu Gaokar/PW-3 was not present. If that be so, how did he second the nomination Exh.17, which according to the accused was the nomination filed by the complainant ? All that the accused has stated in his evidence is that after the complainant's nomination was rejected, the complainant started to argue with the Committee members. He was bound to when his nomination was wrongly rejected. That the complainant abused the accused with filthy words, as stated by Dayanand/PW-2 and Vaman/DW-3 is a version which cannot be accepted because it is not the version of the accused. Neither the accused nor his witnesses have tried to prove the allegations made against the complainant in the reply of the accused.

18. First, as regards publication. The expression used in Section 499, I.P.C. is "makes or publishes any imputation". The words are used supplementing each other. Publication implies communication to at least one person, other than the person defamed. In the case at hand, the defamatory reply was filed before the Mamlatdar and must have certainly been read by the Mamlatdar, and certainly it was read by Mamlatdar's Clerk, the said PW-4, who otherwise did not wish to give the details of the same, stating that was part of public record. It was also read by Pravin Dessai/PW-2, as stated by him, and in the circumstances narrated by him which certainly can be believed. True, the complainant told Janu Gaonkar/PW-3 about it. Janu Gaonkar/PW-3 was a member of Village Panchayat and the contents of the reply was discussed by them.

19. In Trichinopoly Ramaswamy Ardhanani and others Vs. Kripa Shanker Bhargava (supra) the M.P. High Court relying on a decision of Madras High Court reported in Thangavelu Chettiar Vs. Ponnammal (AIR 1966 Madras 363) held that filing a plaint or a petition containing defamatory matter amounts to publication, and, therefore per se defamatory statement in pleadings, petition, affidavits, etc. of parties to judicial proceedings is an offence punishable under Section 500, I.P.C. unless they fall within the exceptions enumerated in Section 499, I.P.C..

20. In M. K. Prabhakaran and another Vs. T. E. Gangadharan and another (supra) it is held that once a statement has been filed in a Court of law, that statement can be taken as published, and if such a statement amounts to per se defamatory, it is the duty of the accused to establish that they are justified in making such a statement under any of the exceptions to Section 499, I.P.C..

21. In the case of Sukra Mahto Vs. Basudeo Kumar Mahto and another (supra) there were certain statements made in a written statement filed in 144 proceedings under a Code of Criminal Procedure, and it was held that just because proceedings were pending it was not open to a person to impute the statements of the nature in the present case. It was further held that it would not be open to a person to deny or resist possession in proceedings under Section 144 of Cr.P.C. by hurling defamatory invectives and then claim the benefit of protection of interest.

22. The accused having made the said allegations against the complainant in the reply filed by him to the notice issued by the Mamlatdar has got to be considered that the imputation made by the accused amounted to publication more so because it was available to be read by others, and indeed, it was read by PW-2. The conclusion that the reply did not amount to publication arrived at by the learned Magistrate therefore has got to be rejected . The cases cited on behalf of the accused and reported in Sukhdeo Vithal Pansare Vs. Prabhakar Sukhdeo Pansare (1974 Cri.L.J. 1435) and Dilip Ranjan Sinha and others Vs. Manojbhai Bhaishankar Chandaliya (2002 Cri.L.J. 3229) are clearly inapplicable. In the first, publication to the typist was held not to be a publication to a person other than the complainant and in the second, it was held that the letter which was made to the immediate superior did not contain anything per se defamatory and as such the complaint was quashed.

23. Second, as regards the explanation. The imputation in the reply referred to the complainant as a person who does things under influence of liquor and as a person who was locked up because of "goondagiri" during Devalaya's drama festival. These imputations are per se or distinctly defamatory. By the first imputations, the complainant is referred to as nothing short of a drunkard. A drunkard has been defined by Concise Oxford Dictionary as a person who is drunk, habitually, and, the imputations made by the accused in the said reply amount to nothing short of the complainant being called as a drunkard. Way back in Queen Empress Vs. Mc Carthy ((1887) ILR 9 All 420) a Division Bench of Allahabad High Court, with reference to IV explanation observed as follows:-

"The explanation does not apply where the words used and forming the basis of a charge are per se defamatory. When an expression used verbally or in writing, is doubtful as to its significance and some evidence is necessary to decide what the effect of that expression will be and whether it is calculated to harm a particular person's reputation, it is possible that the principle enunciated in Explanation IV of Sec.499 might, and would with propriety, be applied. But in this case there is no question as to the significance or meaning of the words written. They are distinctly defamatory within the meaning of Sec.499 and as such whether they were written in haste or in anger, the respondent is clearly responsible and unless she can show that her case falls within any of the exceptions to the section it was and is impossible for her to resist a verdict of guilty."

24. Again, this Court in unreported Judgment dated 8-2-2008 in Criminal Appeal No.64 of 2005 in the case of Shri. Goculdas Kashinath Naik Vs. Shri. Kishore Sada Naik [since reported in 2009 ALL MR (Cri) 1060] (supra) observed as follows :-

"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 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."

25. This is a case where the allegations are per se defamatory, and that would relieve the complainant of the burden to establish that the publication of such imputations has lowered him in the estimation of right-thinking members of the public, as stated by the Apex Court in the case of John Thomas Vs. Dr. K. Jagadeesan ((2001)6 SCC 30).

26. Third, as regards ninth exception. The accused has neither alleged nor proved the ninth exception. As rightly pointed out on behalf of the complainant, there is no statement made by the accused in his evidence that he had made the said imputation in good faith or for the purpose of defending his interest. All that the accused stated is that he had not cast any imputations on the reputation of the complainant. Exception 9, as already seen, requires that the imputation on the character of another has got to be made in good faith for the protection of the interest of the person making it, or of any other person or for the public good. There can be no good faith when there is unnecessary aspersion or abuse of another which takes the case out of the exception. The accused could not have defended himself as regards the result of the election by casting unnecessary aspersions or abusing the complainant that he was in the habit of doing things under the influence of liquor. If at all the complainant's nomination was rejected by the accused it is for no other purpose but only to make his way clear to get elected unopposed as one of the contestants had withdrawn his nomination and of another was rejected leaving the complainant and the accused as the only persons in the fray. If the complainant's nomination was rejected because the complainant's nomination was not signed by him or the complainant's number was improper, nothing had prevented the accused to ask the complainant to make good the said deficiencies before the nomination was rejected. As already stated the accused did not examine any of the two signatories to the said nomination Exh.17 to support the case of the accused regarding the grounds on which the said nomination was rejected. In case those were the real grounds on which the complainant's nomination was rejected then those would have found place in the reply dated 15-3-2004 filed before the Mamlatdar but instead of doing that or disclosing the said reasons all that the accused did was to abuse the complainant as a drunkard or as a person who always came under the influence of liquor whether for the election or for other meetings or when he was a President of the Committee. Learned Counsel on behalf of the accused submits that the allegations made by the accused do not amount to calling the complainant as drunkard, and in my view this submission cannot be accepted. They do refer to the complainant as a person who is a drunkard. Nothing is said to have been done in good faith which is done without due care and caution, and the accused in this case appears to have made the said allegations against the complainant out of malice and with a view to defame him and not for the protection of his interest because there was no interest to be protected by making such wild allegations against the complainant.

27. In Sukra Mahto VS. Basudeo Kumar Mahto and another (supra) the Apex Court had stated that the ingredients of the Ninth Exception are first that the imputation must be made in good faith; secondly, the imputation must be for the protection of the interest of the person making it or of any other person or for the public good. Good faith is a question of fact, so is protection of the interest of the person making it. Public good is also a question of fact. The Apex Court has further stated referring to its earlier decision that it would have to be found out whether a person acted with due care and attention and that "simple belief or actual belief by itself is not enough. The accused must show that the belief in his impugned statement had a rational basis and was not just a blind simple belief and that is where the element of due care and attention plays an important role". The person alleging good faith has to establish as a fact that he made inquiry before he made the imputation and he has to give reasons and facts to indicate that he acted with due care and attention and was satisfied that the imputation was true. The proof of the truth of the statement is not an element of the Ninth Exception as of the First Exception to Section 499. In the Ninth Exception the person making the imputation has to substantiate that his inquiry was attended with due care and attention and he was thus satisfied that the imputation was true. The accent is on the inquiry, care and objective and not subjective satisfaction. The accused himself., in his evidence has not tried to justify the truth of the said allegations or that he had made them in good faith for the protection of his interest. As already stated the imputations made by the accused were bare and wild allegations with a view to defame the reputation of the complainant who was otherwise a Government primary teacher. Although the complainant might have admitted that he was arrested twice that would also not justify making the allegation that the complainant was arrested and was kept in the lock-up for being involved in goondagiri. As rightly submitted on behalf of the complainant the Accused led no evidence that the allegations were made with due diligence. The allegations made were per se defamatory and were made with a view to defame the complainant who was a Government primary teacher and not with a view to protect any interest of the accused.

28. The evidence on record clearly shows that the complainant was abused for no reason at all in the reply filed by the accused when in fact in the said reply the accused could have advanced the reasons which according to the accused in his evidence had led him to reject the complainant's nomination at the said election. This Court in the said case of Shri. Goculdas Kashinath Naik v. Shri. Kishore Sada Naik and another further held that once it was found that the publication was with the intention to cause harm, there was no occasion for the Court below to misconstrue the explanation of 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 complainant on account of the publication by the Accused/Respondent.

29. In the circumstance therefore, the learned trial Court was not at all right in either concluding that the accused had transcribed in the said reply what had happened without knowing its consequences or that it was done in good faith. As already stated, the complainant by his evidence as well as that of his witnesses had sufficiently proved that the said reply was filed by the accused with the intention to defame his image in the eyes of the general public, in his village and in his office. The accused had not denied having made the said allegations. His only case was that the said allegation did not amount to casting any imputation on the reputation of the complainant when in fact it did. The accused neither pleaded nor proved the Ninth Exception that he had made the said imputation in good faith for the protection of his interest or for public good. As already stated there was no interest to be protected nor public good to be served by making the said reckless and defamatory imputations against the complainant.

30. In the light of the above discussion, the appeal is bound to succeed and the impugned Judgment requires to be reversed and set aside. Consequently, the accused is hereby convicted under Section 499/500, IPC. Learned Counsel on behalf of the accused has submitted that considering that the accused has remained present before the trial Court as well as before this Court a lenient view be taken. Learned Counsel on behalf of the complainant submits that this is not a case where a lenient view is required to be taken but further submits that the sentence to be imposed be decided by this Court.

31. There is a civil suit filed by the complainant for compensation/damages. Considering the facts of the case and the concession made in my opinion, the ends of justice would be met by making the following Order :-

ORDER

The accused is sentenced under Section 499/500 to undergo S.I. of one day (till rising of the Court) and pay a fine of Rs.5,000/-, and in default to undergo S.I. of six months. In case the fine is realized, the entire amount shall be paid to the complainant by way of compensation. Learned Counsel on behalf of the respondents submits that the fine shall be paid by tomorrow i.e. 11-9-2009 before this Court. Statement is accepted.. Court Sheristedar to certify one day S.I..

Appeal allowed.