IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.11.2007
CORAM:
THE HONOURABLE MR.JUSTICE K. MOHAN RAM
Criminal Original Petition No.33138 of 2007
AND
Miscellaneous Petition Nos.1 and 2 of 2007
1. Dr. R.Krishnamurthy
Editor and Partner
Dinamalar Tamil Daily Newspaper
No.219
Anna Salai
Chennai 600 002.
2. Dr. R.Lakshmipathy
Publisher and Partner
Dinamalar Tamil Daily Newspaper
No.219
Anna Salai
Chennai 600 002 ..Petitioners
Vs
Sun TV Network Limited
Rep. by its Authorized Person L.Jotheeswaran
No.367 and 369
Anna Salai
Teynampet
Chennai 600 018 ..Respondent
Prayer: Petition filed under Section 482 of the Code of Criminal
Procedure to call for the records in C.C.No.7707 of 2007 pending
on the file of the Metropolitan Magistrate Court XVII, Chennai
and quash the complaint filed by the respondent.
For Petitioners : Mr. S.Elambharathi
For Respondent : Mr. P.S.Raman, Sr, counsel for M/s.B.K.Girish Neelakantan
O R D E R
The above criminal original petition has been filed by the
petitioners to quash all further proceedings in C.C.No.7707 of
2007 pending on the file of the XVII Metropolitan Magistrate
Court, Chennai. On a complaint filed by the respondent herein
under Section 200 of the Criminal Procedure Code for the alleged
offence under Sections 500 and 501 of the Indian Penal Code, the
learned Magistrate has issued process against the accused and
being aggrieved by that the petitioners have filed the above
petition.
2. The first petitioner is the Editor of the Daily Tamil
Newspaper-Dinamalar and the second petitioner is its Publisher
and they are also partners of the firm-Dinamalar. The respondent
is a company incorporated under the Companies Act 1956. The
alleged imputation complained of by the respondent is that a news
item was published on 30.09.2007 in Dinamalar Daily wherein in
the said news item certain statements were made and the said
statements are perse defamatory and it was further alleged that
the same was made with an intention to bring bad reputation to
the complainant among the general public, subscribers and viewers
of the complainant.
3. The petitioners seek to quash the said complaint
contending that a corporation cannot complain of loss of
reputation as the Corporation has no reputation apart from its
property or trade; it cannot bring a prosecution for words which
merely affect its honour or dignity; a reading of the averments
in the complaint and the sworn statement shows that the
complainant / respondent is complaining that the alleged
statement in the news item has affected its honour and name
whereas the name of the respondent was not at all mentioned in
the statement, but only the name of ‘Sun DTH’ was mentioned and
the alleged imputations published in the petitioners’ newspaper
is not against the complainant. It is the further contention of
the petitioners that the complainant is not an aggrieved person
and as such it cannot file the complaint.
4. When the above petition came up for admission on
06.11.2007, Mr.J.Ravindran learned counsel took notice on behalf
of the respondent. As this Court was of a prima facie view that
the quash petition could not be entertained at this stage, the
learned counsel on either side were requested to make their
submissions and accordingly elaborate submissions were made on
either side. Mr.S.Elambharathi learned counsel for the
petitioners reiterated the above said contentions put forth in
the quash petition and elaborated the same.
5. The main thrust of the contention of the learned counsel
for the petitioners is that the complainant / respondent herein
has no locus standi to maintain the complaint. Learned counsel
submitted that the company may maintain a prosecution or an
action for a libel affecting its property, but not for a libel
merely affecting personal reputation as a company has no
reputation apart from its property or trade; the words
complained of must reflect on the management of its business and
must injuriously affect the company, as distinct from the
individual who compose it; the alleged libel must attack the
company in its method of conducting its affairs, must accuse it
of fraud or mismanagement, or must attack its financial position
and it cannot bring a prosecution for words which merely affect
its honour or dignity. Learned counsel further submitted that
the name of the complainant namely ‘Sun TV Net Work Limited’ is
not mentioned as such in the impugned publication and on that
ground also the complainant / respondent herein cannot be
considered to be an aggrieved person.
6. According to the learned counsel for the petitioners
there is no allegation in the complaint that the property of the
company is affected. Learned counsel submitted that the impugned
statement refers only to ‘Sun DTH’ which is a separate legal
entity and ‘Sun DTH’ is not the complainant. In support of his
above said contentions, the learned counsel relied upon the
following decisions:
(I) A.I.R. 1935 Rangoon 108 (Maung Chit v. Maung Tun),
wherein it is observed as follows:
“… A corporation may maintain a prosecution
or an action for a libel affecting its
property, but not for a libel merely affecting
personal reputation as a corporation has no
reputation apart from its property or trade.
The words complained of must reflect on the
management of its business and must
injuriously affect the corporation, as
distinct from the individuals who compose it.
The alleged libel must attack the corporation
in its method of conducting its affairs, must
accuse it of fraud or mismanagement, or must
attack its financial position. It cannot
bring a prosecution for words which merely
affect its honour or dignity. Moreover, it
cannot maintain a prosecution for words which
reflect, not upon it as a body, but upon its
members individually, unless special damage
has thereby been caused to it.”
(II) AIR 1985 Bombay 229 (Indian Express Newspapers (Bom.)
Pvt. Ltd. v. Jagmohan) wherein in paragraph 22 it is observed as
follows:
“22. It is well settled that a corporation cannot
suffer damages in mind or body. But as held in
Metroplitan Saloom Ombinus Co. Ltd. v. Hawkins
(1859) 4 H & N 87 : South Helton Coal Co. v. North
Eastern News Association Ltd. (1894) 1 Q.B. 133 :
D.L. Caterers Ltd. v. D’Ajou (1945) K.B. 364 :
Lewis v. Daily Telegraph Ltd. (1964) A.C. 234 and
Selby Bridge Proprietors v. Sunday Telegraph (The
Times Feb. 17, 1966) a trading corporation has a
business reputation and can sue for defamation in
respect of a publication calculated to injure its
reputation in the way of its business. The
position is succinctly stated in Spencer Bower on
Actionable Defamation at Pp.278-279:
“It is obvious that ‘reputation’ in the sense
in which alone it concerns the topic of
defamation has relation to the particular
person enjoying it. But it must not be
forgotten that ‘person’ for this purpose
includes an artificial person; that is to
say, it includes both ‘a body of persons’ and
a firm ….’. That a commercial ‘body of
persons’ has a trading character and can sue
in respect of a publication to injure that
trading character is now clearly well
established.”
It may be that the innuendo or the imputation may
be directed against an individual connected with
the management of the commercial body of persons.
But if it is of such nature as to not only defame
the individual but also injure the trading
character of the commercial body of persons, then
both the individual as well as the commercial body
will have a cause of action to sue for defamation.”
(III) AIR 1925 Calcutta 1121 (Pratap Chandra Guha Roy V.
Emperor) wherein in paragraph 17 it is observed as here-under:
“17. The other questions raised apply equally to
both the charges. The first question is whether
the complainant was the person defamed or, in the
words, whether he is a “person aggrieved” by the
offence as contemplated under Section 198 of the
Criminal Procedure Code, so as to entitle him to
maintain the prosecution. This is what is stated
in the petition of complaint: “That it appears
therefore that in making the above charges Dr.
Pratab Chandra Guha Roy has intended to harm the
reputation of the police and other high officials
of the British Government and the Government
themselves. …. The allegations are being
announced throughout the District and it is
therefore necessary that their falsity should be
proved in the most effective manner viz., by
trial in Court of law, etc.’ The learned
Standing Counsel relies on ex-planation 2 of
Section 499, I.P.C., as giving the complaint the
right to maintain the prosecution, That
explanation runs as follow: “It may amount to
defamation to make an imputation concerning a
company or an association or collection of
persons as such,” the contention seams to be that
in this, case there was defamation of the police
force, i.e., a “collection of persons as such.”
As far as I am aware those words in the
explanation have not been judicially dealt with
in any reported case. In my opinion those words
mean that a collection of persons as such may be
collectively detained in the same manner as a
“company.” The general principles on which a
company may be said to have been defamed would
therefore apply equally to the case where it is
alleged that a collection of persons as such has
been detained. Those general principles were
formulated by Chief Baron Pollock in
‘Metropolitan Saloon Omnibus Go. v. Hawkins
(1859) 4 H.&N.87, where he said: “It (a
corporation) could not sue in respects of an
imputation of murder or incest, or adultery,
because it could not commit those crimes. Nor
could it sue in respect of a charge of
corruption, for a corporation cannot be guilty of
corruption, although the individuals composing,
it may be.” This was adopted in Mayor, (do., or
Manchester v. Williams (1893) 1 Q.B. 94 where it
was laid down that a corporation may sue for
libel affecting property, not for one affecting
personal reputation. Similarly, Lopez, L.J.,
said in South Hetton Coal Co. v. North Eastern
News Association (1894) 1 Q.B. 133: “A
corporation or company could not sue in respect
of a charge of murder, or incest or adultery
because it could not commit those crimes. Nor
could it sue in respect of a charge of corruption
or of an assault because a corporation cannot be
guilty of corruption or of an assault although
the individuals composing it may be.” These
observations are quite apposite to the question
before us and in my opinion the police force as
such cannot complain of any imputation as regards
its personal reputation because it cannot be
guilty of beastly {conduct, nor can the
collective body be guilty of the offence of
bitting off the ‘nipple of the breast of a woman
or of biting the cheek of a woman. The matter
may be tested in another way. Suppose somebody
laid a complaint before a Magistrate in terms of
the words of the charges in this case, would any
Magistrate issue process against the police force
as such or any member of the police force? I am
sure no Magistrate, would. In my judgment,
therefore, the charges fail on the ground that
they refer to the personal conduct only of a
collection of persons as such”.
(IV) AIR 1969 Punjab & Hariyana 150 (P.K.O.H. Mills v. Tilak
Chand) wherein in paragraphs 8 and 9 of the said decision certain
passages from ‘Winfield on Tort’ and ‘Salmond on the Law of
Torts’ have been extracted, which read as follows:
“8. Law relating to the capacity of corporations to
sue in tort is summed up in “Winfield on Tort”
(Seventh Edition at page 80) in the following words:
“A corporation can sue for torts committed
against it, but there are certain torts which it
is impossible to commit against a corporation.
Such are assault and personal defamation. Thus,
a corporation cannot sue for libel a person who
charges it with bribery and corruption although
the individual members of it might be able to do
so, but if a libel or slander affects the
management or its trade or business, then the
corporation itself can sue; as where the
workmen’s cottages of a colliery company were
falsely described in a newspaper as highly
insanitary.”
In “Salmond on Law of Torts” (fourteenth edition), the
same subject is dealt with at pages 614-615 in these
terms:
“In general a corporation may sue for a tort
(e.g., malicious presentation of a winding up
petition) in the same way as an individual. The
only qualifications are (i) the tort must not be
of a kind which it is impossible to commit
against a corporation e.g., assault or false
imprisonment; (ii) in case of defamation, it
must be shown that the defamatory matter is of
such nature that its tendency is to cause actual
damage to the corporation in respect of its
property or business. Thus an action of libel
will lie at the suit of a trading corporation
charged with insolvency or with dishonest or
incompetent management. But where there is no
actual damage, nor any tendency to produce such
damage, no action will lie at the suit for the
corporation; the only persons who have any
cause of action are the individual members or
agents of the corporation who have been defamed.
So it has been held that a municipal corporation
cannot sue for libel charging it with corruption
and bribery in the administration of municipal
affairs.”
9. We would have had to judge the capacity of the
appellant to sue by applying the tests laid down in
the above-quoted texts of authority if the appellants
were a corporation in law. Unfortunately for the
appellants, however, it is not even a legal person.
It is a partnership firm. It is well known that a
firm is merely a compendious artificial name adopted
by its partners and is not itself a legal entity.
Libel or slander of a partnership firm may indeed
amount to defamation of its partners. But then it is
the partners who may in such an eventuality sue and
not the firm”.
(V) (2006) 2 M.L.J. (Crl.) 105 (P.Varadarajan v. G.K.Mani,
M.L.A.) wherein in paragraph 18 it is observed as follows:
“18. The imputations found in the article under
challenge do not relate to the complainant or his
political party, there is no allegation of the
political activity of Dr. Anbumani Ramadoss in the
aforesaid article. As there is no defamatory
imputation levelled against the political party of
the complainant and Dr.Anbumani Ramadoss, the
complainant cannot claim that he falls squarely
under the category of “some persons aggrieved” by
the offence of defamation. PMK was not the target
of attack in the article which is put to test.
Therefore, the respondent/complainant who is the
President of PMK has no locus standi to prefer the
complaint for an offence under Section 500 of the
Indian Penal Code”.
(VI) AIR 1972 Supreme Court 2609 (G.Narasimhan v.
T.V.Chokkappa) wherein in paragraphs 10 and 13 it is observed as
follows:
“10. A learned Single Judge of the High Court,
who heard the said applications, rejected the
said contention in the following words:
“The Dravida Kazhagam is an identifiable
group. The complainant is a member of this
Kazhagam. He was the Chairman of the
Reception Committee in the conference. He is
active member of the Dravida Kazhagam. He
was one of those who piloted and sponsored
the resolution. Certainly he is a person
aggrieved within the meaning of Section 198
of the Criminal Procedure Code. The
complaint by him is competent.”
“11. …
12. …
13. On these contentions, the principal question
for determination is whether the respondent could
be said to be an aggrieved person entitled to
maintain the complaint within the meaning of
Section 198 of the Code. That section lays down
that no Magistrate shall take cognizance of an
offence falling inter alia under Chapter XXI of
the Penal Code (that is, Sections 499 to 502)
except upon a complaint made by some persons
aggrieved of such offence. Section 198, thus,
lays down an exception to the general rule that a
complaint can be filed by anybody whether he is
an aggrieved person or not, and modifies that
rule by permitting only an aggrieved person to
move a Magistrate in cases of defamation. The
section is mandatory, so that if a Magistrate
were to take cognizance of the offence of
defamation on a complaint filed by one who is not
an aggrieved person, the trial and conviction of
an accused in such a case by the Magistrate would
be void and illegal.”
7. Countering the said submissions Mr. P.S.Raman, learned
Additional Advocate General, appearing on behalf of Mr.
J.Ravindran learned counsel for the respondent by referring to
the following portion in the impugned news item which is the
subject matter of the complaint namely,
VERNACULAR ( TAMIL ) PORTION DELETED
submitted that the words
VERNACULAR ( TAMIL ) PORTION DELETED
found in the above said extracted passage
reveals only to the complainant / respondent
herein and the other allegations contained therein are perse
defamatory as it lowers the reputation of the respondent among
the general public, subscribers and viewers of the respondent.
Learned Additional Advocate General further submitted that in
paragraph 8 of the complaint it is stated that one Mr.Manoharan
called and informed about the publication in the Dinamalar Daily
dated 30.09.2007 and he stated that after reading the publication
he doubted whether to buy Sun DTH or not and also whether Sun
Television Group of Companies followed all the rules and
regulations made in this regard. According to the learned
Additional Advocate General, the above said averments in the
complaint indicate that impugned news item has affected the
complainant’s property and trade. Learned Additional Advocate
General by relying upon explanation 2 to Section 499 of the
Indian Penal Code submitted that in respect of defamatory
imputations against a company, the complaint filed by the company
is valid as the company is the aggrieved person. Learned
Additional Advocate General further submitted that at this stage
it is not the function of this court to appreciate the evidence
or scope and meaning of the statement contained in the impugned
news item and further submitted that the Court has to read the
complaint as a whole and find out whether the allegations
disclosed constitute an offence under Section 499 of the Indian
Penal Code triable by the Magistrate and when the Magistrate
prima facie came to the conclusion that the allegations might
come within the meaning of ‘defamation’ under Section 499 of the
Indian Penal Code and had taken cognizance, this Court may not
embark upon weighing the evidence and come to any conclusion to
hold, whether or not the allegations made in the complaint
constitute an offence punishable under Section 500. Learned
Additional Advocate General in support of his above said
submissions relied upon the following decisions:-
(i) (1996) 6 Supreme Court Cases 263 (Shatrughna Prasad
Sinha v. Rajbhau Surajmal Rathi) wherein in paragraphs 10 and 13
it is observed as follows:
“10. Explanation 2 to the said decision envisages
that it may amount to defamation to make an
imputation concerning a company or an association
or collection of persons as such.
11. …
12. ….
13. As regards the allegations made against the
appellant in the complaint filed in the Court of
Judicial Magistrate, Ist Class, at Nasik, on a
reading of the complaint we do not think that we
will be justified at this stage to quash that
complaint. It is not the province of this Court
to appreciate at this stage the evidence or scope
of and meaning of the statement. Certain
allegations came to be made but whether these
allegations do constitute defamation of the
Marwari community as a business class and whether
the appellant had intention to cite as an
instance of general feeling among the community
and whether the context in which the said
statement came to be made, as is sought to be
argued by the learned Senior Counsel for the
appellant, are all matters to be considered by
the learned Magistrate at a later stage. At this
stage, we cannot embark upon weighing the
evidence and come to any conclusion to hold,
whether or not the allegations made in the
complaint constitute an offence punishable under
Section 500. It is the settled legal position
that a court has to read the complaint as a whole
and find out whether allegations disclosed
constitute an offence under Section 499 triable
by the Magistrate. The Magistrate prima facie
came to the conclusion that the allegations might
come within the definition of ‘defamation’ under
Section 499 IPC and could be taken cognizance of.
But these are the facts to be established at the
trial. The case set up by the appellant are
either defences open to be taken or other steps
of framing a charge at the trial at whatever
stage known to law. Prima facie we think that at
this stage it is not a case warranting quashing
of the complaint filed in the Court of Judicial
Magistrate, Ist Class at Nasik. To that extent,
the High Court was right in refusing to quash the
complaint under Section 500 IPC.”
(ii) (2001) 6 Supreme Court Cases 30 (John Thomas v. Dr.
K.Jagadeesan) wherein in paragraphs 11, 12 and 13 it is observed
as follows:
“11. …. It is not disputed that the complainant
is the Director of K.J. Hospital. Explanation 2 in
Section 499 IPC reads thus:
“Explanation 2 . – It may amount to
defamation to make an imputation concerning a
company or an association or collection of
persons as such.”
12 . In view of the said Explanation, it cannot be
disputed that a publication containing defamatory
imputations as against a company would escape from
the purview of the offence of defamation. If the
defamation pertains to an association of persons
or a body corporate, who could be the complainant?
This can be answered by reference to Section 199
of the Code. The first sub-section of that section
alone is relevant in this context. It reads thus:
“199. Prosecution for defamation .- (1) No
court shall take cognizance of an offence
under Chapter XXI of the Indian Penal Code (45
of 1860) except upon a complaint made by some
person aggrieved by the offence.”
13. The collocation of the words “by some persons
aggrieved” definitely indicates that the
complainant need not necessarily be the defamed
person himself. Whether the complainant has reason
to feel hurt on account of the publication is a
matter to be determined by the court depending
upon the facts of each case. If a company is
described as engaging itself in nefarious
activities its impact would certainly fall on
every Director of the company and hence he can
legitimately feel the pinch of it. Similarly, if a
firm is described in a publication as carrying on
offensive trade, every working partner of the firm
can reasonably be expected to feel aggrieved by
it. If K.J. Hospital is a private limited company,
it is too far-fetched to rule out any one of its
Directors, feeling aggrieved on account of
pejoratives hurled at the Company. Hence the
appellant cannot justifiably contend that the
Director of K.J. Hospital would not fall within
the wide purview of “some person aggrieved” as
envisaged in Section 199( 1) of the Code.”
(iii) AIR 1972 Supreme Court 2609 (referred to supra)
wherein in paragraph 14 it is observed as follows:
“14. …. But Explanation (2) to the section lays
down the rule that it may amount to defamation to
make an imputation concerning a company or an
association or collection of persons as such. A
defamatory imputation against a collection of
persons thus falls within the definition of
defamation. The language of the Explanation is
wide, and therefore, besides a company or an
association, any collection of persons would be
covered by it. But such a collection of persons
must be an identifiable body so that it is
possible to say with definiteness that a group of
particular persons, as distinguished from the rest
of the community, was defamed. Therefore, in a
case where Explanation (2) is resorted to, the
identity of the company or the association or the
collection of persons must be established so as to
be relatable to the defamatory words or
imputations.”
(iv) 1984 L.W. (Crl.) 104 (K.R.Karalan v. M/s. Southern
Roadways Ltd., wherein in paragraphs 3 and 5 it is observed as
follows:
“3. Alleging that the materials contained in the
posters were perse defamatory and harmed the
reputation of the complainant, Thiru Chandran,
Additional Executive officer of the complainant
Company, field the two complaints in question.
4. ….
5. …. Therefore, it follows that everyone who
belongs to the management of the group company
can be termed an aggrieved person. The company,
though a juridical entity, does not have a
physical or bodily existence in flesh and blood
an, such, only the Directors or the Managerial
staff or representatives of the company can
institute action on behalf of the company. In
this case, the clear averment in the complaint is
that Thiru Chandran, Additional Executive
Officer, who has filed the complaint has been
duly authorised by the Management of the company
to take appropriate legal action in regard to the
subject matter of the complaints and connected
legal matters. In the light of these factors,
there is absolutely no scope for the petitioner
to contend that the complaints have not been
preferred by an aggrieved person and
consequently, the complaints have been taken on
file in violation of the provisions of S.199 (1)
Crl.P.C.”
8. I have carefully considered the above said submissions
made by the learned counsel on either side, perused the materials
available on record and the decisions relied upon by the learned
counsel on either side.
9. A reading of the decision reported in A.I.R. 1935 Rangoon
108 (referred to supra) shows that the alleged libel must attack
the corporation in its method of conducting its affairs, must
accuse it of fraud or mismanagement, or must attack its financial
position and it cannot bring a prosecution for words which merely
affect its honour or dignity. The decision reported in AIR 1985
Bombay 229 (referred to supra) arose out of a suit filed by a
company seeking a decree for injunction alleging infringement of
copy-right. While considering the issues that arose for
consideration in that suit it is observed that if the imputations
is of such nature as to not only defame the individual, but also
injure the trading character of the commercial body of persons,
then both the individual as well as the commercial body will have
a cause of action to sue for defamation. This decision in the
considered view of this Court is not of any help to decide the
issue that arises for consideration in the above petition. In
the decision reported in AIR 1925 Calcutta 1121 (referred to
supra) the decision reported in (1893) 1 Q.B. 94 has been
referred to, wherein it has been laid down that a corporation may
sue for libel affecting property, but not for one affecting
personal reputation. The said decision is sought to be relied
upon by the learned counsel for the petitioner, which in the
considered view of this Court, is not applicable to the facts of
this case. In the decision reported in AIR 1969 Punjab &
Hariyana 150 (referred to supra) it has been held that a firm is
merely a compendious artificial name adopted by its partners and
is not itself a legal entity. By holding so the Division Bench
has held that libel or slander of a partnership firm may indeed
amount to defamation of its partners, but then it is the partners
who may in such an eventuality sue and not the firm. This
decision also is of no help in deciding the issue that arises for
consideration in the above petition. The decision reported in
(2006) 2 M.L.J. (Crl.) 105 (referred to supra) is not applicable
to the facts of this case as the facts of that case are totally
different. In the decision reported in AIR 1972 Supreme Court
2609 (referred to supra) after considering the provisions
contained in Section 198 of the Criminal Procedure Code it has
been held that the said Section lays down an exception to the
general rule that a complaint can be filed by anybody whether he
is an aggrieved person or not, and modifies that rule by
permitting only an aggrieved person to move a Magistrate in cases
of defamation and in the said decision Explanation (2) to Section
499 of the Indian Penal Code has also been considered and after
such consideration it has been held that in a case where
Explanation (2) is resorted to, the identity of the company or
the association or the collection of persons must be established
so as to be relatable to the defamatory words or imputations.
Therefore, a case for defamation in respect of imputations made
against a company can be filed but it has not been decided in
that case as to who can file the complaint namely whether the
company can file the complaint or its Directors alone can file
the complaint. Therefore in the considered view of this Court
the said decision is not helpful to decide the issue that arises
for consideration in the above petition. In the decision
reported in (1996) 6 Supreme Court Cases 263 (referred to supra)
also the question as to whether a company can maintain a
complaint by itself in respect of a defamatory statement made
against it has not been decided and as such the said decision is
also not helpful to decide the issue that arises for
consideration in the above petition. In the decision reported in
(2001) 6 Supreme Court Cases 30 (referred to supra) the issue
that came up for consideration before the Honourable Apex Court
is whether the Director of the company which has been defamed can
maintain a complaint, while considering that issue the Apex Court
has held as follows:
“If a company is described as engaging itself in
nefarious activities its impact would certainly
fall on every Director of the company and hence
he can legitimately feel the pinch of it.
Similarly, if a firm is described in a
publication as carrying on offensive trade, every
working partner of the firm can reasonably be
expected to feel aggrieved by it. If K.J.
Hospital is a private limited company, it is too
far-fetched to rule out any one of its Directors,
feeling aggrieved on account of pejoratives
hurled at the Company. Hence the appellant cannot
justifiably contend that the Director of K.J.
Hospital would not fall within the wide purview
of “some person aggrieved” as envisaged in
Section 199 (1) of the Code.”
Here again though it has been held that the Director of a company
can maintain a complaint in respect of a defamatory statement
made against a company the issue as to whether the company can
maintain a complaint for defamation in respect of a defamatory
statement made against the company has not come up for
consideration before the Apex Court. Therefore, this decision is
also not helpful to decide the issue that arises for
consideration in the above petition.
10. The decision reported in 1984 L.W. (Crl.) 104 (referred
to supra), as rightly contended by the learned counsel for the
petitioners, squarely applies to the facts of this case. In that
case, alleging that the materials contained in the posters were
perse defamatory and harmed the reputation of the complainant,
Thiru Chandran, Additional Executive officer of the complainant
Company, field the complaints stating that he has been duly
authorised to file the complaint. A contention was put forth by
the accused that the complaint filed by the company through its
Authorised Representative is not maintainable. While considering
the same, a Learned Judge of this Court has observed as under:
“The company, though a juridical entity,
does not have a physical or bodily existence in
flesh and blood an, such, only the Directors or
the Managerial staff or representatives of the
company can institute action on behalf of the
company. In this case, the clear averment in the
complaint is that Thiru Chandran, Additional
Executive Officer, who has filed the complaint
has been duly authorised by the Management of the
company to take appropriate legal action in
regard to the subject matter of the complaints
and connected legal matters. In the light of
these factors, there is absolutely no scope for
the petitioner to contend that the complaints
have not been preferred by an aggrieved person
and consequently, the complaints have been taken
on file in violation of the provisions of S.199
(1) Crl.P.C.”
11. The facts of the above said case are similar to the
facts of the case on hand. Therefore, the ratio laid down in the
said decision squarely applies to the case on hand, if that be
so, the contention of the learned counsel for the petitioners
that the company cannot maintain a complaint has to be rejected.
Since the above said decision has been rendered by a Learned
Judge of this Court, I am bound to follow the same, whereas the
decisions reported in A.I.R. 1935 Rangoon 108 (referred to supra)
and AIR 1925 Calcutta 1121 (referred to supra) are having only a
persuasive value and it cannot be considered that it is binding
on me.
12. Therefore for the reasons stated above, in the
considered view of this Court, the complaint filed by the
respondent is maintainable.
13. The contention of the learned counsel for the
petitioners that the company may maintain a prosecution or an
action for a libel affecting its property, but not for a libel
merely affecting personal reputation as a company has no
reputation apart from its property or trade is concerned, this
Court is of the considered view that since there are some
allegations in paragraph 8 of the complaint it is not the
province of this Court to appreciate at this stage the evidence
or scope of and meaning of the statement. At this stage this
Court cannot embark upon weighing the evidence and come to the
conclusion to hold, whether or not the allegations made in the
complaint constitute an offence punishable under Section 500 of
the Indian Penal Code. As laid down in (1996) 6 Supreme Court
Cases 263 (referred to supra) it is the settled legal
proposition that a court has to read the complaint as a whole and
find out whether the allegations disclosed constitute an offence
under Section 499 of the Indian Penal Code triable with the
Magistrate and the Magistrate, prima facie, has come to the
conclusion that the allegations might come within the meaning of
‘defamation’ under Section 499 of the Indian Penal Code and had
taken cognizance of, but these are the facts to be established at
the trial. The case set up by the petitioners are either
defences open to be taken or other steps of framing a charge at
the trial at whatever stage known to law. Prima facie this Court
is of the considered view that, at this stage, it is not a case
warranting quashing of the complaint filed before the Court
below. The contention of the petitioners, that in the impugned
publication there is no reference to the complainant, but there
is a reference only to ‘Sun DTH’ is concerned, it is for the
Court below to consider as to what meaning to be given to the
words “rd; FGkk;”.
14. Therefore this Court is not inclined to express any
opinion on this aspect of the matter, except to the limited
extent of saying that the Court below had not acted wrongly in
coming to the prima facie conclusion that the contents of the
impugned publication appeared to contain
defamatory material and therefore there was need to
take the complaint on file and issue process to
the accused. I am not going any further into this aspect of the
matter because the door must be open for the petitioners to raise
their contentions before the trial court that the contents of the
impugned publication is not perse defamatory and therefore they
cannot be convicted for an offence of defamation.
15. For the above said reasons, the above criminal original
petition fails and the same is dismissed. Consequently the
connected MPs are closed.
srk
To
The Metropolitan Magistrate Court XVII
Chennai.