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CR.MA/13973/2009 1/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 13973 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
P
BALA BHASKARAN S/O V NARAYANAN NAIR - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
AD SHAH for
Applicant(s) : 1,
MR KP RAVAL, APP for Respondent(s) : 1,
None
for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 11/01/2010
CAV
ORDER
Petitioner
is the original complainant. He filed Enquiry Case No.47/09 before
the Court of Metropolitan Magistrate, Ahmedabad. The said complaint
came to be dismissed by the learned Magistrate by the order dated
16.1.09. Against the said order, the petitioner preferred Criminal
Revision Application No.51 of 2009 before the Sessions Court which
also came to be dismissed by the order dated 20th April
2009. These orders are under challenge in the present petition.
The
case revealed in the complaint is that the petitioner is a Charter
Holder from ICFAI Society which was established in the year 1984 as
a non-profit educational organization offering various programmes
at Bachelors and Masters level in Finance, Management and Technology
disciplines and is a member of the Council of Charter Financial
Anaylst (CFA for short). Only those members whose names are recorded
in the register of members of CFA are authorized to use designation
Chartered Financial Analyst. The complainant is working as Director
of ICFAI Business School at Ahmedabad.
It
is further stated that accused No.1 is the President and Chief
Executive Officer of CFA Institute. CFA Institute is awarding CFA
Charters in India. The Institute has recently changed its name with
malafide intention. Accused No.2 is the President of a body named
and styled as Indian Association of Investment Professionals having
its office at Mumbai.
As
per the complaint, on 12.02.07 accused for and on behalf of their
organization published a defamatory advertisement in English Dailies
Times of India and Economic Times against the society which news
item was circulated all over India. As per the complainant,
following portions of the said advertisement are defamatory in nature
:
The
Chartered Financial Analyst (CFA) designation from CFA Institute is
the only globally recognized CFA designation for financial
professional. However, the Institute of Chartered Financial Analysts
of India (ICFAI) offers and educational programme specializing in
finance, which they term the ‘CFA Programme’ and awards a title
called the CFA .
On
4th August 2006, the Delhi High Court recognized that CFA
Institute owns the exclusive rights to the CFA trademarks and that
continued use by ICFAI causes irreparable harm. The court ordered an
interim injunction requiring ICFAI to stop using the Chartered
Financial Analyst and CFA brand and to change its corporate
and CFA title names. Unfortunately, ICFAI has continued its
unauthorized use of our trademarks by running advertisements form an
ICFAI – sponsored University.
The
complainant has further stated that there is litigation between the
two sides and the accused could not have targeted CFA Chartered
Holders who were conferred such Charters prior to the orders passed
by the Delhi High Court as the said order is not final. It is stated
that intention of the accused is to harm the reputation of CFA
Charter Holders and such publication is therefore defamatory as the
order dated 4.8.06 of the Delhi High Court is only an interim order
against which appeal is pending.
The
learned Magistrate after examining few witnesses on behalf of the
complainant passed order on 16.1.09 and dismissed the complaint under
section 203 of the Criminal Procedure Code holding that no defamation
is established and the complaint appears to have been filed as a
counter-blast on account of the interim order passed by the Delhi
High Court.
The
learned Sessions Judge also found no reason to interfere in the
Criminal Revision Application making following observations:
10.
This court is of the considered opinion that when any publication
is made and it is required to be made, a plain reading of such
subject matter or publication should of such nature that a prudent
man will have an adverse effect in his mind about the reputation of
the institution. If any clarification is given in the advertisement
about the order of the court, this court hesitates whether it would
amount to a defamation.
Paragraph
3 used in the advertisement published in the Times of India on
12.2.2007 of course did not reproduce the order of the Honourable
High Court of Delhi, but it has informed that CFA owns the exclusive
right of using the word CFA as a trade mark. It is true that the
Honourable High Court of Delhi while disposing of the matter
No.CS(OS) No.1210/04 has restrained the defendants in using the word
as ICFA or ICFAI. However, in the interest of the student who were
enrolled with the institution of CFA will not effect the students
will the end of current academic sessions of the CFA.
Having
perused the material on record and having heard the learned counsel
for the petitioner, I see no reason to interfere. Counsel relied on
the decisions of the Apex Court in the case of M.N.Damani v.
S.K.Sinha, AIR 2001 SC 2037 and
in the case of John Thomas v. Dr.K.Jagadeesan,
2001 SCC (Cri.974). In the case on hand, however, I find that the
courts below correctly came to the conclusion that no case of
defamation has been made out. ‘Defamation’ is defined in section
499 of the Indian Penal Code as to mean 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
excepted, to defame that person. To establish defamation thus,
there must be words either spoken or intended to be read or by signs
or by visible representations makes or publishes any imputation
intending to harm or having reason to believe same will harm the
reputation of such person.
In
the present case, as already noted, the accused only published an
advertisement stating, inter alia, that the Court has ordered by an
interim injunction requiring IFCAI to stop using the Chartered
Financial Analyst and CFA brand and to change its corporate
and CFA title names and further that IFCAI has continued its
unauthorized use. As per the complainant, the further defamatory
statement is that CFA Institute is the only Institute globally
recognized CFA designation for financial professionals. However,
ICFAI offers education programmes which them as CFA programme.
To
my mind, the above statements cannot be stated to have been made
with an intention or knowledge to harm the reputation of any person.
The advertisement appears to be on the basis of an interim order
passed by the Delhi High Court. It seeks to convey two assertions on
behalf of the publisher (i) that CFA Institute is the only globally
recognized institute which
awards such designation and (ii) ICFAI is not authorized to do so
and despite injunction from the High Court of Delhi, it continues
to do so. Whether the accused are correct in making such assertion
is a matter not necessary for me to go into. The issues are pending
before the Delhi High Court. The same are stated to be at interim
stage. Suffice to say, mere assertion on the part of the accused
that CFA has the exclusive right to grant such designation and that
ICFAI doing so despite interim order from the High Court can in no
way be stated to be publication made either intending or having
knowledge that the same will harm the reputation of anyone.
In
the result, I see no merit in the petition and the same is hereby
dismissed.
(Akil
Kureshi, J.)
(vjn)
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