IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 912 of 2004()
1. ELIZEBATH GEEVARGHESE, W/O.GEEVARGHESE,
... Petitioner
2. GEEVARGHESE @ KUNJUMON, KAITHAVANA,
Vs
1. STATE OF KERALA, REP. BY ITS
... Respondent
2. JOICE BABU, KAITHAVANA, ANGADICKAL
For Petitioner :SRI.V.PHILIP MATHEW
For Respondent :SRI.SAJJU.S
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :11/07/2008
O R D E R
M.C. HARI RANI,J
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CRL.M.C. NO. 912 OF 2004
============================
DATED THIS THE 11TH DAY OF JULY 2008
ORDER
The Crl.M.C.is filed by the accused in C.C.No.611/2003 on the
file of the Judicial First Class Magistrate Court, Adoor. Brief facts of
the case are as follows:
2. Petitioners 1 and 2 herein are accused Nos.1 and 2
respectively in C.C.No.611/2003. The first petitioner is the wife of the
second petitioner. Second respondent is the wife of the brother of the
second petitioner. Petitioners are employed in South Africa. During
January 1999, the first petitioner was admitted in Medical Mission
Hospital, Thiruvalla from 7-1-1999 to 22-1-1999. Before returning to
South Africa, the first petitioner entrusted certain gold ornaments to
the second respondent for keeping in safe custody. The second
respondent did not return the gold ornaments when the petitioners
came back to Kerala, inspite of repeated requests. Hence, the
petitioners suffered a loss of Rs.25,000/- for which the first petitioner
filed a private complaint dated 11-1-2002 before the Judicial First
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Class Magistrate Court, Adoor against the second respondent alleging
commission of offence under Section 406 of the Indian Penal Code, a
copy of which is produced as Annexure-I, which was referred to police
under Section 156(3) of the Code of Criminal Procedure and Crime
No.14/2002 of Koduman Police station was registered against the
second respondent. Copy of the F.I.R. is produced as Annexure-2.
The police, after investigation, filed a refer report 62/02 before the
Judicial First Class Magistrate Court, Adoor. Thereafter, the first
petitioner filed a protest complaint dated 20-1-2003 against the refer
charge, copy of which is produced as Annexure-3. After filing the refer
report, the second respondent filed a complaint dated 30-11-2002 and
C.M.P.No.16370/2002 against the petitioners before the Judicial First
Class Magistrate Court, Adoor alleging that petitioners filed a false
complaint against her and also told to several people that second
respondent misappropriated gold. According to the second
respondent, her goodwill and moral status were affected. The second
respondent alleged that the petitioners committed offences under
Sections 499,500 and 501 read with Section 34 of the Indian Penal
Code. Copy of the complaint dated 30-11-2002 is produced as
Annexure-4. Copies of the sworn statement of the second respondent
CRL.M.C.NO. 912/2004 -3-
and others are produced as Annexures 5,6 and 7. The learned
Magistrate has taken cognizance of the offences and C.C.No.611/2003
has been taken on the file of the Judicial First Class Magistrate Court,
Adoor against petitioners/ accused 1 and 2 respectively. Thus the
allegation against the petitioners in Annexure-4 is that they defamed
the second respondent by filing Annexure-1 complaint regarding
misappropriation of gold ornaments and spread news about it among
the villagers. It is alleged in this petition that Annexure-4 complaint
has been filed by the second respondent against petitioners 1 and 2
malafidely to harass and to wreak vengeance against them with the
attempt to see that the petitioners are prevented from return to India
so as to avoid legal proceedings against the 2nd respondent. The
petitioners are taking steps to pursue the protest complaint,Annexure-
3, filed by them against the refer report 62/2002. In the
circumstances, this petition is filed by petitioners 1 and 2 under
Section 482 of the Code of Criminal Procedure with the prayer to
quash Annexure-4 and all further proceedings pursuant thereto
including the proceedings in C.C.No.611/2003 on the file of the Judicial
First Class Magistrate Court, Adoor.
2. Heard the learned counsel appearing for the petitioners, the
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second respondent and the learned Government Pleader.
3. It is submitted by the learned counsel appearing for the
petitioners that even assuming the allegations in the complaint,
Annexure-4, is correct, it will not constitute an offence under Section
499 of the I.P.C.for the reason that the exact nature of words were
not extracted and no proceedings can be initiated against the
petitioners. It is also submitted that the proceedings were initiated
against the second respondent herein in good faith and the same was
referred by the police after investigation. Hence, the petitioners are
entitled to get the benefit of 8th exception to Section 499 as the
accusation was made by them before a court of law in good faith.
The learned counsel for the petitioners has stated that the
petitioners are taking steps to pursue the protest complaint,
Annexure-3 dated 20-1-2003 filed by them.
4. According to the learned counsel appearing for the second
respondent, a frivolous complaint, Annexure-1 was filed against the
second respondent which was referred by the police after investigation
as revealed from the refer report. It was in such circumstances, the
second respondent filed the complaint, Annexure-4 before the Court of
Judicial First Class Magistrate Court, Adoor against the petitioners
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herein. It is also submitted by the learned counsel appearing for the
second respondent that the prayer in this petition to quash Annexure-
4 may not be allowed.
5. Whether an offence under Section 499 I.P.C. has been made
out in the complaint, Annexure-4 against the petitioners herein and
whether the statements in the complaint, Annexure-1 were made by
the first petitioner against the second respondent in good faith
etc.have to be decided on the facts and circumstances of the case after
evaluating the evidence adduced by the parties. Proof of exception to
Section 499 as claimed by petitioners herein will arise only when the
offence is established. It is the exception that takes away the act
from the purview of the penal provision and makes it not an offence.
Burden is on the accused to prove the benefit of any exception which
takes away his act from the penal provisions. It is within the powers
and functions of the Magistrate during trial to evaluate the evidence
and decide whether any of the exceptions are attracted. The party
who gets defeated in that respect must have the opportunity to
challenge that finding in the appropriate forum. The functions and
powers of the Magistrate in that respect cannot be usurped by this
Court in exercise of the inherent powers especially when the
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availability of the exception itself is in dispute and the matter requires
evidence. As regards the allegations made against the petitioners in
the complaint before the court of Judicial First Class Magistrate,
Adoor, a copy of which is produced as Annexure-4, on a reading of it,
I do not think that it will be justified at this stage to quash the
complaint as prayed for in this petition. At this stage, I 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 I.P.C. It is the settled legal
position that a court has to read the complaint as a whole and find out
whether the allegations disclosed therein constitute an offence under
Section 499 triable by the Magistrate. The Magistrate after taking
sworn statement of the complainant and others, prima facie, came to
the conclusion that the allegations might come within the definition of
“defamation” under Section 499 of the Indian Penal Code and could be
taken cognizance of and initiated proceedings against the petitioners
herein in C.C.No.611/2003. But these facts are to be established at
the time of trial and to be decided after evaluating the evidence
adduced by both parties. In the circumstances, I find that at this
stage, it is not proper to quash the complaint,Annexure-4, and further
CRL.M.C.NO. 912/2004 -7-
proceedings in C.C.No.611/2003 on the file of the Judicial First Class
Magistrate Court, Adoor by exercising the inherent jurisdiction under
Section 482 of the Code of Criminal Procedure and this petition is
liable to be dismissed.
In the result, the Crl.M.C.is dismissed.
M.C. HARI RANI
JUDGE
ks.