IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 620 of 2001()
1. HARSHAN
... Petitioner
Vs
1. P.V. PRABHAKARAN
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :SRI.DINESH MATHEW J.MURICKEN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :13/02/2009
O R D E R
V.K. MOHANAN, J.
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Crl. .Appeal No. 620 OF 2001
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Dated this the 13th day of February, 2009
JUDGMENT
Having failed in a prosecution for the offence
punishable under Section 500 of IPC, the complainant before this
Court by preferring the present appeal, as the court below
acquitted the accused under Section 255(1) of Cr.P.C.
2. The appellant, who is the complainant, is the
proprietor of Sreemon Gas Agency of Kodakara. According to
him, a letter to the Editor of ‘The Express’ a Malayalam daily news
paper published from Trichur, published letter written by the
accused in the issue of the said daily dated 19.2.1997. In the said
letter, it is stated that complainant who is the proprietor of gas
agency supplied gas cylinders after breaking the seal. It is also
alleged in the letter that the complainant is supplying gas in a
lesser weight. The letter also reads that because of the threat
from the gas agency nobody is intended to prefer the complaint
against the complainant and if anybody made complaint, the reply
to them was that they would not get gas thereafter. Thus, the
complainant approached the Court of the Judicial First Class
Magistrate II, Thrissur by filing a complaint for the offence under
Crl. Appeal. 620 of 2001
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Section 500 of IPC and after recording the sworn statement of the
complainant, complaint was taken on file as S.T. 1176/1997 for the
said offence. On appearance of the accused, substance of
accusation and particulars of offence were read over and
explained to the accused to which he pleaded not guilty, pursuant
to which the trial was further proceeded, during which PW1 to PW4
were examined on the side of the complainant and Ext.P1 to
Ext.P4 were marked as documentary evidence from his side. The
accused on questioning under Section 313 Cr.P.C. denied all the
incriminating circumstances which brought on evidence. The
defence set up by the accused is that he did not publish any news
item so as to defame the complainant and according to him he had
only complained against the illegal activities of the complainant
and a false complaint lodged against him. DW1 to DW3 were
examined from the side of the accused and Ext.D1 to Ext.D7 were
marked. After framing appropriate issues for consideration, the
trial court found that the accused has made imputation on the
character of business carried on in the complainant’s gas agency
and that publication was made in good faith for the protection of
the interest of the public good. Therefore, according to the court
below, imputation will not be defamation as defined under Section
Crl. Appeal. 620 of 2001
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499 of IPC. Finally the court below found that accused is not guilty
and accordingly he is acquitted under Section 255 (1) of Cr.P.C.
3. I have heard the learned counsel appearing
for the appellant as well as the respondent.
4. The learned counsel for the appellant
submitted that news published and contained in Ext.P4 is a
publication with malafide intention so as to defame the complainant
and contends of the same itself is false and the same incorporated
in the defamed article with view to malign the complainant. It is
also the case of the counsel for the appellant that if actually the
accused was interested and concerned with the public interest and
welfare, instead of the publication of the said article, he should
have approached other competent legal authorities. As he has no
bonafide and his only intention was to defame the complainant, he
had chosen to publish the article in a Malayalam daily instead of
approaching any of the such authorities stated above. According
to the learned counsel, the court below failed to take note of the
above facts and thus according to him the impugned order is liable
to be reversed and to convict the accused.
5. Per contra, the learned counsel appearing for
the the accused/respondent submitted that the trial court after
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considering the evidence and materials on record and after
appreciating the factual position came into a conclusion that the
letter contained in Ext.P4 daily is protected as per the first and
ninth exceptions under Section 499 of IPC. Therefore, according
to the learned counsel while exercising the appellate jurisdiction of
this court, the factual finding of the court below cannot be
interfered with.
6. I have carefully considered the contentions
of both the counsel for the appellant as well as respondent. The
only point to be considered is whether the letter published in
Ext.P4 is made with a malafide intention of defaming the
complainant and whether by publication of such clause an offence
will lie under Section 500 of IPC. Going by the contents in Ext.P4,
it can be seen that the crux of the allegation is something related
to the business of supply of gas cylinders through the concern of
the complainant and there is no allegation affecting the character
or reputation of the complainant. PW1 himself had admitted that
there is Legal Consumer Forum for the settlement or redressal of
grievance of the consumers of gas cylinders. The evidence of
Dw1 and Ext. D2 to D3 further supported by documentary
evidence such as Ext. D4 that there were complaints regarding the
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misuse of the licence and grievance of consumers with respect to
the supply of gas cylinders. Going through Ext. D6 letter it can
also be seen that the company itself is fed up with the complaints
against the complainant. It is also the admitted case of PW1 that
petitions are pending before the MRTP Commission against the
malfunction of the gas agency. The trial court after considering the
above materials and evidence on record came into the conclusion
that the imputation is saved by first and ninth exceptions to Section
499 of IPC. On the basis of the above finding, the trial court found
that the above letter was sent to the daily to protect the interest of
the consumers and the same was done in good faith. The above
finding of the court below is not liable to be interfered as I also
endorse same view.
7. In this juncture, it is also relevant to note that
by the order of acquittal in favour of the accused, the innocence of
the accused again reinforced by a competent court and the
appellant is miserably failed to point out that the court below is
overlooked any material in evidence in favour of the complainant.
The Apex Court in decision in Ghurey Lal Vs. State of U.P. [2008
(4) KLT S.N. 17 (C. No.17) S.C.] laid down that appellate court
can interfere with an order of acquittal. In the said decision it is
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also held that unless compelling and substantial grounds are made
out, the order of acquittal shall not interfere with. Following the
same dictum, Batcu Venkateshwarlu and Ors Vs. Public
Prosecutor of High Court of A.P (2009 (1) Supreme 67), the
Apex Court held that in a case of acquittal there is a double
presumption in favour of the accused and there must be
substantial and compelling reasons for holding that the trial court
was wrong. Going by the materials and impugned judgment, I find
no compelling and substantial reason to interfere with the order of
acquittal.
In the result, there is no merit in the appeal and the
same is dismissed accordingly.
V.K. MOHANAN, JUDGE
kmd