Jose Philip and Margret Jacob v. Muhammed Ali and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941** ## **Crl.MC.No.5624 OF 2014** **AGAINST THE ORDER/JUDGMENT IN CC 654/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS - VI, KOZHIKODE** ## **PETITIONERS/ACCUSED :-** **1 JOSE PHILIP AGED 65 YEARS S/O K.M. PHILIP, KANAYAMPLACKAL HOUSE, 9, JAYANTHI NAGAR COLONY, KULATHILKUNNU AMSOM & DESOM, KOZHIKODE-670032. 2 MARJRET JACOB AGED 68 YEARS W/O JOSE PHILIP, RETIRED COLLEGE LECTURER, KANAYAMPLACKAL HOUSE, 9, JAYANTHI NAGAR COLONY, KULATHILKUNNU AMSOM & DESOM, KOZHIKODE-670032. BY ADVS. SRI.JOSE KURIAKOSE (VILANGATTIL) SRI.GRASHIOUS KURIAKOSE (SR.)** ## **RESPONDENTS/COMPLAINANTS & STATE :** **1 MUHAMMED ALI AGED 58 YEARS S/O K.KOYATTI HAJI, MUKKUTTAJI HOSUE, NENMANDA AMSOM, KULATHOOR DESOM, KOZHIKODE TALUK, PIN:673 315. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. R1 BY ADV. SRI.K.M.FIROZ R1 BY ADV. SRI.S.KANNAN R1 BY ADV. SMT.M.SHAJNA R2 BY SRI.D.CHANDRASENAN -SR.P.P** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12-022019, THE COURT ON 12-11-2019 PASSED THE FOLLOWING:** **Crl.MC.No.5624 OF 2014** **2** ## **(C.R)** ## **ORDER** ## **Dated this the 12th day of November 2019** The petitioners herein has filed the present petition in order to quash the entire proceedings initiated on the strength of Annexure-A5 complaint in C.C.No.654/2014 on the files of the Court of Special Judicial First Class Magistrate (Marad Cases), Kozhikode. The second petitioner is the wife of the first petitioner. On 16.02.2010, an agreement was executed between the petitioners and the first respondent as per which the first respondent agreed to purchase the petitioners' property extending 5 ¾ acres of property for a consideration of Rs.14,90,000/per acre. The first respondent failed to pay the balance sale consideration and to perform his part of the agreement. In this connection, **Crl.MC.No.5624 OF 2014** **3** the respondent filed O.S. No. 878 of 2010 before the Sub Court, Kozhikode seeking a decree for refund of advance sale consideration of Rs.33,00,000/- from the petitioners. True copy of the plaint dated 03.11.2010 in O.S. No. 878/2010 before the Sub Court, Kozhikode is produced and marked as Annexure A1. The first respondent obtained an interim order of injunction restraining the petitioners from alienating the property and the same was later vacated. The said property was later sold to one Bava and Ali. The petitioners filed Annexure A2 written statement in February, 2011 by contesting the case. The first respondent and one Moideenkutty later created a false agreement dated 05.03.2011 purporting to have executed between the petitioners and one Moideenkutty by which the property is agreed to be conveyed to the said Moideenkutty for a consideration **Crl.MC.No.5624 OF 2014** **4** of Rs.10,90,000/- per acre. The petitioners who came to know about the creation of false documents forging the signature of the petitioners on 04.03.2012 is produced and marked as Annexure A3. On the basis of Annexure A3, the police registered Crime No. 56 of 2012 against the first respondent and Moideenkutty for offences punishable under Sections 406, 420, 468 and 471 read with Section 34 of the IPC. True copy of the said FIR in Crime No. 56 of 2012 of Kakkoor Police Station is produced and marked as Annexure A4. On 18.07.2013, the first respondent filed Annexure A5 private complaint before the Court of Special Judicial First Class Magistrate (Marad Cases), Kozhikode alleging that on 19.06.2013, during the course of hearing of O.S.No.878/2010 before the Sub Court, Kozhikode, the defence counsel read the FIR in Crime No. 56/2012 of Kakkoor Police Station **Crl.MC.No.5624 OF 2014** **5** and on its basis made some statement defaming the first respondent. According to the petitioners, the said allegation does not constitute an offence under Section 500 of IPC. 2. According to the petitioners, the learned Magistrate went wrong in taking case on file and issuing process to the petitioners. In fact, Annexure-A5 complaint was filed to harass the petitioners and it is an abuse of process of the Court. It was also submitted that Annexure-A3 is the petition submitted by the petitioners before the police, on the basis of which Annexure-A4 crime was registered and the same is under investigation. Annexure-A3 petition relates to the forgery of an agreement by the first respondent and another. There is absolutely nothing defaming the petitioners in AnnexureA3 and the reading of Annexure-A3 before the **Crl.MC.No.5624 OF 2014** **6** court of law by the petitioners' counsel did not amount to defamation also. Therefore, the petitioners have sought for quashing the entire proceedings initiated against them. 3. It was brought out that several cases are pending between the petitioners and the first respondent and it has also come out that O.S.No.878/2010 is pending before the Sub Court, Kozhikode as evidenced from AnnexureA1. In Annexure-A1 the first respondent is the plaintiff and defendants 1 and 2 are the petitioners herein. Annexure-A1 was filed in order to realise the amount just advanced to the petitioners at the time of execution of the agreement. The first respondent has filed a complaint before the Magistrate Court stating that the learned counsel for the petitioners has read loudly that "അന��യക�രൻ എന� ച�യ�ൻ മട�യ�ല�ത ആള�ച�ന� ആളകചള �ത�ച� വഞ�ച� **Crl.MC.No.5624 OF 2014** **7** എങചനചയങ�ല� പ�� സമ�ദ�കന ആള�ച�ന� വ�സവവ�രദമ�യ പസ�വനകൾ നടത� അന��യക�രചന അപക,ർത�ച.ടത� " and this was written in the FIR by Kakkoor Police Station in Crime No.56/12. 4. It is also read by the learned counsel for the petitioners that the first respondent has created a forged agreement putting false signature. So, according to the first respondent, the fact which was read loudly by the learned counsel for the petitioners would amount to defamation as it is spread among his relatives and it created a bad image among them. Further, it was alleged that as per the instruction of the petitioners, the Counsel for them has raised false allegations before the Court. Accordingly, the petitioners are alleged to have committed an offence punishable under Sections 499 and 500 of the IPC. **Crl.MC.No.5624 OF 2014** **8** 5. Now the question to be considered is whether the statement made before the concerned Judicial Magistrate Court will amount to 'defamation'. It has also argued by the learned counsel for the petitioners that FIR is public document. A reading of a public document before the Court of law will not be sufficient enough to initiate the proceedings under Section 500 of the IPC. 6. In _**Rajendra Kumar v. Sitaram Pande etc. v. Uttam and another**_ **(AIR 1999 SC 1028,** it has held that Exception 8 to Section 499 clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject matter of accusation 7. In fact, the counsel for the petitioners argued that case before Court of law during when he was read the contents of **Crl.MC.No.5624 OF 2014** **9** FIR is in order to establish the conduct of the first respondent and FIR is a public document. 8. In _**State of Haryana and Other v.**_ _**Ch.Bhahan Lal and others**_ [AIR 1992 sc 604], certain categories of cases were illustrated in paragraph 8.1, which inter alia reads thus: “where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not _prima facie_ constitute any offence or make out a case against the accused;” 9. The uncontrovated allegation made in the FIR or complaint and the evidences collected in support of the same do not disclose commission of any offence and make out a case against accused. **==> picture [383 x 12] intentionally omitted <==** arisen while civil suit is pending between parties. It is an admitted fact that civil suits are pending between the parties. So, the mere reading of the FI Statement recorded **Crl.MC.No.5624 OF 2014** **10** in a crime register against the first respondent by petitioner's counsel is not sufficient enough to take cognizance under Section 500 of IPC. 11. Further, it will come under Section 8 of the exception of Section 499 of the IPC. Moreover, it was argued by the learned counsel for the petitioners that the complaint itself is premature because only after getting acquittal of the charges levelled against him as per the Crime No.56/12, he can initiate the proceedings against the petitioners. From the complaint, it is quite clear that the FIR registered against the second respondent was read loudly by the petitioners' counsel before the Court of law. There is no allegation against the petitioners that they with a bad intention to defame the first respondent instigated his counsel to read the FIR loudly before court. According to the learned **Crl.MC.No.5624 OF 2014** **11** counsel for the petitioners, the counsel has read the contents of FIR only in good faith for the protection of the interest of the petitioners. The 'imputation' implies an allegation of a fact and not merely a term of abuse. It is proved that civil dispute is pending between the petitioner and the first respondent. The said suit was filed by the first respondent for realisation of advance amount from the petitioners. A crime was registered against the first respondent that he has forged the signature. Accordingly, crime was registered. Annexure A4 is the FIR. In order to defend the civil suit, the counsel for the petitioner has read the contents of FIR before court and it cannot be treated as to harm or diminish the reputation of the first respondent. Further, even if the contents in Ext.A3 was read before a court of law, it will be considered as a qualified **Crl.MC.No.5624 OF 2014** **12** privilege amounting to justifiable defence. Therefore, the cognizance taken by the concerned Magistrate is not correct and the same is liable to be quashed. 12. Further, the petitioners' counsel submitted that the judicial proceedings will come under the benefit of privilege. So, no action can be taken against the arguments advanced by the learned counsel for the petitioners. In the result, this appeal is allowed and the entire proceedings initiated against the petitioners in Annexure A5 complaint in C.C. the entire proceedings initiated against the No. 654 of 2014 on the files of the Special Judicial First Class Magistrate (Marad Cases), Kozhikode is hereby quashed. The petitioners are set at liberty. Sd/- ## **ANNIE JOHN, JUDGE** **RKM/SMA** **Crl.MC.No.5624 OF 2014** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE PLAINT DATED 3.11.2010 IN OS NO.878/2010 BEFORE THE SUB COURT, KOZHIKODE.** **ANNEXURE A2 TRUE COPY OF THE WRITTEN STATEMENT DATED FEBRAUARY 2011. ANNEXURE A3 TRUE COPY OF THE PETITION DATED 4.3.2012.** **ANNEXURE A4 TRUE COPY OF THE FIR IN CRIME NO.56/2012 OF KAKKOOR POLICE STATION. ANNEXURE A5 TRUE COPY OF THE PRIVATE COMPLAINT NO.CC654/2014 DATED 19.6.201 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRTATE COURT-VI, KOZHIKODE RECEIVED BY THE PETITIONERS.** ## **RESPONDENT(S)' ANNEXURES :- NIL** **//TRUE COPY//** **PA TO JUDGE** ## **SMA**