Mathew C. Thomas v. State of Kerala

Crl.M.C.3882/20 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 29[TH] DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA, 1943** ## **CRL.MC NO. 3882 OF 2020** **ST 3826/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,CHANGANACHERRY** ## **PETITIONER/SOLE ACCUSED** MATHEW C. THOMAS, AGED 57, S/O. LATE THOMAS, RESIDING AT CHETHIPUZHA HOUSE, MAMMOODU P,O, MADAPALLY VILLAGE, CHANGANASSERY TALUK, KOTTAYAM 686 536. BY ADVS. P.G.JAYASHANKAR KUM.P.K.RESHMA (KALARICKAL) SMT.REVATHY P. MANOHARAN SMT.STEFIN THOMAS SMT.AMRITHA SUBIN SHRI SANIN V.U. ## **RESPONDENT/PROSECUTION AND DE FACTO COMPLAINANT** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2 MATHEW JOSEPH C., AGED 53, S/O. LATE C.M. JOSEPH, RESIDING AT CHETHIPUZHA HOUSE, MAMMOODU P.O. MADAPALLY VILLAGE, CHANGANASSERY TALUK,, KOTTAYAM 686 536. Sr.PP RENJITH GEORGE SRI.MATHEW JOHN (K) SRI.MATHEW DEVASSI SRI.ABY J AUGUSTINE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 3.11.2021, THE COURT ON 29.11.2021 DELIVERED THE FOLLOWING: Crl.M.C.3882/20 2 **==> picture [44 x 11] intentionally omitted <==** Dated : 29[th] November, 2021 1. Crl.M.C has been filed to quash Annexure-A1 complaint in S.T.3826/2019 filed by the second respondent alleging commission of offence under Sections 499 and 500 of the Indian Penal Code, 1860. 2. Petitioner is the sole accused in S.T.3826/2019 on the file of Judicial First Class Magistrate Court-I, Changanassery. The case was registered upon a private complaint filed by the second respondent (hereinafter referred as the respondent). 3. According to the petitioner, he filed the complaint before the SHO, Thrikkodithanam police station to prevent the respondent from unilaterally fixing the boundary and obstructing him from sticking the postures and further seeking protection for life and property of the petitioner. Copy of the complaint filed before the SHO, Thrikkodithanam is produced as Annexure-B. The allegation in Annexure-A1 complaint is that the petitioner made defamatory statement in Annexure-A2 complaint and Annexure-A2 complaint passed to various officers and consequently created an adverse opinion about the respondent and family. It is also alleged that the respondent's brother who was present at the residence of the Crl.M.C.3882/20 3 respondent heard the contents of the complaint when the police officer read out the same as a part of their duty to inform the particulars of the complaint to the respondent. Further it is alleged that the petitioner circulated the copy of Annexure-A2 complaint and consequently the reputation of respondent was lowered. 4. According to the learned counsel for the petitioner, even if the entire allegations in the complaint is accepted as true, the petitioner is protected with the aid of Explanation 4 of Section 499 of the Indian Penal Code, 1860 (in short IPC) which specifically provides that in order to harm reputation of a person it is necessary that the imputation are directly or indirectly in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. 5. According to the petitioner, since there is no prima facie material produced from the side of the respondent to show that any of the police officers to whom the complaint alleged to have given or subsequently passed hands had a feeling of lowering the reputation of the respondent by reading the complaint. None of the police officers Crl.M.C.3882/20 4 - were examined during 202 enquiry proceedings neither they have been cited as witnesses, the learned counsel contends. 6. The learned counsel would also content that the petitioner is entitled for the protection of Exception 8 and 9 of Section 499 since the complaint was given to an SHO, an authorized person in good faith who has lawful authority to enquire about the same. He also claims that it was made in good faith for protection of his interest. 7. The learned counsel for the respondent on other other hand vehemently would contend that the learned Magistrate after conducting an enquiry issued process and the imputations in Annexure-A2, according to him, is defamatory. It is also his contention that the respondent is within his rights to file witness list so as to examine the police officials, if necessary. It is further contended that it has been specifically alleged in the complaint that the petitioner has served copies of the complaint before the grocery shops at Mammoodu. So there is no reason whatsoever to quash the complaint as sought for by the petitioner, the learned counsel contends. 8. From the above rival contentions, the following points emerge for consideration (I) Whether the petitioner is entitled for the protection of Explanation 4 to Section 499 ? (ii) Whether the petitioner is entitled Crl.M.C.3882/20 5 for the benefit of Exception Nos 8 and 9 of Section 499 IPC. 9. The defamatory imputation in Annexure-A2 is that the respondent is involved in several cases in connection with woman and is a person who has no respect for law. It is also alleged that because of his annoyance, wives of the brothers whose husbands are abroad left the residence and shifted residence. It is also alleged that the petitioner used to show unwelcome gestures and sexually coloured remarks and that is his usual entertainment. I am not making any remarks about the above imputation since no argument in that regard is advanced before me. 10. Explanation 4 to Section 499 IPC provides that, - no imputation is said to harm a person unless that imputation directly or indirectly in the estimation of others lowers the morale or intellectual character of that person. That is one of the main argument advanced by the learned counsel. According to the petitioner, none of the police officials to whom the complaint was given was examined prima facie to establish that by reading the complaint, they felt that the reputation of the respondent is lowered. It is also contended that the respondent tried to establish the lowering of reputation of himself and family by alleging that a police officer who came to serve the summons, read out the contents and thereby the persons assembled Crl.M.C.3882/20 6 there, had a feeling of lowering the reputation of the respondent. But according to the petitioner he has not instructed the police officer to read over the contents while serving the summons and hence if at all any such act was made by the police officer who went for serving the summons with the copy of the compliant, he cannot be held liable for the same. 11. The learned counsel for the petitioner in this context relied on **Jose Philip and Another v. Muhammed Ali and Another (2020 KHC 28)** which was a proceeding for quashing criminal proceedings initiated under Sections 499 and 500 IPC. Allegation in the complaint was that during the course of hearing in a Civil Suit between the parties, the defence counsel read the FIR before the Court of law containing the alleged defamatory imputations. But here the allegation is entirely different. The alleged imputation against the accused in that case also is entirely different and it is to the effect that the complainant is a person upto to do anything and is a man who has amassed wealth by cheating people by any means. It is to be noted that the case was registered under Sections 406, 420, 468 and 471 r/w 34 IPC against the person concerned in that case. So the fact situation of that case has no similarity to the case in hand. But at the same time, as far as the service of summons in a criminal case is Crl.M.C.3882/20 7 - concerned, Chapter VI of the Code of Criminal Procedure deals with the procedure. Section 62 of the Code provides the mode of service of summons. Sub-section (2) of Section 62 only provides that the summons shall be served personally on the person summoned or by delivering or tendering to him by one of the duplicates of the summons. So there is no procedure prescribed for reading out the contents in the complaint by a serving officer while serving the summons. 12. However, in this case apart from the above there is specific allegations in Annexure-A1 complaint that the petitioner served copies of the complaint before the grocery shops at Mammoodu. During enquiry under Section 202 also, the witnesses had given statements to that effect. So apart from the fact that the defamatory matters have been read aloud by the police officer while serving the summons, there are also other allegations regarding the circulation of that notice in the nearby grocery shop and the person assembled there and also uttering of those words on seeing the respondent there by the petitioner. 13. To meet the contention of the learned counsel that none of the police officials have been cited as witness, the learned counsel for the respondent would contend that the respondent has got ample time to Crl.M.C.3882/20 8 file additional witness list before the proceedings under Section 204(4). 14. In this context the learned counsel for the respondent brought to my attention to **Maniyani v. State of Kerala (1979 KLT 183)** wherein while dealing with Section 204(2) of the Code it has been held that at the time of filing the complaint it is not necessary that a separate schedule or list of prosecution witnesses should be filed along with the complaint, and Section 204(2) of the Code only provides that no summons or warrant shall be issued against the accused under Sub section (1) until a list of prosecution witnesses has been filed. So it is not necessary that in the complaint or a list of witness filed along with the complaint, he should disclose the name of the witnesses. But section 204(2) mandates that no summons or warrant shall be issued against the accused under sub section (1) until a list of prosecution witnesses has been filed. So according to the learned counsel, now the petitioner when approaches this court to quash the complaint itself, the time to furnish additional witnesses list from the side of the respondent is not exhausted and hence he can very well avail that opportunity before the stage comes at 204 (2) of the Code. However in this case, the case is seen to have been taken on file and summons has been issued to the petitioner and Crl.M.C.3882/20 9 - S.T.number has also been allotted to the case. 15. Petitioner approached this Court for quashing complaint. In view of the prima facie materials brought in from the side of the respondent by the examination of the complainant and the witnesses, it cannot be found at this stage that the petitioner can claim the benefit of Exception 4. 16. According to the learned counsel for the petitioner the complaint filed to a police officer will come within the 8[th] Exception of Section 499 since it has been given by him in good faith to an authorized person. In this context, the learned counsel relies on **Janardhana Reddy v. A.Narayana Reddy and Ors (MANU/KP/0699/2009).** In paragraph 7 of that decision, quoting Rajendra Kumar Sitram Pande and Ors v. Uttam and Anr. (1999 (CrlLJ) 1620 = AIR 1999 SC 1028), it has been held that issuing process against the accused for the offence punishable under Section 499 punishable under Section 500 of the Indian Penal Code can be questioned in higher Courts and the Apex Court quashed the proceedings relating to prosecution of such a case by applying Exception 8 to section 499. 17. In the aspect of claiming of benefit of Exception under Section 499, the learned counsel also relies on **Vedurumudi Rama Rao v.** Crl.M.C.3882/20 10 **Chennuri Venkat Rao (1997 CriLJ 3851).** In that decision also, the benefit of Exception was taken into account while quashing the proceedings in a prosecution under Sections 499 and 500 IPC. That is on the aspect that even if the allegations made in the complaint are taken to be true, the offence under Section 500 is not made out since Exception 9 is squarely applicable. But on going through the facts of that case, it is seen that it was in relation to the issue of an official memorandum by the Regional Manager of Bank issuing confidential circular to the Branch Managers to the effect that they should be vigilant while dealing with the complaint and others mentioned therein in their business transactions. 18. **Rajendra Kumar Sitram Pande and Ors v. Uttam and Anr. (1999 (CrlLJ) 1620 = AIR 1999 SC 1028)** was also brought to my attention. In that decision the question mainly arose was about the maintainability of a revision against an order of issue of process under Section 204 Cr.P.C. That was also a complaint filed under Sections 499 and 500 IPC. In that case also, the question arose whether reading the complaint and report of Treasury Officer which was obtained pursuant to an order of the Magistrate under sub-section (1) of Section 201 can be said that a prima facie case exists for trial or Exception 8 to Section 499 clearly applies and in such case, calling upon the accused Crl.M.C.3882/20 11 to face trial would be a travesty of justice. The allegations in that complaint was that accused persons made a complaint to the Treasury Officer containing false imputations to the effect that the complainant in that case had come to the office in a drunken state and abused the Treasury Officer, Additional Treasury Officer and the Collector and circulated in the office in filthy language and such imputation had been made with the intention to cause damage to the reputation and service of the complainant. The Magistrate in order to ascertain the correctness of the averments called upon the Treasury Officer to hold an enquiry and submit a report. The question for consideration was whether the allegations in the complaint along with the report of the Magistrate would come under Section 500 or not? In that context, it was held that Exception 8 of 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. It was also taken into account that the report of the Treasury Officer clearly indicates that pursuant to the report made by the accused persons against the complainant, a departmental enquiry had been initiated that the complainant was found to be guilty. In such circumstances, it was found that the fact that the accused persons made a report to the Crl.M.C.3882/20 12 superior officer of the complainant alleging that he had abused the Treasury officer in a drunken spirit which is the gravamen of the present complaint and nothing more would be covered by Exception 8 to Section 499 of IPC. In such circumstances the order of the Sessions Judge questioning the criminal proceedings was upheld and quashed the criminal proceedings. 19. It is true that in the above cited decision, the Apex Court sought in aid of Exception 8 to Section 499 by taking into account the fact that the complaint was filed by the accused persons in that case to the person who have lawful authority over the person with regard to the subject matter of accusation. The complaint was that the accused persons made a false complaint to the Treasury Officer containing false allegations that the complainant come to the office in a drunken state and abused Treasury Officer thereby committed the offence punishable under Section 500 r/w 34 IPC. So the facts and circumstances of the above case is different from the case in hand. However, benefit of exception was resorted to for quashing the proceedings. 20. In this context the learned counsel for the respondent brought to my attention **Balraj Khanna and Others v. Moti Ram (1971 SCC (cri) 647 = AIR 1971 SC 1389 = 1971 KHC 660)** wherein Crl.M.C.3882/20 13 while dealing with Sections 499 and 500 IPC, it has been held that the question of application of Exception to Section 499 IPC does not arise at the stage of 202 enquiry proceedings. That was a case in which Magistrate dismissed the complaint on the ground that there is no evidence on record as to which of the appellant made which allegation against the respondent and in the absence of such an immortal ingredient, no prima facie case against any of the appellant can be said to have been made out. The reasoning of the trial Magistrate giving effect to Exception to Section 499 IPC was also deprecated and it has been held that the question of application of Exception to Section 499 IPC does not arise at that stage. It was held that the question of applicability of Exception to Section 499 as well as all other defence that may be available to the appellant will have to be gone into during the trial of the complaint. So the law laid down earlier by a co-equal Bench of the Apex Court will hold the field as per the settled position in **National Insurance Company Ltd v. Pranay Sethi and Others (AIR 2017 SC 5157 = 2017 (16) SCC 680 =** **2017 (4) KLT 662)** . So the petitioner cannot claim the benefit of the Exception 8 and 9 of Section 499, at this stage. 21. Learned counsel for the respondent produced copy of the judgment of Munsiff Court in O.S.325/2017 which was a suit for Crl.M.C.3882/20 14 damages. Relevancy of the same is left open to be decided by the trial court as per Sections 40 to 43 of the Indian Evidence Act, 1872. 22. In the result, Crl.M.C stands dismissed. Sd/- M.R.Anitha, Judge Mrcs/20.11. Crl.M.C.3882/20 15 ## **APPENDIX OF CRL.MC 3882/2020** PETITIONER ANNEXURE ANNEXURE A1 A CERTIFIED COPY OF THE COMPLAINT CMP NO. 3783 OF 2017 FIELD BY THE DE FACTO COMPLAINANT. ANNEXURE A2 A TRUE COPY OF THE COMPLAINANT DATED 21.03.2016 FILED BY THE PETITIONER BEFORE THE THRIKKODITHANAM POLICE STATION, AGAINST THE DEFACTO COMPLAINT ANNEXURE A2(A) A TRUE TYPED COPY OF ANNEXURE A2.