Sunny Mekkattukulam v. State of Kerala and Appu Panicker

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **WEDNESDAY, THE 8[TH] DAY OF DECEMBER 2021 / 17TH AGRAHAYANA, 1943 CRL.MC NO. 3299 OF 2018** **AGAINST THE ORDER/JUDGMENT IN CC 206/2017 OF CHIEF JUDICIAL** ## **MAGISTRATE COURT, THRISSUR** ## **PETITIONER/ACCUSED:** SUNNY MEKKATTUKULAM MEKKATTUKULAM HOUSE, R.S WADAKKANCHERY P.O, THRISSUR. BY ADVS. SRI.THIYYANNOOR RAMAKRISHNAN SRI.ARUN KUMAR.P SMT.AMBIKA RADHAKRISHNAN ## **RESPONDENT/STATE/COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM 682 031. 2 APPU PANICKER AGED 76 YEARS, S/O. SREEDEVI AMMA,'TRIVENI', RAM NAGAR, POONKUNNAM VILLAGE, DESOM,THRISSUR TALUK, THRISSUR DIST. 680 505. BY ADV SRI.C.A.CHACKO SMT.SEENA C, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.12.2021, THE COURT ON 08.12.2021 PASSED THE FOLLOWING: Crl.M.C No.3299 of 2018 2 ## **SOPHY THOMAS, J.** ------------------------------------ Crl.M.C No.3299 of 2018 ------------------------------------ ## Dated this the 8[th] day of December, 2021 ## **O R D E R** The petitioner, who is the sole accused in C.C No.206 of 2017 on the files of the Chief Judicial Magistrate Court, Thrissur, filed this Crl.M.C to quash Annexure-5 order taking cognizance of the offence under Section 500 IPC and issuing summons against the petitioner. 2. The case of the petitioner is that the 2[nd] respondentde facto complainant filed Annexure-1 private complaint before the Chief Judicial Magistrate Court, Thrissur alleging that the petitioner and two other persons published a defamatory notice against him containing imputations lowering his reputation among his friends and relatives. 3. Learned Chief Judicial Magistrate, Thrissur recorded the sworn statement of the complainant and two witnesses and found that the petitioner herein (1[st] respondent) published defamatory statements against the complainant (2[nd] respondent herein) Crl.M.C No.3299 of 2018 3 adversely affecting his reputation. So, cognizance was taken for an offence punishable under Section 500 IPC as C.C. No.206 of 2017 and summons was ordered against the 1[st] respondent (petitioner herein). 4. The petitioner contended that even in the complaint, the enmity between the complainant and the petitioner is admitted by the complainant. The sworn statements of the complainant and his witnesses are not sufficient to attract the ingredients of Section 500 IPC. Though three persons were alleged to have involved in publishing the defamatory notice, the Chief Judicial Magistrate proceeded only against the petitioner. The doctrine of falsus in uno, falsus in omnibus is squarely applicable in this case. The alleged defamatory notice does not contain the name or signature of the persons responsible for the same. There is nothing to show that the petitioner herein was the author of that anonymous letter. So, according to him, the Chief Judicial Magistrate Court ought to have found that, the petitioner could not have identified as the author of the anonymous letter, so as to proceed against him under Section 500 IPC. So, he approached this Court to quash the proceedings against him in C.C No.206 of 2017. Crl.M.C No.3299 of 2018 4 5. Heard the learned Public Prosecutor as well as the learned counsel appearing for the petitioner and the 2[nd] respondent-de facto complainant. 6. Admittedly, the petitioner as well as the 2[nd] respondent-de facto complainant are shareholders of Divine Hospital at Wadakkancherry. From the complaint, it could be seen that there were some internal issues with respect to the hospital administration, and the de facto complainant was removed from the chairmanship of that hospital. The de facto complainant believes that the petitioner and his friends were behind his removal from the chairmanship. Subsequently, on 23.01.2016, the anonymous letter was sent in the bogus name of hospital authorities, defaming the de facto complainant, imputing serious allegations of misappropriation and misconduct against him. 7. Apart from the de facto complainant, his witnesses also stated before court that the letter was admitted to be sent by the petitioner and it was containing allegations against the de facto complainant, lowering his reputation in the public. 8. A copy of the anonymous letter was made available by the learned counsel for the petitioner, and it contains serious derogatory remarks against the de facto complainant, attacking Crl.M.C No.3299 of 2018 5 his personal as well as official conduct. Misappropriation of amounts with respect to the share of Divine Hospital, malpractices in purchase of office equipments etc. are imputed in the complaint. CW1- Sri.Sreenivasan, who is a friend of the de facto complainant, gave statement before the Chief Judicial Magistrate to the effect that he received the anonymous letter containing imputations against the de facto complainant, and the petitioner himself admitted before him that, it was sent by him. 9. 'Defamation' as defined under Section 499 IPC reads as under: “ **499.Defamation** .—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 expected, to defame that person...”. 10. The imputations made directly or indirectly, in the estimation of others, if it 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, Crl.M.C No.3299 of 2018 6 it will amount to defamation under Section 499 IPC. In the case in hand, the anonymous letter coupled with the testimony of the de facto complainant and CWs 1 and 2 will definitely go to show that there were imputations against the de facto complainant with respect to personal and professional conduct as the Chairman of the Divine Hosptial, Wadakkancherry, prima facie to enter into a finding that an offence under Section 500 IPC was made out, to take cognizance of the offence, and to issue summons against the offender. 11. Learned counsel for the petitioner would contend that Annexure-5 order of the Chief Judicial Magistrate, Thrissur is a cryptic one and it does not contain the details in order to attract the ingredients of an offence under Section 500 IPC. Issuance of process under Section 204 Cr.P.C is a preliminary step in the stage of trial. It does not mandate the Magistrate to explicitly state the reasons for issuance of the summons. For the issue of process against the accused, it has to be only seen whether prima facie case has been made out. The Magistrate is not required to go deep into the probative value of the material on record. The court is not required to determine the adequacy of the evidence or probability of the accused being guilty and the Magistrate is not Crl.M.C No.3299 of 2018 7 permitted to embark upon meticulous examination of the evidence or material. As it was held in _**Gulan Mohd. Kabir Mohd. Mir** vs._ _**State of Maharashtra**_ (2008 Crl.L.J 2426), the Magistrate has to apply his judicial mind to find out whether an offence under the provisions of IPC has been spelt out prima facie or not. At this stage, the defence of the accused is not the concern of the court, and it is only for the accused to appear, and then put his defence which is to be considered by the court at the time of framing of the charge. This Court could not find any illegality or impropriety in Annexure-5 order of the Chief Judicial Magistrate, Thrissur so as to invoke the inherent powers of this Court under Section 482 Cr.P.C. In the result, the Crl.M.C is dismissed and the stay order is vacated. Since the case is of the year 2017, the Chief Judicial Magistrate, Thrissur is directed to dispose C.C No.206 of 2017 pending on the files of that court without further delay, at any cost, not later than four months from the date of receipt of this order. Sd/- ## **SOPHY THOMAS JUDGE** smp Crl.M.C No.3299 of 2018 8 ## **APPENDIX OF CRL.MC 3299/2018** PETITIONER ANNEXURE |ANNEXURE|1:|THE TRUE COPY OF THE COMPLAINT IN| |---|---|---| |||CRL.M.P.3257/16 ON THE FILE OF C.J.M,| |||THRISSUR| |ANNEXURE|2:|TRUE COPY OF THE SWORN STATEMENT OF THE| |||2ND RESPONDENT / COMPLAINANT.| |ANNEXURE|3:|TRUE COPY OF THE STATEMENT OF CW1 -| |||SREENIVASAN.| |ANNEXURE|4:|TRUE COPY OF THE CHIEF EXAMINATION OF| |||CW2 - PRABHAKARAN.| |ANNEXURE|5:|CERTIFIED COPY OF THE ORDER ISSUING| |||SUMMONS AGAINST THE PETITIONER BY THE| |||CHIEF JUDICIAL MAGISTRATE IN| |||CRL.M.P.3257/2016 DATED 07/10/2017.| True Copy P.S to Judge smp