T.T. Kuriyakose v. State of Kerala and Varghese

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN FRIDAY, THE 14TH DAY OF DECEMBER 2012/23RD AGRAHAYANA 1934 Crl.L.P..No. 675 of 2012 --------------------------CC.838/2008 of J.M.F.C.-I, PERUMBAVOOR PETITIONER/COMPLAINANT: ---------------------- T.T. KURIAKOSE, S/O THOMA, THAIPARAMBIL HOUSE, KOMBANADU, PUTHUMANA. BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRA KRISHNAN ## RESPONDENTS/ACCUSED AND STATE: --------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH CORUT OF KERALA, ERNAKULAM. 2. VARGHESE, S/O PAILY, ATHIRAMPUZHA HOUSE, PUTHUMANA, KOMBANAD P.O R1 BY PUBLIC PROSECUTOR SMT.LALIZA.T.Y. THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 14-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J. -----------------------------------Crl.L.P.No.675 of 2012** ## **------------------------------------Dated this the 14[th] day of December, 2012** ## **ORDER** The complainant in a prosecution for the offence punishable under Section 500 of the I.P.C. is the petitioner herein who seeks leave of this Court to file an appeal against the judgment dated 27/07/2012 in C.C.No.838 of 2008 of the court of the Judicial Magistrate of the First Class-I, Perumbavoor by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. 2. The case of the complainant is that, he is a social worker and involved in various social activities and he has got good reputation in the society and among the general public. It is the further case of the complainant that the accused is a neighbour, who was the plaintiff in O.S.No.267 of 2000 before the Munsiff Court, Perumbavoor in which one Mathai and Paulose were Crl.L.P.No.675/2012 : 2 : defendants. According to the complainant, he was examined as one of the witnesses for the defendants as DW.2 in that case and the said suit was finally heard on 02/12/2006 and one Advocate Mr.Balachandran, who is examined as PW.2 in the present case, was appearing for the plaintiff therein. According to the complainant when PW.2 argued the above civil case at about 12.15 p.m. on 02/12/2006 and during the course of argument among others, he had made the following remarks. “It can be seen from deposition of DW.1 and DW.2 that DW.2 is the master brain behind all these disputes and he is trying to wreak vengeance against PW.1-who participate in a church proceeding against DW.2's illicit connection with the one Annakkutty”. It is also the case of the complainant that PW.2 submitted an argument note containing the very same remarks against DW.2. As I indicated earlier, DW.2 is none other than the complainant in the present case. According to the complainant, the remarks made by PW.1 during the Crl.L.P.No.675/2012 : 3 : course of the argument in the above mentioned civil suit is per se defamatory and the same was made with a view to tarnish the reputation of the complainant and the same was made as instructed by the accused and therefore the accused has committed the offence punishable under Section 500 of I.P.C. 3. After taking cognizance, process was issued and when the accused entered appearance after furnishing the necessary papers, the particulars of the offence were read over and explained and he pleaded not guilty. Thereafter PWs.1 to 4 were examined and EXts.P1 to P13 were marked from the side of the prosecution. The accused was questioned under Section 313 of Cr.P.C. No oral evidence was adduced from the side of the defence but Exts.D1 to D4 were produced. On the basis of the available materials and evidence and considering the rival pleadings, the learned Magistrate has formulated 4 points for its consideration among which the second point is whether the statement in Ext.P1 argument note and the Crl.L.P.No.675/2012 : 4 : statements made by PW.2 during the course of argument in O.S.No.267 of 2000 are defamatory. According to me, the findings of the court below on the above point has got a bearing with respect to the prosecution case, I am of the view that this Court need not go into the merits or demerits of the other findings of the learned Magistrate on the other issues. The learned Magistrate in his judgment has specifically found the said point against the complainant and in favour of the accused and the accused is acquitted. It is the above finding and order of acquittal that sought to be challenged for which the leave of this Court is sought for. 4. I have heard Sri.S.Rajeev, the learned counsel for the petitioner. 5. The learned counsel for the petitioner vehemently submitted that the marked portion in Ext.P1 argument note referred to by the learned Magistrate in his judgment will amount to defamatory and therefore the offence under Section 500 of I.P.C. is attracted. But the Crl.L.P.No.675/2012 : 5 : learned Magistrate erroneously held that the same will not amount to defamation. Even the learned Magistrate has observed that the accused has not taken any plea for exemption under 499 of I.P.C. Hence, according to the learned counsel, the accused has got no defence which will amount to admission of guilt. Thus the counsel submits that, if an appeal is entertained, there is every possibility to interfere with the findings of the court below and to reverse the order of acquittal and the petitioner is entitled to get leave as sought for. 6. I have carefully considered the arguments advanced by the learned counsel for the petitioner and I have carefully perused the judgment of the trial court. 7. In the light of the argument advanced by the learned counsel for the petitioner and in view of the findings of the court below based upon the available materials and evidence on record the question to be considered is whether the petitioner has succeeded in making out a prima facie case in support of his challenge Crl.L.P.No.675/2012 : 6 : against the findings of the court below and further question to be considered is whether the petitioner has succeeded in making out any compelling or substantial reason to interfere with the order of acquittal recorded in favour of the accused. 8. I have already referred to the portion that contained in Ext.P1 argument note which attempted to shown and proved as a defamatory statement alleged to have been made by the accused to lower the reputation of the complainant. For convenience the said alleged objectional portion of Ext.P1 is again quoted, which reads as: “It can be seen from deposition of DW.1 and DW.2 that DW.2 is the master brain behind all these disputes and he is trying to wreak vengeance against PW.1-who participate in a church proceeding against DW.2's illicit connection with the one Annakkutty”. Thus, on a close perusal of the above extract from Ext.P1 it can be seen that there is no factual averment against Crl.L.P.No.675/2012 : 7 : the complainant who is examined as DW.2 in O.S.No.267 of 2000 that he was having illicit connection with one Annakkutty referred therein. On a close scanning of the above statement it is crystal clear that the argument is to the effect that from the deposition of DWs.1 and 2 it can be seen that DW.2 is the master brain behind the dispute in O.S.No.267 of 2000 as well as other dispute and the imputation is that he was trying vengeance against PW.1 the plaintiff, since he participated in a church proceedings wherein the subject matter is the complainant’s illicit connection with one Annakkutty. So it is very specific that as rightly observed by the learned Magistrate the facts stated in Ext.P1 argument note the subject matter was the church proceedings and the accused was just mentioned regarding the pendency of such church proceedings wherein mentioned the subject matter of such church proceedings. Neither the accused nor his counsel in the argument note had attributed any allegation or stated any fact to the effect that PW.1 had Crl.L.P.No.675/2012 : 8 : illicit relation with any person or with one Annakkutty. That being the position, according to me, the findings of the court below is absolutely correct and the learned Magistrate is fully justified in his findings that the complainant has not succeeded in proving that the accused has made any defamation to lower the reputation of the complainant. Therefore, even if an appeal is entertained, I find not even a remote scope to interfere with the above findings of the court below. 9. In a recent decision of the Apex Court reported in **State of Rajasthan** v. **Darshan Singh @ Darshan Lal** (2012(4) Supreme 72), the Hon'ble Apex Court has held that, “In exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his Crl.L.P.No.675/2012 : 9 : innocence.” On examination of the facts and circumstances involved in the case, I am of the view that the petitioner has miserably failed to make out any prima facie case in support of his challenge against the findings of the court below and shows that the judgment sought to be impugned is a perverse one. The petitioner has also failed to make out any compelling reason, especially in the light of the above decision to interfere with the order of acquittal recorded in favour of the accused. Therefore, this petition is devoid of any merit and accordingly, the same is dismissed. Sd/- **V.K.MOHANAN, JUDGE** skj True copy P.A. to Judge