Rameshwar Vidhyram Agrawal vs R.I. Borade And Anr.
2002 Latest Caselaw 423 Bom

JUDGMENT

V.K. Barde, J.

1. This appeal is filed against the judgment and order of acquittal recorded by the learned Judicial Magistrate, First Class, Sillod, in Summary Case No. 107 of 1990. The present Appellant filed the complaint before the learned Judicial Magistrate. He alleged that he was the owner of Hotel Naresh located at Sillod abutting Jalgaon - Aurangabad Highway, while the accused, present Respondent No. 1 is the publisher of the Fortnightly Newspaper Suraksha Sandesh. In the issue dated 16.2.1990, the accused published a news item on the first page of the issue and that caused defamation of the complainant and, therefore, the complaint for offences punishable under Sections 500 and 501 of the Indian Penal Code was filed.

2. The learned Judicial Magistrate, after recording the evidence of the complainant and his witness and after examining the accused under Section 313 of the Code of Criminal Procedure, came to the conclusion that the complainant failed to prove his case and, therefore, acquitted the accused, the present Respondent No. 1, of both the offences.

3. The complainant examined himself and has examined one witness Bhaskar Raghunath Prashed in support of his case. The complainant has contended that on 26.1.1990, the accused and the witness Bhaskar carne to his hotel at about 10.30 to 11 a.m. to take tea. The accused then demanded Rs. 2.000/- from the complainant as a help for the newspaper he was publishing and for giving an advertisement of his hotel in the newspaper. But the complainant denied to place any advertisement in his newspaper and to pay Rs. 2.000/-. Being aggrieved by this denial in the issue dated 16.2.1990, the accused published the news item. The details of the news item are given in the complaint, as well as the issue dated 16.2.1990 is produced on record. For the purposes of this judgment, it is not necessary to go into the details of the news item.

4. The accused has not denied that he is the publisher of the newspaper Suraksha Sandesh and he has also not denied that there was news item in its issue dated 16.2.1990. The stand of the accused is that the hotel of the complainant is not the only hotel situated on that road and, therefore, it cannot be said that the news item specifically refers to the hotel of the complainant and to the complainant. It is also the stand taken by the accused that as he had published the news in the newspaper regarding father of the complainant, a false case is filed against him.

5. The learned Counsel for the Appellant has contended that the complainant has proved the entire case against the accused, but the learned Magistrate has erred in appreciating the evidence and also erred in appreciating the statement made by the accused under Section 313 of the Code of Criminal Procedure, The witness, Bhaskar, is examined to prove that on 26.1.1990, the accused and Bhaskar had been to the hotel of the complainant and the accused made a demand of Rs. 2.000/- and asked the complainant to place an advertisement in his newspaper. The complainant refused that and then there was altercation between the complainant and the accused. The learned Magistrate has observed in his judgment that a notice was issued by the complainant to the accused before filing the complaint and in that notice, there was no reference to the visit made by the accused to the hotel on 26.1.1990 in the company of witness Bhaskar and, therefore, this aspect of the case cannot be held to be proved.

6. The learned Counsel for the complainant submitted that the notice was not essential under the law for filing the complaint for offence under Section 500 of the Indian Penal Code. So, if there is any omission in the notice regarding the fact of visit of the accused on the relevant date, that will not be a ground to hold that whatever evidence is being led in this respect is not believable. It is true that notice is not essential before filing the complaint for offence under Section 500 of the Indian Penal Code. The complainant was asked as to why this incident dated 26.1.1990 was not mentioned in his notice and he answered that he cannot state as to why it was not mentioned. The learned Magistrate has observed that, therefore, this incident dated 26.1.1998 is an afterthought.

7. The incident dated 26.1.1990 is given only by way of a background for publishing the news. This has no material impact on the importance of the contention that the news item published in the issue dated 16.2.1990 was defamatory to the complainant. The complainant has taken the stand that as there was denial to pay Rs. 2,000/-, this news was published. Even if there had been no such incident as stated on 26.1.1990, the news, if it really refers to the complainant, would amount to defamation of the complainant. So, the issuance of the notice or the absence of mention of the incident dated 26.1.1990 in the notice may not be a vital point to be considered. The evidence as given by the witness Bhaskar has not been accepted by the learned Magistrate to hold that any such incident had taken place on 26.1.1990.

8. The main question is whether the news in issue dated 16.2.1990 refers to the complainant and his hotel. It must be specifically stated that in the news item, there is no direct reference either to the hotel of the complainant or to the complainant. It only refers to one posh hotel situated on the road Jalgaon - Aurangabad and then there is a reference to the owner of the hotel. So, the news item is not directly referring to the hotel of the complainant or to the complainant. In such circumstances, the burden is on the complainant to prove that the news item refers to his hotel and to himself. Unless that is proved, it cannot be said that the accused caused defamation of the complainant.

9. The learned Counsel for the Appellant, therefore, has relied on the question No. 5 put to the accused in his statement under Section 313, of the Cr.P.C. and the answer given to that question by the accused. The question and answer read as follows :

0.5: It is further in his evidence that on 16.2.1990 you published defamatory matter in your newspaper on front page in order to defame him in the. business and society and due to said news he was disturbed and it caused damages in business and lost his mental peace. What have you to say about it?

Ans : It is true.

10. The learned Counsel for the Appellant has argued that by giving the answer. "It is true", the accused has admitted the entire prosecution case. He has admitted that the news item was published on 16.2.1990. It was defamatory and that it was published with an intention to defame the complainant and it really caused defamation of the complainant. He has, therefore, relied upon the ruling of the Apex Court in the matter of State of Uttar Pradesh v. Lakhmi. It is observed by Their Lordships in paragraph 8 that if an accused admits any incriminating circumstances appearing in evidence against him, there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy.

11. The learned Counsel for the Appellant has argued that the admission so given in this matter by answering question No. 5 was not even by way of a defence strategy, but it was a clear admission of an incriminating circumstance and, therefore, the learned Magistrate ought to have taken into consideration the answer given to question No. 5 and ought to have convicted the accused.

12. The learned Counsel for Respondent No. 1 accused has argued that the question No. 5 itself is most defective. It is one composite question putting different circumstances in one question and, therefore, the answer given cannot be considered as admission given to different circumstances mentioned in the question. The accused might have been confused with the question and he answered it only with reference to the first part of the question that the news items was published in the issue dated 16.2.1990 In the newspaper published by the accused. There is no denial regarding publishing of the news item in the issue dated 16.2.1990 and for that limited purpose, the answer is to be taken into consideration. It is the contention of the learned Counsel for the accused, Respondent No. 1, that each circumstances appearing against the accused must be put to the accused separately in the statement recorded under Section 313 of the Cr.P.C. One composite question will not serve the purpose of the examination of the accused under Section 313 of the Cr.P.C.

13. In this respect, it is worth to refer to the judgment of the Apex Court in the matter of Rama Shankar Singh and Ors. v. State of West Bengal . Their Lordships observed in paragraph 14 as follows :

...Each question must be so framed that the accused may be able to understand it and to appreciate what use the prosecution desires to make of the evidence against him. Examination of the accused under Section 342 (old Cr.P.C.) is not intended to be an idle formality, it has to be carried out in the interest of justice and fair play to the accused.

Their Lordships also referred to the rulling of the Apex Court in Ajmer Singh v. State of Punjab and have quoted with approval the observations made in trie said judgment, wherein it was observed that the accused must be questioned separately about each material circumstances, which is intended to be used against him.

14. The learned Counsel for Respondent No. 1 has pointed out that in question No. 5, different circumstances are put together, first, that the news item was published in the issue dated 16.2.1990; second, that it was defamatory; third, that it was published in order to defame the complainant and that it really defamed the complainant and caused him damages in business and lost his mental peace. All different circumstances are put together and the answer given is, "it is true". So, this answer is referring to the mere publication of the news item.

15. I find much substance in the argument advanced by the learned Counsel for Respondent No. 1. The question No. 5 is one composite question putting different circumstances and, therefore, it is misleading. The accused, no doubt, gave the answer that, "it is true", but that does not mean that the accused has admitted all the four ingredients mentioned in the question.

16. While taking into consideration the statement made by the accused under Section 313 of the Cr.P.C. with reference to a particular question, it is necessary to take into consideration the defence of the accused and the entire import of the whole of the statement under Section 313 of the Cr.P.C. A solitary answer to a vague question will not be sufficient to hold that the accused has admitted the prosecution case. Here, the defence of the accused is that hotel of the complainant is not the only hotel on the road, but there are other hotels on that road. This fact is admitted not only by the complainant himself, but by his witness also. So, the accused wants to indicate that the news item did not specifically refer to the hotel of the complainant or to the complainant nor it was intended to be referring to the complainant and his hotel. Further, the accused has stated in his statement under Section 313 of the Cr.P.C. in answer to question No. 8 that as he had published the news item with respect to the father of the complainant, the complainant has filed this false case. So by giving this answer and this explanation, the accused intends to contend that the case is false. There was no intention to defame the complainant and there was no intention to refer to the complainant and his hotel. So, if the entire statement under Section 313 of the Cr.P.C. is considered, then the answer given to question No. 5 would not amount to an admission of the entire prosecution case. The complainant cannot take advantage of the answer given to the question No. 5 by the accused and contend that the accused has admitted the prosecution case and he be convicted.

17. No doubt, in the deposition, the complainant has stated that the news item was published in order to defame him in the business and society. However, he is not able to prove that the news item is referring to his hotel only and to him only, because in the news item only the place where the hotel is situated is mentioned and the complainant has failed to prove that his is the only hotel situated at that place. So, the particular news item may pertain to any other hotel situated on that road. Thus, the evidence of the complainant is not sufficient to hold that the news item pertained to his hotel and to him. No doubt, the news itself appears mischievous and if it had been really referring to the complainant and his hotel, then it would have been a case of offence under Sections 500 and 501 of the Indian Penal Code. However, the evidence of the complainant is not sufficient to hold that the news item was referring to the complainant and his hotel. The complainant's witness Bhaskar is silent on this aspect of the case. So, in such circumstances, the order of acquittal recorded by the learned Magistrate cannot be disturbed.

18. Hence, this Criminal Appeal is dismissed.