Bombay High Court
Shahed Kamal And Anr vs M/S A. Surti Developers Pvt Ltd. And Anr on 10 June, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:22806-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CRIMINAL JURISDICTION
WRIT PETITION NO.2099 OF 2021
Shahed Kamal and Others ...Petitioners
VISHAL vs.
SUBHASH M/s. A. Surti Developers Private Limited and Anr. ...Respondents
PAREKAR
Digitally signed by
VISHAL SUBHASH
PAREKAR
Mr. Rajiv Chavan, Senior Advocate a/w. Mr. Suhail Shariff, Ms.
Date: 2024.06.10
20:10:07 +0530
Manpreet Kaur, Ms. Poorva Patel, Mr. Ajay Panicker i/b. Ajay Law
Associates, for the petitioners.
Mr. Abad Ponda, Senior Advocate a/w. Mr. Firoz Bharucha, Mr.
Sushrut Desai, Ms. Ayesha Pinto & Chittesh Dalmia i/b. Saamya
Partners, for Respondent No. 1.
Mrs. Ranjana Humane, APP for the State.
CORAM : N. J. JAMADAR, J.
RESERVED ON : MARCH 5, 2024
PRONOUNCED ON : JUNE 10, 2024
JUDGMENT :
1. Rule. Rule made returnable forthwith. With the consent of the
learned counsel for the parties, heard finally.
2. This petition under Articles 226 and 227 of the Constitution
of India and section 482 of the Code of Criminal Procedure, 1973
assails the legality, propriety and correctness of the judgment and
order dated 10th February, 2021 passed by learned Additional
Session Judge at Borivali Division, Mumbai in Criminal Revision
Application No. 345 of 2016 whereby the learned Additional Session
Judge dismissed the Revision Application affirming an order dated
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4th October, 2016 passed by the learned Metropolitan Magistrate,
26th Court, Borivali in CC No. 2042/SS/2016 issuing process against
the petitioners No. 1 to 7/ accused for an offence punishable under
section 500 read with 34 of the Indian Penal Code, 1860 (the Penal
Code).
3. The background facts leading to this petition can be stated as
under:-
M/s. A Surti Developers Private Limited, the respondent No.
1/complainant (the developer) is a private limited company. It is
engaged in the business of development of real estate. The
complainant had constructed the residential building 'Universal
Garden No. 1' at Jogeshwari (w), Mumbai. The MMRDA owed
leasehold plot admeasuring 6912 sq. mtr. The petitioners/accused
are the allottees of the residential flats in the said building.
Occupation certificate was issued on 21st February, 2014. The flat
purchasers were put in possession of the respective flats in the year
2014-15. A completion certificate came to be issued on 27 th May,
2015. It seems, disputes arose between the developer and the flat
purchasers over the completion of the project in accordance with
the terms of the contract between the developer and the
purchasers. In the wake of the dispute, several allegations and
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counter allegations were made. The developer alleged that the
accused Nos. 1 to 7 formed a body under the name and style of
"Universal Garden No. 1 Cooperative Housing Society" (proposed),
illegally and in contravention of the provisions of Maharashtra
Cooperative Societies Act, 1960 and the governing rules. A false
dispute was raised about the maintenance bills. The bills were
allegedly fraudulently collected from of the office of complainant.
The accused, in connivance with other flat owners, illegally
collected payment from the occupants of the flats. Efforts were
made to spread disharmony amongst occupants of the flat and
create a rift between the flat purchasers and the developer.
4. The accused Nos. 1 to 7, on the other hand, alleged that
several defects were noticed in the construction carried out by the
complainant. Numerous letters were addressed to the developer-
complainant regarding various faulty and incomplete works and
non- formation of the society of the flat purchasers. Despite
repeated promises, the complainant failed to rectify the defects and
form the society. Various acts of commission and omission were
attributed to the developer.
5. The complainant claimed, it had fully discharged its obligation
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under the terms of the contract between the parties. Accused Nos. 1
to 7 and other flat purchasers were insisting for the amenities
which were beyond terms of the contract between the parties. In
order to coerce the complainant to accede to the unlawful and
unjustifiable demands of the accused, on 10 th August, 2015 the
accused erected the banners/boards in Hindi and English, visible to
public at large, containing false, frivolous and defamatory
statements, as under:
6. The complainant alleges the said boards were erected with a
deliberate intention to defame the complainant and harm
reputation and goodwill of the complainant. The complainant
addressed notice on 26th February, 2016 calling upon the accused to
tender an unconditional apology. Accused Nos. 1 to 7 gave reply to
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the said notice and defiantly refused to tender an apology. The
complainant was thus constrained to lodge the complaint for
defamation.
7. In the complaint it is, inter alia, alleged that the boards
erected by accused Nos. 1 to 7 caused irreparable injury and loss of
reputation to the complainant. Many persons inquired with the
complainant about the said imputations. Resultantly, the
complainant suffered immense prejudice and loss of goodwill,
standing in the general public and prospective flat purchasers in
respect of another ongoing project. Hence, the accused be
proceeded against for the offence punishable under section 500 of
the Penal Code.
8. The learned Metropolitan Magistrate, upon perusal of the
complaint and the verification statement of the complainant and
documents, recorded a prima facie finding that the imputations in
the boards erected by the accused were defamatory in nature and
thus there was sufficient ground to proceed against the accused for
an offence punishable under section 500 of the Penal Code. Thus,
process was issued by an order dated 4th October, 2016.
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9. Being aggrieved, the petitioners preferred Revision
Application before the Sessions Judge, Greater Bombay. By the
impugned order dated 10th February, 2021, the learned Additional
Sessions Judge was persuaded to dismiss the Revision Application
opining, inter alia, that the accused had erected the board visible to
the public at large with intent to defame and cause damage to
reputation and image of the complainant in the esteem of the
members of the society and thereby also caused monetary loss to
the complainant. Hence, no interference was warranted in exercise
of the revisional jurisdiction in the order passed by the learned
Magistrate in issuing process against the accused.
10. Being further aggrieved, the petitioners have invoked the writ
and inherent jurisdiction of this Court.
11. I have heard Mr. Rajiv Chavan, learned senior advocate for
the petitioners, Mr. Abad Ponda, learned senior advocate, for
respondent No. 1, and Mrs. Ranjana Humane, learned APP for the
State. With the assistance of the learned counsel, I have also
perused the pleadings and material on record.
12. Mr. Chavan, the learned senior counsel would urge that the
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impugned orders passed by both the learned Additional Session
Judge and the learned Metropolitan Magistrate suffer from the vice
of non-application of mind. At the stage of issuance of process, the
learned Magistrate, did not at all consider the question as to
whether the imputation attributed to the accused, would fall within
any of the Exceptions to section 499 of the Penal Code. In the facts
of the case where innocent flat purchasers are made to run from
pillar to post by the developer, the learned Magistrate ought to have
considered whether the alleged imputations fall within the ambit of
any of the Exceptions to section 499 of the Penal Code.
13. The learned Additional Session Judge, according to Mr.
Chavan, was also in error in declining to exercise the jurisdiction
despite having noted that there were several problems which the
flat purchasers were made to encounter. The learned Additional
Sessions Judge lost sight of the fact that the flat purchasers were
constrained to erect the boards as the developer did not pay heed to
the repeated requests of the flat purchasers. Both the Courts were
in error in construing the afore-extracted imputation as
defamatory. Raising grievances regarding quality of the
construction and/or inaction on the part of developer to remedy the
situation, can never be said to be defamatory, urged Mr. Chavan.
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14. In any event, according to Mr. Chavan, the complainant had
not suffered any damage. The complaint is conspicuously silent
about the damage suffered by the complainant on account of alleged
defamation.
15. At any rate, Mr. Chavan urged, the publication in question
falls within the ambit of first and third Exception to section 499 of
the Penal Code. Firstly, the imputations are statements of fact, pure
and simple. Secondly, those statements of facts have been published
to advance the cause of public good. Thirdly, the manner in which
the developer rendered services to the flat purchasers assumed the
character of public significance. Therefore, the aforesaid imputation
cannot be said to be defamatory.
16. Mr. Chavan would urge that, by a catena of decisions, it has
been enunciated that the question as to whether in a case for
defamation, allegedly defamatory imputation falls within the ambit
of any of the Exceptions is a matter which can be examined at a
stage prior to the trial. A fair comment and criticism regarding
services rendered by the developer does not constitute defamation.
The instant prosecution for defamation is, therefore, an abuse of the
process of law and has been resorted to coerce the accused and
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other flat purchasers to forgo their rights. Therefore, the
prosecution deserves to be quashed and set aside.
17. To buttress these submissions, Mr. Chavan placed reliance on
the decision of the Supreme Court in the case of Aroon Purie v.
State of NCT of Delhi and Ors.1 and decisions of Bombay High Court
in the cases of Lodha Developers Limited v. Krishnaraj Rao and
Ors.2 and Ramachandra Venkataramanan v. Shapoorji Pallonji &
Company Ltd. And Another3. Reliance was also placed on a decision
of a learned single Judge of this Court in the case of A.H.Ghaswala
& Ors. v. Rajendra J. Shah & Anr. 4, wherein the matter of putting up
a notice showing the complainant therein as defaulter was held to
be not defamatory in nature.
18. Per contra, Mr. Ponda, learned senior advocate for respondent
No. 1/ the complainant, would submit that the fact that the
petitioners/ accused had invoked revisional jurisdiction and the
said revision came to be dismissed by the Court of Session,
constricts the scope of interference in the orders passed by the
learned Metropolitan Magistrate and Additional Session Judge in
1 2022 SCC OnLine SC 1491.
2 2019 SCC OnLine Bom 13120.
3 2019 SCC OnLine Bom 524.
4 2000 ALL MR (Cri) 481.American Typewriter
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exercise of writ and inherent jurisdiction. Placing reliance on the
decision of the Supreme Court in the case of Rajinder Prasad v.
Bashir and Others5; Nupur Talwar v. Central Bureau of
Investigation and Anr.6, it was submitted that jurisdiction under
section 482 of the Code cannot be resorted to unless there is a
failure of judicial mechanism or the case appears to be one of rarest
of rare cases.
19. Secondly, the submission on behalf of the petitioners that
there are no averments in the complaint that the complainant
suffered damage on account of the aforesaid imputation is factually
incorrect. Taking the Court through the complaint, Mr. Ponda would
urge that there are sufficient averments in the complaint to indicate
the enormous damage and loss of reputation and consequently loss
of business, suffered by the complainant. In any event, the resultant
loss on account of defamatory imputation is not a sine qua non for
an offence punishable under section 500 of the Penal code. What
has to be looked into is, whether the imputation was made with an
intent or knowledge to harm the reputation of the complainant. In
the case at hand, the act of the accused of erecting the banners
containing false and wild allegations was actuated by a design to
5 (2001) 8 SCC 522.
6 (2012) 11 Supreme Court Cases 465.
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harm the reputation and goodwill of the complainant.
20. To bolster up these submission, Mr. Ponda placed reliance on
the decisions of the Supreme Court in the cases of -
(1) Arundhati Roy, In Re7
(2) Jeffrey J. Diermeier and Another v. State of West Bengal
and Another8.
(3) John Thomas vs. Dr. K. Jagadeesan9.
(4) Subramanian Swamy vs. Union of India10
21. Thirdly, Mr. Ponda would urge the endeavour of the accused to
assail the impugned orders on the ground that the applicability of
the Exceptions to section 499 of the Penal Code was not examined
by the trial Court and the revisional Court, is halfhearted, if not a
creature of an afterthought. Before the revisional Court, an
endeavour was made to justify the imputation by asserting that the
case would fall within the ambit of Explanation (4) to Section 499 of
the Penal Code, on the premise that the imputation does not lower
the moral or intellectual character of the complainant. Before this
Court, in the petition no specific Exception has been specifically
7 (2002) 3 Supreme Court Cases 343.
8 (2010) 6 Supreme Court Cases 243.
9 (2001) 6 Supreme Court Cases 30.
10 (2016) 7 Supreme Court Cases 221.
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pleaded. However, an endeavour was made to take benefit of the
first and third Exception to Section 499 of the Penal Code.
22. Mr. Ponda would urge that irrespective of the inconsistent
stand of the petitioners, the question as to whether the imputation
would fall within the ambit of any of the Exceptions to section 499,
is a matter for trial and the burden of proof would lay on the
accused to show that imputation in question falls within the ambit
of any of the Exceptions to Section 499 of the Penal Code.
23. To lend support to this submission, reliance was placed on a
number of decisions, including the judgments in the case of Balraj
Khanna and Others vs. Moti Ram 11 and Sewakram Sobhani vs. R.K.
Karanjia, Chief Editor, Weekly Blitz and Others12.
24. Generally, the offence and penal provisions under the Penal
Code are to be construed subject to the General Exceptions and the
specific Exception in the definition, wherever provided. Section 6 of
the Penal Code declares that every definition of an offence, every
penal provision, and every illustration of every such definition or
penal provision, shall be understood subject to the Exceptions
11 1971 (3) Supreme Court Cases 399.
12 (1981) 3 Supreme Court Cases 208.
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contained in the Chapter entitled "General Exceptions".
25. Section 499 of the Penal Code which defines the offence of
defamation incorporates the Exceptions in the definition itself.
Section 499 of the Penal Code thus declares that, "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 excepted, to defame
that person." In all 10 Exceptions are enumerated in section 499 of
the Penal Code.
26. The first submission canvassed by Mr. Chavan was that, the
learned Magistrate ought to have examined whether the alleged
imputation falls within any of the Exceptions to Section 499 of the
Penal Code as the imputation not falling within any of the
Exceptions to Section 499 is an essential condition to make out an
offence punishable under section 500 of the Penal Code. On this
count, the impugned order deserves to be interfered with.
27. In contrast, Mr. Ponda would urge that there is a long line of
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decisions which holds that the aspect as to whether the imputation
falls within any of the Exceptions to Section 499 is a matter for
adjudication at the trial and cannot be considered at the stage of
issue of process.
28. In view of a recent pronouncement of the Supreme Court in
the case of Iveco Magirus Brandschutztechnik Gmbh vs. Nirmal
Kishore Bhartiya and Anr.13, I do not consider it appropriate to
delve deep into this aspect of the matter, with reference to the
decisions relied upon by Mr. Ponda in support of the above
submission. It would be suffice to refer to the decision of the
Supreme Court in the case of Aroon Purie (supra), on which
reliance placed by Mr. Chavan and, thereafter, refer to the decision
in the case of Iveco Gmbh (supra) as the legal position has been
extensively analyzed on the touchstone of binding efficacy of
precedents.
29. In the case of Aroon Purie (supra), the Supreme Court, inter
alia, considered the following question:-
"Whether the benefit of any of the Exceptions to
Section 499 of the IPC can be availed of and on the
strength of such Exceptions, the proceedings can be
quashed at the stage when an application moved
under section 482 of the Code is considered ? "
13 (2024) 3 Supreme Court Cases 86.
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30. Referring to the decision in the cases of Jawaharlal Darda v.
Manoharrao Ganpatrao Kapsikar14 and Rajendra Kumar Sitaram
Pande vs. Uttam15, the Supreme Court held that, in a given case, if
the facts so justified the benefit of Exceptions to Section 499 of
Penal Code, has been extended and it is not taken to be a rigid
principle that the benefit of Exceptions can only be afforded at the
stage of trial.
31. In the case of Iveco Magirus (supra) the Supreme Court, inter
alia, considered the following question :-
"21.1(i) Whether, while considering a private complaint
alleging defamation, the Magistrate before summoning
the accused ought to confine himself to the allegations
forming part of the petition only or he may, applying his
judicial mind to the Exceptions to Section 499 IPC,
dismiss the complaint holding that the facts alleged do
not make out a case of defamation?
21.2(ii) Whether and, if at all, to what extent, is it open to
the High Courts to exercise inherent power saved by
section 482, Cr.PC to quash proceedings for defamation by
setting aside the summoning order upon extending the
benefit of any of the Exceptions to Section 499 IPC ? "
32. After adverting to the judgments including the decisions in
the case of Balraj Khanna (supra) and Sewakram Sobhani (supra)
and Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi 16, relied
upon by Mr. Ponda and Aroon Purie (supra), relied upon by Mr.
14 1998(4) SCC 112.
15 1999 (3) SCC 134.
16 (1996) 6 SCC 263.
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Chavan, the Supreme Court reconciled the position in law in the
face of two lines of decisions in the following words:-
54] Undoubtedly, the decisions of this Court proceed on two
lines. While there are several decisions where this Court
has consistently laid down the law in one particular line
that it is for the Magistrate to consider the Exceptions to
section 499, IPC for extension of benefit thereof at the trial
when a defence is pleaded by the party seeking to avail the
same and upon the burden of proof being (2013) 2 SCC 488
discharged by him and that such Magistrate while deciding
the question purely from the point of view of the
complainant may not advert to the possible defence of the
accused at the time of exercising power under section 202,
the other line of decisions seem to proceed on the premise
that there is no bar in considering the Exceptions if the
accused, even without appearing before the Magistrate in
response to the summoning order, lays a challenge thereto
under section 482, Cr. PC and satisfies the relevant High
Court, by referring to the complaint itself and the
statements of the complainant and his witness, that the
facts alleged (even if deemed to be true) do not constitute
an offence and hence, there was no sufficient ground for
proceeding. In fact, Aroon Purie (supra) has observed that
there is no rigid principle that the Exceptions can only be
considered at the pre-trial stage; in other words, at the
stage of consideration of a petition for quashing, it can be
so extended in a given case, and the Court would be
empowered to quash the proceedings if extension of such
benefit is justified on facts.
... ....
62] In the context of a complaint of defamation, at the
stage the Magistrate proceeds to issue process, he has to
form his opinion based on the allegations in the complaint
and other material (obtained through the process referred
to in section 200/ section 202) as to whether 'sufficient
ground for proceeding' exists as distinguished from
'sufficient ground for conviction', which has to be left for
determination at the trial and not at the stage when
process is issued. Although there is nothing in the law
which in express terms mandates the Magistrate to
consider whether any of the Exceptions to section 499, IPC
is attracted, there is no bar either. After all, what is
'excepted' cannot amount to defamation on the very terms
of the provision. We do realize that more often than not, it
would be difficult to form an opinion that an Exception is
attracted at that juncture because neither a complaint for
defamation (which is not a regular phenomenon in the
criminal courts) is likely to be drafted with contents, nor
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are statements likely to be made on oath and evidence
adduced, giving an escape route to the accused at the
threshold. However, we hasten to reiterate that it is not the
law that the Magistrate is in any manner precluded from
considering if at all any of the Exceptions is attracted in a
given case; the Magistrate is under no fetter from so
considering, more so because being someone who is legally
trained, it is expected that while issuing process he would
have a clear idea of what constitutes defamation. If, in the
unlikely event, the contents of the complaint and the
supporting statements on oath as well as reports of
investigation/inquiry reveal a complete defence under any
of the Exceptions to section 499, IPC, the Magistrate, upon
due application of judicial mind, would be justified to
dismiss the complaint on such ground and it would not
amount to an act in excess of jurisdiction if such dismissal
has the support of reasons.
63] Adverting to the aspect of exercise of jurisdiction by
the High Courts under section 482, Cr. PC, in a case where
the offence of defamation is claimed by the accused to have
not been committed based on any of the Exceptions and a
prayer for quashing is made, law seems to be well settled
that the High Courts can go no further and enlarge the
scope of inquiry if the accused seeks to rely on materials
which were not there before the Magistrate. This is based
on the simple proposition that what the Magistrate could
not do, the High Courts may not do. We may not be
understood to undermine the High Courts' powers saved by
section 482, Cr. PC; such powers are always available to be
exercised ex debito justitiae, i.e., to do real and substantial
justice for administration of which alone the High Courts
exist. However, the tests laid down for quashing an F.I.R. or
criminal proceedings arising from a police report by the
High Courts in exercise of jurisdiction under section 482,
Cr. PC not being substantially different from the tests laid
down for quashing of a process issued under section 204
read with section 200, the High Courts on recording due
satisfaction are empowered to interfere if on a reading of
the complaint, the substance of statements on oath of the
complainant and the witness, if any, and documentary
evidence as produced, no offence is made out and that
proceedings, if allowed to continue, would amount to an
abuse of the legal process. This too, would be
impermissible, if the justice of a given case does not
overwhelmingly so demand.
64] Based on our understanding of the law and the
reasoning that we have adopted, issue of process under
section 204 read with section 200, Cr. PC does not ipso
facto stand vitiated for non-consideration of the Exceptions
to section 499, IPC unless, of course, before the High Court
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it is convincingly demonstrated that even on the basis of
the complaint and the materials that the Magistrate had
before him and without there being anything more, the
facts alleged do not prima facie make out the offence of
defamation and that consequently, the proceedings need to
be closed.
(emphasis supplied)
33. It would be contextually relevant to note that with regard to
the observations in the case of Aroon Purie (supra), the Supreme
Court observed that conscious of the legal position, the Supreme
Court in Aroon Purie (supra) cautiously proceeded to hold that it is
not taken to be a rigid principle that the benefit of Exception can
only be afforded at the stage of trial. Ultimately the Supreme Court
in the case of Iveco Gmbh (supra) concluded that issue of process
under section 204 read with section 200 Cr. PC does not ipso facto
stand vitiated for non-consideration of the Exceptions to section
499 IPC unless convincingly demonstrated before the High Court
that even on the basis of the complaint and the materials that the
Magistrate had before him and without there being anything more,
the facts alleged do not prima facie make out the offence of
defamation.
34. The aforesaid enunciation of law, affords an answer to the
submission sought to be canvassed on behalf of the accused that the
order passed by the Magistrate in the instant case is infirm for non
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consideration of the aspect as to whether the imputation would fall
within any of the Exceptions to section 499 of the Penal Code. It is
also imperative to note that it is one thing to say that the
Magistrate must examine whether the imputation falls within the
ambit of any of the Exceptions to section 499 and another to hold
that the benefit of an Exception can be afforded at a stage anterior
to the trial. In a given case, if the applicability of any of the
Exceptions to Section 499 of the Penal Code is self-evident, the High
Court would be justified in interdicting the prosecution for
defamation, even where the learned Magistrate had not adverted to
the said aspect of the matter or appreciated the matter in a patently
incorrect manner.
35. This takes me to the thrust of the submission on behalf of the
petitioners/ accused that the contents of the board and banner,
which the complainant alleges to be defamatory are, in fact,
statement of facts. The flat purchasers who have genuine
grievances regarding deficiency in the services rendered by the
developer have highlighted those deficiencies and inaction on the
part of the developer. The aggrieved flat purchasers, therefore,
cannot be imputed with necessary mens rea, urged Mr. Chavan.
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36. An endeavour was also made to draw home the point that
none of the afore-extracted grievances of the flat purchasers either
singly or collectively can be said to be per se defamatory. Therefore,
the prosecution of the flat purchasers, who feel short changed
amounts to abuse of the process of the Court.
37. Mr. Chavan placed a very strong reliance on the observations
of this Court in the case of Lodha Developers (supra). In the said
case, the developer had initiated an action in damages for
defamation and by way of Notice of Motion prayed for injunctive
reliefs against the defendants. This Court refused to grant a
restraint order. It was observed that calling of someone with fair
comment and justification is not defamation. The flat purchasers
(who were the defendants No. 2 and 3 therein) were entitled to
make a fair comment about the condition and nature of the flat they
purchased. No restraint can be put on their right to comment. Since
the Court found the statements made in the publication therein
bonafide and having being made with reasonable precaution, the
Court held that the defendants were concerned about the quality of
their flats and the Court had no manner of doubt that all that was in
the public interest.
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38. In the case of Ramachandra Venkataramanan (supra) the
complainant therein had taken umbrage at the 'Press Note' which
stated that all allegations of wrong doing or illegality against the
petitioners were baseless. Those motivated allegations were part of
the smear campaign run to discredit the petitioners and the work
being done by the Tata Trusts. In the aforesaid factual backdrop,
this Court quashed the summoning order observing, inter alia, as
under:-
48] Coming to the press note, the allegedly offending words
stated in it are 'motivated', 'baseless' and 'smear campaign'.
Smear means damaging the reputation by false accusation.
These words are required to be read in the entire context.
The petitioner has made this statement with the reference
to earlier disputes. As mentioned in the beginning, the
matter carries a baggage of accusations, denials, claims
and disclaimer. Both the parties are from the business
world. Though they initially worked together, today, they
are at loggerheads. Their disputes are discussed publicly by
the media and the people. When two persons are fighting,
they are bound to make some allegations against each
other. If these allegations are abusive, they create an
impression of hatred, contempt and ridicule against the
person who is attacked. I am of the view that these words
do not constitute defamation. One has to be careful in
choosing the words while expressing his feelings. To
express and speak is an invaluable fundamental right of an
individual guaranteed under Articles 19 and 21 of the
Constitution of India to all the citizens which is the soul of
democracy. The law of defamation is one of legally
acceptable reasonable restrictions in the Indian legal
system. To oppose, deny, reject, defend, etc. are the ways of
expression. It manifests emotional status and thinking
process. However, it should not lead to harm, damage,
which is a rider to the freedom of expression. Thus, one can
disclaim, refuse, deny, reject certain charges or allegations
made against him or her publicly with restrained words.
Ultimately, it is a choice of words which may constitute the
offence of defamation.
... .....
50] The Court has to be guarded and should have an eye to
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read between the lines when the complaint of defamation is
filed. To call a particular statement defamation is
subjectively easy and, therefore, it is necessary to see
whether the complainant is using this process of law as a
weapon against the other person to settle a score or some
other dues. Undoubtedly, to stand before a Criminal Court
is a humiliation and a matter of extreme stress and
harassment and, therefore, the Court is required to find out
the real issue in such a matter especially when the parties
like the complainant and the accused are fighting various
business battles on various battle fields.
51] Thus, in this case, I am of the view that the words
which are used in the press note are not at all defamatory.
They are moderate and temperate. They do not invite
contempt, ridicule or hatred against the persons
mentioned in the press note and muchless the
complainant. Certain statements, if found incorrect, can be
corrected without labelling them defamatory. The words
used and the statement made in the press note can not be
perceived as defamatory.
39. Applying the aforesaid test to the alleged defamatory
imputation in the case at hand, according to Mr. Chavan, by no
stretch of imagination, can it be said that the act of raising of
grievances of deficiencies in the services would constitute criminal
defamation.
40. Mr. Ponda joined the issue by canvassing a submission that
the reliance on the aforesaid decisions is of no avail to the
petitioners. Those decisions turn on their peculiar facts. It is trite
that a decision is an authority for what it decides and not what
logically flows from it. Mr. Ponda further urged that it is not a
requirement of the offence of defamation that the imputation should
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be per se defamatory. A deliberate false statement, with intent to
harm the reputation of a party, though couched in the form of a
grievance can fall within the dragnet of Section 499 of the Penal
Code.
41. Mr. Ponda, placed a very strong reliance on the decision of the
Supreme Court in the cases of Jeffrey Diermeier (supra), wherein
the following observations were made:-
29] To constitute "defamation" under Section 499 of
the IPC, there must be an imputation and such
imputation must have been made with intention of
harming or knowing or having reason to believe that
it will harm the reputation of the person about whom
it is made. In essence, the offence of defamation is the
harm caused to the reputation of a person. It would
be sufficient to show that the accused intended or
knew or had reason to believe that the imputation
made by him would harm the reputation of the
complainant, irrespective of whether the
complainant actually suffered directly or indirectly
from the imputation alleged.
(emphasis supplied)
42. In the case of John Thomas (supra), the Supreme Court
postulated that an accused may not be entitled to be discharged on
the ground that imputations were not per se defamatory. The
relevant observations in the said case read as under:-
10] .... ......The only effect of an imputation being per se
defamatory is that it would relieve the complainant of
the burden to establish that the publication of such
imputations has lowered him in the estimation of the
right thinking members of the public. However, even if
the imputation is not per se defamatory, that by itself
would not go to the advantage of the publisher, for, the
complaining person can establish on evidence that the
publication has in fact amounted to defamation even in
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spite of the apparent deficiency. So the appellant
cannot contend, at this stage, that he is entitled to
discharge on the ground that the imputations in the
extracted publication were not per se defamatory.
(emphasis supplied)
43. Mr. Ponda further submitted that, in the facts of the case, the
imputation made by the accused are not only false but also against
judicial determination. A Division Bench of this Court has held in
the case of Shahed Kamal and Ors. vs. Pagarani Universal
Infrastructure Pvt. Ltd.17 between the flat purchasers and the
developer that the provisions of MOFA do not apply as the land is
owned by MMRDA. The Division Bench has further held that the
appellants/flat purchasers' insistence that the owner/respondent
No. 1 is duty bound to form society and convey its title to the
society of flat purchasers as per MOFA, is misconceived and
unsustainable given that MOFA is not applicable to such lands.
44. Despite the said determination, the accused continued to
proclaim that the developer has committed default in formation of
society. Such brazen stand of the accused further exacerbates the
situation, urged Mr. Ponda.
45. From the text of section 499 of the Penal Code, extracted
above, to constitute an offence of defamation, there has to be an
17 Appeal (L) No. 8104/2020 in IAL No. 3986/2020 Dt.17/03/2022.
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imputation and such imputation should have been made in the
manner provided by the said section, with the intention of causing
harm or knowing or having reason to believe that such imputation
will harm the reputation of the person about whom it is made.
Causing harm to the reputation of the person is the linchpin of the
offence of defamation. It has to be shown that the accused had made
the imputation with intent or knowledge or having reason to believe
that such imputation would harm the reputation of the
complainant. It would be contextually relevant to note that under
section 44 of the Penal Code, the word, "injury" denotes any harm
whatever caused to any person in body, mind, reputation or
property.
46. Reputation has received recognition as a facet of personal
right. In the case of Umeshkumar vs. State Andhra Pradesh 18, it
was enunciated that personal right of a human being includes the
right of reputation. A good reputation is an element of personal
security and is protected by the Constitution equally with the right
to the enjoyment of life, liberty and property and it has been held to
be a necessary element with the right to life under Article 21 of the
Constitution.
18 2013(10) SCC 591.
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47. In the case of Subramanian Swamy (supra), wherein the
constitutional validity of section 499 of the Penal Code was
challenged, the Supreme Court observed, inter alia, as under:-
144] .... ....We are in respectful agreement with the
aforesaid enunciation of law. Reputation being an
inherent component of Article 21, we do not think it
should be allowed to be sullied solely because another
individual can have its freedom. It is not a restriction
that has an inevitable consequence which impairs
circulation of thought and ideas. In fact, it is control
regard being had to another person's right to go to
Court and state that he has been wronged and abused.
He can take recourse to a procedure recognized and
accepted in law to retrieve and redeem his reputation.
Therefore, the balance between the two rights needs
to be struck. "Reputation" of one cannot be allowed to
be crucified at the altar of the other's right of free
speech. The legislature in its wisdom has not thought
it appropriate to abolish criminality of defamation in
the obtaining social climate.
(emphasis supplied)
48. In the context of the factual setting of the matter at hand, it
may be necessary to note that Explanation- 2 to Section 499, states
that, "it may amount to defamation to make an imputation
concerning a company or an association or collection of persons as
such". Under section 11 of the Penal Code, the word, "Person"
includes any Company or Association or body of persons, whether
incorporated or not. On a plain construction, where the imputation
has the effect of impairing the reputation of a company, in the sense
that, the imputation would cause harm to the reputation of the
company and affect its standing as a corporate entity in the
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enterprise it ventures into, a case of defamation of a company can
be said to have been made out.
49. Mr. Chavan would urge that, in the facts of the case at hand,
the aforesaid alleged imputation is in the nature of statements of
facts. It reflects a true state of affairs. Therefore, it would not
amount to defamation as such and, in any event, it would fall within
the ambit of the First and Third Exception.
50. The context in which the boards have been erected is required
to be kept in view. The material on record indicates that there is a
dispute between the parties over the exploitation of FSI and
erection of additional structures on the said plot. Construction of
another building by the developer with a view to sell the flats
therein brings in its trail the element of corporate reputation of the
developer. It is the case of the complainant that the boards have
been erected with a view to damage the reputation of complainant
in the esteem of the general public as well as the prospective
purchasers by making false allegations regarding services and
inaction on the part of complainant. Prima facie, the afore-
extracted imputation has the propensity to cause a dent in the
reputation of the complainant.
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51. The submission on behalf of the accused that the flat
purchasers are raising their genuine grievances appears attractive
at the first blush. However it does not carry conviction as the
accused can be attributed with knowledge or belief, if not intention,
that the imputation has the propensity to cause harm to the
reputation of the complainant. Prima facie, the afore-extracted
imputation, in the context in which it has been made, falls within
the dragnet of the main part of section 499 of the Penal Code.
52. The second limb of the submission of Mr. Chavan, that the
statements made in the afore-extracted imputation represent
statements of facts, in its very nature, merits factual inquiry. Two
questions would crop up for consideration. One, was it the duty of
the developer to provide the facilities in respect of which the flat
purchasers have the grievances. Two, whether the facilities and
amenities which have been made available are not of the standard
quality. These issues which are rooted in facts can only be
adjudicated at the trial.
53. The First Exception to section 499 provides that "it is not
defamation to impute anything which is true concerning any
person, if it be for the public good that the imputation should be
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made or published. Whether or not it is for the public good is a
question of fact."
54. In the case of Chaman Lal vs. The State of Punjab 19 the
Supreme Court held that in order to come within the first Exception
to Section 499 of the Penal Code, it has to be established that what
has been imputed concerning the complainant is true and the
publication of the imputation is for the public good. The onus of
proof of these two ingredients, namely, truth of imputation and the
publication of the imputation for the public good, is on the accused.
55. This being the position in law, I am afraid, at this stage, and in
this proceedings, it would be permissible to venture to record a
finding about the truthfulness of the imputation.
56. Reliance on the Third Exception also does not seem to
advance the cause of the submission on behalf of the accused. The
Third Exception to Section 499 of the Penal Code provides that "It is
not defamation to express in good faith any opinion whatever
respecting the conduct of any person touching any public question,
and respecting his character, so far as his character appears in that
conduct, and no further."
19 1970 (1) Supreme Court Cases 590.
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57. Evidently, the Third Exception requires good faith. An
accused would be entitled to the benefit of the Third Exception if the
allegedly defamatory remark was made in good faith. It implies that
the defamatory imputation should have been made after due care
and attention. That again brings in the arena of determination,
whether the accused had taken due care and attention and made
the imputation in good faith. Ex facie, it warrants a fact finding
exercise.
58. In the context of the dispute between the parties, the accused
may also urge the Ninth and Tenth Exception to section 499 of the
Penal Code. Ninth Exception states that "it is not defamation to
make an imputation on the character of another provided that the
imputation be made in good faith for the protection of the interests
of the person making it, or of any other person, or for the public
good. Tenth Exception states that "it is not defamation to convey a
caution, in good faith, to one person against another, provided that
such caution be intended for the good of the person to whom it is
conveyed, or of some person in whom that person is interested, or
for the public good." Under both the Exceptions, the element of good
faith and public good are questions of fact.
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59. The aforesaid being the construct of the Exceptions, the
benefit of which the accused seek to derive, at this stage, it would be
difficult to accede to the submission on behalf of the accused that
the instant prosecution is an abuse of the process of the Court.
60. The reliance by Mr. Chavan on the judgment in the case of
Lodha Developers (supra), in my considered view, does not advance
the cause of the accused as in the said case the Court had
specifically recorded that the defendants therein had taken
reasonable precaution before circulating the material. There was
photographic material. It was sent in advance to the developer
before circulating the same. Further, their allegations were partly
borne out by the independent Court Commissioners' report. The
Court found all that was in the public interest. That is not the case
at hand.
61. In the aforesaid view of the matter, the challenge to the
impugned orders does not merit acceptance. The petition, therefore,
deserves to be dismissed.
Hence, the following order.
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ORDER
1] The petition stands dismissed.
2] Rule discharged.
3] No costs.
(N. J. JAMADAR, J.)
59. At this stage, the learned counsel for the petitioners seeks
continuation of ad-interim relief dated 18th July, 2023.
60. Having regard to the issue raised in the petition, the ad-
interim relief dated 18th July, 2023 is continued for a period of four
weeks.
(N. J. JAMADAR, J.)
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