Delhi High Court

Servants Of People Society & Anr. vs Poddar Global Ltd. on 28 April, 2009

Author: S. Muralidhar

       IN THE HIGH COURT OF DELHI AT NEW DELHI

               CRL.M.C. 1025/2008 & Crl M A 3809/2008

                                               Reserved on : April 21, 2009
                                               Decision on : April 28, 2009

       SERVANTS OF PEOPLE SOCIETY & ANR                ..... Petitioners
                    Through Mr. Jagnath Patnaik, Senior Advocate
                    with Mr. Avijit Patnaik, Mr. Arunav Patnaik and
                    Ms. Soma Patnaik, Advocates
           versus

       PODDAR GLOBAL LTD.                      ..... Respondent
                   Through Mr. Barun K. Sinha with Ms. Pratibha
                   Sinha and Mrs.Renu Sinha, Advocates

                         and
               CRL.M.C. 1058/2008 & Crl M A 3956/2008

       MANORAMA MOHAPATRA                         ..... Petitioner
                  Through Mr. Dhavenidhar Nayak with
                  Mr. Sarthak Nayak and Mr. C.K. Rai, Advocates
          versus

       PODDAR GLOBAL LTD.                        ..... Respondent
                   Through Mr. Barun K. Sinha with
                   Ms. Pratibha Sinha & Mrs. Renu Sinha, Advocates

       CORAM:
       HON'BLE DR. JUSTICE S. MURALIDHAR

               1. Whether Reporters of local papers may be
                   allowed to see the judgment?                         No
               2. To be referred to the Reporter or not?                Yes
               3. Whether the judgment should be reported in Digest? Yes


                                    JUDGMENT

28.04.2009 Dr. S. Muralidhar, J.

1. These petitions arise from the same set of facts and are accordingly being

disposed of by this common judgment.

2. The prayer in both the petitions is that the Complaint Case No.

1221/1/2006 titled M/s. Poddar Global Limited v. Servants People of

Society & Anr pending in the court of the learned Metropolitan Magistrate

(„MM‟) and all proceedings consequent thereto should be quashed insofar as

it concerns the petitioners.

3. The Petitioners in Crl M C No. 1025 of 2008 are the Servants of People

Society („Society‟) and Manubhai Patel, its President who are arrayed in the

complaint as accused Nos. 1 and 2 respectively. The accompanying petition

Crl M C No. 1058 of 2008 is by Manorama Mohapatra who is arrayed as

accused No.3.

4. The aforementioned complaint was filed by Poddar Global Limited

(„PGL‟) alleging that the Society had published a defamatory article

concerning the PGL in the newspaper named „SAMAJ‟ in Oriya language

published by and under the control of the Society. It was stated that the

complainant PGL has been supplying the printing paper used in the

publication of the said newspaper for more than 10 to 11 years at Cuttack.

The said article purported to describe the contents of a complaint lodged

with the Cantonment Police Station in Cuttack by the Society alleging that

on 12th July 2006 an "illegal transaction" had been entered into whereby Sri

Braja Bhai, a former life member of the Society and Sri Satya Paul, former

Executive Secretary of the Society had issued a cheque in the sum of Rs.

47,08,500 in favour of PGL from the account of Samaj with the Punjab

National Bank (PNB) Cuttack. The criminal complaint further alleged that

on 6th, 20th and 31st January 2006 three cheques amounting to Rs. 50 lakhs

were issued in favour of PGL illegally.

5. It was contended by PGL that the aforementioned criminal complaint was

filed on totally false premises. In fact PGL was requested by the accused

persons to give Rs.47 lakhs to them. This amount was paid to them in

installments against receipts issued. On 12th July 2006 PGL received a

cheque in the sum of Rs.47,08,500 issued by the SAMAJ through its

authorised signatories towards the discharge of the aforementioned laibility.

As regards the three bearer cheques amounting to Rs.50 lakhs purportedly

issued in favour of PGL, and which fact was allegedly communicated by the

accused to PGL on 9th November 2006, PGL denied receiving any of the

said cheques. It was accordingly submitted by PGL that the aforementioned

news item in the edition of SAMAJ dated 20th November 2006 published by

the accused had levelled "false, illegal, defamatory allegations" against

PGL.

6. In para 14 of the complaint it was stated that "a person namely Tapan

Kumar Munli who is well conversant with the said language had informed

the complainant company, M.D. Shri Sunil Poddar in presence of his

chartered accountant i.e. Shri Rajeev Gupta at the office of the company at

evening on 20.11.2006 that the complainant company has been involved

such illegal activities, similarly a number of clients of the complainant

company and informed the M.D. Shri Sunil Poddar that since the company is

involved in such type of illegal activities with its clients they are not

interested to continue with the business with the complainant company."

7. It is submitted that PGL had outstanding balance of Rs.75,89,346.15 p

which was recoverable from the accused Society and all the accused in

collusion with each other got the above news item published in the SAMAJ

levelling illegal and defamatory allegations against the PGL with malafide

intention to malign its reputation and goodwill. The said article was noticed

on 20th November 2006 and thereafter the said complaint was filed.

8. Admittedly, the Society is being run under the chairmanship of Manubhai

Patel. As regards the roles attributed to each of the petitioners, in para 6 of

the complaint it is stated as under:

"6. That the newspaper "SAMAJ" is being published under the accused Society No.1 under the chairmanship of accused No.1 and all the accused persons being the office bearer and editor of the said paper SAMAJ as such all the accused persons are equally responsible for any act and omission committed by the newspaper SAMAJ."

9. It is pointed out by learned counsel for the Petitioners that in order to

make any of the Petitioners liable for the publication of the article in

question, it would have to be shown that they were directly involved in the

process of editing the newspaper and responsible for the selection of the

articles published therein. As far as Manubhai Patel is concerned, it is

submitted that he was not in charge of the day to day management and had

no role to play in the decision as to the articles that should be published in

SAMAJ. Therefore, not even a prima facie case can be said to be made out

against him. As regards the Editor-in Chief Manorama Mahapatra, it is

submitted that the necessary averments that she was responsible for the

selection of the article in question is missing in the complaint. It is submitted

that in her case as well, not even a prima facie case for criminal defamation

can be said to be made out. As regards, the Society, it is submitted that the

article carried in the SAMAJ is only a true reproduction of the contents of

the criminal complaint and therefore protected by the Exceptions to Section

499 IPC and would therefore not attract the offence under Section 500 IPC.

10. On behalf of the respondent complainant it is pointed out that there are

two parts to the impugned article. The first concerns the cheque dated 12th

July 2006 in the sum of Rs.47,08,500 which the Society owed PGL. It is

pointed out that the cheque was rightly issued to PGL in discharge of the

liability of the Society and therefore it was defamatory to allege that this

transaction was illegal and that PGL was in criminal conspiracy to commit

such illegal act. The pre-summoning evidence clearly brought out the

damage to the reputation of PGL as a result of such publication. Therefore

no interference was called for. As regards the other accused, their defence

could be examined at the trial. In any event the said cheques were jointly

signed by Shri Braja Bhai and Smt. Manorama Mohapatra, Petitioner and

therefore she could not be heard to defend an article which alleges that such

payments were illegal.These disputed questions could in any event not be

examined at the present stage when the case is yet to go to trial. Reliance is

placed o the decision in Sewakram Sobhani v. R.K.Karanjia AIR 1981 SC

1514.

11. First this Court proposes to consider the case of Manubhai Patel who is

the Chairman of the Society and Manorama Mahapatra, the Editor in Chief

of SAMAJ. It is noticed that under Section 7 of the Press and Registration

of Books Act 1867 (Act), unless the contrary is proved, a person declared as

printer, publisher and editor of the newspaper are presumed to be

responsible for the contents of the newspaper. In State of Maharashtra v.

R.B.Chowdhari AIR 1968 SC 110 it was held by the Supreme Court in para

7 of the judgment as under:

"7. The term 'editor' is defined in the Act to mean a person who controls the selection of the matter that is published in a newspaper. Where there is mentioned an editor is a person who is responsible for selection of the material. Section 7 raises the presumption in respect of such a person. The name of that person has to be printed on the copy of the newspaper and in the present case the name of Madane admittedly was printed as the Editor of the Maharashtra in the copy of the Maharashtra which contained the defamatory article. The declaration in Form I which has been produced before us shows the name of

Madane not only as the printer and publisher but also as the editor. In our opinion the presumption will attach to Madane as having selected the material for publication in the newspaper. It may not be out of place to note that Madane admitted that he had written this article. In the circumstances not only the presumption cannot be drawn against the others who had not declared themselves as editors of the newspaper but it is also fair to leave them out because they had no concern with the publishing of the article in question. On the whole therefore the order of discharge made by the learned single Judge appears to be proper in the circumstances of the case and we see no reason to interfere."

12. Likewise in T.K. Muthukoya v. Haji C.H. Mohammad Koya (1979) 2

SCC 8 it was held in para 34 as under:

"34. From the facts established above, it is manifest that the petitioner has miserably failed to prove either that the appellant was the editor of the paper or that he was performing the functions, duties or shouldering the responsibilities of the editor. It is obvious that a presumption under Section 7 of the Press Act could be drawn only if the person concerned was an editor within the meaning of Section 1 of the Press Act. Where however a person does not fulfill the conditions of Section 1 of the Press Act and does not perform the functions of an editor whatever may be his description or designation, the provisions of the Press Act would have no application...."

13. Recently a learned Single Judge of this Court, after analyzing the entire

case law on the subject culled out the principles in Shobhana Bhartia v.

NCT of Delhi 2007 (144) DLT 519 as under:

"(i) Besides persons declared as editor, printer and publisher of a newspaper, only such person could be prosecuted for an action of defamation against whom specific and clear allegations has been made in the complaint that either he was responsible for selection of the defamatory matter or had personal knowledge about the contents of the defamatory matter. In addition, it must also be averred in the complaint that such person had the intention to harm or knowledge or reason to believe that the imputation will harm the reputation of the complainant.

(ii) The Chairman or the Managing Director of the company owning a newspaper is neither the editor, nor the printer nor the publisher and therefore no presumption could be drawn against holder of these offices even though they are, by reason of the offices held by them, in charge of, and responsible to, the company for the conduct of its business."

14. In light of the above position in law, it is apparent that there is no

automatic presumption that an Editor-in-Chief of a newspaper is responsible

for the choice of particular articles for publication. The minimum averment

of imputing to the Petitioner Manorama Mahapatra the responsibility for the

publication of the article in question is absent in the complaint. As regards

Manubhai Patel it is seen that he in fact did not have any role to play in the

matter. As a chairman of Society he cannot be said to be a person in charge

of the decision concerning what was published in the SAMAJ. Here again

apart from merely stating that he is the Chairman of the Society his role in

the publication of the article is not adverted to in the complaint.

Consequently, not even a prima facie case is made out either against

Manubhai Patel or Manorama Mahapatra for the offence under Section 500