Karnataka High Court
Dr. Vijay S/O Basavanneppa ... vs Sri. Ramanath S/O Vinayakarao ... on 2 February, 2022
Bench: M.Nagaprasannapresided Bymnpj
1
IN THE HIGH COURT OF KARNATAKA: DHARWAD BENCH
DATED THIS THE 02ND DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.101718/2021
BETWEEN
1. DR. VIJAY
S/O BASAVANNEPPA SANKESHWAR,
AGE: 71 YEARS, OCC.: BUSINESS,
R/O. NAVEEN PARK, HUBBALLI,
DIST. DHARWAD - 580 020.
2. SRI HARIPRAKASH
S/O VENKATRAMANA KONEMANE,
AGE.: 46 YEARS,
OCC.:EX-EDITOR VIJAY VANI,
V.R.L.MEDIA LTD., 2ND FLOOR,
V.R.L. COMPLEX,
NEW COTTON MARKET,
HUBBALLI - 580 029,
PRESENTLY EDITOR
OF VIJAY KARNATAKA.
...PETITIONERS
(BY SRI HANUMANTHAREDDY SAHUKAR, ADVOCATE)
AND :
SRI RAMANATH
S/O VINAYAKARAO NAYAK,
AGE.: 63 YEARS, OCC.: CIVIL ENGINEER,
R/O. VINAYAK BUILDING, J.C.NAGAR,
HUBBALLI, DIST. DHARWAD - 580 020.
..RESPONDENT
(BY SRI SHIVASAI M.PATIL, ADVOCATE)
2
THIS CRIMINAL PETITION IS FILED U/S 482 OF Cr.P.C.,
SEEKING TO SET ASIDE THE ORDER DATED 16.08.2021 IN C.C.
NO.3605/2021 (PC NO.519/2017) PASSED BY THE JMFC-I COURT,
HUBBALLI, AND QUASH THE ENTIRE PROCEEDINGS AND
COMPLAINT DATED 10.10.2017 ON FILE OF THE JMFC-I COURT,
HUBBALLI, FOR THE OFFENCES PUNISHABLE U/S 499, 501, 502
R/W SECTION 34 OF IPC AGAINST THE PETITIONERS HEREIN.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court calling in question the
proceedings in C.C.No.3605 of 2021 (P.C. No.519/2017) pending
before the JMFC-I, Hubballi registered for offences punishable
under Sections 499, 501, 502 r/w. Section 34 of the IPC.
2. Heard Sri Hanumanthareddy Sahukar, learned counsel
appearing for the petitioners/accused Nos.1 and 2 and
Sri Shivasai M. Patil, learned counsel appearing for the
respondent/complainant.
3. Brief facts leading to the filing of the present petition, as
borne out from the pleadings, are as follows:
The 1st petitioner is the Managing Director of the
newspaper 'Vijayavani' and 2nd petitioner is the Editor. A
complaint is registered by the respondent-complainant against
the petitioners alleging that the petitioners and other accused
have published a news item, which depicts the complainant in
poor light. The complaint registered against the petitioners
reads as under :
"COMPLAINT UNDER SECTION 200 Cr.P.C.
In this the complainant above named humbly submit
as under;
1. The address of the complainant and the accused is
as shown in the cause title of the complaint. The additional
address of complainant is c/o his counsel Sri Krishna
Hegade, Advocate, No 12, First floor, C Block Revankar
Complex, Court circle Hubballi-29.
2. The complainant is a senior Consulting Civil
Engineer practicing in Hubballi for last about 30 yrs and
has earned high reputation and dignity in his field. He is
having thousands of satisfied customers and friends,
relatives and well wishers in and around Hubballi.
2. That accused No.1 is a reputed businessman and
media baron having vast life experience, knowing value of
struggle, importance of reputation and dignity and also
feelings and he is said to be the chairman of VRL Group
owning the "Vijayavani" a Kannada Daily News Paper.
3. That the accused No.2 is Editor and
Publisher of "Vijayavani" Kannada News Paper
acclaimed to be No.1 Kannada daily, having vast
circulation. As such any news item published in said
paper will have great publicity, impact, and effect in
the society and also on public at large. As such it is
the responsibility of accused No.1 and 2 to verify the
reality, authenticity and truthfulness of any news
item before publishing the same in the said news
paper.
3. The accused No.3 is a responsible Police
Inspector and Govt. Servant presently serving at Town
Police Station Hubballi. It is the responsibility of the
accused No.3 to safeguard the interest reputation and
safety of the people and their property of his locality. It is
also his duty and responsibility that no false and untrue
news are to be spread, circulated and published in any
manner including news paper so as to cause harm and
injury to the reputation and dignity of any individual
citizen.
4. The accused No.4 and 5 are wife and
husband. The accused No.4 is the owner of property in CTS
No.508 Ward No.l, Lamington Road Hubballi who had
approached complainant along with accused approached
No.5.
5. The accused No.4 and 5 approached complainant
requesting to construct first floor in the above said property.
Accordingly an understanding was reached between them
and the complainant for said construction for total amount
of Rs.15,00,000/-. As per the understanding the works to
be performed by the complainant was starting from
preparation of plan, estimation, alternate drawing, applying
for obtaining permission for construction from HDMC and
construction. It was agreed by the accused no.4 & 5 that
they should go on paying the amount as the work
progresses. Accordingly an agreement was entered into.
However after getting signature of complainant, the
accused No 4 & 5 did not give a copy of it in spite of
repeated request stating it is within them and not to worry.
It is a fact that on same day a cheque of Rs.1,00,000/- was
issued by them to complainant requesting to start the work
immediately. Accordingly, complainant immediately started
his professional work from that day itself. He collected all
required documents and thereafter completed the
estimation and plan as desired by them and getting their
approval applied for permission to Zone No.8 of Hubballi
Dharwad Municipal Corporation. Then the officials of
HDMC, Zone No.8 informed that there was objection from
neighbors of the property for construction of ground floor
itself and hence no completion certificate is obtained etc.
Further it is learnt that there is criminal dispute and quarrel
between accused No.4 and 5 and their neighbours before
Sub Urban Police Station Hubballi. Further it was revealed
that there is also civil dispute in OS.No.496/2008 etc.
pending in Hubballi Civil Courts etc.
6. Then complainant again approached accused
No.4 and 5 in the matter seeking clarification. They
admitted all the matter assuring and requested
complainant to get construction done resolving all the
matter assuring to pay additional amount to be demanded
by complainant. Accordingly believing and trusting accused
No.4 and 5, the complainant approached the neighbors of
accused No.4 and 5. With great efforts and persuasion he
sorted out the dispute and hence matter pending in Sub-
Urban Police Station was resolved. Thereafter with great
difficulty, convincing and persuasions Complainant was
successful for getting building permission from HDMC
officials in principle. Then the said officials of HDMC Zonal
Office no 8 directed to furnish an undertaking from accused
no 4 that she would comply the terms and conditions to be
imposed by HDMC officials as per their regulations. Further
they have directed to pay and remit the requisite amount for
permission. Accordingly accused no 4 & 5 have complied
the requirements and also remitted the amount.
7. It is submitted that there after accused no. 4 & 5
stopped to meet complainant and started to avoid him.
Even when he tried to contact them, they used to avoid him.
Later it is learnt that accused no 4 & 5 have privately told
that they have changed mind and decided to construct on
their own leaving the service of complainant . Then
complainant again approached them in second week of May
2017 and even then they did not bother to clear matter and
instead tried to hush up and avoid the matter. Hence
complainant demanded to pay further amounts as agreed
for furtherance of construction or to clear balance amount of
Rs.50,000/- for the work he has already performed. Then
the accused no 4 & 5 sought time. But even thereafter when
as they did not turn up, complainant had to approach them
again and again for payment of his balance professional
and service charges.
7. Under the circumstances it seems that accused no.
4 & 5 gave false complaint against complainant in Town
Police Station on 29-06-2017 and a notice was issued to
him in that regard on 01-07-2017. The complainant
approached accused no.3 on same day and sought time in
view of marriage of his son and assured to come back with
reply within few days for which accused no.3 agreed.
Accordingly complainant gave reply on 04-07-2017.
However, thereafter the complainant was out of station for
few days with his family members after the marriage of his
son.
8. That on returning to Hubballi on 8.07.2017,
several of his friends, relatives, clients and well wishers
informed him that there is a badly worded news published
in Vijayavani News paper on 02-07-2017. It is mentioned in
the news published that "..... the complainant has
cheated accused No 4, he even after taking
Rs.1,00,000/- did not complete the work nor return
the amount etc.". Thereafter it is published that accused
no 3 has given information in this regard and complaint is
lodged in Town Police station, Hubballi under direction of IV
Additional JMFC Court Hubballi after lodging of a Private
Complaint by accused no.4 and the matter is under
investigation etc.
9. It is fact that there is no IV Additional JMFC
Court in Hubballi as on that day and as such no any
Private Complaint could be filed as stated in the paper.
Further except the Vijayavani in no other news paper the
said alleged news is published. As such it is clear that
accused no.3 has given false and defamative information
deliberately against complainant in collusion and
connivance with no.1 & 2 and 4 & 5 as said above
DELIBERATELY to cause injury to the dignity, reputation,
name and fame of complainant and also to defame his
name in public at large. By act of accused the complainant
has suffered mental torture, damage of his reputation,
name, fame, in society at large, which cannot be
compensated in terms of money in any manner. Further he
also suffered financial loss as his reputation is damaged
due to bad name being spread by act of accused.
10. As such Legal Notice was issued to all the
accused stating the grievances of the complainant to
provide an opportunity to them to clarify the matter
and with certain demands on 17-07-2017 and notice
was served to all of them. Of them except accused
no.3 all replied through their counsel with futile
efforts to justify their illegal act. The accused no.3
who is a RESPONSIBLE POLICE OFFICER did not feel
even to reply. The accused no. 1 & 2 vide their reply
dated 27-07-2017 stated that " ... it is reiterated that
the news item has been published in public interest at
large only on the basis of the Court proceedings
pending .., it is of public interest in the interest of
public at large ., etc. The accused no.4 & 5 vide their
reply dated 03-08-2017 stated that they have filed
Private complaint in court against complainant and
court has taken cognizance and ordered for
investigation and accordingly police have registered
MAG crime against complainant and same has been
published etc. and hence demanded for damage of
Rs.1,00,000/- since MAG crime is registered etc.
11. As such it is clear MAG case has been registered
against complainant on alleged allegation of the accused
no.4 & 5 and matter is with accused no. 3 for investigation
and under such circumstances sensational news has been
published in VIJAYAVANI news paper on 02-07-2017 under
the heading ªÀÄ£É PÀnÖ¹PÉÆqÀĪÀÅzÁV ªÀAZÀ£":!" By said publication
of news impression is created in public at large as if the
complainant has cheated accused even before investigation,
much less the trial of the matter in court of law. The
accused persons in collusion with each other with
deliberately, intentionally with mala fide intention joined
hands with each other and got published the news as
stated above through complainant has not been adjudged
as culprit of convict even till day. There by made the
complainant to suffer as sated above.
12. Under the circumstance the complainant has filed
this complaint against the accused for their act of committal
of offence under provision of Section 499, 501, 502, R/w.
Section 34 of IPC and also for grant of damages of
Rs.10,00,000/- towards damages."
(Emphasis added)
A perusal at the narration in the complaint depicts that a
client by name Smt. Saroja entrusted certain works to the
complainant, who is a Civil Engineer by profession. The
contract between Smt. Saroja and the complainant appears to
have derailed, on which, Smt. Saroja registers a complaint
against the complainant - respondent herein, alleging offences
of cheating and other allied offences invoking Section 200 of the
Cr.P.C. On the said complaint, the learned Magistrate directs
investigation to be conducted by the jurisdictional Police under
Section 156(3) of the Cr.P.C.
4. The registration of the said complaint becomes a news
item in the newspaper Vijayavani, editor of whom is the 2nd
petitioner. The news item was verbatim repetition of the
complaint that was filed before the learned Magistrate. On
publication of the said news item, the complainant registers a
complaint against the petitioners for offences under Sections
499, 501, 502 of IPC read with Section 34 of the IPC alleging
that the act of publication in the newspaper has caused damage
to the reputation of the complainant and he has been defamed.
5. The 1st petitioner is the Managing Director of the
Company. There can be no vicarious liability in criminal law
unless the statute specifically mandates so. The Managing
Director would not be directly involved in the day-to-day affairs
of publication of news items in the newspaper, that too locally.
The said issue stands covered by several judgments rendered by
the Apex Court. For the reason that the 1st petitioner is not
directly involved in the printing of the items in the newspaper,
further proceedings against the 1st petitioner if permitted to
continue would result in miscarriage of justice.
6. Insofar as the 2nd petitioner is concerned, who is the
editor of the newspaper, interference at the hands of this Court
at this juncture cannot be on merits of the matter. The
interference is called for only on the order of the learned
Magistrate taking cognizance. The learned Magistrate takes
cognizance by an order dated 16-08-2021 and the order reads
as follows:
"There are sufficient materials in this case to proceed
against the accused for the allegation made by the
complainant.
Hence, office is hereby directed to register the case in
PC to CC and issue summons to the accused. Call on
20.09.2021."
The order taking cognizance as afore-extracted is a classic
example of non-application of mind on the face of it,
demonstrable. For what offence the learned Magistrate is taking
cognizance is not even noticed, no reasons are indicated, though
not elaborate as to why cognizance is being taken, even
assuming that it is for the allegations that are levelled. If an
order taking cognizance does not indicate as to for what offence
cognizance is taken, such an order is rendered unsustainable.
Therefore, the matter requires reconsideration at the hands of
the learned Magistrate for passing appropriate order taking
cognizance, which would demonstrate application of mind and
then proceed further in a manner known to law, as issuance of
summons and taking cognizance is a serious matter as is held
by the Apex Court in the case of PEPSI FOODS LIMITED v.
SPECIAL JUDICIAL MAGISTRATE reported in (1998) 5 SCC
749, wherein the Apex Court holds as follows:
"Summoning of an accused in a criminal case is a
serious matter. Criminal law cannot be set into motion as a
matter of course. It is not that the complainant has to bring
only two witnesses to support his allegations in the
complaint to have the criminal law set into motion. The
order of the magistrate summoning the accused must reflect
that he has applied his mind to the facts of the case and
the law applicable thereto. He has to examine the nature of
allegations made in the complaint and the evidence both
oral and documentary in support thereof and would that be
sufficient for the complainant to succeed in bringing charge
home to the accused. It is not that the Magistrate is a silent
spectator at the time of recording of preliminary evidence
before summoning of the accused. Magistrate has to
carefully scrutinise the evidence brought on record and may
even himself put questions to the complainant and his
witnesses to elicit answers to find out the truthfulness of
the allegations or otherwise and then examine if any
offence is prima facie committed by all or any of the
accused."
In the light of the order taking cognizance bearing no application
of mind and the judgment of the Apex Court (supra), I deem it
proper to remit the matter to the learned Magistrate to pass
appropriate orders in accordance with law concerning the 2nd
petitioner only.
7. For the aforesaid reasons, I pass the following:
ORDER
(i) Criminal petition is allowed in part.
(ii) The order dated 16.08.2021 and the
proceedings in C.C.No.3605/2021
(P.C.No.519/2017) against the 1st
petitioner/accused No.1 stands quashed.
(iii) The proceedings in C.C.No.3605/2021
(P.C.No.519/2017) against the 2nd petitioner is
remitted back to the hands of the learned
Magistrate to pass appropriate orders, which
would bear application of mind for taking
cognizance and issuing summons.
Ordered accordingly.
SD
JUDGE
nvj
