Karnataka High Court
Sri Yallappa S/O Ramappa Alias ... vs Smt. Kallavva W/O Hanumantappa ... on 28 November, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.P No. 100331 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
R
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO.100331 OF 2023
BETWEEN:
1. SRI. YALLAPPA S/O RAMAPPA
@ DODDABASAPPA LAKKANNAVAR,
AGE. 56 YEARS, OCC. GOVT. EMPLOYEE,
R/O. KALLIMATH ONI, NAVALGUND,
TQ. NAVALGUND, DIST. DHARWAD,
PIN CODE-582208.
2. SRI. MANOJKUMAR S/O. RAMAPPA
@ DODDABASAPPA LAKKANNAVAR,
AGE. 48 YEARS, OCC. AGRICULTURIST,
R/O. KALLIMATH ONI, NAVALGUND,
TQ. NAVALGUND, DIST. DHARWAD,
VIJAYALAKSHMI
M KANKUPPI PIN CODE-582208.
Digitally signed by
VIJAYALAKSHMI M
KANKUPPI
Date: 2023.12.12
11:01:56 +0530
... PETITIONERS
(BY SRI.B.S. KUKANAGOUDAR, ADVOCATE)
AND:
SMT. KALLAVVA W/O HANUMANTAPPA KURIYAVAR,
AGE. 65 YEARS, OCC. HOUSEHOLD,
R/O. GANESHPET, HUBBALLI,
TQ. HUBBALLI, DIST. DHARWAD-580020.
... RESPONDENT
(BY SRI. S.L. MATTI, ADVOCATE)
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CRL.P No. 100331 of 2023
THIS CRIMINAL PETITION IS FILED U/SEC.482 OF CR.P.C.,
SEEKING TO QUASH THE ORDER DATED 16.04.2022 PASSED IN
C.C.NO.820/2022 (PC NO. 116/2021) ON THE FILE OF CIVIL JUDGE
AND J.M.F.C. COURT, NAVALGUND, TAKING COGNIZANCE AND
ISSUING PROCESS AGAINST THE PEITTIONERS/A-1 AND A-2 FOR
THE OFFENCES PUNISHABLE U/SEC.500 OF IPC VIDE ANNEXURE-E,
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDER ON 20.11.2023 AND COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
ORDER
The petitioners are accused in C.C.No.820/2022 on
the file of Civil Judge and J.M.F.C., Navalgund. The
respondent is complainant in the said case. The
respondent has filed complaint in P.C.No.116/2021
alleging that petitioners have committed the offence
punishable under Section 500 of Indian Penal Code
(hereinafter referred as 'IPC' for brevity). Seeking to
quash the same, petitioners have come up before this
Court with this petition.
2. The facts of the case would be as follows;
The respondent is one of the daughter of
Smt. Fakkiravva W/o Huchchappa Lakkanavar. The
respondent, her two sisters and mother filed a suit in
O.S.No.132/2016 on the file of Senior Civil Judge,
Navalgund seeking the relief of declaration that the sale
deed dated 22.02.2016 executed by Huchchappa
Lakkanavar in favour of 2nd petitioner Sri. Manojkumar in
respect of property bearing Sy.No.379 measuring 23-Acres
13-Guntas of Navalgund village is void ab-initio and to
declare that they are the absolute owners in possession of
suit schedule 'B' properties. The said suit is filed claiming
that they are the legal heirs of Huchchappa Lakkannavar.
The petitioners who were defendant Nos.1 and 2 in the
said suit filed written statement and made averment
denying the relationship of plaintiffs in the suit with
Huchchappa Lakkannavar. According to respondent, in the
written statement in O.S.No.132/2016 and in the evidence
affidavit of petitioners herein, they have made defamatory
imputations making out a clear offence punishable under
Section 500 of IPC. With these allegations, the respondent
has filed the instant private complaint. The petitioners who
are accused Nos.1 and 2 have came before this Court
seeking to quash the entire proceedings. The imputations
as extracted in the complaint, are reproduced below.
" ಯ ತ ಚ ಪ ಡ ಮಪ ಲಕನ ವರ
ಇವ ೕ ಂದ "#ಧ ಇ ಲ% . 1&
ತ ಚ ಪ ನ '() *ರ +ಂಡ ಇ ಲ% .
,.2 ಂದ 4 &ದವ ಚ ಪ ನ ಮಕ- .
ಇ ಲ% . 1& / ತ ಚ ಪ ನ 0ರದ
"#1 2) , ಚ ಪ ನ ದತ3 ಕ ದ ,ತರ
ಚ ಪ 4 ಸಣ7 ವ89) ಗ ಸದರ 1& ಫ<- ರ
ಇವಳ4 ಚ ಪ 8 >?@ ಮ2A BC>ಡDE
ಅಂG #2 ಬಳಗ ಅಂ2>.I 3 ದ) . JಂK ಸದರ
1& / ಡ ವLದ MN ಅವಳ OೕವನದP%
ನQಯRರದ ಘಟU ನQ2 ಲಗ ಗK
ಉW2>ಂC2) ಇ ತ3 K. 'ರಣ 2 ಂದ 4&
ಯ ತ ಚ ಪ ನ ಮಕ- . ಇ ಲ% . 'ರಣ
ಸದರ ತ ಚ ಪ 8 "#1*ದ ವX3 ಆ*3 ಗW
ಯ ೕ ಂದ ಹE- ಳI ವ
ಇ ಲ% ."
3. The above said imputations are contained in the
written statement filed by the petitioners and in their
affidavits filed in lieu of examination-in-chief in
O.S.No.132/2016. In the averments of written statement
and affidavits, the petitioners have stated that respondent,
her sisters and their mother are not related to deceased
Huchchappa DoddaRamappa Lakkannavar; the 1st plaintiff-
Fakkiravva is not the legally wedded wife of Huchchappa.
The plaintiffs 2-4 are not the children of Huchchappa. The
1st plaintiff is the distant relative of Huchchappa. After
adoption of Huchchappa, the relatives decided to perform
marriage of 1st plaintiff-Fakkiravva with Huchchappa.
When 1st plaintiff grown up, at that time, some
unwanted incident had happened and her marriage was
not performed and therefore, plaintiff Nos.2 to 4 are not
the children of Huchchappa and they are not having any
right in the property of Huchchappa.
4. Learned counsel for the petitioners would
submit that these averments have been made in the
complaint only out of good faith which would fall squarely
under Exception 9 to Section 499 of IPC. The learned
Counsel would further submit that these averments are
absolutely necessary for proving the issues involved in the
civil suit. Learned counsel would further submits that it
cannot be stated that these averments, which according to
the respondent are defamatory in nature, are absolutely
unnecessary for the issues involved in the suit. These
averments are necessary and relevant and the petitioners
are prepared to prove the same before the Civil Court.
Therefore, according to the learned Counsel for the
petitioners, the complaint is liable to be quashed.
5. Here, it is pertinent to note that admittedly, the
suit is subjudice and it is yet to be disposed of. Hence,
whether the statement is true or defamatory has to be
ascertained only after the disposal of the suit. In such
circumstances, I am of the opinion, as per the dictum of
Hon'ble Apex Court in the case of State of Bihar and
Others Vs Kripalu Shankar and Others1 pending
matters are immune from comments made by the parties.
The averments mentioned in the pleadings filed before the
judicial forum is not coming under the purview of Section
499 IPC., wherein the proceedings are pending and
subjudice. Hence, no prima-facie case has been made out
for taking cognizance for offence under Section 500 IPC.
6. The learned Counsel appearing for the
respondent would stoutly oppose this petition. According
to him, Exception 9 to Section 499 of IPC is to be pleaded
(1987) 3 Supreme Court Cases 34
and proved only at the time of trial. Plea of good faith
cannot be presumed as the same requires to be proved. In
the case on hand, though it is stated by the petitioners
that these averments had been made out of good faith, it
is for the Criminal Court to decide as to whether they have
been made, out of good faith or not, on the basis of the
evidence to be let in by both the parties. Thus, according
to the learned Counsel for the respondent, it is too pre
mature, at this stage, to presume good faith and quash
the proceedings. It is contention of learned counsel that
pendency of the civil suit has got nothing to do with the
criminal case. In other words, according to the learned
Counsel for the respondent, there is no bar for filing a
prosecution for defamation on the basis of the averments
found in a pleading filed before the Civil Court.
7. Learned counsel for the respondent would
further contend that there is no need for the respondent to
wait for the outcome of the civil suit and therefore, the
present prosecution is maintainable. Thus, according to
the learned Counsel for the respondent, this petition is
liable to be dismissed.
8. I have considered the above submissions and I
have also perused the materials available on record.
9. At the outset, I want to state that, there is no
legal bar for filing a private complaint alleging that a party
to a civil proceeding has made certain imputations in the
pleadings before the Civil Court, which are per se
defamatory. I am also clear that the pendency of the said
civil suit is not an impediment for the aggrieved to file a
private complaint and without waiting for the final
outcome of the suit, he can very well approach the
Criminal Court by way of a private complaint seeking to
punish the accused for defamatory statements made in the
pleadings, provided the averments in the pleadings are
totally unconnected to or unwarranted for the issues
involved in the civil suit and they are per se defamatory.
In any civil proceeding, it is absolutely necessary for the
party concerned to make averments relevant to the issues.
If such relevant averments are not made, the Civil Court
may not permit the party to make a plea on that subject
orally and also to lead evidence. It is common knowledge
that in civil suits, there cannot be any evidence let in
without there being relevant pleading. The circumstances
like relationship between deceased and plaintiffs are too
relevant to the core issue of claiming title to the property
of deceased Huchchappa.
10. In the case on hand, the averments, which are
stated to be defamatory, relate to her relationship with the
deceased Huchchappa. This, in fact, relevant for the civil
Court to decide the issue as to whether plaintiffs are
entitled to the relief of declaration. If these averments
have not been made in the pleadings before the Civil
Court, as I have already stated, the petitioners may not be
permitted by the Civil Court to plead on that subject orally
and lead evidence and as a result, they may not be in a
position to disprove the relationship of the plaintiffs with
deceased Huchchappa.
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11. In this regard, it is useful to refer to Order VI
Rule 16 of the Code of Civil Procedure which reads as
follows:
"O.6 R.16. Striking out pleadings:- The Court may at
any stage of the proceedings order to be struck out or
amended any matter in any pleading---
(a) which may be unnecessary, scandalous, frivolous or
vexatious, or
(b) which may tend to prejudice, embarrass or delay the
fair trial of the suit, or
c) which is otherwise an abuse of process of the Court."
12. As per the said rule, if it is the case of the
respondent that these averments are either unnecessary
or scandalous, frivolous or vexatious or which may tend to
prejudice the mind of the Court, she could have very well
made an application under this provision before the Civil
Court seeking to strike out the above averments in the
written statement. If any such petition is filed, certainly,
the Civil Court would give a finding as to whether these
averments have got any relevance to the issues involved
in the suit and whether these averments are scandalous,
frivolous and vexatious or they are in the nature of
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causing prejudice in the mind of the Court. If only such a
finding is given by the Civil Court, then, the respondent
would be entitled to approach the Criminal Court that the
statements are defamatory because they are scandalous.
In my considered opinion, when the averments are very
relevant to the issues involved in the suit and the suit is
pending, the respondent is precluded to file a private
complaint.
13. This may also be viewed from a different angle.
Let us assume that the present prosecution is allowed to
continue further and if the Criminal Court holds that these
statements are scandalous and accordingly punishes the
accused and later on, the Civil Court gives a finding that
they are not scandalous, frivolous, vexatious and holds
that they are necessary to the issues involved in the suit,
then, the said finding of the Civil Court will be contrary to
the findings of the Criminal Court. Such a situation leading
two courts of law to render two conflicting judgments
cannot be permitted. Therefore, in my considered opinion,
it is for the respondent either to approach the respective
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Civil Court under Order VI Rule 16 or to wait till the final
outcome of the civil suit and then to work out his remedies
in the manner known to law.
14. In the case of Alli Rani Joseph Mathew and
others Vs P. Arun Kumar2, the Hon'ble High Court of
Madras while considering the statements made in the
petition attracts the offences of defamation has observed
that statements made in the pleadings are necessary to
the issues involved in the suit. If the Criminal Court holds
that these statements are scandalous and punishes the
accused and later on, the Civil Court gives a finding that
they are not scandalous and holds that they are necessary
to the issues involved in the suit, then, the said finding of
the Civil Court will be contrary to the findings of the
Criminal Court and such a situation leads to render two
conflicting judgments and with that observations quashed
the criminal case registered for the offence under Section
500 of IPC.
Crl.O.P.No.10481/2012, Disposed of on 03.08.2012.
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15. The Hon'ble High Court of Madras in the case of
Geetha Vs A.K.Dhamodharan3 while considering the
statements made in the averments seeking divorce has
held that, the case is subjudice and it is yet to be disposed
of and pending matters are immune from comments and
further held that, the averments mentioned in the
pleadings filed before the judicial forum is not coming
under the purview of Section 499 of I.P.C., wherein the
proceedings are pending and subjudice.
16. Now coming to the exception pleaded by the
learned Counsel for the petitioners, there can be no
second opinion that a plea of good faith is a matter to be
pleaded and proved. Good faith cannot be readily inferred.
The term 'good faith' has been defined in Section 52 of the
Indian Penal Code which reads as follows:
"52. "Good Faith".--- Nothing is said to be done
or believed in "good faith" which is done or believed
without due care and attention."
17. A close reading of the above definition would
make one to clearly understand that if a statement has
Crl.R.C.No.784 of 2009, Disposed of on 28.06.2011.
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been made without due care and attention, then, it cannot
be said that he acted in good faith. Here in this case, the
petitioners have made these averments that are very
relevant for the issues, which according to them have
been stated with due care and attention. Whether these
averments made by the petitioners in the written
statement are statements of truth or not is going to be
decided by the Civil Court because there is a relevant issue
on the relationship of the plaintiffs with deceased
Huchchappa. Therefore, it cannot be said at this stage that
the petitioners have made the above averments without
due care and attention.
18. The decision relied upon by learned counsel for
respondent in Crl.P.No.4359/2022 and connected matter,
the Co-ordinate bench of this Court has held that
statement made by the petitioner cannot be said to be in
good faith. Therefore, the decision does not help the
respondent as the averments are made in a good faith.
19. In view of the foregoing discussion, I hold that
this is not a case where the statements are per se
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defamatory so as to disallow the plea of good faith at this
stage so as to allow the respondent to go ahead with the
prosecution. In view of the above, I proceed to pass the
following:
ORDER
The Criminal Petition is allowed.
The proceedings in C.C.No.820/2022
(P.C.No.116/2021) on the file of Civil Judge and J.M.F.C.,
Navalgund, are hereby quashed.
Sd/-
JUDGE
AM/-.
