P.K.Rajesh vs Kariyil Gopi, S/O. Kunhambu
2021 Latest Caselaw 20618 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
       TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                        CRL.A NO. 2239 OF 2006
 AGAINST THE JUDGMENT IN CC 222/2002 OF JUDICIAL MAGISTRATE OF FIRST
                       CLASS ,MATTANNUR, KANNUR
APPELLANT/COMPLAINANT:

           P.K.RAJESH, PARIKKAL HOUSE, MOOLAKKARI,, KOODALI, KANNUR
           DISTRICT.

           BY ADV SRI.CIBI THOMAS


RESPONDENTS/ACCUSED AND STATE:

    1      KARIYIL GOPI, S/O. KUNHAMBU,
           UCHUMMAL HOUSE, PAYANCHERRI,, IRITTY, KANNUR DISTRICT.

    2      STATE OF KERALA
           REP. BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,
           ERNAKULAM.

           BY ADV.SRI.SANGEETHARAJ, PUBLIC PROSECUTOR



     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 2239 OF 2006                      2



                                                                  C.R

                                 JUDGMENT

This appeal has been filed by the Complainant in C.C.

No.222/2002 on the file of the Judicial Magistrate of the First Class,

Mattannur, challenging the acquittal of the respondent/accused in a

prosecution for an offence punishable under Section 500 of the Indian

Penal Code (hereinafter referred to as 'the Code'). If there be a case that

calls upon me to apply the exception in Section 95 of the Code, this is

one. Section 95 of the Code is a statutory embodiment of the maxim -

"De minimus non curat lex" - The law does not concern itself with a

disturbance that is trivial or immaterial.

2. The complaint in question was filed alleging that on the

occasion of the marriage of the sister-in-law of the complainant, the 1 st

respondent/accused caught hold of the complainant by his hand and

defamed him by calling him 'ന യന മ മന' and a thief who failed to return

certain amounts of money allegedly borrowed by the

appellant/complainant. According to the appellant/complainant, this was

witnessed by several people who came for the wedding, including the

bridegroom and his family and that his reputation had been thus lowered

in the eyes of the public, including relatives. According to the

appellant/complainant, the 1st respondent/accused committed the

offence punishable under Section 500 of the Indian Penal Code. The

respondent/accused appeared on summons and pleaded not guilty to the

charge for an offence punishable under Section 500 of the Code. The

appellant/complainant examined PWs 1 to 4 to prove the incident and

also to prove that the act of the 1 st respondent/accused had resulted in his

reputation being lowered in the eyes of the public and his relatives.

Following the closure of evidence on the side of the complainant, the 1st

respondent /accused was questioned under Section 313 of the Cr.P.C. He

denied all incriminating materials appearing against him and stated that

a false case has been foisted upon him. On the side of the defence, one

witness was examined as DW1 and a letter was marked as Ext.D1, which

would show the existence of a financial transaction between the

appellant/complainant and the 1st respondent/accused. The learned

Magistrate found that even if the allegations in the complaint were true,

the 1st respondent/accused had only made 'an abusive effort' to get back

money from the appellant/complainant and this cannot amount to

defamation. The Learned Magistrate also found that the 1st

respondent/accused had no intention to defame the

appellant/complainant. On these findings. the 1st respondent/accused

was acquitted.

3. Learned counsel appearing for the appellant/complainant

submits that the learned magistrate had acquitted the 1 st

respondent/accused on an incorrect understanding of the law. He

submits that the act of the 1st respondent/accused does not fall within any

of the exceptions under Section 499 of the code and therefore, the

learned Magistrate should not have acquitted the 1 st respondent/accused.

He submits that the evidence in this case clearly establishes the

commission of an offence punishable under Section 500 of the Code.

Despite service of notice in the appeal and service of notice through the

Circle Inspector of Police, Iritty (following the order dated 22.03.2021 in

this appeal), the 1st respondent/accused has not entered appearance

before this Court.

4. The appellant/ complainant was examined as PW.1. The

words uttered by the 1st respondent/accused which are stated to be

defamatory are these:-

         ''ന യന മ മന, കള, അഞനക ല യ തര നളപ സത ട , നന                     വടല,
         ന റക; ന അച വടൽത സക വനമല''

It appears to me that even if the incident happened in the manner

indicated in the evidence of the appellant, the harm is so trivial that the

accused would be entitled to the benefit of Section 95 of the Code. Section

95 of the Code is part of Chapter IV of the Code containing the 'General

Exceptions'. It reads: -

"95. Act causing slight harm.--Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm."

Atchuthan Pillai, P.S., in his work 'Criminal Law', 9th ed., has

explained the principle thus: -

"One of the first principles of law is de minimis non curat lex

- the law does not concern itself with trifles. This has found expression in s 95, IPC.

.......

Men living in society are bound to suffer some inconvenience. It is for this reason that the law exempts trivial actions from the category of crime. This section will apply only when the act alleged would be an offence but for this section. Where the act is of such a nature that it will not be an offence, even independent of this section, then there is no question of applying this section. Whether an act which amounts to an offence is trivial, would depend upon the nature of the injury, the position of the parties, the relation between them, the situation in which they are placed, the knowledge or intention with which the offending act is done and other related circumstances. It cannot be judged solely by the measure of physical or other injuries the act causes. This section will apply where the harm is so slight that no person of ordinary sense and temper would complain of such harm."

The Supreme Court in Bindeshwari Prasad Singh v. Kali Singh 1,

while considering the question as to whether a Magistrate had the power

to recall an order passed by him held:-

".....The complaint itself contains allegations of a very petty nature, of which hardly any cognizance could have been taken and which would be a trivial act under Section 95 of the Penal Code, 1860 for which no criminal proceedings could be taken. ....."

Therefore, I am inclined to hold that when the averments in a complaint

and the evidence tend to show that it falls within the exception provided

for in Section 95 of the Code, the accused is entitled to the benefit of the

exception. It is settled law that despite the requirements of Section 105 of

the Evidence Act, an accused taking the plea under one of the exceptions

is not necessarily required to lead evidence and he can establish his plea

by reference to circumstances transpiring from the evidence of the

prosecution itself.2

5. Further, it is settled that for an offence under Section 499 of

the Code, the imputation must be made with the knowledge that it may

cause harm to the reputation of another. On a perusal of the depositions

1(1977) 1 SCC 57 2See Subramani V. State of Tamil Nadu; AIR 2005 SC 1983

of the witnesses, the appellant/complainant has failed to prove any mens

rea on the part of the 1st respondent/accused to defame the

appellant/complainant. The principle of strict liability is also not

attracted.

6. Still further, Explanation (4) to Section 499 of the IPC reads

as follows:-

''Explanation 4.--No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.''

I am of the opinion that in the facts and circumstances of the case,

the 1st respondent/accused is also entitled to the benefit of

Explanation (4) to Section 499 IPC.

On my finding on each of the points considered above, I am of the

view that the learned Magistrate was justified in acquitting the accused.

The appeal fails and is accordingly dismissed.

SD/-

ajt                                                          GOPINATH P., JUDGE