R.Varadaraj vs Mr.K.Vaidyanathan
2021 Latest Caselaw 23236 Mad

                                                                                    Crl.R.C.No.349 of 2016

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        DATED : 29.11.2021

                                                             CORAM

                                      THE HONOURABLE Ms.JUSTICE R.N.MANJULA

                                                    Crl.R.C.No.349 of 2016


                     R.Varadaraj                                                    ... Petitioner

                                                                Vs


                     Mr.K.Vaidyanathan                                              ... Respondent


                     PRAYER: This Criminal Revision Case is filed under Sections 397 and 401

                     of Cr.P.C., against the order dated 01.02.2016 in Crl.M.P.No.108 of 2016

                     passed by the learned Chief Metropolitan Magistrate, Chennai.

                                       For Petitioner     : Mr.R.Varadaraj (Party in Person)

                                        For Respondent : Mr.S.Ramesh


                                                            ORDER

This Criminal Revision Case has been filed challenging the order of

the learned Chief Metropolitan Magistrate, Allikulam, Chennai dated

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01.02.2016 in Crl.M.P.No.108 of 2016, wherein, the complaint filed by the

petitioner under Section 199 r/w.200 Cr.P.C., for punishing the respondent

for the offence under Sections 499 and 500 IPC was rejected.

2. The petitioner being the private complainant before the Chief

Metropolitan Magistrate Court had filed a complaint for taking action

against the respondent for the alleged commission of the offence punishable

under Sections 499 and 500 IPC.

3. The allegation of the petitioner is that a news was published in the

journal named ''Kumudham Reporter'' on 21.08.2015 about a land grabbing

activity. In the said news item, it is alleged that the respondent has actively

involved in grabbing the lands of those persons, who do not have any legal

heirs. Aggrieved by the said news, the respondent gave a legal notice to the

Kumudham Reporter journal on 19.08.2015. In the said notice, a reference

has been made about a person by name Varadarajan and it is alleged that

the photographs in the news item pertained to him.

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4. The defacto complainant had got the information from Kumudham

Reporter and stated that the reference of a name Varadarajan relates to him

only. So he sent a Defamation notice to the respondent on 15.10.2015 and

for which the respondent also sent a reply on 22.10.2015. Having not

satisfied with the reply notice dated 22.10.2015, the petitioner preferred a

complaint against the respondent for punishing him for the offence of

defamation under Section 499 r/w. 500 IPC.

5. The learned Metropolitan Magistrate had chosen to dismiss the

complaint on 01.12.2016, on the observation that the complainant had failed

to prove the two requirements for defamation and there is no prima facie

materials available on record to take cognizance of the complaint under

Section 499 r/w. 500 IPC.

6. The learned Magistrate has observed that the image shown in the

journal viz., Kumudham Reporter is about a fictitious person and it has got

no reference about the present revision petitioner; further the image did not

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hit against the complainant.

7. It is to be noted that the revision petitioner has taken the cause of

action not from the news item published in the Kumudham Reporter but

merely from the notice sent by the respondent to the Kumudham Reporter

on 19.08.2015. On perusal of the said notice, it is seen that the respondent

has made the following averments:

''5. In one of the photographs, at page 38 of this magazine you have depicted as if a person is trying to open the door forcibly using his legs and a caption is affixed in the photo saying ''Vadakaithararkalidam Arajagam''. An impression is sought to be given by all of you to the public as if my client is trying to open the doors forcibly. My client places on record that the person who has posed for photograph is one Varadarajan and is party to litigations against my client before various courts. He has posed to the photograph to create an illusion to reader as if my client is trying to open the door forcibly. Third of you has colluded with the said Varadarajan to capture the aid photograph and publish it in such a manner so as to

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defame my client in the eye of the general public by giving an impression to general public that my client is the person found in photograph.''

8. On coming to know about the above content, the revision petitioner

had chosen to send a defamatory notice by stating that the respondent had

mentioned his name unnecessarily and thereby defamed him. The impugned

notice dated 19.08.2015 was sent by the respondent to Kumudham Reporter

and not to the revision petitioner herein.

9. The learned counsel for the petitioner relied on the decision of the

Andhra High Court passed in Crl.R.C.No.1780 of 2017 dated 06.07.2018

in the case of P.S.Meherhomji vs.K.T.Vijay Kumar and others in support

of his contention that once defamatory notice has been sent to third person

that itself would amount to defamation. In the above judgment, it is held as

under:

''13. Thus, from the above, it is clear that to complete the offence of defamation, publication has to be made by the offender to the third person other than the person

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intended to be defamed. The reason is that the offender would generally intend to lower the reputation of a particular person in the esteem of world at large. He may end the defamatory letters to the third parties as well as the person defamed in such cases, the offence under Section 499 IPC may be attracted. However, if the offender sends the letter of scurrilous remarks to the person defamed alone, it will not attract the offence under Section 499 IPC though such act may amount to intentional insult and attract the offence under Section 504 IPC.''

10. The learned counsel for the respondent submitted that the revision

petitioner has not produced prima facie materials before the Court in order

to establish that there was a imputation by word either spoken, written or it

had been published. He attracted the attention of this Court to a decision of

the Hon'ble Supreme Court in the case of Mohd.Abdulla Khan v. Prakash

K., reported in (2018) 1 SCC 615, wherein, the relevant portion reads as

under:

''9.Section 499 IPC defines the offence of defamation. It contains 10 exceptions and 4 explanations. The relevant portion reads;

“499. Defamation.— Whoever, by words either spoken or intended to be read, or by signs or by visible

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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 expected, to defame that person.”

10. An analysis of the above reveals that to constitute an offence of defamation it requires a person to make some imputation concerning any other person;

(i) Such imputation must be made either

(a) With intention, or

(b) Knowledge, or

(c) Having a reason to believe

that such an imputation will harm the reputation of the person against whom the imputation is made.

(ii) Imputation could be, by

(a) Words, either spoken or written, or

(b) By making signs, or

(c) Visible representations

(iii) Imputation could be either made or published. The difference between making of an imputation and publishing the same is:

If ‘X’ tells ‘Y’ that ‘Y’ is a criminal – ‘X’ makes an imputation.

If ‘X’ tells ‘Z’ that ‘Y’ is a criminal – ‘X’ publishes the imputation.

The essence of publication in the context of Section 499 is the communication of defamatory imputation to persons other than the persons against whom the imputation is made.''

11. By citing the above decision, it is claimed by the learned counsel

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for the respondent that the learned Magistrate is right in rejecting the

petition on the ground that prima facie materials are not placed before the

Court for taking cognizance.

12. It is already stated that the revision petitioner did not challenge the

news item published in the Kumudham Reporter and he has based his case

only on the notice sent by the respondent on 19.08.2015 to Kumudham

Reporter. Admittedly, there is some reference about a person by name

Varadarajan. It is the grievance of the revision petitioner that such

contention contains the defamatory imputation and the act of publishing gets

completed at the moment, the Kumudham Reporter received the notice and

saw its contents.

13. The facts like whether the respondent has made a reference about

the revision petitioner by mentioning the name of Varadarajan in his notice

dated 19.08.2015; if so, whether they are defamatory in nature or it was

only a fact of truth etc., are all to be proved before the trial Court at the time

of trial. So far as the requirement of prima facie materials is concerned, it is

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sufficient for the revision petitioner to show before the Court that there is

some imputation against him and that has been made in the form of words

written or spoken and that it has been published. By producing a news item

and the notice sent by the respondent to the Kumudham Reporter, the

revision petitioner has sufficiently produced the prima facie materials to

make out a case under Sections 499 and 500 IPC.

14. The learned Metropolitan Magistrate has dealt about the merits of

those materials. Such kind of evaluation are not required at this level. If the

complainant is able to produce prima facie case before the Court, his case

should be taken on file. Only at the time of trial, the court should venture to

make a rowing enquiry about the merits of those materials. The learned

Metropolitan Magistrate had appreciated the merits of the materials at a pre-

matured stage of taking the case on file. Since the learned Chief

Metropolitan Magistrate omitted to take the case on file, considering the

prima facie materials, it warrants the interference of the Court. In view of

the same, the impugned order is liable to be set aside.

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15. In the result, this Criminal Revision Case in allowed and the order

dated 01.02.2016 in Crl.M.P.No.108 of 2016 passed by the learned Chief

Metropolitan Magistrate, Allikulam, Chennai is set aside. The learned

Magistrate is directed to take the case on file within a period of two weeks

from the date of receipt of a copy of this order and deal with the matter in

accordance with law.

29.11.2021

Index:Yes/No Internet:Yes/No Speaking / Non-Speaking Order ssn

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To

1. The Chief Metropolitan Magistrate, Allikulam, Chennai.

2. The Public Prosecutor, High Court of Madras, Chennai.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.349 of 2016

R.N.MANJULA, J., ssn

Crl.R.C.No.349 of 2016

29.11.2021

https://www.mhc.tn.gov.in/judis