Sri Swapan Kr. Paul vs Sri Anal Roy Chowdhury
2021 Latest Caselaw 643 Tri

                     IN THE HIGH COURT OF TRIPURA
                              AGARTALA

                            RFA No.08 of 2017

Sri Swapan Kr. Paul,
son of late Rajendra Kr. Paul, resident of
B.K. Road, Banamalipur, P.O. Agartala,
P.S. East Agartala, District-West Tripura,
PIN-799001
                                                    ......... Appellant(s)
                              -Versus-
Sri Anal Roy Chowdhury,
Owner, Publisher, Printer and Editor of
Bengali Daily named 'Pratibadi Kalam'
having its office at Chowdhury Bhavan,
Hari Ganga      Basak Road, Melarmath,
Agartala, P.O. Agartala, P.S. West
Agartala, District- West Tripura, PIN-
799001
                                                  ........ Respondent(s)

For the Appellant (s)          :    Mr. Raju Datta, Adv.
For the Respondent (s)         :    Mr. S. Lodh, Adv.
Date of hearing                :    29.04.2021
Date of delivery of            :    30.06.2021
Judgment & order
                                      YES NO
Whether fit for reporting      :


                    HON'BLE MR. JUSTICE S. TALAPATRA
                 HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

                            JUDGMENT & ORDER
[Talapatra, J]

Being aggrieved by the judgment and decree dated

06.02.2017 delivered in M.S. 21 of 2013, titled as Swapan Kr. Paul

vs. Anal Roy Chowdhury by the Civil Judge, Sr. Division, No.1, West

Tripura, Agartala, this appeal has been preferred by the plaintiff. By

the said judgment, the suit of the appellant for damages has been

dismissed.

[2] The brief facts as relevant to appreciate the grounds of

the appeal are placed at the outset. The plaintiff claims to be a

reputed businessman. He has been successfully carrying business

of transportation and for such reputation, he was engaged as the

transport contractor by Oil and Natural Gas Corporation Ltd., ONGC

in short, Food Corporation of India Ltd., FCI in short and other

government departments. That apart, the plaintiff is the Managing

Director of M/S. Rajarshi Motors Private Ltd. which deals in the

vehicles manufactured by Tata Motors Ltd. According to the

plaintiff, the yearly financial transaction concerning their business,

business of the plaintiff and his family members, is estimated at

around Rs.100 crores during the financial year 2011-2012. The

plaintiff has got allotment of land measuring 2.150 acres from the

government on payment of premium for constructing a four star

category hotel.

The defendant-respondent in this appeal, is the owner,

editor, publisher and printer of a Bengali daily newspaper, namely

Pratibadi Kalam published from Agartala. According to the plaintiff,

with a view to malign him and to harm his reputation, in the said

newspaper several news items were published. Those news items

are identified as follows:

(1) News item dated 30th April, 2013 under the headline "Niriho Upajatike Thokie Swapaner Panchtara hotel." (Swapan builds 5 Star hotel by cheating/ duping the innocent Tribal),

(2) News item dated Ist. May, 2013 under the headline, "Manabendrar Oboidha Adeshei jomir Dakhal nen Swapan Paul" (Swapan Paul has taken possession the land on the basis of illegal order of Manabendra).

(3) News item dated 3rd May, 2013 under the headline, "Rajjyer Phency Suprimo Swapan and Namita" (Swapan and Namita are the Phency Supremo of the State).

(4) News item dated 4th May, 2013 under the head line," Takar Jore Ayeen Palte fele Swapan" (Swapan changes the law applying his money power)

(5) News item dated 06th May, 2013 under the head line, "Sarkarke dusho kotir faki Swapan paler" (Swapan has defrauded government of two hundred crores).

(6) News item dated 07th May, 2013 under the headline," Ekadhik TCS Jorito Swapan Pauler Kelenkarite"(more than one TCS officer involved in the scandal concerning Swapan Paul).

(7) News item dated 08th May, 2013 under the head line,"Swapaner Sapakkhe number tarikh hin adesh

Mahakuma Sashaker" (Undated order of the Sub-divisional officer favouring Swapan).

(8) News item dated 10th May, 2013 under the head line," Sarkar naki doshi , bolche Swapaner Khas Mahal" (Govt. is guilty, says insiders of Swapan's business).

[3] It has been pleaded that in those news items, the

defendant published the stories imputing the plaintiff. By depriving

a member of the tribal community namely, Dilip Debbarma, the

government land has been allotted in favour of the plaintiff.

Another story 'imputes' that the plaintiff was a petty vegetable

vendor, he used to work as a 'Coolie'. He used to carry rice bags to

the houses of ONGC officers. He was close to the Chief Minister and

Administration and for that reason, got the land of Dilip Debbarma

by way of manipulation. He managed a Deputy Secretary of the

Revenue Department, namely Manabendra Chakraborty, Tamal

Majumder, a TCS officer et al. The defendant has described the

allotment as absolutely illegal. The plaintiff has been further

imputed by stating that he and his wife deal in contraband

medicine, namely phensedyl but they pretend to be social workers,

but in fact they are 'black-marketers' and 'smugglers'. According to

the defendant, the plaintiff had to appear before the Special Court

under Customs Act and NDPS Act at Guwahati in 11 cases. It has

been also imputed in the news items that the plaintiff has

defrauded the government for an amount of Rs.10 crores and he

did not deposit a single copper out of Rs.1,71,51,951.00/- as

estimated as the premium for the said allotment. The defendant's

newspaper has branded the plaintiff as 'fraud' as he had created

false challans of payment. In the scandal, according to the printed

imputations, more than one TCS officers are involved. The news

items further imputed that the plaintiff had obtained a report from

Mr. Muslemuddin, Sub-Divisional Magistrate, Sadar, as he then

was, by illegal means. The plaintiff has asserted quite categorically

that all those imputations are baseless, false and unfounded.

[4] The defendant by filing the written statement has denied

that the published materials do contain any defamatory materials

and all the news items are published bona fide and as such, the suit

is liable to be dismissed. The basic defence is available in Para-7 of

the written statement.

7. It is stated that the answering defendant with his utmost honesty and dignity, is running the news paper, namely, Pratibadi Kalam. On getting supporting materials, when the answering defendant comes to conclusion on to his bona fide belief, he published the news.

On to news item of allotment of land, it is stated that the answering defendant got a copy of the order dated 22.02.2010, passed by the Ld. Additional District Judge, Court No.3, granting a probate of a Will, executed by Ajam Uddin Hazi on 14.04.1978, bequeathing his property in favour of Shri Dilip Debbarma. Some of the lands, mentioned in the Will, which were bequeathed to said Shri Dilip Debbarma, was allotted by the Government in favour of the plaintiff. Thus, it is submitted

that the news item published in Pratibadi Kalam on the allotment of land is not untrue.

On to the news item of Phency Supreme, it is stated that 9000 bottles of phensedyl were seized on 04.03.2010 from vehicle No.AS-25-C-3168 (Truck) and a case have been registered against Smt. Namita Paul [wife of the plaintiff] and Parimal Chandra Paul [Manager of the plaintiff] by the Director Revenue Intelligence, vide case No. Adjudication No.COM/CUS/ADDL, CommR/03/2012.

On to the news of Non-deposit of money against the allotment order, it is stated that the Treasury Code of SDM's office[Sadar] is 08002. It is further stated that by the allotment order, the plaintiff was asked to deposit the premium to the SDM, Sadar and as no money was deposited by the plaintiff in Treasury Code 08002, it became bona fide belief of the answering DEFENDANT that the plaintiff did not deposit the money. Thus be published the news.

It is submitted that on a conspectus of above statements, it is revealed that all the news items were published on a bona fide belief of the answering DEFENDANT, and he has no intention to lowering down the image and dignity of the plaintiff. Thus it is submitted that no news items are defamatory.

[5] The defendant has further asserted in the written

statement that the income tax department raided the house of the

plaintiff and his business places in the course of probing the charge

of evasion of income tax. The news relating to the said raid was

published 'in all the leading newspapers in Tripura'. But in Para-13

of the written statement the defendant has admitted the news

items as referred in Paras-6 to 8 of the plaintiff were published in

his daily, but at the same time he has denied that there was any

intention to defile or defame the reputation of the plaintiff. The

defendant published those news items bona fide.

[6] The plaintiff sought relief of mandatory injunction apart

from the damages, as claimed against the defendant for directing

him to print a statement that the allegations made in the said news

items are false and baseless. The defendant shall, in addition,

tender his sincere apology in clear and unequivocal terms. The

plaintiff sought the damage to the extent of Rs.10 crores for the

said act or several acts of defamation. In the plaint, particularly in

Para-4, the plaintiff has categorically asserted as follows:

4. That the plaintiff has been running his business concerns with reputation and without any blemish. The plaintiff maintains proper accounts of his business concerns and also submits income tax and other tax returns and has also been duly paying all taxes. The plaintiff duly paid premiums for the land allotted by the Government of Tripura on the basis of tender and made deposits to the Sub-Divisional Magistrate, Sadar, West Tripura vide A/C payee cheque dated 31.03.2008 for an amount of Rs.41,51,951/-, cheque dated 30.03.2009 for Rs.32,50,000/-, cheque dated 30.03.2010 amounting to Rs.32,50,000/-, by cheque dated 27.08.2010 Rs.72,32,250/- and vide two cheques dated 01.03.2012 for an amount of Rs.5,29,060/- thus totalling to Rs.1,84,13,261/- because of delay in granting mutation of the land the plaintiff could not start construction of the hotel building on the time and as a result, the construction of the hotel building was started after considerable delay and is in progress.

[7] On the basis of those rival pleadings, the Civil Judge who

was trying the suit, framed the following issues for purpose of

adjudication:

1. Is the suit maintainable in its present form and nature?

2. Has the Plaintiff cause of action to institute the instant suit?

3. Whether the defendant published any baseless and false information against the plaintiff in its Bengali Daily Newspaper 'Pratibadi Kalam', dated 30th April, 2013, Ist. May, 2013, 04th May, 2013, 06th May, 2013, 07th May, 2013, 08th May, 2013 and 10th May, 2013 with oblique & malign intention in order to defame him before the society and public at large;

4. Whether the plaintiff is entitled to get a decree for getting a sum of Rs.10 crores from the defendant for printing and publishing a defamatory statement in the Newspaper with an intent to malign the plaintiff and lower down the prestige and dignity of the plaintiff in the society at large; 5. What other relief/ reliefs the plaintiff is entitled to get?

[8] On scrutiny of the records, it appears that the plaintiff,

the appellant herein, to support the pleaded case examined himself

as PW-1. He has adduced other two witnesses, namely, Ratan

Kumar Bhowmik [PW-2] and Nripendra Dhar [PW-3]. That apart, he

has introduced documentary evidence which are required to be

referred and hence, the catalogue of those documents are

reproduced below:

[1] Copy of Bengali daily Newspaper Pratibadi Kalam dated 30.04.2013, 01.05.2013, 03.05.2013, 04.05.2013, 06.05.2013, 07.05.2013, 08.05.2013 and 10.05.2013 (Exb.1, series). [2] Certified copy of Khatian bearing No. 5794 of Mouja- Barjala (Exbt.2). [3] NIT, dated 25.11.2006 in two sheets ( Exbt. 3, series) [4] Certified copy of order bearing No. F.34( 20) - REV/94(P-1), dated 22.06.2007 issued by the under secretary , Revenue Department ,Govt. of Tripura in 3 ( sheets) (Exbt.4, series). [5] Certified copy of order bearing No. F.34(20) - REV/94(P-1) , dated 03.01.2008 issued by the Under Secretary, Revenue Department, Govt. of Tripura in three sheets (Exbt.5, series). [6] Certified copy of order bearing No. F.34( 20) - REV/94( P-1), dated 27.02.2012 issued by the under secretary, Revenue Department , Govt. of Tripura in three sheets (Exbt.6, series).

The defendant, the sole respondent in this appeal, in

support of his case got him examined as DW-1. But he did not

adduce any other witnesses. But he had also introduced the

documentary evidence, the catalogue of which is reproduced

hereinunder:

(1) Certified copy of order dated 22.02.2010 made in TS (Probate) 06 of 2009 (Exbt. A) and (2) Certified copy of a portion of a copy of Newspaper obtained from the record of TS.50 of 2011 pending in the Civil Judge (Sr. Divn.) Court No. 2, Agartala (Exbt,. B), (3) Certified copy of Notice under section 80, CPC (Exbt. C) (4) Certified copy of written information addressed to OC, West-Agartala, PS (Exbt. D).

[9] Thereafter, on hearing the arguments of the counsel

representing the appellant, the Civil Judge decided issue No.1 on

maintainability of the suit and the issue No.2 on whether there was

any cause of action to institute the suit, in favour of the plaintiff.

[10] While deciding the issues No.3,4 & 5, the Civil Judge

formulated three tests viz. (1) the news items so published must

refer to plaintiff (2) that it was published and (3) it was defamatory

and caused injury to the reputation of the plaintiff. While recording

the results of those tests, the Civil Judge held that there is no

dispute and even it has been admitted by the defendant that the

news items based on which the suit was instituted for damages

were published.

While examining the crucial aspects that whether the

published news items have referred to the plaintiff or those were

defamatory causing injury to the reputation of the plaintiff, the Civil

Judge has observed that the news items relating to occupation of

the land of a person from the tribal community cannot be held

defamatory as it expressed no imputation against the plaintiff.

The other news items, calling the plaintiff as a 'petty

vegetable seller' or as 'coolie' who carried rice bags to the house of

the ONGC officers or that the plaintiff was close to the Chief

Minister and the Administration or he influenced or manipulated the

process for obtaining allotment of the land purportedly belonging to

one Dilip Debbarma or that the allotment order was illegal,

according to the Civil Judge, cannot affect the reputation of the

plaintiff and thus, those news items are held not to be defamatory.

[11] So far the news items where the plaintiff and his wife

have been named 'Phensy Supremo' dealing in contraband

medicine, namely phensedyl but they pretend to be the social

workers, in fact, they are 'black-marketers' and 'smugglers' or that

the plaintiff managed the Deputy Secretary to the Revenue

Department, namely Manabendra Chakraborty and one TCS officer

namely Tamal Majumder and also managed elected and 'defeated'

public representatives or that the plaintiff had to appear before the

special courts under the Customs Act and NDPS Act at Guwahati in

11 cases do not affect the reputation of the plaintiff. On the

contrary, those are held not affecting the reputation of the plaintiff

but of the officers who have been named in the news items. It may

be noted none of those officers demonstrated any annoyance

against those news items.

[12] The Civil Judge, however did not extend his specific

consideration as to what would be the ramification of the comments

made in the news items that the plaintiff obtained allotment of land

for constructing a hotel illegally by influencing the government

officials. The Civil Judge also did not appreciate the comments that

the plaintiff deceived a huge amount due to the state exchequer as

he did not deposit the premium as reflected in the allotment order

to the extent of Rs.1,71,51,951/-. The Civil Judge did not extend

his consideration to the comment, made in those news items, that

the plaintiff is a fraud and he had deposited false challans of

payment in collusion with one TCS officer, namely Mr.

Muslemuddin, the then Sub-Divisional Magistrate. However, the

Civil Judge has made an observation as follows:

―Similar to that of the news items at Sl. No.1 above, news items under Sl. Nos.4 to 7 as mentioned above also appear to have fixed the liability of government officials and in no way affect the plaintiff and as such, cannot be considered to be defamatory.‖

[13] While appreciating the evidence, the Civil Judge has

distinctly observed as follows:

The supportive evidence as adduced by the plaintiff through the mouth of Pw.2 (Ratan Kr. Bhowmik) and Pw.3 (Shri Nripendra Dhar) inter alia that, both of them serving as employees of the plaintiff had an adverse effect in their mind about the plaintiff on going through the news items. It is not the evidence of Pw.2 and Pw.3 that on going through the news item the reputation of the plaintiff has been lowered down in their estimation and thereby the plaintiff had suffered injuries to his reputation.

[14] Having discussed as such, the Civil Judge held that the

plaintiff is not entitled to any damage and thus, issues No.3,4 & 5

have been decided in the negative and against the plaintiff. The

suit, therefore, was dismissed.

[15] Mr. R. Datta, learned counsel appearing for the

appellant herein, has quite emphatically stated that the Civil Judge

has committed serious error of law while discarding the materials

which clearly establish the act of defamation by the defendant

inasmuch as the defendant has clearly admitted those news items

were published in his newspaper, namely Pratibadi Kalam.

Therefore, the content as admitted in the evidence of those news

items can be read by this court. A bare reading of the contents

would show that how reckless, unfounded and mala fide those

imputations are. Those have clearly defamed in the plaintiff who is

a well established businessman having clean record. Mr. Datta,

learned counsel has categorically stated that it would be apparent

from the examination-in-chief that the defendant has stated that as

per his knowledge there is only one treasury DDO Code vide

No.08002 in the SDM's office for depositing the money as premium

for allotment of land. From one RTI disclosure, he found that no

money was deposited in the said treasury code by the plaintiff as

premium. Thus, on bona fide belief the defendant published the

said news items commentise that the plaintiff did not deposit any

money in the treasury for allotment of land. It shows that without

requisite inquiry, the said news items were published affecting the

reputation of the plaintiff. According to Mr. Datta, learned counsel,

the language that has been used does not reflect observance of

journalistic standards. The imputations as levelled against the

plaintiff are malicious, unfounded and not for any bona fide

purpose. Thus, the findings of the Civil Judge on issues No.3,4 & 5

are not sustainable. Mr. Datta, learned counsel has further

submitted that that those findings are perverse for non-reading of

the evidence as laid by the plaintiff. That apart, in the cross-

examination, the defendant had admitted that he did not produce

any document to show that the vehicle bearing registration No.AS-

25-C-3168 [Truck] stands registered in the name of Namita Paul.

He has further admitted that he did not produce any document to

show that on 04.03.2010, 9000 bottles of phensedyl were seized

from that vehicle. Thus, it is apparent that all these imputations are

motivated to affect the reputation of the plaintiff. Some

imputations, according to Mr. Datta, learned counsel, are in the

form of insinuation. Finally, Mr. Datta, learned counsel has

submitted that while evaluating the evidence, the Civil Judge has

failed to take the required care and caution in evaluating the

correctness of the information published in the news items. Thus,

what surfaces irresistibly that the defendant cannot avoid the

responsibility for publication of such defamatory materials as those

were never done in good faith. Mr. Datta, learned counsel has

added that the finding of the trial court that the plaintiff has failed

to establish that the defendant had defamed the plaintiff by

publication of those materials. In support of his contention, Mr.

Datta, learned counsel has referred a few decisions of the apex

court and the Delhi High Court. As preface to introduction of those

decisions, Mr. Datta, learned counsel has submitted that from bare

reading of the plaintiff's testimony it would be apparent that the

plaintiff has squarely proved his case.

[16] In Sukra Mahto vs. Basdeo Kumar Mahto and

another, reported in 1971(1) SCC 885, the apex court has

observed in respect of ingredients of 9th exception under Section

500 of the IPC that (i) the imputation must be made in good faith

(ii) the imputation must be for protection of the interest of the

person making it or any other person or for the public good. The

public good is also a question of fact. The person alleging good

faith has to establish the fact that he made inquiry before he made

the imputation and he has to give reasons supporting the fact that

he acted with due care and attention and was satisfied that

imputation was true. Such observations are available in the

following passages:

7. The relevant provision in the present case is the Ninth Exception to section 499 of the Indian Penal Code. Section 499 deals with defamation. Section 500 prescribes punishment for defamation. There are nine exceptions to section 499. These nine exceptions are the cases in which there is no defamation. The Ninth Exception covers the present case and is as follows :-

"It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good".

8. The ingredients of the Ninth Exception are first that the imputation must be made in good faith; secondly, the imputation must be for protection of the interest of the person making it or of any other person or for the public good. Good faith is a question of fact. So is protection of the interest of the person making it. Public good is also a question of fact. This Court is Harbhajan Singh v. State of Punjab: AIR 1966 SC 97 in dealing with the Ninth Exception to section 499 of the Indian Penal Code said that it would have to be found out whether a person acted with due care, and attention. This Court said there "Simple belief or actual belief by itself is not enough. The appellant must show that the belief in his impugned statement had a rational basis and was not just a blind simple belief. That is where the element of due care and attention plays an important role". The person alleging good faith has to establish as a fact that he made enquiry before he made the imputation and he has to give reasons and facts to indicate that he acted with due care and attention and was satisfied that the imputation was true. The proof of the truth of the statement is not an element of the Ninth Exception as of the First Exception to section 499. In the Ninth Exception the person making the imputation has to substantiate that his enquiry was attended with due care and attention and he was thus satisfied that the imputation was true. The accent is on the enquiry, care and objective and not subjective satisfaction.

9. This Court in Chaman Lal v. State of Punjab : 1970 (1) SCC 590 dealing with good faith in the Ninth Exception said that "in order to establish good faith and bonafide it has to be seen first, the circumstances under which the letter was written or words were Uttered; secondly whether there was any malice: thirdly, whether the appellant made any enquiry before he made the allegations; fourthly whether there are reasons to accept the version that he acted' with care and caution and finally whether there is preponderance of probability that the appellant acted in good faith".

Judged by these tests laid down in the rulings of this Court the findings of act in the present case are that there is no evidence to show that before making the imputation the appellant had made any enquiry in good faith and the appellant had not shown due care and attention before making the imputation. By reason of the findings of act that the appellant did not act with care and caution and secondly that the appellant was related to the respondent and thirdly that no enquiry was made by the appellant, the appellant could not claim good faith.

[17] Mr. Datta, learned counsel has referred to a decision of

the Delhi High Court in Sardar Charanjit Singh vs. Arun Purie &

Ors., reported in 1982 SCC online Del 301. The said decision has

referred to Salmond on Law of Torts, 15th Edition and Gatley's Libel

and Slander, 8th Edition. The relevant part thereof, is reproduced

below:

(9) Defamation is in injury to a man's reputation. The wrong of defamation consists in the publication of a false and defamatory statement concerning another person without lawful justification (Salmond on the Law of torts, 15th Edition page

179).

(10) Gatley on Libel and Slander, 8th Edition para 31 page 15 has observed as follows:

"The gist of the torts of libel and slander is the publication of matter, usually words, conveying a defamatory imputation. A defamatory imputation is one to a man's discredit, or which tends to lower him in the estimation of others, or to expose him to hatred contempt or ridicule, or to injure his reputation in his office, trade or profession, or to injure his financial credit. The standard of opinion is that of right-thinking persons generally".

[18] Reference has also been made to Harijai Singh and

another vs. Vijay Kumar, reported in (1996) 6 SCC 466, where

the apex court had occasion to observe as under:

10. But is has to be remembered that this freedom of press is not absolute, unlimited and unfettered at all items and in all circumstances as giving an unrestricted freedom of the speech and expression would amount to an uncontrolled license. If is were wholly free even from reasonable restraints it would lead to disorder and anarchy. The freedom is not to be misunderstood as to be a press free to disregard its duty to be responsible. In fact, the element of responsibility must be present in the conscience of the journalists. In an organized society, the rights of the press have to be recognised with its duties and responsibilities towards the society. Public order, decency, morality and such other things must be safeguarded. The protective cover of press freedom must not be thrown open for wrong doings. If a newspaper publishes what is improper, mischievously false or illegal and abuse its liberty it must be punished by Court of Law. The Editor of a Newspaper or a

journal has a greater responsibility to guard against untruthful news and publications for the simple reason that his utterness have a far greater circulation and impact than the utterances of an individual and by reason of their appearing in print, they are likely to be believed by the ignorant. That being so, certain restrictions are essential even for preservation of the freedom of the press itself. To quote from the report of Mons Lopez to the Economic and Social Council of the United Nations "If it is true that human progress is impossible without freedom, then it is no less true that ordinary human progress is impossible without a measure of regulation and discipline". It is the duty of a true and responsible journalist to strive to inform the people with accurate and impartial presentation of news and their views after dispassionate evaluation of the facts and information received by them and to be published as news item. The presentation of the news should be truthful, objective and comprehensive without any false and distorted expression.

11. In the present case, as we have noticed above, neither printer, publisher not the editor and reporter took the necessary care in evaluating the correctness and credibility of the information published by them as the news items in the newspapers referred to above in respect of an allegation of a very serious nature having great repercussion causing an embarrassment to this court. An Editor is a person who controls the selection of the matter which is to be published in a particular issue of the newspaper. The Editor and Publisher are liable for illegal and false matter which is published in their newspaper. Such an irresponsible conduct and attribute on the part of the editor, publisher and the reporter cannot be said to be done in good faith, but distinctly opposed to the high professional standards as even as slightest enquiry or a simple verification of the alleged statement about grant of Petrol outlets to the two sons of a senior Judge of the Supreme Court, out of discretionary quota, which is found to be patently false would have revealed the truth. But it appears that even the ordinary care was not resorted to by the condemners in publishing such a false news items. This cannot be regarded as a public service, but a disservice to the public by misguiding them with a false news. Obviously, this cannot be regarded as something done in good faith.

[Emphasis added]

[19] Mr. Datta, learned counsel has placed his reliance on

another decision of the apex court in Kishore Samrite vs. State

of Uttar Pradesh and others, reported in (2013) 2 SCC 398,

where the apex court has dwelled upon the meaning and import of

the word reputation in the following manner:

The term ‗person' includes not only the physical body and members but also every bodily sense and personal attribute

among which is the reputation a man has acquired. Reputation can also be defined to be good name, the credit, honour or character which is derived from a favourable public opinion or esteem, and character by report. The right to enjoyment of a good reputation is a valuable privilege of ancient origin and necessary to human society. ‗Reputation' is an element of personal security and is protected by Constitution equally with the right to enjoyment of life, liberty and property. Although ‗character' and ‗reputation' are often used synonymously, but these terms are distinguishable. ‗Character' is what a man is and ‗reputation' is what he is supposed to be in what people say he is. ‗Character' depends on attributes possessed and ‗reputation' on attributes which others believe one to possess. The former signifies reality and the latter merely what is accepted to be reality at present. [Ref. Smt. Kiran Bedi v. The Committee of Inquiry & Anr. : [(1989) 1 SCC 494] and Nilgiris Bar Association v. T.K. Mahalingam & Anr. : [AIR 1998 SC 398]. The methodology adopted by the next friends in the writ petitions before the High Court was opposed to political values and administration of justice. In the case of Kusum Lata v. Union of India : [(2006) 6 SCC 180], this Court observed that when there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, the said petition should be dismissed by the Court. If such petitions are not properly regulated and abuse averted, it becomes a tool in unscrupulous hands to release vendetta and wreak vengeance as well.

Thus, it is apparent that the reputation is an element of

personal security which is protected by the constitution as the right

to enjoyment of life, liberty and property.

[20] Further reference has been made to Om Prakash

Chautala vs. Kanwar Bhan and others, reported in (2014) 5

SCC 417, where the apex court has dwelled on the cherished right

to reputation by observing as follows:

21. Another facet gaining significance and deserves to be adverted to, when caustic observations are made which are not necessary as an integral part of adjudication and it affects the person's reputation - a cherished right under Article 21 of the Constitution. In Umesh Kumar v. State of Andhra Pradesh and another : (2013) 10 SCC 591, this Court has observed: -

―Personal rights of a human being include the right of reputation. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property.

Therefore, it has been held to be a necessary element in regard to right to life of a citizen under Article 21 of the Constitution. The International Covenant on Civil and Political Rights, 1966 recognises the right to have opinions and the right to freedom of expression under Article 19 is subject to the right of reputation of others.‖

22. In Kiran Bedi v. Committee of Inquiry and another : (1989) 1 SCC 494 this Court reproduced the following observations from the decision in D.F. Marion v. Davis : 217 Ala 16:

―25. ... ‗The right to the enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty, and property.‖

23. In Vishwanath Agrawal v. Sarla Vishwanath Agrawal : (2012) 7 SCC 288, although in a different context, while dealing with the aspect of reputation, this Court has observed that reputation is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished value this side of the grave. It is a revenue generator for the present as well as for the posterity.‖

24. In Mehmood Nayyar Azam v. State of Chhattisgarh and others: (2012) 8 SCC 1, this Court has ruled that:

―1..... the reverence of life is insegregably associated with the dignity of a human being who is basically divine, not servile. A human personality is endowed with potential infinity and it blossoms when dignity is sustained. The sustenance of such dignity has to be the superlative concern of every sensitive soul. The essence of dignity can never be treated as a momentary spark of light or, for that matter, ―a brief candle‖, or ―a hollow bubble‖. The spark of life gets more resplendent when man is treated with dignity sans humiliation, for every man is expected to lead an honourable life which is a splendid gift of ―creative intelligence‖. When a dent is created in the reputation, humanism is paralysed.

[21] Mr. Datta, learned counsel has referred also to a Kerala

High Court decision in Dr. P.H. Daniel and another vs. K.N.

Krishna Iyer, reported in 1981 SCC OnLine Ker 189 in order to

show that every statement which is defamatory gives rise to a

presumption of malice. This is legal malice which is the foundation

of an action for defamation. But such presumption of malice is

rebutted if the defendant proves that the information on which the

words were published was privileged. Once the defendant has

succeeded in rebutting the presumption of malice, the plaintiff's

action must necessarily fail unless he establishes that the

defendant's action was actuated by express malice which is malice

in fact. Park B., J in Toogood vs. Spyring, reported in (1834) 1

CM & R. 181, 193 has spoken, as quoted in Dr. P.H. Daniel

(supra), as under:

The classic definition of qualified privilege is what is stated by Parke B. in Toogood v. Spyring : (1834) 1 C. M. & R. 181, 193:

"In general an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication es malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits."

By the said observation, it has been held that the

publication of the statements which are false and injurious to the

character or reputation of another gives rise to an inference of

malice in law and makes the publisher liable in damages to the

person affected. But such inference of malice if successfully

rebutted by the publisher by showing that was done in public good

then he can escape the liability of damage.

[22] Mr. Datta, learned counsel has also referred a decision

of this court in Subal Kumar Dey vs. ARM Rohal Alam

[judgment and order dated 31.01.2017 delivered in RSA No.63 of

2013] where this court had occasion to observe as follows:

16. The apex court in Gambhirsinh R. Dekare Vrs Falgunbhai Chimanbhai Patel, reported in (2013) AIR SCW 1590, has held that :

―A news item has the potentiality of bringing doom's day for an individual. The Editor controls the selection of the matter that is published. Therefore, he has to keep a careful eye on the selection. Blue-penciling of news articles by anyone other than the Editor is not welcome in a democratic polity. Editors have to take responsibility of everything they publish and to maintain the integrity of published record.‖

It has been held that the editor alone shall be responsible for a civil and criminal proceeding for publication of the news item.

[23] Mr. Datta, learned counsel has stated with emphasis

that the appellant has admitted the documents, as above, and in

the examination-in-chief, he has categorically stated that not only

the allegations are false and he has categorically denied that he

had appeared in 11 cases under the Customs Act and the NDPS Act

at Guwahati, he has made a categorical statement that the

defendant caused grave loss of his reputation and 'humiliated' him

before his relatives, friends, family members and the public in

general by publishing the aforesaid imputations against him in his

daily newspaper which has wide readership. The defendant has

deliberately and with oblique motive published those imputations

against him in 8 issues of his newspaper in order to cause damage

to his reputation by falsely alleging that he is 'a corrupt man' and

that he had not only deceived a member of the tribal community

but also defrauded the state government. Mr. Datta, learned

counsel has further submitted that in the cross-examination

carried out by the defendant, the plaintiff has given the details of

his business and the business of his wife and sons including other

family members. From a reading of the said examination-in-chief, it

appears that the plaintiff has clearly stated that he did not know

how the government of Tripura had acquired the title over the said

land and further, he has made the following statement:

―[The witness volunteered], I heard said Dilip Debbarma lodged a case against the Govt. of Tripura in regards to the land on which the Four star hotel is under construction. [The witness further stated that] the case as filed by Dilip Debbarma has been dismissed with cost.‖

Mr. Datta, learned counsel has contended that the

statement that the plaintiff suffered loss in respect of his reputation

has not been contested in the cross-examination. Thus, it requires

to be held that the loss of reputation has been proved by the

plaintiff and hence, the finding of the Civil Judge is grossly

irregular, perverse and hence illegal.

[24] Per contra, Mr. S. Lodh, learned counsel appearing for

the respondent has submitted that the news items published by the

defendant have been so published in good faith and in the public

interest. As per definition of defamation as provided under Section

499 of the IPC [see Ninth Exception] the imputation made in good

faith by person for protection of his or others interest is not

defamation unless it is proved that the essential ingredients of the

offence or imputations have been made or published with intention

of harming reputation or there is reason to believe that the

imputation will harm the reputation of such person. In this

juncture, let us catalogue the essential ingredients of defamation.

Those are:

[i] making or publishing any imputations concerning any

person

[ii] such imputations must have been made by words

either spoken or intended to be read or by signs or by

visible representations.

[iii] such imputations must have been made with the

intent to harm or with knowledge or belief that it will

harm the reputation of the person concerned.

[25] According to Mr. Lodh, learned counsel none of those

ingredients has been proved by the plaintiff. Mr. Lodh, learned

counsel has quite seriously contended that from the probated Will

as executed by one Ajam Uddin Hazi, it has been proved that the

land on which the hotel of the plaintiff was proposed to be

constructed belonged to one Dilip Debbarma and said Dilip

Debbarma obtained probate from the court of the Addl. District

Judge, West Tripura, Agartala as would be evident from the order

dated 22.02.2010 [Exbt.A] delivered in T.S. 06 (Probate) 2009. It

has been observed in the said order as follows:

―In view of the above, the petitioner has duly proved that Ajam Uddin Hazi executed his last Will on 14.04.1978 in favour of the petitioner so he is entitled to get the probate of the Will which is accordingly granted.‖

Mr. Lodh, learned counsel has submitted that the

statement of the plaintiff in this regard that the case of the

defendant was dismissed is a downright falsehood. Mr. Lodh,

learned counsel has further submitted that it would be apparent

from the order dated 22.06.2007 issued by the under Secretary to

the Government of Tripura, Revenue Department that for allotment

of the said land, measuring 2.15 acres which is part of the land

which was bequeathed as aforestated. For allotment, a premium to

the extent of Rs.1,71,51,951/- was asked to be paid. It would be

apparent from the documents submitted by the plaintiff that the

said amount was not paid at a time. The said amount has been paid

by instalments but no order was issued to make in instalments has

given rise to doubt in respect of the transaction. Further, Mr. Lodh,

learned counsel has submitted that by the order dated 27.02.2012

issued by the Deputy Secretary, to the Govt. of Tripura, Revenue

Department the plaintiff was asked to deposit an additional

premium of Rs.5,29,060/-. In this regard, the plaintiff is silent in

the plaint and he has not stated anything in the plaint at all that

whether he had prayed the said amount or not. It has been claimed

in such premises that the defendant published that news items in

good faith as he was failing to find out any material that before

taking the possession over the said land, the said amount of

premium was paid. This court on the contrary, finds that in the

plaint the plaintiff has made the following statement in Para-4 of

the plaint regarding the payment of premium:

‗The plaintiff duly paid premiums for the land allotted by the Government of Tripura on the basis of tender and made deposits to the Sub-Divisional Magistrate, Sadar, West Tripura vide A/C payee cheque dated 31.03.2008 for an amount of Rs.41,51,951/-, cheque dated 30.03.2009 for Rs.32,50,000/-, cheque dated 30.03.2010 amounting to Rs.32,50,000/- by cheque dated 27.08.2010 Rs.72,32,250/- and vide two cheques dated 01.03.2012 for an amount of Rs.5,29,060/- thus totaling to Rs.1,84,13,261/-.'

It would be apparent form the list of the documents, as

admitted in the evidence by the plaintiff, that those documents

regarding payment of the premium has not been proved by the

plaintiff.

[26] Mr. Lodh, learned counsel has further contended that

prima facie the defendant has proved the foundation of his good

faith and hence, the decision of the Civil Judge cannot be faulted

with. So far the allegations as regards the plaintiff's involvement in

dealing in the narcotic materials are concerned, what the plaintiff

has stated in the cross-examination is evasive inasmuch as the

truck-number which was referred for carriage of narcotic materials,

the plaintiff has expressed uncertainties by stating that he was not

sure whether the said truck bearing registration No.AS-25-C-3168

was used by him for carrying FCI goods. But the plaintiff has

categorically stated that his wife was not the owner of the said

vehicle. It may be noted at this juncture that neither of the parties

has taken any initiative to produce the documents as regards the

ownership of the said vehicle. The onus as fundamental was on the

defendant. So far the other allegations are concerned, as referred

in the plaint that in the news items the plaintiff has been referred

to as 'petty vegetable seller', or as 'coolie'. Those epithets,

according to Mr. Lodh, learned counsel, have been rightly held by

the Civil Judge as not defamatory. Mr. Lodh, learned counsel

thereafter has supported the finding of the Civil Judge that there is

no evidence that the plaintiff has suffered harm to his reputation or

his reputation has been lowered in the estimation of other persons

and thus, the plaintiff has suffered damage. In this regard, Mr.

Lodh, learned counsel has taken this court to the testimonies of

PWs-2 & 3 who are admittedly the employees of the plaintiff. PW-2,

Ratan Kr. Bhowmik has made the following statement in the

examination-in-chief:

―I personally read all the news as published on the various dates as mentioned above and there was an adverse effect in my mind about reputation of the plaintiff.‖

PW-3, Nripendra Dhar has made exactly the same

statement. For purpose of reference, the said statement is

reproduced below:

―I personally read all the news as published on the various dates as mentioned above and there was an adverse effect in my mind about reputation of the plaintiff.‖

Thus, Mr. Lodh, learned counsel has contended that

there is no infirmity in the judgment as returned by the Civil Judge.

[27] From the discussion as made above, what appears to is

that two fundamental questions are required to be answered for

determining this appeal and those are [i] whether the statement of

imputation as published by the defendant is defamatory and [ii]

whether such statement has caused injury to the reputation of the

plaintiff and whether that has been proved.

Whether a certain statement is defamatory or not is to

adjudge from the point of view of ordinary, just and reasonable

people. The persons to whom the statement is published may be

one of the classes of those persons who always attached a sinister

meaning to every word that is uttered. Every such sinister

interpretation given to the words published would be irrelevant if it

is not a reasonable and a natural interpretation but a strange and

unlikely one, which is not just and reasonable person would attach

to.

[28] As a principle of equity, every man is entitled to have his

reputation preserved intact. A man's reputation is his property and

possibly more valuable than other properties and any words,

related to infringe that right, affords a good cause of action, as

Odger in his book on Defamation has observed which reads inter

alia as under:

―No man may discourage or destroy the reputation of another.

Every man has a right to have his good name maintained unimpaired. This right is a jus in rem, a right absolute and good against all the world. Words which produce, in any given case, appreciable injury to the reputation of another are called defamatory, and defamatory words if false are actionable.‖

[29] The essence of defamation which is actionable is that

harm has been caused to the reputation of a person. Character is

what a person actually is and reputation is what neighbours and

others say he is. In other words, reputation is a composite hearsay

which is the opinion of the community about a person. Everyone is

entitled to have a very high estimate of himself but reputation is

the estimation in which a person is held by others. Causing

defamation by publishing any imputation concerning any person

must be 'intending to harm or knowing or having reasons to believe

that such imputation will harm the reputation of such person'.

Thus, the fundamental requirements so far the burden of proof is

concerned, are that the publication containing imputations was

made to harm someone's reputation and consequently, his

reputation in the estimation of the public has been lowered down.

[30] Stewart, J. in Rosenblatt v. Baer, reported in 383

US 75 (1966) has made an observation in respect of the right of a

man to the protection of his own reputation from unjustified

invasion and wrongful hurt. The relevant passage, thereof is

reproduced:

―33. The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being--a concept at the root of any decent system of ordered liberty.‖

[31] Lord Denning has explained the distinction between

good character and good reputation in Plato Films

Ltd. v. Speidel, reported in (1961) 1 All ER 876 in a succinct

manner. For that reason, the relevant part is extracted hereunder:

―... A man's ―character‖, it is sometimes said, is what he in fact is, whereas his ―reputation‖ is what other people think he is. If this be the sense in which you are using the words, then a libel action is concerned only with a man's reputation, that is, with what people think of him : and it is for damage to his reputation, that is, to his esteem in the eyes of others, that he can sue, and not for damage to his own personality or disposition. That is why Cave, J. spoke of ―reputation‖ rather than ―character‖.

The truth is that the word ―character‖ is often used, and quite properly used, in the same sense as the word ―reputation‖. Thus, when I say of a man that ―He has always borne a good character‖, I mean that he has always been thought well of by others : and when I want to know what his ―character‖ is, I write, not to him, but to others who know something about him. In short, his ―character‖ is the esteem in which he is held by others who know him and are in a position to judge his worth. A man can sue for damage to his character in this sense, even though he is little known to the outside world. If it were said of Robinson Crusoe that he murdered Man Friday, he would have a cause of action, even though no one had ever heard of him before. But a man's ―character‖, so understood, may become known to others beyond his immediate circle. Insofar as the estimate spreads outwards from those who know him and circulates among people generally in an increasing range, it becomes his ―reputation‖, which is entitled to the protection of the law just as much as his character. But here I speak only of a reputation which is built upon the estimate of those who know him. No other reputation is of any worth. The law can take no notice of a reputation which has no foundation except the gossip and rumour of busybodies who do not know the man. Test it this way. Suppose an honourable man becomes the victim of groundless rumour. He should be entitled to damages without having this wounding gossip dragged up against him.

He can call people who know him to give evidence of his good character. On the other hand, suppose a ―notorious rogue‖ manages to conceal his dishonesty from the world at large. He should not be entitled to damages on the basis that he is a man of unblemished reputation. There must, one would think, be people who know him and can come and speak to his bad character.‖

[Emphasis added]

[32] The reputation therefore blooms on the character and

there is an intelligible distinction between those two words. The

good character builds reputation. The reputation is not in the

estimate of the person who is affected by the imputations but the

reputation is gauged by the other persons who know the persons

whose reputation is being assessed. Thus, for purpose of assessing

damage of reputation it can only be determined by the estimation

of the other persons. Therefore, evidence on estimation before the

imputation is made and after the imputation is made, is

foundational. In this case, the Civil Judge has rightly catalogued the

imputation as has been reproduced. In this judgment also 8 news

items which were published on diverse dates have been identified

and is referred in Para-2. It is evident that the imputations which

are related to committing 'fraud' in the words of the Civil Judge,

cheating, duping and taking possession of the land for construction

of the hotel illegally concern this proceeding. The plaintiff, the

appellant herein has been called a 'phensy supremo'. The plaintiff

has been imputed of influencing the authority for grabbing the land

for continuation of hotel. The further imputation as made is that the

plaintiff has evaded the government revenue to the extent of

Rs.200 crores.

So far the imputation in respect of the allotment for

constructing hotel is concerned, there are some materials to impute

the government officials and the plaintiff as the beneficiary in the

said deal. Thus, on the principle of good faith those may not be

treated as defamatory but the defendant did fail to establish that

the plaintiff had ever been dealing in narcotic materials. Similarly,

there is no evidence that the plaintiff has evaded revenue to the

extent of Rs.200 crores or the plaintiff had participated in the illegal

transaction with the government officials at different levels. There

had been no inquiry or due inquiry in this regard. Hence, those

imputations are mere reckless but defamatory.

[33] In respect of other statements as published in the news

item, such as calling the plaintiff as 'coolie' and 'vegetable seller',

those are not defamatory in our considered view, inasmuch as

those are derivatives of vocation but definitely such words was

used against the plaintiff to demean his character. Hence, the news

items published on 03.05.2013 and 06.05.2013 stand to us as

defamatory and those imputations published in the newspaper of

the defendant may be supposed to have caused harm to the

reputation and consequentially, it may also been supposed that has

caused loss of reputation. But the estimation of loss of reputation

has not been proved. But the question of paramount importance is

that whether the plaintiff has proved that he has suffered harm or

loss of his reputation in the estimation of 'others' though the

plaintiff has adduced PWs-2 & 3 for that purpose. Those witnesses

being his employees were under the control of the plaintiff. They

have stated that they used to consider the plaintiff as 'a

respectable person' having 'excellent morality'. He used to run his

business 'with reputation' and the imputations published in the

defendant's newspaper, namely Pratibadi Kalam caused an adverse

effect in the mind of PW-2 about the reputation of the plaintiff. PW-

3 had replicated in toto what PW-2 had stated. To give illustration,

in this judgment, the relevant parts of their examination-in-chief

has been reproduced hereinabove. Those are the replications

without any change in tune or tenor. No prudent person would rely

on those testimonies as trustworthy as PWs-2 & 3 were under the

control of the plaintiff, and they parroted their master's voice. The

way they had given the statement in the trial and if their

statements are keenly read, it would surface that those statements

are vague. That would be apparent that they had an adverse effect

in their mind about the reputation of the plaintiff, but they have not

stated distinctly whether in their estimation, the plaintiff's

reputation had been lowered or not. Their statement are

unspecified and as such, it can safely be stated that the plaintiff

has failed to prove that in the eye of the 'others' his reputation had

been lowered down after publication of the news items under

reference in the newspaper of the defendant. Thus, the plaintiff is

not entitled to get any damage and hence, the finding of the Civil

Judge, in this regard is affirmed.

[34] While reading the news items, this court has suffered a

shudder looking at the pattern of language used against an

individual. This definitely strikes at the journalistic standards. Use

of intemperate, reckless or abusive language is anathema to the

freedom of expression. Since we are not deciding any controversy

in respect of abiding journalistic standard, we have refrained

ourselves from making any further observation in that regard. In a

nutshell, there are some news items which are defamatory and we

have noted those, but the damage cannot be determined for lack of

evidentiary materials on loss of reputation in the estimation of

others and hence, the suit is bound to be dismissed. Accordingly,

subject to the observations made above, this appeal stands

dismissed.

Draw the decree accordingly.

Send down the LCRs thereafter.

               JUDGE                                            JUDGE




Sujay