REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1749        OF 2008 [Arising out of SLP (Crl.) No. 237 of 2007]

M.A. Rumugam …Appellant

Versus

Kittu @ Krishnamoorthy …Respondent

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. Applicability  of  the  provisions  of  Section  482  of  the  Code  of

Criminal  Procedure  for  quashing  of  a  complaint  petition  filed  by  the

respondent herein   against the appellant under Section 500 of the Indian

Penal Code is in question in this appeal which arises out of a judgment and

order dated 8.09.2006 passed by the High Court of Judicature at Madras in

Criminal O.P. No. 10819 of 2006.

3. Appellant herein is a retired teacher.  He is said to be the owner of a

land admeasuring 0.83 acres in new survey No. 246/1B at Naluvedapathi

Village.  About 180 numbers of coconut tress are said to have been planted

on the said land.

4. On 3.06.2003, when the appellant allegedly visited his land, he found

that 9 coconut trees were dead.  Upon enquiry, he allegedly came to know

that  one  Namasivayam son of  Rajagopal  and Kaliappan son of  Ramu of

Naluvedapathi Village had damaged the said coconut trees by pouring acid

mixed  with  kerosene  thereon  allegedly  on  the  advice  of  the  respondent

herein.

5. On  4.06.2003,  the  appellant  filed  a  complaint  before  the  Sub-

Inspector of Police, Thalaignayar Police Station, contending:

“…On 30.4.2003, the Panchayat Union Committee member  and  Panchayat  Board  President approached me and wanted land on south side of my coconut grove to lay road through the grove.  I did  not  give  consent  for  the  proposal.   In  these circumstances  when  I  visited  the  grove  on 3.6.2003  about  9  coconut  yielding  trees  on  the south  side  were  found  slide  down.   When  I enquired  about  this  I  came  to  know  that Namasivayam son of Rajagopal and Kaliappan son

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of Ramu of Naluvedapathi Village were standing on the south side of my coconut grove some time back with tins on their hands.  Met them and told that they were responsible for the sliding of tender coconut trees as they were seen near the trees by some people of the village.  They confessed that they  on  the  advice  of  the  Kittu  alias Krishnamurthy  son  of  Vedaiya  Gounder  of Naluvedapathi Village along with him poured acid mixed  kerosene  into  the  coconut  trees  and  that they have done it since I did not give consent to lay road through my coconut grove.”   

 In the  said complaint,  the  appellant  requested the Sub-Inspector  of

Police to take action against those persons and sought protection for himself

and his property.   

6. On 5.06.2003,  the appellant  filed a suit  before the learned District

Munsif  Court  at  Nagappattinam  against  the  President,  Union  Council

Member and other  persons  for  grant  of  permanent  injunction  against  the

defendants  restraining  them from causing  damage  to  the  footpath  in  his

property under the pretext of widening and laying road.  In the said suit, an

Advocate  Commissioner  was  appointed  to  find  out  whether  any coconut

trees were found dead.  The Advocate Commissioner submitted its report on

15.06.2003 stating:

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“Adjacent to the path on east end 9 coconut trees were found dead with loss of chlorophyll.  There were  10  bunches  carrying  100  to  150  coconuts. There were in an average 20 branches in each tree. There were heap of coconut under the 9 trees.”  

7. On 25.06.2003, a First Information Report was lodged on the basis of

the complaint  given by the appellant.   In the said FIR, the names of the

respondent  herein  and  two  others  were  mentioned  in  the  column  of

‘doubtful  persons’  portion.   As  the  police  authorities  neither  filed  any

chargesheet  within  six  months  nor  sought  for  extension  of  time  for  the

purpose of conducting further investigation, the learned Magistrate ordered

stopping of further investigation and consequently closure of the matter.

8. On 6.09.2005, the respondent herein filed a private complaint, which

was marked as C.C. No. 179 of 2006, in the Court of the learned Judicial

Magistrate,  Tiruthuraipoondi  against  the appellant  for  commission  of  the

offence of defamation under Section 500 of the Indian Penal Code.   

Taking  cognizance  of  the  said  complaint,  the  learned  Magistrate

issued summons to the appellant.

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Aggrieved  by  and  dissatisfied  therewith,  he  filed  a  Crl.  O.P.  No.

10819 of 2006 before the High Court of Judicature at Madras praying to call

for the records pertaining to the complaint petition filed by the respondent

being C.C. No. 179 of 2006 and quashing the same.   

9. Before the High Court, a contention was raised that the backdrop of

events and the manner in which the complaint petition had to be filed by the

appellant would clearly establish that the action on his part was not in good

faith.   

The said contention was negatived by the High Court stating:

“5. The accusation have been made the accused (sic) and there are prima facie materials to proceed against  the  petitioner.   When  there  are  specific allegations  made  in  the  complaint  against  the accused, such allegation may have to be rebutted during the course of trial.  In such circumstances by  invoking  the  inherent  powers  under  Section 482  Cr.P.C.  the  pending  proceedings  cannot  be quashed at the threshold, I do not find any merit in the  case,  hence  the  petition  is  dismissed. Consequently  connected  Crl.  M.Ps  are  closed. However,  the  petitioner  is  at  liberty  to  establish that  the  statement  has  been  made  in  good  faith, during the course of trial.”

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10. Mr. G. Sivabalamurugan, learned counsel appearing on behalf of the

appellant,  would  submit  that  the  complaint  preferred  by  the  appellant

against the respondent and two others before the police authorities does not

amount to ‘defamation’ as the ingredients of Section 499 of the Indian Penal

Code are not satisfied.

The  learned  counsel  would  contend  that  from  a  perusal  of  the

complaint  petition  filed  by  the  appellant  before  the  police  authorities,  it

would be evident that he had taken due care and caution before filing the

same.  He, thus, acted bonafide and in good faith.

As  the  police  authorities  were  authorised  to  entertain  the  said

complaint, no case has been made out for proceeding against the appellant

for alleged commission of an offence under Section 500 of the Indian Penal

Code.

11. Mr.  P.  Somasundaram, learned counsel  appearing  on behalf  of  the

respondent, on the other hand, would submit that the complaint was made

by the appellant before the police authorities on a wholly false premise, as

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much prior thereto, viz., on 27.05.2003, the respondent had left his village

and  in  fact  on  1.06.2003,  he  had  left  India  for  Malaysia  and,  thus,  the

question of his remaining at the place of occurrence on 3.06.2003 did not

arise.

It  was  urged  that  the purported statement  made by one  of  the co-

accused in the earlier case, viz., one Namasivayam cannot be relied upon at

this stage particularly when even therein they were represented by different

counsel and furthermore his statement as a co-accused could not have been

relied upon for the purpose of securing conviction of the respondent.

12. Section 499 of the Indian Penal Code reads, thus:

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

Eight and Ninth Exceptions, to which reliance has been placed by the

learned counsel, read as under:

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“Eight  Exception.--Accusation  preferred  in  good faith to authorised person It  is  not  defamation  to  prefer  in  good  faith  an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation. Ninth Exception.--Imputation made in good faith by person for protection of his or other's interests 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.”

The word “good faith” has been defined in Section 52 of the Indian

Penal Code to mean:

“52 - "Good faith"

Nothing is  said  to be done or  believed in "good faith" which is done or believed without due care and attention.”

13. The  complaint  petition  filed  by the  respondent  herein  contained  a

statement that he was implicated allegedly on the basis of an information

received  by the  appellant  from one  Namasivayam son  of  Rajagopal  and

Kaliappan son of Ramu of Naluvedapathi  Village that  they had damaged

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nine  coconut  trees  by  pouring  acid  mixed  kerosene  on  the  respondent’s

advice.

The aforementioned allegation against the respondent was published

in various newspapers, viz., Maalai Murusu, Maalai Malar, Dhina Boomi,

Dhina Karan, Dhina Malar as well as in some weeklies.   

On the aforementioned backdrop, he alleged to have been defamed as

thereby,  “false  propaganda among the village  people  and implication  his

name in the complaint against the enemies Kakliappan and Namasivayam

besides publishing the same in the dailies and weeklies” was made against

him.  It was furthermore stated:

“Since  there  was  no  basic  evidence  in  the complaint, it was given with the sole intention of defaming  the  petitioner  herein  and  the complainant  did  not  cooperate  for  the investigation the case registered in Thalaignayiru police station in Crime No. 360/2003 could not be proceeded further and the charge sheet could not be  filed.   Therefore,  the  case  on  the  file  of  the Judicial  Magistrate  Tiruthuraipoondi  was  closed on 7.4.2005.  Because of the illegal  activities  of the respondent, the petitioner/ complainant herein is  unable  to  make his  foreign  trips  and suffered heavy financial loss and lost his status among his relatives  and  the  people  of  the  Village  and suffered enormous mental agony.”

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14. Allegations made in the said complaint petition, thus, in our opinion,

make out a case for proceeding against the appellant under Section 500 of

the Indian Penal Code as thereby imputation concerning the respondent had

been made intending to harm or knowing or having reason to believe that

such imputation would harm his reputation.   

15. For the purpose of bringing his case within the purview of the Eight

and the Ninth Exception appended to Section 499 of the Indian Penal Code,

it would be necessary for the appellant to prove good faith for the protection

of the interests of the person making it  or of any other person or for the

public good.

16. It  is  now  a  well-settled  principle  of  law  that  those  who  plead

exception must prove it.  The burden of proof  that his action was bonafide

would, thus, be on the appellant alone.

17. At this stage, in our opinion, it  would have been premature for the

High Court to consider the materials placed by the appellant before it so as

to arrive at a definite conclusion that there was no element of bad faith on

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the part  of  the appellant  in  making the  said  complaint  before  the  police

authorities.   

18. Respondent was furthermore discharged by the learned Magistrate in

exercise of its jurisdiction under Section 167(5) of the Code of Criminal

Procedure  stating  that  the  police  authorities  could  not  complete  the

investigation within a period of six months.

19. Strong  reliance  has  been  placed  by  Mr.  Sivabalamurugan  on  a

decision of this Court in Rajendra Kumar Sitaram Pande Etc. v. Uttam and

Another [1999  (1)  SCR  580].   Accusation  against  the  accused  therein

related to the conduct on his part before the Treasury Officer.  The learned

Magistrate, when the complaint was filed, instead of issuing process called

upon the Treasury Officer  to  hold an inquiry and submit  a report  in  the

court.   Pursuant  thereto  and  /  or  in  furtherance  thereof,  a  report  was

submitted.   In the said report,  the Treasury Officer clearly indicated that

pursuant to the report made by the accused persons against the complainant,

a  departmental  enquiry  had  been  made  and  the  complainant  was  found

guilty.   It  was  in  the  aforementioned  situation,  the  Magistrate’s  order

refusing to issue summons was upheld by this Court.

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20. For the reasons aforementioned, we do not find any infirmity in the

impugned judgment.  Furthermore, the question, as to whether a totally false

complaint  has been made as against  the respondent or not as he was not

even in India prior to the date of occurrence, is required to be gone into by

the learned Trial Judge.

21. Accordingly, the appeal is dismissed.  

………………………….J. [S.B. Sinha]

..…………………………J.     [Cyriac Joseph]

New Delhi; November 07, 2008

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