REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     1079             OF 2010      (Arising out of S.L.P. (Criminal) No. 898 of 2009)

JEFFREY J. DIERMEIER & ANR. — APPELLANTS

VERSUS

STATE OF WEST BENGAL & ANR. — RESPONDENTS

J U D G M E N T

D.K. JAIN, J.:

Leave granted.

2. This  appeal,  by  special  leave,  arises  from  the  judgment  dated  18th  

November 2008 rendered by a learned Single Judge of the High Court of  

Calcutta in C.R.R. No. 523 of 2008.  By the impugned judgment, the  

learned Judge has dismissed the petition preferred by the appellants under

Section 482 of the of the Code of Criminal Procedure, 1973 (for short  

“the Code”) seeking quashing of a private complaint filed by respondent  

No.2 in this appeal, for an offence under Section 500 read with Section  

34 of the Indian Penal Code, 1860 (for short “the IPC”).  

3. The facts,  material  for the purpose of disposal of this  appeal,  may be  

stated thus:

Appellant No.1 is the President and Chief Executive Officer of the  

Chartered  Financial  Analysts  Institute  (hereinafter  referred  to  as  “CFA  

Institute”),  incorporated  under  the  laws  of  the  State  of  Virginia,  United  

States.   Appellant  No.2  is  the  President  of  the  Indian  Association  of  

Investment Professionals, who is a member of the society of CFA Institute.  

CFA Institute is a non stock corporation and confers the designation of Chief  

Financial  Analyst  (“CFA”  for  short)  upon  its  members  who  fulfil  a  

minimum professional  criterion.   CFA certification  is  considered to  be a  

definitive standard for professional competence.   

4. In  the  year  1985,  on  being  approached  by  the  Institute  of  Chartered  

Financial Analysts of India (for short “ICFAI”), respondent No.2 herein,  

a registered society, having its office at Kolkata, CFA Institute entered

into a licence agreement with them  to conduct its CFA program in India.  

The  agreed  arrangement  continued  for  quite  some  time.   However,  

realising that respondent No.2 was not adhering to the required standards  

and quality in the said program, CFA Institute decided to wean off its  

arrangement with ICFAI - respondent No.2.  Since, in the meanwhile,  

respondent No.2 was attempting to get the trademarks of CFA Institute  

registered in India,  in the year 1997, CFA Institute issued a notice of  

termination of its licence with the said respondent.  On receipt of the said  

notice, respondent No.2 filed a declaratory suit before the District Courts  

in Hyderabad, seeking a declaration regarding the change of their name  

“ICFAI” and their use of the designation “CFA”.  However, they did not  

succeed in getting any interim or final relief in the said suit.  In the year  

2004, CFA Institute filed a Civil Suit [C.S.(OS) No.210 of 2004] in the  

High  Court  of  Delhi  for  permanent  injunction  restraining  respondent  

No.2 from using the trade marks, services, service marks or trade name  

CFA, Chartered Financial Analyst, The Institute of Chartered Financial  

Analysts of India, ICFA and ICFAI or any other name or mark which  

may be identical or deceptively similar to these marks and passing off  

CFA Institute Programs or business as that of CFA Institute. Vide Order

dated 4th August 2006, the High Court passed the following order by way  

of interim relief:

“30. In view of the above, I allow the application under Order  XXXIX Rules 1 & 2 CPC and restrain the defendants, during  the pendency of the suit from using any of the trademarks or  service marks CFA, Chartered Financial Analyst, The Institute  of Chartered Financial Analysts of India, ICFA and ICFAI or  any other name or mark which may be identical or deceptively  similar to these marks and from passing off their programmes  or  business  as  that  of  the  plaintiffs.   However,  this  order  of  injunction  will  not  come  into  effect  till  the  end  of  current  academic  session  of  the  CFA  Programme  run  by  the  defendants.   Nor  will  anything  said  herein  will  mean  final  expression of opinion of this Court.”

[Emphasis supplied]

5. On 30th January 2007, respondent No.2, through its sponsored University  

in  Tripura  –  The  Institute  of  Chartered  Financial  Analysts  of  India  

University, Tripura (hereinafter referred to as “the University”), issued an  

advertisement  inviting  applications  for  fresh  enrolments  for  award  of  

“CFA” certification.  According to CFA Institute, since the programmes  

which  were  current  at  the  time  of  passing  of  the  order  of  interim  

injunction by the High Court of Delhi on 4th August 2006 had come to an  

end in January 2007, the invitation for fresh enrolment in terms of the  

advertisement  issued  on  30th January  2007  was  for  subsequent

programmes, which were not current at the time of the interim injunction  

order  and,  therefore,  it  was  in  breach  of  the  said  interim injunction.  

Accordingly, on 12th February 2007, CFA Institute issued a public notice  

under  the  caption  “A  Word  of  Caution  to  the  Indian  Investment  

Community”,  (hereinafter  referred  to  as  “Word  of  Caution”).   The  

relevant extract of the said publication reads thus:

“There is  confusion over the “CFA” name in India,  and you  deserve to know the facts.   The Chartered Financial  Analyst  (CFA(R)) designation from CFA Institute is the only globally  recognized CFA designation for financial professionals.   

However, the Institute of Chartered Financial Analysts of India  (Icfai)  offers  an  educational  program specializing  in  finance,  which they term the “CFA Program”, and awards a title called  the “CFA”.   On 4th August 2006, the Delhi High Court recognized that CFA  Institute owns the exclusive rights to the CFA trademarks and  that continued use by Icfai causes irreparable harm.  The court  ordered an interim injunction requiring Icfai to stop using the  “Chartered Financial Analyst” and “CFA” brands and to change  its corporate and “CFA” title names.  Unfortunately, Icfai has  continued its  unauthorized use of  our trademarks by running  advertisements from an Icfai-sponsored university.

...................................................................................................... ..........................................................................

If you are planning to either hire an investment professional or  obtain a designation, you need to make informed decision that  benefit  your  future.   Visit  www.cfainstitute.org/India for  more  information about enrolling in the CFA Program, Scholarships,

joining the IAIP, and the latest updates about our efforts to end  this confusion and support the Indian Investment Community.”

(Emphasis added by us)

6. Alleging that the said public notice was defamatory within the meaning  

of  Section 499 of  the  IPC,  respondent  No.2 filed a  private  complaint  

against the appellants.  The trial court took cognizance of the complaint  

and  issued  summons  to  the  appellants.   Feeling  aggrieved  by  the  

summoning order, the appellants preferred the afore-noted petition before  

the  High  Court  of  Calcutta.   As  already  stated,  by  the  impugned  

judgment,  the  High Court  has  dismissed  the  said  petition.  Hence,  the  

present appeal by the accused.  

7. Shri Shanti Bhushan, learned senior counsel appearing on behalf of the  

appellants  strenuously  urged  that  the  High  Court  gravely  erred  in  

declining to exercise its jurisdiction under Section 482 of the Code in a  

case where the complaint ex facie lacks basic ingredients of Section 499  

of the IPC.  Learned counsel submitted that by offering a prospectus for a  

new session beginning in the year 2007, which would be of 12-18 months  

duration, the University, a sponsored University of ICFAI had violated  

the injunction order issued by the High Court of Delhi on 4th August 2006

and, therefore, in the wake of a misleading advertisement, the appellants  

were compelled to issue a “Word of Caution”.   

8. Learned counsel contended that from the provisions of the Institute of  

Chartered Financial Analysts of India University, Tripura Act, 2004 (for  

short “the Act”), it was clear that the University was nothing but an alter  

ego of respondent No.2.  In support of the contention, learned counsel  

referred to certain provisions of the Act showing that it  is respondent  

No.2  who  appoints  the  Chancellor  of  the  University  and  in  turn  the  

Chancellor appoints the Vice-Chancellor;  under Section 20 of the Act,  

the  Board  of  Governors  consists  of  Chancellor,  Vice-Chancellor  and  

three other persons nominated by respondent No.2; under Section 21 of  

the Act,  the Board of Management  consists  of 9 persons of whom as  

many as 7 persons are to be the nominees of respondent No.2.  It was,  

thus, submitted that all the acts of the University were really the acts of  

respondent No.2 itself and, therefore, the advertisement issued for fresh  

admission by the University was clearly in breach of the order passed by  

the Delhi High Court.  According to the learned counsel, the effect of the  

advertisement  dated  30th January  2007  would  have  been  to  induce  

prospective students to believe that joining the new course offered by the

University in the year 2007 would entitle them to get CFA designation  

from CFA Institute.  It was argued that it was in these circumstances and  

keeping in mind the public interest that the appellants had issued a “Word  

of  Caution”  to  the  students  who  wished  to  obtain  CFA certification.  

Learned  counsel  asserted  that  the  prosecution  of  the  appellants  on  

account of publication of the said “Word of Caution” is an abuse of the  

process of the Court inasmuch as the said “Word of Caution” published  

by them was a public duty and thus, a legitimate expression.  It was also  

absolutely necessary and in public interest and was singularly covered by  

the Tenth Exception to Section 499 of IPC.   

9. It was also the assertion of the learned counsel that the contents of the  

“Word of Caution” did not in any way lower or cast a reflection on the  

moral  or  intellectual  character  of  respondent  No.2  and,  therefore,  

Explanation 4 to Section 499 of the IPC, which imposes restrictions in  

the law of defamation, is clearly attracted in favour of the appellants.  It  

was  thus,  pleaded that  in the light  of  Explanation 4 as  well  as  Tenth  

Exception to Section 499 IPC, the allegations in the complaint did not  

constitute an offence of defamation punishable under Section 500 IPC  

and, therefore, the High Court ought to have quashed the complaint.  In

support  of  the  proposition,  learned  counsel  placed  reliance  on  the  

decisions of this Court in the case of State of Haryana Vs. Bhajan Lal1  

and  Shatrughna Prasad Sinha  Vs.  Rajbhau Surajmal Rathi & Ors.2.  

Relying on Rajendra Kumar Sitaram Pande & Ors. Vs. Uttam & Anr.3,   

learned counsel argued that under the given circumstances, requiring the  

appellants to undergo trial would be travesty of justice.  

10.Per contra,  Shri K.K. Venugopal, learned senior counsel appearing on  

behalf  of  respondent  No.2  supported  the  impugned  judgment  and  

submitted  that  all  the  grounds  urged  on  behalf  of  the  appellants  for  

quashing the complaint  involve determination of disputed questions of  

fact for which the matter has to go to trial and, therefore, the High Court  

was justified in not analyzing and returning a finding on the truthfulness  

or otherwise of the allegations in the complaint.  Heavily relying on the  

majority  view  expressed  by  a  Bench  of  three  Judges  in  Sewakram  

Sobhani Vs. R.K. Karanjia, Chief Editor, Weekly Blitz & Ors.4, learned  

counsel argued that answers to the questions whether the appellants were  

entitled to protection under Explanation 4 or that the advertisement was  

1 1992 Supp. (1) SCC 335 2 (1996) 6 SCC 263 3 (1999) 3 SCC 134 4 (1981) 3 SCC 208

issued in “good faith” and for “public good” as contemplated in the Tenth  

Exception are questions of fact and matters for evidence and, therefore,  

trial in the complaint must continue.  In this behalf,  reliance was also  

placed on the decisions of this Court in M.N. Damani Vs. S.K. Sinha &  

Ors.5 and  Shriram  Refrigeration  Industries  Vs.  Hon’ble  Addl.   

Industrial Tribunal-Cum-Addl. Labour Court, Hyderabad & Ors.6    

11.Learned counsel argued that a reading of the offending publication as a  

whole would show that omission of the sentence “However, this order of  

injunction  will  not  come  into  effect  till  the  end  of  current  academic  

session of CFA programme run by the defendants nor will anything said  

herein  will  mean  final  expression  of  opinion  of  this  Court”  was  a  

conscious  and  deliberate  suppression  intended  to  portray  ICFAI  as  a  

wrong doer, which has violated an injunction order passed by the High  

Court and in the process is in contempt of the said order.  According to  

the learned counsel, suppression of the fact that the interim injunction did  

not  apply  to  the  “current  academic  session  of  the  CFA Programme”,  

which was to conclude only in May 2009; had subjected the students who  

were undergoing the three year course to fear and anxiety that three years  

5 (2001) 5 SCC 156 6 (2002) 9 SCC 708

of their  lives  would be wasted,  giving the  impression that  respondent  

No.2  had  cheated  them.   It  was  contended  that  the  conscious  and  

deliberate omission of the last sentence of the order of interim injunction  

was with the sole objective to deter the students from enrolling in the  

CFA  Programme  offered  by  the  four  Universities  in  the  State  of  

Uttarakhand,  Meghalaya,  Tripura  and  Mizoram  by  creating  a  fear  

psychosis amongst the aspirants and, therefore, the offending publication  

was  not  in  “good  faith”  and “public  interest”  as  is  being  pleaded  by  

learned counsel for the appellants.

12.Placing reliance on the decision of this Court in  Chand Dhawan (Smt)   

Vs. Jawahar Lal & Ors.7, learned counsel submitted that since the High  

Court  had  observed  that  the  allegations  in  the  complaint  prima facie  

constituted an offence under Section 499 IPC, it did not err in refusing to  

interfere in the matter.  Reliance was also placed on the decisions of this  

Court in Som Mittal Vs. Government of Karnataka8 and Som Mittal Vs.  

Government  of  Karnataka9 to  contend  that  power  to  quash  criminal  

proceedings is to be exercised in the rarest of rare cases.

7 (1992) 3 SCC 317 8 (2008) 3 SCC 574 9 (2008) 3 SCC 753

13.Shri Venugopal also contended that the University at Tripura, not being a  

party to the suit at the time of passing of the order by the High Court was  

not bound by the said order, yet the statement in the advertisement that  

the  continued  unauthorized  use  of  appellant’s  trademark  through  the  

sponsored  Universities  is  per  se  defamatory  and has  caused  immense  

harm to the image and reputation of respondent No.2 in the eyes of the  

Indian Investment Community as also the student community at large.

14.Learned  senior  counsel  strenuously  urged  that  since  the  stand  of  the  

appellants  before  the  High  Court  was  that  they  were  entitled  to  the  

protection  of  Fourth  and  Fifth  Exceptions  to  Section  499  IPC,  they  

cannot now be permitted to rely upon Explanation 4 and Tenth Exception  

to Section 499 IPC so as to build up a totally new case before this Court.  

In support of the proposition that a new plea, which is essentially a plea  

of fact, cannot be allowed to be urged for the first time at the hearing of  

appeal under Article 136 of the Constitution before this Court, learned  

counsel placed reliance on the decisions of this Court in  Jagir Kaur &  

Anr.  Vs.  Jaswant Singh10, State of Bihar & Ors.  Vs.  Shyam Yadav &  

Ors.11 and D.S. Parvathamma Vs. A. Srinivasan12. 10 [1964] 2 S.C.R. 73 11 (1997) 2 SCC 507 12 (2003) 4 SCC 705

15.Thus, the question for consideration is whether or not in the light of the  

allegations as projected in the complaint against the appellants, it was a  

fit case where the High Court in exercise of its jurisdiction under Section  

482  of  the  Code  should  have  quashed  the  complaint  against  the  

appellants?

16.Before addressing the contentions advanced on behalf of the parties, it  

will be useful to notice the scope and ambit of inherent powers of the  

High Court under Section 482 of the Code.  The Section itself envisages  

three  circumstances  under  which  the  inherent  jurisdiction  may  be  

exercised, namely, (i) to give effect to an order under the Code; (ii) to  

prevent abuse of process of Court; and (iii) to otherwise secure the ends  

of justice.  Nevertheless, it is neither possible nor desirable to lay down  

any  inflexible  rule  which  would  govern  the  exercise  of  inherent  

jurisdiction of the Court.  Undoubtedly, the power possessed by the High  

Court under the said provision is very wide but is not unlimited.  It has to  

be exercised sparingly, carefully and cautiously, ex debito justitiae to do  

real and substantial justice for which alone the court exists.  It needs little  

emphasis that the inherent jurisdiction does not confer an arbitrary power

on the High Court to act according to whim or caprice. The power exists  

to prevent abuse of authority and not to produce injustice.   

17.In one of the earlier cases, in R.P. Kapur Vs. State of Punjab13 this Court  

had summarized some of the categories of cases where inherent power  

under Section 482 of the Code could be exercised by the High Court to  

quash criminal proceedings against the accused.  These are:

(i) where  it  manifestly  appears  that  there  is  a  legal  bar  

against  the  institution  or  continuance  of  the  

proceedings e.g. want of sanction;

(ii) where the allegations in the first information report or  

the complaint taken at its face value and accepted in  

their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is  

no  legal  evidence  adduced  or  the  evidence  adduced  

clearly or manifestly fails to prove the charge.

18.In  Dinesh Dutt Joshi  Vs. State of Rajasthan14, while dealing with the  

inherent powers of the High Court, this Court has observed thus:

“….The principle  embodied in the section is  based upon the  maxim:  quando lex aliquid alicui concedit, concedere videtur   

13 AIR 1960 SC 866 14 (2001) 8 SCC 570

et id sine quo res ipsae esse non potest i.e. when the law gives  anything to anyone, it gives also all those things without which  the  thing  itself  would  be  unavailable.  The  section  does  not  confer any new power, but only declares that the High Court  possesses  inherent  powers  for  the  purposes  specified  in  the  section. As lacunae are sometimes found in procedural law, the  section has been embodied to cover such lacunae wherever they  are discovered. The use of extraordinary powers conferred upon  the High Court under this section are however required to be  reserved, as far as possible, for extraordinary cases.”

19.The purport of the expression “rarest of rare cases”, to which reference  

was made by Shri Venugopal, has been explained recently in Som Mittal   

Vs.  Government of Karnataka  (supra).  Speaking for a bench of three  

Judges, Hon’ble the Chief Justice said:

“When the words 'rarest of rare cases' are used after the words  'sparingly and with circumspection' while describing the scope  of  Section  482,  those  words  merely  emphasize  and reiterate  what is intended to be conveyed by the words 'sparingly and  with circumspection'. They mean that the power under Section  482 to quash proceedings should not be used mechanically or  routinely, but with care and caution, only when a clear case for  quashing is made out and failure to interfere would lead to a  miscarriage of justice. The expression "rarest of rare cases" is  not  used  in  the  sense  in  which  it  is  used  with  reference  to  punishment  for  offences  under  Section  302  IPC,  but  to  emphasize that the power under Section 482 Cr.P.C. to quash  the FIR or criminal proceedings should be used sparingly and  with circumspection.”

20.Bearing in mind the afore-stated legal position in regard to the scope and  

width of the power of the High Court under Section 482 of the Code, we  

shall now advert to the facts at hand.

21.As  noted  above,  the  gravamen  of  the  allegations  made  against  the  

appellants in the complaint under Section 500 of the IPC is that when on  

30th January 2007, respondent No.2 through its sponsored University at  

Tripura  issued  advertisement  for  fresh  enrolments  for  award  of  CFA  

Certification,  CFA Institute,  through its  President  and CEO,  appellant  

No.1, in this  appeal,  issued the offending “Word of Caution” wherein  

they: (1) deliberately and consciously did not publish the full text of the  

interim injunction granted by the High Court  against  respondent No.2  

vide order dated 4th August 2006.  They did not mention that order dated  

4th August 2006 was with a rider that the said order will not come into  

effect till the end of the current academic session of CFA programme run  

by the  society  and (2)  the  defamatory  advertisement  portrays  that  the  

designation given by CFA Institute is the only valid designation and the  

CFA  certificate  given  by  the  society  is  not  valid.   According  to  the  

complainant, all this was a malicious act on the part of appellant No.1,  

with the intention to harm their reputation in the estimation of the public

in general and its present and past students in particular and, therefore,  

they are liable to be punished under Section 500 read with Section 34 of  

the IPC.   For the sake of ready reference, the relevant portion of the  

complaint is extracted below:     

“That  in  the  defamatory  advertisement,  the  accused  persons  have stated inter alia as follows—

“The  Chartered  Financial  Analyst  (CFA)  designation  from  CFA  Institute  is  the  only  globally  recognized  CFA  designation for financial professional.  However, the Institute of  Chartered  Financial  Analysts  of  India  (Icfai)  offers  an  educational  programme  specializing  in  finance,  which  they  term the ‘CFA Programme’ and awards a title called the CFA”.

That  in  the  aforesaid  advertisement,  the  American  Association has falsely claimed sole global recognition of its  ‘CFA’ designation even though the same is not recognized by  any Government and/or Statutory authority either in USA or in  any other country including India.  The sole purpose of using  the word ‘Charter’ by the accused is purely with an intention to  defraud  and/or  mislead  the  public  to  convey  statutory  recognition.   The  said  advertisement  does  not  disclose  that  unlike the “CFA’ degree granted by the Society, the so called  “CFA Charter is not recognized by any University in India or  outside  and  the  students  who  obtain  such  “Charter”  cannot  pursue further studies based on the “CFA Charter” so awarded  by the CFA Institute.  The tenor of the above statements in the  defamatory  advertisement  portrays  an  image  that  the  designation,  given  by  the  CFA  Institute,  is  the  only  valid  designation and the ‘CFA’ degree given by the Society is not a  valid one.  However,  the situation is  to the contrary and the  Society is a body recognized by the various statutory authorities  of India to be entitled to grant the “CFA” degree.   The sole  purpose  is  to  defame  and  scandalize  and  thereby  lower  the

image of the Society in the eyes of the general public as also in  the eyes of its present students as also potential students and  thereby harm the image of the Society, so that the organization  of the accused persons can benefit therefrom.

That  in  the  defamatory  advertisement  dated  12.02.2007,  the  accused persons have further stated as follows:-

“On 4th August, 2006, the Delhi High Court recognized  that  CFA  Institute  owns  the  exclusive  rights  to  the  CFA  trademarks and that continued use by ICFAI causes irreparable  harm.  The court ordered an interim injunction requiring Icfai to  stop using the “Chartered Financial Analyst” and “CFA” brands  and  to  change  its  corporate  and  “CFA”  titles  names.  Unfortunately, Icfai has continued its unauthorized use of our  trademarks by running advertisements from an Icfai-sponsored  university”.

The said statements are patently false and defamatory in  nature.  The  accused  persons  deliberately,  wilfully  and  with  malafide intention have not mentioned in the advertisement that  the order dated 4.8.2006 passed by the Hon’ble High Court of  Delhi,  granting  temporary  injunction,  has  been  made  with  a  rider that the said “order of injunction will not come into effect  till the end of the current academic session of the CFA program  run by the Society.”   It  is  well  within the knowledge of  the  accused  that  the  current  academic  session  of  the  CFA  programme of the Society has not come to an end and as such it  cannot  be  said  that  there  has  been  unauthorized  use  of  the  alleged trade marks of the CFA Institute.  Continuance of the  current academic session from a University, sponsored by the  Society,  cannot  be  said  to  be  in  violation  of  the  order  of  injunction  passed  by  the  Hon’ble  High  Court  of  Delhi.  Moreover, the defamatory advertisement does not mention the  fact (which is within the knowledge of the accused) that against  the above interim order of injunction, an appeal is pending in  the  Hon’ble  High  Court  of  Delhi.   The  tenor  of  the  said  defamatory  statement  makes  it  clear  that  the  accused,  with  malafide intent to injure and harm the Society, had misquoted

the  order  passed  by  the  Hon’ble  High  Court  of  Delhi  on  4.8.2006.”

(Emphasis added)

22.Since  the  factum  of  publication  of  the  “Word  of  Caution”  is  not  in  

dispute,  the  question  for  determination  is  whether  the  afore-extracted  

allegations  in  the  complaint  constitute  an  offence  of  “defamation”  as  

defined  in  Section  499  of  the  IPC  and  would  attract  the  penal  

consequences envisaged in Section 500 of the IPC?

23.“Defamation” is defined under Section 499 of the IPC.  It reads as under:

“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 excepted, to defame that  person.”

24.To constitute “defamation” under Section 499 of the IPC, there must be  

an imputation and such imputation must have been made with intention  

of harming or knowing or having reason to believe that it will harm the  

reputation of the person about whom it is made.  In essence, the offence  

of defamation is the harm caused to the reputation of a person.  It would  

be sufficient to show that the accused intended or knew or had reason to

believe that the imputation made by him would harm the reputation of the  

complainant,  irrespective  of whether  the complainant actually  suffered  

directly or indirectly from the imputation alleged.

25.However, as per Explanation 4 to the Section, no imputation is said to  

harm a person’s reputation, unless that imputation directly or indirectly  

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, in the estimation of others 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.

26.As stated above, the thrust of the argument of learned counsel for the  

appellants  was that since the “Word of Caution” was issued in “good  

faith”  for  the  benefit  of  those  who  were  planning  to  acquire  CFA  

Certificate,  and  the  same  being  for  the  “public  good”,  the  case  falls  

within  the  ambit  of  Tenth  Exception  to  Section  499 of  the  IPC and,  

therefore, the appellants cannot be held liable for defamation.  

27.Tenth Exception to Section 499 of the IPC reads as follows:

“Tenth Exception.—Caution intended for good of person to  whom conveyed or for public good.—It is not defamation to

convey a caution, in good faith, to one person against another,  provided  that  such  caution  be  intended  for  the  good  of  the  person to whom it is conveyed, or of some person in whom that  person is interested, or for the public good.”

28.It  is  plain that in order to bring a case within the scope of the Tenth  

Exception, it must be proved that statement/publication was intended in  

“good faith” to convey a caution to one person against another; that such  

caution  was  intended  for  the  good  of  the  person  to  whom  it  was  

conveyed, or of such person in whom that person was interested, or for  

the “public good”.

29.Before  dealing  with  the  question  whether  or  not  the  Tenth  Exception  

would be attracted  in  the  instant  case,  it  would be appropriate  at  this  

juncture,  to  deal  with  the  objection  raised  by  learned  senior  counsel  

appearing for respondent No.2, that no plea regarding applicability of the  

Tenth Exception having been urged before the High Court, the appellants  

are estopped from raising such a plea at this stage.  Ground IV in the  

petition before the High Court was in the following terms:

“Ground IV – For that the publication dated February 12, 2007  was essential and in public interest and thus made to protect the  interest of the general public who might otherwise have been  induced to join the course offered by the complainant/opposite  party no.2 in the belief that it was entitled to conduct the same.

The  language  of  the  publication  is  a  fact  and  there  is  no  question of there being any defamation involved in the same.”

30.It is clear from the above that in their defence, the appellants had pressed  

into service the Tenth Exception to Section 499 of the IPC.  It was their  

case that the publication in question was in public interest as it was made  

to  protect  the  interests  of  those  who  were  planning  to  join  the  CFA  

course announced by the University.  In our view, the appellants are not  

seeking to raise a new ground and, therefore, respondents’ objection on  

that account deserves to be rejected.

31.Now, reverting back to the main issue,  as  afore-stated,  the appellants  

issued the offending “Word of Caution” ostensibly in order to warn those  

who were either planning to hire an investment professional or to obtain  

a  CFA  designation  that  there  was  an  interim  injunction  against  

respondent No.2 from using their afore-noted trademarks.  It is claimed  

by the appellants that the said notice was aimed at that group of people  

who were interested in acquiring a definitive standard for professional  

competence or for those who wanted to hire such professionals and not  

for the general public as such.  According to them, this is clear from the  

text of the “Word of Caution”, which says that “If you are planning to

either hire an investment professional or obtain a designation, you need  

to make informed decisions that benefit your future.”  However, it cannot  

be denied that while the publication refers to the interim order passed by  

the Delhi High Court, it omits to mention that the said injunction will not  

come into effect  till  the end of  current  academic session of the CFA  

programme,  which, according to respondent No.2, was to conclude in  

May 2009, and that the order would not mean expression of final opinion  

on the matter.  According to respondent No.2, the omission of last two  

sentences  of  the  interim  order  was  a  conscious  and  deliberate  

suppression to somehow project ICFAI in a bad light in order to harm its  

reputation in the eyes of the professional community and, therefore, the  

offending  publication  was  neither  in  “good  faith”  nor  in  “public  

interest”.   

32.It is trite that where to the charge of defamation under Section 500 IPC,  

the  accused  invokes  the  aid  of  Tenth  Exception  to  Section  499  IPC,  

“good faith” and “public good” have both to be established by him.  The  

mere plea that the accused believed that what he had stated was in “good  

faith” is not sufficient to accept his defence and he must justify the same  

by adducing evidence.   However,  he is  not required to discharge that

burden by leading evidence to prove his case beyond a reasonable doubt.  

It  is  well  settled that  the degree and the character  of  proof which an  

accused is expected to furnish in support of his plea cannot be equated  

with a degree of proof expected from the prosecution in a criminal trial.  

The  moment  the  accused  succeeds  in  proving  a  preponderance  of  

probability,  onus  which  lies  on  him in  this  behalf  stands  discharged.  

Therefore, it is neither feasible nor possible to lay down a rigid test for  

deciding whether an accused person acted in “good faith” and for “public  

good” under the said Exception.  The question has to be considered on  

the facts and circumstances of each case, having regard to the nature of  

imputation made; the circumstances on which it came to be made and the  

status of the person who makes the imputation as also the status of the  

person against whom imputation is allegedly made.  These and a host of  

other considerations would be relevant and required to be considered for  

deciding  appellants’  plea  of  “good  faith”  and  “public  interest”.  

Unfortunately, all these are questions of fact and matters for evidence.

33.In the instant case, the stage for recording of evidence had not reached  

and,  therefore,  in  the  absence  of  any  evidence  on  record,  we find  it  

difficult to return a finding whether or not the appellants have satisfied

the requirements of “good faith” and “public good” so as to fall within  

the ambit of the Tenth Exception to Section 499 IPC.  Similarly, it will  

neither  be possible nor appropriate  for this  Court  to comment  on the  

allegations  levelled  by  respondent  No.2  and  record  a  final  opinion  

whether  these  allegations  do  constitute  defamation.   Reading  the  

complaint as a whole, we find it difficult to hold that a case for quashing  

of the complaint under Section 482 of the Code has been made out.  At  

this juncture, we say no more lest it may cause prejudice to either of the  

parties.

34.For the afore-going reasons, we are of the opinion that the High Court  

was right in refusing to quash the complaint under Section 500 IPC.  The  

appeal, being devoid of any merit, is dismissed accordingly.  Nothing  

said  by  the  High  Court  or  by  us  hereinabove  shall  be  construed  as  

expression of final opinion on the merits of the complaint.

.……………………………J.  (D.K. JAIN)

                              …………………………….J.   (H.L. DATTU)

NEW DELHI; MAY 14, 2010.