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1990 Supreme(Bom) 164
BOMBAY HIGH COURT
I. G. SHAH, J.
Smt. Madhuri Mukund Chitnis, Appellant
Versus
Mukund Martand Chitnis and another, Respondents.
Criminal Appeals Nos. 37 and 40 of 1989
Decided on : 12 -4 -1990.
The appellant in Person; A.V. Anturkar, Smt. S.S. Keluskar, Addl. Public Prosecutor, for Respondents.
The burden of proving the circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon the accused, and the Court shall presume the absence of such circumstances.
Headnote:
DEFAMATION - IMPUTATIONS - GOOD FAITH - BURDEN OF PROOF - SENTENCING - CRIMINAL APPEAL - [S. 499, 500 IPC] - Imputations made in a proceeding before an authority are per se defamatory. The burden of proving the circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon the accused, and the Court shall presume the absence of such circumstances. The accused must show that he had taken due care of ascertaining the facts before making the imputations. If no due and necessary inquiry was made about truthfulness of the imputations, one must hold that no due care was exercised and if due care was not exercised, then the act must be considered as not done in good faith. In a case where the imputations are grave and not made in good faith, a stringent view is necessary and leniency would be out of place.
Fact of the Case:
The complainant, a divorced wife, filed two appeals challenging the acquittal of her former husband (respondent) in two defamation cases. The respondent had made imputations against the complainant in a criminal complaint and a writ petition, alleging that she was not a spinster at the time of their marriage, had a child from a previous marriage, and had committed theft. The complainant claimed that these imputations were false and defamatory.
Finding of the Court:
The court held that the imputations made by the respondent were per se defamatory and that the respondent had failed to discharge the burden of proving that he had made the imputations in good faith. The court found that the respondent had not taken due care of ascertaining the facts before making the imputations and that he had not made the necessary inquiries to satisfy himself that the allegations were true.
Issues: 1. Whether the imputations made by the respondent were per se defamatory? 2. Whether the respondent had discharged the burden of proving that he had made the imputations in good faith?
Ratio Decidendi: The court relied on Sections 499 and 500 of the Indian Penal Code, as well as Section 105 of the Evidence Act, to hold that the burden of proving the circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon the accused, and the Court shall presume the absence of such circumstances. The court also relied on the decision in Baburao Shankarrao v. Shaikh Biban Baban Pahelwan, 1984 Cri LJ 350, to hold that the accused must show that he had taken due care of ascertaining the facts before making the imputations. If no due and necessary inquiry was made about truthfulness of the imputations, one must hold that no due care was exercised and if due care was not exercised, then the act must be considered as not done in good faith.
Final Decision: The court allowed both appeals, convicted the respondent of the offence punishable under Section 500 of the Indian Penal Code in both cases, and sentenced him to S.I. for two months and a fine of Rs. 3,000/- each in default further S.I. for one month. Substantive sentences in both the cases shall run concurrently.
2. Briefly stated that the facts giving rise to these two appeals are as under :-
The complainant is the divorced wife of the respondent No. 1 - the original accused. Their marriage took place on 15-7-1983. But the marriage somehow was not successful and the complainant-wife, it appears, was thrown out of the house by the husband on 6-10-1283. Several civil as well as criminal cases were lodged against each other. The present respondent No. 1 also filed Criminal Case No. 494/83 against the present appellant and her maternal uncle and brother alleging that they had committed the offences of cheating and theft. In the complaint filed by the present respondent No. 1, it was alleged in para 4 of the complaint as under :-
"The complainant (Mr. Mukund Chitnis) experienced on the first night of the marriage that the accused No. 1 (Mrs. Madhuri Chitnis) is not a spinster. Not only this but the accused No. 1 (Mrs. Madhuri Chitnis had married with the complainant (Mr. Mukund Chitnis) for the second time during the life of her earlier husband. The accused No. 1 (Mrs. Chitnis) also had got one issue from her husband."
It was further alleged by the complainant that in Writ Petition No. 94/84 filed in the High Court of Bombay on 24-2-1984, the present respondent No. 1 also alleged as under :-
"However, to the utter shock and surprise of the petitioner (Mr. Mukund Chitnis) found even on the first night that the respondent No. 1 (Mrs. Madhuri Chitnis) was not the spinster and that she was already married and in fact her first marriage was subsisting and so the petitioner (Mr. Mukund Chitnis) was cheated, for this was her second marriage and so the same was void and a nullity according to Hindu Law. The petitioner (Mr. Mukund Chitnis) came to know that the respondent No. 1 (Mrs. Madhuri Chitnis) had also one issue from her first marriage."
In the said Criminal Case No. 494/83, the present respondent No. 1 further stated as under :-
"Accused No. 1 (Mrs. Madhuri Chitnis) and accused No. 2 (Dr. C.R. Karnik, the maternal uncle of Mrs. Madhuri Chitnis) removed all bag and baggages, ornaments an a clothing belonging to the complainant (Mr. Mukund Chitnis) worth Rs. 11,500/and Rs. 2,000/- which was in exclusive possession of the complainant (Mr. Mukund Chitnis) and ran away from the house of the complainant along with the ornaments and cash. The accused No. 1 (Mrs. Madhuri Chitnis) and accused No. 2 (Dr. C.R. Karnik) acted with a common intention of making a theft."
It is also alleged by the present appellant in the complaint filed by her against the respondent No. 1 that the said imputations in respect of theft were also repeated by the accused, i.e. the present respondent No. 1, in para 6 of the Criminal Writ Petition No. 94 of 1984 filed in the High Court of Bombay. The said para runs as under :-
"On 7-8-83, the respondent No. 2 (Dr. C.R. Karnik) along with respondent No. 1 (Mrs. Madhuri Chitnis) entered the petitioner's (Mr. Mukund Chitnis) House at the back of the petitioner (Mr. Mukund Chitnis) when he was not in the house and forcibly took all the ornaments from the petitioner's (Mr. Mukund Chitnis) house and removed all bags, baggages, articles and cash belonging to the petitioner (Mr. Mukund Chitnis) which were in exclusive possession of the petitioner (Mr. Mukund Chitnis)."
The present appellant in the complaint claimed that all the statements made by the respondent No. 1 in the criminal complaint filed in the Court of J.M.F.C. at Pune as well as in the writ petition filed in the High Court at Bombay are absolutely false, baseless and malicious and highly derogatory and defamatory. She also contended that the ornaments and clothes were given by the present respondent No. 1 to her at the time of the marriage and they were
