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2009 Supreme(Bom) 1171
In the High Court of Bombay at Goa
THE HONOURABLE MR. JUSTICE N.A. BRITTO
Shri Sopullo Datta Naik Dessai Appellant
Versus
Shri Yeshwant Govind Dessai & Another Respondent
Criminal Appeal No.28 of 2007
Decided on : 10-09-2009
Advocate Appeared:
For the Appellant:Ryan Menezes, Advocate.
For the Respondents:Arun Bras De Sa, Advocate.
Headnote:INDIAN PENAL CODE, 1860 - Sections 499 and 500 - Defamatory allegations - Acquittal of accused under Section 499/500, IPC - Appeal against - Accused contended, he conveyed factual position to Tahsildar that complainant came to Sashamandap under influence of liquor and created trouble when election was to take place and no publication of same to general public - Held - Report sent by accused read by Mamlatdarand also by his clerk (PW 4) - Members of Panchayat also discussed it - Imputations made in good faith not shown - Intention of accused, to defame image of complainant in eyes of public - Accused convicted and sentenced to till rising of Court and pay a fine of Rs. 5,000/- - Amount if recovered be paid to complainant as compensation - Impugned judgment set aside - Appeal allowed. - In the circumstance therefore, the trial Court was not at all right in either conclusion that the accused had transcribed in the said reply what had happened without knowing its consequences or that it was done in good faith. As already stated, the complainant by his evidence as well as that of his witnesses had sufficiently proved that the said reply was filed by the accused with the intention to defame his image in the eyes of the general public, in his village and in his office. The accused had not denied having made the said allegations. His only case was that the said allegation did not amount to casting any imputation on the reputation of the complainant when in fact it did. The accused neither pleaded nor proved the Ninth Exception that he had made the said imputation in good faith for the protection of his interest or for public good. As already stated there was no interest to be protected nor public good to be served by making the said reckless and defamatory imputations against the complainant.
In the light of the above discussion, the appeal is bound to succeed and the impugned judgment requires to be reversed and set aside. Consequently, the accused is hereby convicted under Section 499/501, IPC. Counsel on behalf of the accused has submitted that considering, that the accused has remained present before the trial Court as well as before the Court a lenient view be taken. Counsel on behalf of the complainant submits that this is not a case where a lenient view is required to be taken but further submits that the sentence to be imposed be decided by the Court.
There is a civil suit filed by the complainant for compensation/damages. Considering the facts of the case and the concession made, the ends of justice would be met by making the following Order :
The accused is sentenced under Section 499/500 to undergo S.I. of one day (till rising of the Court) and pay a fine of Rs. 5000/-, and in default to undergo S.I. of six months. In case the fine is realized, the entire amount shall be paid to the complainant by way of compensation. Counsel on behalf of the respondents submits that the fine shall be paid by 11.9.2009 before the Court. Statement is accepted. Court Sheristedar to certify one day S.I.
Oral Judgment:
This appeal is directed against Judgment dated 22-12-2006 of the learned JMFC, Canacona, acquitting the Accused/Respondent under Section 499/500 IPC.
2. The appellant/complainant is a Government Primary school teacher and the accused is a contractor by profession and both are Mahajans of Mallikarjun Devalaya, and both had been the Presidents of the Managing Committee of the said Devalaya. Elections to the Managing Committee were scheduled on 28-2-2004 and the complainant as well as the accused along with two others filed their nominations to be elected as President of the Managing Committee of the said Devalaya. The other two were one Dayanand Faldessai/DW2 who withdrew his nomination and one Ulhas Dessai whose nomination was held to be invalid. The accused was the President of the said Devalaya as on the date of the said election. The complainant's nomination came to be rejected, and according to the complainant, as told to him, because the complainant was a Government primary teacher but according to the accused it was rejected because the nomination was not signed by the complainant, and also because the serial number was not correct. The accused produced the nomination form at Exh.17 claiming it to be the one filed by the complainant but according to the complainant that was not the form which was submitted by him. After two nominations were rejected, and the third having been withdrawn, the accused got elected as President of the said Devalaya, unopposed.
3. The complainant filed a representation to the Mamlatdar who is the Administrator of Devalayas under the relevant provisions of law in force in this State. The Mamlatdar called for the say of the respondent but the respondent instead of assigning the said two reasons on account of which the complainant's nomination was rejected made several allegations against the complainant including that (1) “the complainant entered in the “sabhamandap” of the Devalaya under the influence of liquor” on the date of election of the Managing Committee, (2) that whenever the complainant came for the General Body Meetings or other meetings of Mahajans, the complainant created trouble amongst the Mahajans under the influence of liquor, (3) “and even when he was the President the complainant came in the same fashion and the Mahajans had filed a complaint to the Mamlatdar against the said behaviour of the complainant and (4) he was arrested by Police and was kept in the lock-up being involved in “goondagiri”, about ten years back during drama festival.
4. The accused also stated in the said reply dated 15-3-2004 that there were only two applications in the format supplied by the Committee for the election for the post of President, one of which was withdrawn, and the complainant who was in the above said mood, handed over one application having five to six names which was rejected and was asked to submit his application in the format supplied by the Committee but instead of doing that he started arguing with the accused for about 10 minutes and left the sabhamandap threatening that he would teach a lesson, and the said representation was nothing but a result of threat.
5. The complainant sent a notice to the accused dated 3-2-2005 seeking compensation in the sum of Rs.5,00,000/-, failing which, the complainant informed the accused that he would initiate civil and criminal proceedings. The notice was not replied to nor complied, and the complainant filed his complaint on 11-3-2005. In between, the representation of the petitioner to the Mamlatdar was rejected by Order 15-12-2004, and neither of the parties have produced a copy of the said Order to show as to why the said representation was rejected.
6. The complainant examined himself in support of the complaint and three more witnesses which included two Mahajans and the nominee of the Mamlatdar who was present at the said election. The accused also examined himself and two more witnesses to support his case.
7.
