IMPORTANT POINT
The court established that the intent to harm reputation is a key element of defamation under Section 499 of the IPC, and the burden of proving that an imputation falls within the Exceptions lies with the accused.

JUDGMENT

N. J. Jamadar, J. - Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, heard finally.

2. This petition under Articles 226 and 227 of the Constitution of India and section 482 of the Code of Criminal Procedure, 1973 assails the legality, propriety and correctness of the judgment and order dated 10th February, 2021 passed by learned Additional Session Judge at Borivali Division, Mumbai in Criminal Revision Application No. 345 of 2016 whereby the learned Additional Session Judge dismissed the Revision Application affirming an order dated 4th October, 2016 passed by the learned Metropolitan Magistrate, 26th Court, Borivali in CC No. 2042/SS/2016 issuing process against the petitioners No. 1 to 7/ accused for an offence punishable under section 500 read with 34 of the Indian Penal Code, 1860 (the Penal Code).

3. The background facts leading to this petition can be stated as under:-

M/s. A Surti Developers Private Limited, the respondent No. 1/complainant (the developer) is a private limited company. It is engaged in the business of development of real estate. The complainant had constructed the residential building 'Universal Garden No. 1' at Jogeshwari (w), Mumbai. The MMRDA owed leasehold plot admeasuring 6912 sq. mtr. The petitioners/accused are the allottees of the residential flats in the said building. Occupation certificate was issued on 21st February, 2014. The flat purchasers were put in possession of the respective flats in the year 2014-15. A completion certificate came to be issued on 27th May, 2015. It seems, disputes arose between the developer and the flat purchasers over the completion of the project in accordance with the terms of the contract between the developer and the purchasers. In the wake of the dispute, several allegations and counter allegations were made. The developer alleged that the accused Nos. 1 to 7 formed a body under the name and style of "Universal Garden No. 1 Cooperative Housing Society" (proposed), illegally and in contravention of the provisions of Maharashtra Cooperative Societies Act, 1960 and the governing rules. A false dispute was raised about the maintenance bills. The bills were allegedly fraudulently collected from of the office of complainant. The accused, in connivance with other fiat owners, illegally collected payment from the occupants of the fiats. Efforts were made to spread disharmony amongst occupants of the fiat and create a rift between the fiat purchasers and the developer.

4. The accused Nos. 1 to 7, on the other hand, alleged that several defects were noticed in the construction carried out by the complainant. Numerous letters were addressed to the developer-complainant regarding various faulty and incomplete works and non- formation of the society of the fiat purchasers. Despite repeated promises, the complainant failed to rectify the defects and form the society. Various acts of commission and omission were attributed to the developer.

5. The complainant claimed, it had fully discharged its obligation under the terms of the contract between the parties. Accused Nos. 1 to 7 and other flat purchasers were insisting for the amenities which were beyond terms of the contract between the parties. In order to coerce the complainant to accede to the unlawful and unjustifiable demands of the accused, on 10th August, 2015 the accused erected the banners/boards in Hindi and English, visible to public at large, containing false, frivolous and defamatory statements, as under:

6. The complainant alleges the said boards were erected with a deliberate intention to defame the complainant and harm reputation and goodwill of the complainant. The complainant addressed notice on 26th February, 2016 calling upon the accused to tender an unconditional apology. Accused Nos. 1 to 7 gave reply to the said notice and defiantly refused to tender an apology. The complainant was thus constrained to lodge the complaint for defamation.

7. In the complaint