The revision petitioner who was the complainant in a private complaint filed as C.M.P. No. 2480 of 2009 before the J.F.C.M. I, Cherthala, alleging offences punishable under Sections 500 and 501 I.P.C. against the Ist respondent herein, challenges the order dated 20-8-2009 passed by the Magistrate dismissing the complaint presumably under Section 203 Cr.P.C. after recording the sworn statement of the complainant.

2. Eventhough the accused to whom no process was issued by the Magistrate, has no right to be heard in this revision, since the revision petitioner had made the accused a party respondent and also since this Court ordered notice to him, I also heard Advocate Sri.Azad Babu on behalf of the Ist respondent/accused.

THE BACKGROUND FACTS

3. The facts leading to the filing of the aforesaid complaint can be summarised as follows:

A) O.S. No. 555 of 2008 before the Munsiff's Court, Cherthala was a suit filed by the complainant's mother Kaumari and the complainant against the Ist respondent herein (accused) and his wife seeking a declaration of the right of easement over a way and also for consequential injunction. There was an interim prohibitory injunction granted by the Civil Court in favour of the complainant and his mother.

B) Alleging that the interim injunction was violated by the defendants by causing obstructions to the way in dispute the plaintiffs filed a petition for an interim mandatory injunction. Eventhough the said application as opposed, the Civil Court allowed the application. Accordingly, an interim mandatory injunction was granted and the same was implemented and the status quo ante was restored.

C) The defendants filed an application before the Civil Court to vacate the orders of interim prohibitory as well as mandatory injunction. That application was supported by an affidavit filed by the Ist defendant (Ist respondent) herein. According to the complainant, paragraphs 4, 5 and 9 of the said affidavit contained defamatory allegations against the complainant. I am only quoting the opening portion of paragraph 9 of the said affidavit which reads as follows:-

Transalation

"The second plaintiff (revision petitioner herein) is a thief and a lecher who cannot be permitted to set his foot on the courtyards of houses where ladies of honour and self esteem reside. He is an immoral and anti-social person who has amassed wealth undeservingly through illicit distillation, bootlegging etc. and carries on in the company of such elements. He is a criminal who is prepared to commit any heinous act".

D) Eventhough the complainant sent a lawyer notice to the accused requesting him to withdraw the false imputations made against the complainant, he has not only acceded to the said request but has also caused a reply notice to be sent through his lawyer reiterating his stand and raising untenable contentions. Thereupon the complainant filed the aforesaid private complaint before the Criminal Court alleging that the Ist defendant/Ist respondent has committed the offence of defamation as defined under Section 499 I.P.C. and punishable under Sections 500 and 501 I.P.C.

ARGUMENTS FOR THE ACCUSED

4. Advocate Sri.Azad Babu, the learned counsel appearing for the Ist respondent/accused made the following submissions before me in support of the impugned order dismissing the complaint:-

The mere filing of an affidavit before the Civil Court after giving a copy of the same to the complainants' counsel will not amount to "publication" for the purpose of Section 499

I.P.C. Even assuming that the statements in the affidavit are defamatory, as rightly observed by the Court below, those statements enjoy absolute privilege since they were made in the course of judicial proceedings. (Vide Gopalankutty Nair v. Sankunni Ezhuthassan - 1971 KLT 393 F.B.). There is no evidence available at present to show that the imputation in question has lowered the reputation of the complainant in the estimation of others as required under Explanation 4