IMPORTANT POINT
Defamation requiring public dissemination; private communication lacks requisite harm to reputation per IPC.

JUDGMENT :

P.V.KUNHIKRISHNAN, J.

These two cases are connected and therefore I am disposing of these cases by a common judgment/order.

2. Petitioners in these cases are accused Nos.1 and 2 in C.C. No.489 of 2019 on the file of the Judicial First Class Magistrate Court-IX, Ernakulam. The above complaint was filed by one Cyriac Thomas alleging offences punishable under Sections 499 and 500 r/w 34 of the Indian Penal Code, 1860. The learned Magistrate taken cognizance of the offences and issued summons to the petitioners. According to the petitioners, even if the entire allegations in the complaint are accepted in toto, no offence is made out.

3. Heard the learned counsel appearing for the petitioners. Even though notice is issued to the complainant in these cases, there is no appearance for the complainant.

4. The short point raised by the petitioners is that, even if the entire allegations in the complaint are accepted in toto, it will hit by explanation No.4 of Section 499 IPC. The counsel also submitted that there is no defamation even if the allegations in the complaint are accepted because it is published in a close Gmail group and it was not published on a public platform.

5. I think there is force in the argument of the petitioners. The allegations in the complaint are mentioned in paragraph Nos. 6 to 15 of the complaint. The same is extracted hereunder:

“6. In the mean time the accused and a few others have colluded with the builders who have suffered the above orders to promote an association under the Travancore Cochin Literary Scientific And Charitable Societies Act, with the name “Moonstone Apartment Owners Association". It is to be noted that The action of forming an association under the Travancore Cochin Act, was a steep deviation from the earlier position to promote an association under the Kerala Apartment Ownership Act.

7. The Complainant has approached the District Court Emakulam (Vacation Court) in IA NO. 1812/17 seeking an Injunction restraining the respondents and others including Moonstone Apartment Association from preventing him from using common area facilities attached to his apartment including use of lift, staircase and other common facilities and two covered car parking until further orders.

8. The respondents are aggrieved by the interim order of injunction passed against them and others. In the back drop of the interim injunction dated 27.04.2017 in IA NO. 1812/17 passed by the District Court Ernakulam, they have written and published emails containing defamatory statements to moonstoneapt@googlegroups.com. It is a group mail facility, whereby the email send by the members of the group can be accessed by all the members of the group. The complainant and the respondents are the members of the group. There are 34 other members in the group, going by the mail IDs added to the group. It includes the mail IDs of the owners of the apartments as well as outsiders. All the members of the group are not the members of the association formed by the first accused under the Travancore Cochin Act.

9. The first in the 5^th paragraph of the email dated 06 /05/2017 has stated as follows:

“Mr.Cyriac, on whom we had tremendous hope to use his expertise & experience for the betterment of the flat owners & guiding us through our legal case against the builders had completely deceived us." The statement gives an impression to the readers of the email that the complainant had deceived them. It is to be noted that the complainant was one among the aggrieved owners who have taken recourse to legal remedies. The complainant was not entrusted with the obligation to conduct the legal case against the builders, on the other hand it was handled by the accused and two other office bearer