Publication of defamatory matter requires communication to a person other than the person defamed, and non-compliance with the requirement to file a list of prosecution witnesses along with the complaint is not a mandatory requirement that renders the proceedings null and void.

Petitioner F. A. Poncha, is the sole accused in C.C. No. 2981 of 1990 pending on the file of IX Metropolitan Magistrate, Saidapet, initiated on a private complaint preferred by respondent Meherjee, alleging that the petitioner has committed an offence punishable under section 500 I.P.C.

2. In this petition preferred under section 482 Cr.P.C. to call for the records and quash the pending prosecution as not maintainable and an abuse of process of Court, Mr. M. Ravindran, learned senior counsel, contended that there was no publication of the defamation alleged, for not even the name of any single member, to whom publication was made, does get itself revealed, from the averments made in the complaint. Further, the complaint does not disclose the reaction of those unnamed members. He contended that the letter despatched by the petitioner was not so done with intent to defame, but with sustaining interest, that racing must be clean and members of the public should not be cheated. He then urged that list of witnesses had not been appended to the complaint and that was against the mandate of Section 204 Cr.P.C. In passinng, he mentioned, that, on the available facts, Explanation-4 to Section 499 I.P.C., must be taken note of, as to when exactly an imputation can be said to harm a person's reputation.

3. On these grounds, I have heard Mr. Satheesh Parasaran, learned counsel representing the respondent. He pointed out, that the averments in the complaint, will clearly indicate the persons identifiable, to whom defamatory allegations, had been forwarded. He also submitted, that harm to the reputation of the respondent has been averred, though not in a very detailed manner. He submitted, that the confidential letter dated 19-8-1989, forwarded by the petitioner along with this communication, was quite sufficient, at-least prima facie, to indicate mens rea of the petitioner, to commit the offence alleged. He argued, that the definite allegation, of the defamatory letter, having been forwarded to a set of determinate group of people, would be sufficient to constitute publication, in the eye of law. He admitted, that a list of witnesses had not been appended to the complaint, but added, that such non-listing cannot be held to be prejudicial to the case of the petitioner, for, before the commencement of trial, it will always be open to the Magistrate to direct a list of witnesses to be furnished, so that the petitioner may not be taken unawares, in the process of trial.

4. To appreciate the divergent contentions, it will be necessary to have a quick look into the averments made in the complaint and the sworn statement of the respondent. Since no other document, except the alleged defamatory letter and its enclosure, have been appended to the complaint, question of considering further documentary evidence, will not arise at this stage.

5. Respondent has stated in his complaint, that he was working as a handicapper in the Royal Western Turf Club, Bombay. He voluntarily retired from service, of the Royal Western Turf Club, Bombay, on and from 31-10-1989. Subsequent to his retirement, he was honoured by the said Club, for the meritorious services rendered by him. In January, 1990, he was appointed as Senior Racing Official by the Madras Racing Undertaking, now taken over and under the control of the Government of Tamil Nadu managed by a committee of respected public men. The averments in the complaint further show, that the petitioner with a deliberate intention to lower his reputation and dignity in the minds of right thinking people and more particularly in the minds of the Royal Western Turf Club, caused a publication by his letter dated 26-12-1989, which was sent to all the members of the aforestated Club, who were residing in Madras. The complaint also shows, that those members of the Club, who were residing at Madras, had received the said letter. The further allegation is that the respondent came to understand from those members