R. Mala, J.

1. The petitioner has come forward with this application for setting aside the impugned order passed in R.C. No. 1 of 2009 by the learned Additional Sessions Judge (F.T.C. No. 1), Tuticorin, by confirming the order passed by the learned Judicial Magistrate No. 1, Tuticorin in C.C. No. 385 of 2008 by dismissing the private complaint filed by the respondent under Section 500 of I.P.C. The learned counsel for the petitioner would submit that the question whether the petitioner has defamed the respondent is a question of fact and that can be decided only at the time of trial after letting evidence. But, both the Court had not considered the same. He has taken me to the paras 39 and 40 of the judgment rendered in Jeffrey J. Diermeier V. State of West Bengal reported in (2010)6 Supreme Court Cases 243 and prayed for allowing of the criminal original application.

2. He would further submit that as per Section 190(1)(a) of Cr.P.C. it is not only the duty of the Court to decide as to whether it is a fit case for quashing the proceedings, but also the Court has to decide as to whether any prima facie case is made out for taking cognizable of offence. But, the learned Judicial Magistrate exceeded his limit and dismissed the complaint. Hence, he prayed for setting aside the order.

3. Resisting the same, the learned counsel for the respondent would submit that the trial Court has dismissed the application not only for good faith, but also prima facie case has not been made out and that has been confirmed by the revisional Court and hence, he prayed for the dismissal of the petition.

4. I have considered the submissions made on either side and perused the materials available on record.

5. The respondent as a complainant has preferred a complaint before the police stating that the petitioner, who is an astrologer was having illicit intimacy with his wife Santhi and he requested the police to take against him and that has been published in Tamil Murasu on 13.09.2007 and Dinakaran daily on 14.09.2007 as and on that basis only, the petitioner has preferred a complaint under Section 200 of Cr.P.C. for the offence punishable under Section 500 of I.P.C.

6. The learned Judicial Magistrate has examined the petitioner and recorded the statement and came to the conclusion that he was not the author of the news item and in the news item, it is stated one astrologer was having illicit intimacy with his wife and hence, he has given a complaint before the police and the respondent has not published the news item. Neither the editors nor correspondents of the dailies were impleaded as accused for publishing the news item. The Trial Court has correctly held that the complaint has been given before the police by the respondent and the respondent has not published the news item. Merely the respondent has given a complaint to the lawful authority, there is no offence would come since the respondent is entitled the eighth exception of Section 499 of I.P.C.

7. The learned counsel for the petitioner has relied on the decision of the Apex Court in Jeffrey J. Diermeier V. State of West Bengal reported in (2010)6 Supreme Court Cases 243. The said citation is not applicable to the facts of the present case.

8. Admittedly, the respondent herein has not given any publication in the newspaper. He has given a complaint only before the police station. The respondent is no way connected with the publication of news item. In such circumstances, I am of the view that both the Courts below have considered the aspects in proper perspective and came to the correct conclusion. Hence, I do not find any reason to interfere with the findings of the Court below. Accordingly, this criminal original petition is dismissed.