Anil Kumar Chopra vs M.K.Khosla

S.D. Bajaj, J.

M/s. Nidhi Industries of Janakpuri, New Delhi, were to supply one lac vest woolen of 95 cm. size to Defence Ministry for Rs. 54 lacs at the rate of Rs. 54/ per piece. In turn they agreed to purchase the vest woollen aforesaid from M/s. M.K. Khosla Family Traders of Ludhiana at the rate of Rs. 51.50 paise a piece. Balance of Rs. 2.50 per piece was their profit. A sum of Rs. 50 lacs has admittedly been paid by M/s. Nidhi Industries to their vendor M/s. M.K. Khosla Family Traders. Balance of rupees 11/2 lacs still remains to be paid.

On Ist August, 1987 the vendor concerned sent to the purchaser concern a legal notice for recovery of salestax and storage charges besides the balance payment aforesaid on the basis of allegedly oral agreement and assurances dated May 18, 1987. As against the claimed payment the vendee is alleged therein to have offered to the vendor a paltry sum of Rs. 40,000/ towards full and final satisfaction of the claim on July 25, 1987. According to the averments made in the notice, this action of the vendee only revealed a mala fide and deceitful intent on this part in his mind.

In the reply Annexure P.2 dated August 12, 1987 the vendee concern described the vendor as (i) big manipulator in respect of allegedly unsigned latter and a telegram (allegedly never received), (ii) a person who intended defrauding the Government of salestax revenue, (iii) a person who had stolen the supply statement forwarded by the vendee to D.G.S.D. from Government files and (iv) one who had betrayed the confidence reposed by the vendee in him (the vendor). In respect of the allegations aforesaid the vendor has filed against the vendee complaint Annexure P.1 under Section 500 of the Indian Penal Code in the court of learned Judicial Magistrate Ist Class at Ludhiana. Learned trial Court ordered the summoning of the petitioner therein vide order Annexure P.4 dated October 27, 1987.

Criminal Misc. No. 376M of 1988 has been filed by Anil Kumar Chopra, one of the proprietors of vendee concern for quashing the summoning order Annexure P.4 dated October 27, 1987. The ground assigned for claiming the desired relief are that letter Annexure P.2 dated August 12, 1987 was addressed by the petitioner to the respondentcomplainant by way of reply to his legal notice August 1, 1987 and contains reference in regard to the conduct of the respondentcomplainant in the course of business transactions, that the words used are a repudiation of the claim preferred in the legal notice, that the communication was addressed bona fide and in good faith by the petitioner for protection of his own business interest and does not constitute a defamation in terms of exception 9 to Section 499 of the Indian Penal Code. It is also stated in the quashing petition that in respect of the same transaction action under Sections 406 and 420 of the Indian Penal Code was initiated by the respondent against the petitioner in Delhi courts wherein the petitioner was granted anticipatory bail by the learned Additional Sessions Judge, Delhi, on August 29, 1987 and five days thereafter on September 3, 1987 the present complaint was filed at Ludhiana.

I have heard Shri M.L. Sethi, Advocate, for the petitioner, Shri S.S. Nijjar, Advocate, for the respondent and have carefully gone through the pleadings of both the parties.

The sole point for consideration in the present case as observed by the Supreme Court in Chandra Dev Singh v. Parkash Chandra Bose, AIR 1963 Supreme Court 1430 is whether in terms of subsection (i) of Section 204 of the Criminal Procedure Code, 1973 there was sufficient ground before the learned trial Court on October 27, 1987 for proceeding further with the complaint Annexure P.1 while making the impugned order.

A mere reading of the complaint Annexure P.1 makes it clear that the dispute between the parties was in regard to a business deal and that the allegedly defamatory communication obtaining in reply dated August 12, 1987 was addressed by the petitioner to the respondent in good faith in response to his legal notice dated August 1, 1987 for the protection of his own interest. In a civil dispute of this nature, the property in the vest woollen passes to the vendee immediately on supply of goods by the vendor and the vendor is left only with a right to sue the vendee for unpaid balance of their price. Instead of availing himself of the civil remedy open to him in a dispute of this kind, vendorrespondent attempted short circuiting the process through his allegedly pressure tactics initially by filing against the vendee, a complaint under Sections 406 and 420 of the Indian Penal Code at Delhi; wherein the petitioners vendee was granted anticipatory bail on August 28, 1987 vide order Annexure P.3 and thereafter the present complaint Annexure P.1 at Ludhiana five days thereafter on September 3, 1987.

It is really interesting to note that the wordy duel of allegedly defamatory language was started by the vendorrespondent himself in his legal notice August 1, 1987 by using the words, "that only reveals a mala fide and deceitful intent on your part in your mind" and if in reply thereof for protection of his own interest in the business deal, out of which the correspondence arose, petitionervendee also reported in the same language, the respondentvendor cannot possibly make a grouse of it. It is commonly stated that those who live in glass houses themselves should not throw pebbles on others because to every such action there is always an equal opposite reaction whereby their own glass houses are likely to get damaged considerably. In this view of the matter, there was no sufficient ground before the learned trial Court for proceeding further with the complaint or making the impugned order dated October 2, 1987 summoning the petitioner before it in the complaint aforesaid.

Adverting now to the allegedly defamatory phraseology set out in the complaint Annexure P.1, it must be said that the word "Manipulator'' which means "Handles or uses with same skill, negotiates and controls cleverly or skillfully" was used against the respondent for his mentioning an unsigned letter in legal notice as basis of the claim or allegedly sending a telegram on July 15, 1987 which was allegedly never received by the petitionervendee. It was in this connection that the petitionervendee in his reply to the legal notice aforesaid dated August 1, 1987 sent on August 12, 1987 said, "You have prepared such letters to suit your convenience with a mala fide intention to achieve ulterior objects. Now in the present letter you are trying to thrust upon us certain letters which we never sent to you unsigned or otherwise."

Secondly in para 5 of the letter dated August 12, 1987 the words, "Your intentions are to defraud the Government of its revenue for which we never agreed to be a party" are stated to have been used in response to the claim of salestax made from the petitioner vide notice dated August 1, 1987 contrary to the terms of the contract inter parties; wherein allegedly the respondentvendor had agreed to bear it himself by saying that the price of 5150 piece was inclusive of salestax both the State and Central.

Then again the objectionable phraseology in para 6 of the letter dated August 12, 1987: "You have stolen the statement of our supply made to the Government from the Government files and sent us the same. We are writing to the D.G.S.D. to enquire and find out as to how you have obtained the statement so that appropriate action could be taken against the guilty the persons including you Mr. M.K. Khosla" was rightly used when the respondentvendor on being asked by the petitioner to forward him a statement regarding supplies made by vendor to him sent him a copy of the statement sent by the petitioner to D.G.S.D. Since the vendorrespondent was not a contracting party with the D.G.S.D., the petitioner allegedly felt surprised at the course of conduct adopted by the respondent feeling that the copy must have been procured stealthily with the connivance of some employee in the office of the D.G.S.D. presumably made the observation aforesaid; in his reply to the legal notice dated August 12, 1987.

Relevant section 499 of the Ninth Exception of the Indian Penal Code thereto reads as under :

"Whoever, by words either spoken on intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person, is said except in the cases hereinafter excepted, to defame that person."

Ninth Exception Imputation made in good faith by a person for protection of his or other's interest It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.

Illustration.

(a) A, a shopkeeper, says to B, who manages his business. "Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty." A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests."

The relevant provision in the present case it the Ninth Exception to Section 499 of the Indian Penal Code, Section 499 deals with defamation. Section 500 prescribes punishment for defamation. There are nine exceptions to Section 499. These nine exceptions are the cases in which there is no defamation. The Ninth Exception covers the present case and is as follows :

"It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the persons making it, or of any other person, or for the public good."

The ingredients of the Ninth Exception are first that the imputation must be made in good faith; secondly, the imputation must be for protection of the interest of the person making it or of any other person or for the public good. Good faith is a question of fact. So is protection of the interest of the person making it. Public good is also a question of fact. The Supreme Court in Harbhajan Singh v. State of Punjab, 1965(3) SCR 235 while dealing with the Ninth Exception to Section 482 of the Indian Penal Code said that it would have to be found out whether a person acted with due care and attention. The Court observed therein, "simple belief or actual belief by itself is not enough. The appellant must show that the belief in his impugned statement had a rational basis and was not just a blind simple belief. That is where the element of due care and attention plays an important role". The person alleging good faith has to establish as a fact that he made enquiry before he made the imputation and he has give to reasons and facts to indicate that he acted with due care and attention and was satisfied that the imputation was true. The proof of the trust of the statement is not an element of the Ninth Exception as of the First Exception to Section 499. In the Ninth Exception the person making the imputation has to substantiate that his enquiry was attended with due care and attention and he was thus satisfied that the imputation was true. The accent is on the enquiry, care and objective and not subjective satisfaction.

Further in Chaman Lal v. State of Punjab, AIR 1970 SC 1372 dealing with good faith in the Ninth Exception it was said that "in order to establish good faith and bona fides it has to be seen first the circumstances under which the letter was written or words were uttered; secondly whether there was any malice, thirdly, whether the appellant made any enquiry before he made the allegations, fourthly, whether there are reasons to accept the version that he acted with care and caution and finally whether there is preponderance of probability that the appellant acted in good faith."

What the Ninth Exception requires an accused person to prove is that he made the statement in good faith. It may also be pointed out here that the proof of truth of the impugned statement is not an element of the Ninth Exception. Under the Ninth Exception it is not necessary and indeed it is immaterial, to consider whether the accused has strictly proved the truth of the allegations made by him.

Secondly with reference to the observations made in R.P. Rama Krishamana v. Subbaramma Sastriqal and another, AIR 1988 Kerala 18 it was asserted that letter dated August 12, 1988 being a reply to the legal notice served upon the petitioner on August 1, 1988 could not be termed as publication.

For the reasons given above, the alleged imputation having been made in good faith for protection of the business interest of the petitioner is wholly covered by the Ninth Exception to Section 499 of the Indian Penal Code and cannot be termed as defamation. The complaint and the summoning order are, therefore, both quashed.

JUDGMENT accordingly.