S. NAGARAJ Vs. K. NANDA KUMAR

JUDGEMENT

(1.) THE appellant herein was the complainant before the court below. It was the case of the appellant that he had borrowed a sum of Rs.50,000/ - from the accused, in order to secure the due repayment of the same, he is said to have executed a document dated 7.12.1997, styled as a Memorandum of Undertaking, agreeing to pay Rs.5,000/ - every month to discharge the debt. It was claimed that the appellant repaid the entire amount and on payment of the last instalment, had demanded that the document executed by him be returned, as per the notice marked as Exhibit P -2. The accused is said to have replied as per Exhibit P -3. In response to which, the appellant had issued yet another notice, Exhibit P -4, to which a reply was said to have been issued by the accused at Exhibit P -5. 

(2.) IT was the case of the appellant that the statements made by the accused in the two replies issued, at Exhibit P -3 and P -5, are per se defamatory, as they were statements making imputations as to the character and conduct of the appellant. The appellant had tendered evidence in support of the complaint and examined one other as the person, to whom the offending statements contained in Exhibits P -3 and P -5, had been shown by the accused. The trial court having held that the complaint does not refer to the said witness and in any event, that the said witness had admitted in cross examination, that he had not read the contents of Exhibit P -5, nor was it read over to him by the accused and therefore, the trial court has concluded that the alleged defamatory statements could not be said to have been "published", nor were the same brought to the attention of any third party. The trial court has even expressed that the statements complained of may even fall within the Ninth and Tenth Exceptions contained under Section 499 of the Indian Penal Code, 1860. The trial court has accordingly acquitted the accused. It is that which is under challenge.

(3.) AFTER having heard the appellant, who had appeared in person and on a perusal of the record, it is seen that the offending statement, according to the appellant, as contained in Exhibit P -3, is an accusation that a cheque issued in favour of the accused could not be encashed because, the account on which it was drawn, was said to have been closed at the instance of the appellant, according to the accused. Hence, he had alleged as follows : "You will be abettor for the above act."