C H KADER Vs. MUNNILAKATH VALAPPIL FOUSIA

JUDGEMENT

(1.) First petitioner is the father of the second petitioner. Respondent is the wife of the second petitioner. On account of difference of opinion respondent is living away from the petitioners. She sent lawyer notice to the petitioners claiming return of the gold ornaments taken from her and maintenance. On receipt of this notice by the petitioners they caused to sent a reply notice to the respondent's counsel. In that notice it was sated as follows:

(2.) The main argument advanced by the learned counsel representing the petitioners is that the ingredients of S.499 IPC are not brought out in the case. In the sense that petitioners have not published any defamatory material, bringing down the reputation of the respondent. Publication, if at all was made, was by the respondent/ complainant herself. On account of such publication if her reputation has been lowered in the estimation of others she alone is responsible for it and petitioners cannot be made liable under S.500 of the Penal Code.

(3.) Complainant issued notice through her counsel to the petitioners demanding return of her gold ornaments alleged to have been taken by them. In that notice it was further stated that she has no sufficient means for her sustinence. So she claimed payment of maintenance. On receipt of that notice, petitioners in their turn caused a reply to be sent through their counsel. Petitioners' counsel sent the reply, a copy of which is marked as Annexure F, to the complainant's counsel. From the counsel complainant got the reply notice. Thereafter she showed it to others and consequently others came to know of its contents. Reply notice sent by petitioners' counsel to the counsel who sent notice on behalf of the complainant can be taken as a notice to the complainant herself. This is a communication from the petitioners to the complainant. Communication from accused to complainant directly cannot be treated as constituting publication failing within the purview of S.499 of the Penal Code. Complainant could have come to know of the contents of the notice from her counsel. Communication between counsel and client cannot amount to publication. So, if the complainant's advocate had translated the reply notice sent by petitioners for the benefit of the complainant and the complainant came to know of the contents from her counsel there could not have been any publication of the contents of the reply notice. Complainant after getting the reply notice from her counsel took it to third parties and gave them chance to read the same. The action of the complainant amounted to publication of the notice. But for such publication ingredients of S.499 could not have been satisfied. Since that publication was not the act of the petitioners they cannot be penalised for the same.