N JOTHI Vs. RAJAMANI

JUDGEMENT

(1.) THE petitioner is seeking for quashing a private complaint preferred by respondent No. 1 on the file of the Chief Judicial magistrate, Nagercoil, under Section 500 of Indian Penal Code

(2.) THE facts alleged are shortly these :- THE petitioner is a practising Adovocate in this High court. While discharging his professional duty he was approached by Respondent no. 2 to give reply to the notice issued by his wife. He issued a reply on the written instructions from his client, who appended his signature on each page of the reply. That respondent No. 1, herein is the father in law of respondent no. 2 who filed the complaint against the petitioner and respondent No. 2, herein for an offence under Section 500 of Indian Penal Code, alleging that the averments in the reply notice are made with intention to harm his reputation and that both the accused joined together published the same to lower his reputation and thus they are punishable for the offence under Section 500 of indian Penal Code. THE averments made in the reply notice reads thus "your client hardly addressed him with any respect and used to call him only "vadaa PODAA". Your client used to often kick my client and given virtual blow to him. Your client's family members such as her father by name K. Rajamani is drunkard of extreme nature and her own younger brother by name R. S. V. S. Kumar (as shortly called) has got the reputation of being behind the bar for eve teasing. THEse things could easily illustrate the formation and background of your client. It is needless to say that though your client has got post graduate degree in academic curriculam she does not possess even elementary requirements of a wife. It only proves the education will not bring culture. She inherited the qualities of the family and started giving perennial trouble to my client. "the averment that" he never wanted to have abusive words from the drunkard father-in-law or to stand as surety to his brother-in-law who was detained on the charge of eve teasing. " * which persuaded the complainant to prefer the complaint for an offence under Section 500 of Indian Penal Code

(3.) A similar situation came up for consideration before this Court in Shyam Ayyangar v. Andal Ammal, 1934 MWN 481, wherein a pleader was acting in the course of his professional duties, was charged for the offence of defamation punishable under Section 500 of Indian Penal Code, for putting certain questions which imputed immoral character to the witness in a criminal case. In that case Bardwell, J. , took the view that in the absence of motive or private malice, the pleader is entitled to the benefit of Exception ix to Section 499 of Indian Penal Code and quashed the charge. In another instance, in Mir Anwaruddin v. Fathim Sai Abidin, 1927 Mad WN 164 ILR 50 Mad 667 : 1927 (28) Crlj 313 ). Wallace, J. , has stated with reference to exception 9 to Section 499 of Indian Penal Code, as follows :- "when a lawyer is acting to the course of his professional duties and is thus compelled subject to the disciplinary action of the Court, to put forward everything which may assist his client, good faith is to be presumed and bad faith is not to be assumed merely because the statement is prima facie defamatory, but there must be some independent allegation had proof from which, in the circumstances of the case, the Court considers itself justified in inferring that the statement was not made because it was in the interest of the client, but that the occasion was wantonly seized as an opportunity to vent private malice. " * In Parameswar v. Krishna Pillai, 1966 AIR (Kerala) 264 : 1966 Crlj 1269), it has been held that "a Court may presume that counsel who has signed the pleading has acted bona fide and without malice and no counsel should be called upon to answer a complaint for defamation merely because he has signed a pleading which contains defamatory matter. " * A division Bench of the Calcutta High Court in Upendra nath Bagchi v. Emperor, 1909 (36) ILR (Cal) 375, held that "when a pleader is charged with defamation, in respect of words spoken or written, while performing his duty as a pleader, the court ought to presume good faith, and not hold him criminally liable unless there is cogent proof that unfair advantage was taken of his position as pleader for an indirect purpose. " * In Filomeno Pereira v. Foad Lourenco Femand ES 1981 Crlj 117 (Goa), it has been held that "if serious and baseless allegations are made against the oponent, a lawyer may make himself liable for prosecution but in that case it has been clearly established that he acted in bad faith or maliciously. A Court may presume that a lawer who has signed the pleadings has acted bona fide and without malice. "as Lord Kenyon said :" In order to constitute a libel the mind must be in fault and show malicious intention to defame. " * The imputation must be made or published by the accused. If a man voluntarily makes an incriminating statement, he must take the consequences for it. When the averments made in the previous proceedings were incorporated in the reply notice, it must be presumed to have been done under the instructions from his client and in good faith. It is the settled principle in law that a lawyer conducting a case on behalf of his client enjoys certain privileges and latitudes and the presumption will be that he has acted in good faith unless the contrary is alleged or established. An advocate will come within the ninth exception to Section 499 of the Indian Penal Code and it will be presumed that he acted in good faith in the interest of the protection of his client unless the contrary is alleged or established