S H SITHIK BASHA Vs. FAZAL AHMED

JUDGEMENT

(1.) THIS appeal has been preferred against the Judgment in C.C.No.177 of 1997 on the file of Judicial Magistrate No.II, Chengleput. The complainant is the appellant herein.

(2.) THE short facts in the complaint preferred by the complainant relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows: THE complaint was preferred against the accused under Sections 499 and 500 IPC. THE occurrence has happened between 4.9.1995 and 18.1.1996. THE appellant, deceased Dr.S.H.Sheik Dawood, third accused Fazal Ahmed and Kalilur Rahman are the sons of deceased Sheik Hussain. THE second accused Ayisha Begum, is the daughter of Sheik Hussain, fourth accused is the son of second accused. THE appellant's father deceased Sheik Hussain, belongs to Salem District. He had married Hathoon Bi as per the provisions of Mohammedan Law. In the wed lock, they have been blessed with Sheik Dawood and second and third accused. After the death of Hathoon Bi, Sheik Hussain has married the mother of the appellant viz., Hazaram Bi in the year 1948 at Karur. THE appellant was born in the wed lock on 22.12.1950. THE birth of the appellant has been registered in the Karur Municipality. Subsequently, the other brother of the appellant viz., Kalilur Rahman was born at Sankagiri. Even before the marriage of Sheik Hussain and Hazaram Bi, the second accused Ayisha Begam got married and she was living with her husband at Salem. THE father of the appellant was working in a Mosque. Hence, their family were residing at Authoor and Sankagiri and in those places, Sheik Hussain and Hazaram Bi were living with the appellant's brother Kalilur Rahman, Second accused, third accused and the deceased Sheik Dawood under one roof. THE deceased Sheik Dawood got a job at Vellore and thereafter, he married the first accused and stayed at Vellore itself. During 1990, he came to Chengleput and stayed there. From 1964 onwards, the appellant along with his brother Kalilur Rahman came to Alambakkam and began to reside with Sheik Dawood. In 1966, appellant's mother died. In 1967, the appellant began to live with Sheik Dawood at Door No.1/6, Thirukazhukundram Main Road, Alambakkam and the appellant was indulged in practising Unani Medicine. THE appellant's brother also educated, Sheik Dawood and secured a job for him. Afterwards, the above said three brothers used to reside in the above said same address. On 1.11.1971, the House warming ceremony was performed and on 21.9.1978, the marriage of the appellant was also conducted. In the invitation for the above said functions, the relationship of Sheik Dawood and the appellant and his brother were printed. THE marriage of Kalilur Rahman was performed by Sheik Dawood on 25.5.1980 in the capacity of brother of Kalilur Rahman. On 3.5.1995, Sheik Dawood died at Thirukazhukundram. Afterwards, third accused and fourth accused began to quarrel with an idea of grabbing at the properties. Hence the appellant and his brother Kalilur Rahman filed a suit O.S.No.371 of 1995 before the District Munsiff, Chengleput and in the said suit, I.A.No.1373 of 1995 was also filed. In the said I.A., the fourth accused had filed a counter on 4.9.1995 stating that the petitioners are not the brother of Sheik Dawood and that the father of the petitioners are different from the father of Sheik Dawood and third respondent and that the petitioners' mother Hazaram Bi was earlier married to a postman at Karur and she later deserted him and began to live with Sheik Hussain, the father of the respondents and Sheik Dawood and that at that time, the petitioners were aged 4 and 2 respectively. THE appellant along with his brother issued a notice through their lawyer on 21.9.1995 to the accused stating that the allegation in the counter about their mother Hazaram Bi are defamatory in nature. THE accused sent a reply on 9.10.1995 containing false statements. THE second and third defendants in the suit have also filed a written statement in the above lines as in the counter filed by the fourth accused in I.A.No.1373 of 1995 in O.S.No.371 of 1995. But the defamatory statements in the written statement in O.S.NO.371 of 1995 and in the counter in I.A.No.1373 of 1995 are not true and Hazaram Bi is the legally wedded wife of Sheik Hussain. THE appellant as well as his brother Kalilur Rahman are the children of the said Hazaram Bi and Sheik Hussain. Only to defame the mother Hazaram Bi and his brother Kalilur Rahman, the accused have stated in their counter as well as in the written statement, the said defamatory allegations. THE said defamatory allegations were purposely stated by the third accused and because of the defamatory allegations, the reputation of the appellant as well as his brother were very much affected. THE said allegations are defamatory in nature causing mental agony to the appellant as well as his brother . Hence the private complaint was filed by the appellant under Section 200 Cr.P.C. before the Additional District Judge-cum-Chief Judicial Magistrate, Chengleput. THE said application was taken on file as C.C.No.7 of 1996 and on appearance of second accused and fourth accused, they filed a compromise petition along with the appellant and hence second accused and fourth accused were acquitted under Section 257 Cr.P.C. THE first accused died before the service of summon. Hence the charge against the first accused was treated as abated. As against third accused, the case was split up as C.C.No.53 of 1996 and copies under Section 207 Cr.P.C. were furnished to him and when questioned the accused pleaded not guilty. THE case was transferred to Judicial Magistrate, No.II, Chengleput by the Chief Judicial Magistrate , Chengleput and re-numbered as C.C.No.177 of 1997.

(3.) HEARD Mr. S.Rajasekaran, learned counsel appearing for the appellant and Mr.S.Shanmugavelayutham, Senior Counsel appearing for the respondent and considered their rival submissions.