DOULAT SHINANDAR Vs. P. KARUNA BAI

JUDGEMENT

(1.) THE complainant in C.C. No. 5863/74 (sic) the file of the 17th Metropolitan Magistrate George Town, Madras -1, has preferred (sic) revision petition questioning the correctness propriety and legality of the order made (sic) the learned Magistrate on 8th September, (sic) in M.P. No. 735 A/75 holding that (sic) complaint filed by the petitioner -complainant against the respondent -accused for an (sic) under S. 500, I.P.C. was not sustainable (sic) that the charge against the respondent (sic) groundless and consequently discharging (sic) respondent under S. 253(2) of the Crl.P.C.(sic).

(2.) THE petitioner -complainant filed private complaint against the respondent accused before the learned XVII Metropolitan Magistrate, George Town, Madras, for offence punishable under S. 500, I.P.C (sic) that the respondent had made some defamatory allegations against him in an affidavit filed by the respondent in I.A. 2677/74 in O.S. 866/74 on the file of the City Civil Court, Madras. The laid said was filed by the respondent herein for recovery of the value of the battery and hire charges, since the petitioner herein failed to return the battery taken on hire charges from her on 8th November 1973, and also failed to pay the hire charges in spite of repeated demands. Along with the plaint, the respondent took out an application for attachment before judgment of the movables belonging to the petitioner on the basis of certain averments contained in the affidavit accompanying the said application. According to the petitioner -complainant, the imputations made against him by the respondent as plaintiff in O.S. No. 866/74 are: (1) that the petitioner played a mischief in disposing of the battery belonging to the respondent and appropriated the amount for himself, (2) that on enquiry it was brought to the respondent's knowledge that the petitioner was not possessed of any valuable movable or immovable properties, (3) that the Act of the petitioner in disposing of the battery belonging to the respondent clearly showed that the petitioner was in financial difficulties, and (4) that the petitioner was likely to go out of the court's jurisdiction. These averments contained in the affidavit filed by the respondent would, according to the petitioner, suggest that the petitioner is a criminal and that he is worthless and is likely to cheat his employees and customers by suddenly absconding, and the respondent, by making these imputations and by bringing a Bailiff from the Court for distraining the household goods, has harmed the petitioner's reputation by lowering his character and integrity in the eye of the public and the petitioner was made to part with a sum of Rs. 2,108.20 to the Bailiff on the spot itself, so as to prevent the distraint. It was on these allegations that a criminal complaint was filed under S. 500, I.P.C., which was taken on file in C.C. 5863/74. Thereafter, the accused filed a petition in M.P. No. 735 -A/75 under S. 253(2) of the Criminal Procedure Code, 1898, stating that the averments in her affidavit filed in I.A. 2677/74 were made only to satisfy the court as required by Or. 38. R. 5, C.P.C., and the court was pleased to order attachment before judgment after having been fully satisfied about the bona fides of the averments contained in the affidavit. She would further state that inasmuch as the complainant had not denied the allegations by filing a counter -affidavit in that application, it would go to show that the circumstances which warranted the issue of attachment before judgment did really exist. She would further contend that the averments were made only in good faith for the protection of the interests of the accused herself and to enable her to realise the amount due and as such the said statements are well protected by Exception 9 to S. 499, I.P.C., and they did not make out an offence of defamation outside the said exception. Therefore, by this Miscellaneous Petition the accused prayed for his discharge under S. 253(2) of the 1898 -Code whose verbatim reproduction is S. 245(2) of the new Code.

(3.) THE learned Magistrate, after considering the contentions of the respective parties and relying on the decisions in Bhagat Singh Sethi and Others v. Zinda Lal, A.I.R. 1966 J&K 106 and Srinivasa Rao v. Gulab Chand Kundan Mal, A.I.R. 1965 Mys. 276, observed as follows: