SUKHDEO VITHAL PANSARE Vs. PRABHAKAR SUKHDEO PANSARE

JUDGEMENT

(1.) THE petitioner, who was accused No. 1 along with his three sons, was tried for an offence punishable under Section 500 I. P. C. The complainant in this ease happens to be the son of the first wife of the petitioner. The complainant and his mother are living separately after the marriage of the petitioner with his second wife. The complainant was claiming by a notice addressed to the petitioner partition of his share in the ancestral property. The petitioner replied through a lawyer saying that the complainant was not his son that his mother Anusuya had left him and that she was living an unchaste life; that he had no access to her and that therefore the compleinant was not his son because he was born through sexual intercourse of his mother with some unknown person. The complainant who received the reply showed it to his father-in-law and then to his advocate. On the basis of the defamatory allegation by his father in the notice he prosecuted not only his father but also his other three step brothers by the second wife for an offence punishable under Section 500. I. P. 0. The petitioner pleaded not guilty and also stated that even if it is a defamatory publication his case would come within the 9th exception of Section 499, I. P. C.

(2.) THE Judicial Magistrate, Nasik Road found that under instructions from the accused to his advocate Mr. Kokute, the latter got it typewritten by a typist and that that notice was sent to the complainant. The learned Magistrate is of the view that there was imputation in the notice but did not believe the story of the complainant that he was unable to read the letter although he was educated up to 4th Marathi standard. He is of the opinion that the complainant's story that he was not literate enough to read the letter and that therefore he showed it to his father-in-law was concocted. Therefore, the complainant's story that he showed it to his father-inlaw so that he could read it for him on the ground that he was illiterate was disbelieved. But even on the basis of this finding of fact that learned Magistrate is of the opinion that there was publication of the defamatory allegation because the advocate got it typewritten from the typist. The learned Magistrate also held that the petitioner will not be protected by the 9th exception of Section 499, I. P. C. because the allegation was not done in good faith and that the petitioner was also not able to show that the complainant was not his Bon. Accordingly therefore he convicted the petitioner under Section 500, I. P. C. and sentenced him to suffer imprisonment till the rising of the Court and also to pay a fine of Re. 500/ -. Petitioner's sons were acquitted. That order of conviction and sentence was challenged by the petitioner before the learned Addl. Sessions Judge who agreed with the view of the Magistrate and dismissed the appeal. That order, therefore is now challenged here. The point therefore, that arises here for consideration is whether this order of conviction is legal and proper.

(3.) NOW the findings of fact are as follows. The complainant claims a right of partition in the ancestral property belonging to the petitioner and his family on the ground that he is his son by the first wife. The petitioner engaged his advocate Mr. Kokate and under his instructions the advocate replied to the notice given by the complainant by a reply typed by a typist saying that he was not his eon; that his mother was living an unchaste life after she left him and that therefore he is the son of an unknown person. That notice was received by the complainant and the finding of fact also is that he must have read it himself as he has admittedly studied up to 4th Marathi standard. The learned Magistrate did not believe the story of the complainant that he was unable to read the letter and that therefore he went to his fatherin-law to get it read. In other words the finding of fact is that he must have read it and he must have read it himself. The learned Magistrate on these findings of fact is of the opinion that the allegations which are defamatory in character were published because the reply was typewritten by the typist of the advocate at the instance of the advocate who was given instructions by the complainant. The point, therefore, that arises here for consideration is whether that is a publication of any imputation concerning the complainant.