LI YUN CHEN PETITIONER Vs. CHANG CHI HUA

JUDGEMENT

(1.) THIS Rule is against an order dated the lj3rd April 1968 passed by Shri S. R. Bhattacharjee, Presidency Magistrate, 5th Court, Calcutta discharging the two accused in Case No. C/l of 1967 under section 253 (1) of the Code of Criminal Procedure.

(2.) THE facts leading on to the present Rule can be put in a short compass. The complainant who is a founder-member and the present vice-president of the Pei May School and a respectable businessman of Calcutta running his own tannery business, filed a petition of complaint before the learned Chief presidency Magistrate, Calcutta on 2-1-67 against the two accused under sections 500, 503 and 504 I. P. C. for publishing, in a newspaper styled as "the chinese Journal of India", a letter which is highly defamatory in character and absolutely false and scandalous with the motive of lowering the complainant in the estimation of the people. The accused No. 1, Chang Chi Hua was described as the Manager, printer and the publisher of the "chinese Journal of India" and also as a member of the committee of the Pei May School. The accused No. 2, Yee Sang Lui (since deceased) is alleged to be the writer of the letter. After examining the complainant on oath the Chief Presidency magistrate, Calcutta sent the matter for judicial enquiry by his order of the same date, Shri K. D. Banerjee, presidency Magistrate, 9th Court, Calcutta, who held the enquiry, submitted a report recommending a process under section 500 I. P. C. against both the accused. On the basis of the said report the Chief Presidency Magistrate, Calcutta, by his order dated the 10th February, 1967, issued summons against both the accused under section 500 i. P. C. and transferred the case on the 5th June, 1967 to the file of Shri A. Sengupta, Presidency Magistrate, 5th Court, calcutta for disposal. The learned Magistrate was transferred and the present incumbent recorded the evidence and delivered judgment. Four witnesses, including the complainant, were examined by the learned trying magistrate, who ultimately by his order dated the 23rd April, 1968, discharged both the accused under section 253 (1) of the Code of Criminal Procedure. This order has been impugned and forms the subject-matter of the present Rule. The accused opposite party No. 2, Yes Sang Lui alias Lui husan Hsin died subsequently and on an application made in that behalf and upon the submission of the learned Advocates appearing on behalf of the respective parties, the Rule was discharged so far as the said opposite party No. 2 is concerned by an order passed by this court on the 17th February, 1969 and proceeded against the accused opposite party No. 1, Chang Chi Hua.

(3.) MR. Nalin Chandra Banerjee, advocate (with Messrs Chittaranjan das, Anathbandhu Pal and Arun Kumar Mukherjee, Advocates), appearing on behalf of the complainant petitioner in support of the Rule, has made a twofold submission. The first contention of Mr. Banerjee is one of law viz. , that the learned Presidency Magistrate has misunderstood and misinterpreted the essential elements constituting the offence of defamation and erred in holding that the said offence can only be established when the imputation published, concerning the person aggrieved, intended to harm his reputation by lowering the moral or intellectual character of the said person in the estimation of others or by lowering his credit. He has urged in this context that where the allegation or imputation is per se defamatory, as in the present case, no evidence is called for from others, to establish that the imputation concerned intended to harm the reputation of the complainant by lowering the moral or intellectual character or the credit of the person defamed, "in the estimation of others" as enjoined in explanation 4 to section 499 I. P. C. In support of this contention, Mr. Banerjee has made a reference to several cases which will be considered in the proper context. The second contention of Mr. Banerjee however is one of fact and is that even if the definition of defamation based on the footing of Explanation 4 to section 499 I. P. C. be accepted, there is sufficient evidence on the record, viz. , by p. w. s 1, 3 and 4, that the publication impugned was calculated to lower the complainant's position in the Chinese society and as such the case came within the ambit of Explanation 4 to section 499 I. P. C.