Bombay High Court Smt. Madhuri Mukund Chitnis-vs-Mukund Martand Chitnis And on 12 April, 1990
Equivalent citations:1990 CriLJ 2084, 1989 MhLJ 58
Bench: I Shah
1. The original complainant in Criminal Cases Nos. 1031/86 and 695/85 on the file of the J.M.F.C. Court No. 4, Pune, has preferred these two appeals to challenge the order of acquittal passed in favour of respondent No. 1.
2. Briefly stated that the facts giving rise to these two appeals are as under :-
The complainant is the divorced wife of the respondent No. 1 – the original accused. Their marriage took place on 15-7-1983. But the marriage somehow was not successful and the complainant-wife, it appears, was thrown out of the house by the husband on 6-10-1983. Several civil as well as criminal cases were lodged against each other. The present respondent No. 1 also filed Criminal Case No. 494/83 against the present appellant and her maternal uncle and brother alleging that they had committed the offences of cheating and theft. In the complaint filed by the present respondent No. 1, it was alleged in para 4 of the complaint as under :-
“The complainant (Mr. Mukund Chitnis) experienced on the first night of the marriage that the accused No. 1 (Mrs. Madhuri Chitnis) is not a spinster. Not only this but the accused No. 1 (Mrs. Madhuri Chitnis had married with the complainant (Mr. Mukund Chitnis) for the second time during the life of her earlier husband. The accused No. 1 (Mrs. Chitnis) also had got one issue from her husband.”
It was further alleged by the complainant that in Writ Petition No. 94/84 filed in the High Court of Bombay on 24-2-1984, the present respondent No. 1 also alleged as under :-
“However, to the utter shock and surprise of the petitioner (Mr. Mukund Chitnis) found even on the first night that the respondent No. 1 (Mrs. Madhuri Chitnis) was not the spinster and that she was already married and in fact her first marriage was subsisting and so the petitioner (Mr. Mukund Chitnis) was cheated, for this was her second marriage and so the same was void and a nullity according to Hindu Law. The petitioner (Mr. Mukund Chitnis) came to know that the respondent No. 1 (Mrs. Madhuri Chitnis) had also one issue from her first marriage.”
In the said Criminal Case No. 494/83, the present respondent No. 1 further stated as under :-
“Accused No. 1 (Mrs. Madhuri Chitnis) and accused No. 2 (Dr. C. R. Karnik, the maternal uncle of Mrs. Madhuri Chitnis) removed all bag and baggages, ornaments and clothing belonging to the complainant (Mr. Mukund Chitnis) worth Rs. 11,500/- and Rs. 2,000/- which was in exclusive possession of the complainant (Mr. Mukund Chitnis) and ran away from the house of the complainant along with the ornaments and cash. The accused No. 1 (Mrs. Madhuri Chitnis) and accused No. 2 (Dr. C. R. Karnik) acted with a common intention of making a theft.”
It is also alleged by the present appellant in the complaint filed by her against the respondent No. 1 that the said imputations in respect of theft were also repeated by the accused, i.e. the present respondent No. 1, in para 6 of the Criminal Writ Petition No. 94 of 1984 filed in the High Court of Bombay. The said para runs as under :-
“On 7-8-83, the respondent No. 2 (Dr. C. R. Karnik) along with respondent No. 1 (Mrs. Madhuri Chitnis) entered the petitioner’s (Mr. Mukund Chitnis) House at the back of the petitioner (Mr. Mukund Chitnis) when he was not in the house and forcibly took all the ornaments from the petitioner’s (Mr. Mukund Chitnis) house and removed all bags, baggages, articles and cash belonging to the petitioner (Mr. Mukund Chitnis) which were in exclusive possession of the petitioner (Mr. Mukund Chitnis).”
The present appellant in the complaint claimed that all the statements made by the respondent No. 1 in the criminal complaint filed in the Court of J.M.F.C. at Pune as well as in the writ petition filed in the High Court at Bombay are absolutely false, baseless and malicious and highly derogatory and defamatory. She also contended that the ornaments and clothes were given by the present respondent No. 1 to her at the time of the marriage and they were worn by her since the date of marriage and there could be no occasion for her to enter the house of the present respondent No. 1 and commit the theft of the ornaments as alleged. She further alleged that the present respondent No. 1 had degraded her in the esteem of her friends, people of the locality and general public and due to which severe mental anguish was caused to her. She also contended that the respondent No. 1 had no regard for truth and he had made false imputations in the proceedings before the Court. She therefore claimed that she was greatly injured in respect of her reputation and she had been severely defamed in the society and she therefore contended that the present respondent No. 1 has committed an offence punishable under S. 500 of the Indian Penal Code and prayed for punishing him according to law.
3. In the Criminal Case No. 695 of 1985 she claimed that the respondent No. 1 had also filed Misc. Application No. 247/83 on 31-10-1983 for issue of search warrant under S. 93 of the Code of Criminal Procedure for seizure of her ornaments consisting of Mangalsutra, wedding ring, earring, two gold bangles and one laffa etc. She also claimed that in the said miscellaneous application he made allegations of theft and that it was also contended that if no search warrant was issued, she was likely to leave Pune and thereby the ornaments would be lost. The present appellant therefore in the second case alleged that by making these allegations in the said miscellaneous application, the present respondent No. 1 had again indulged in defaming her and therefore he should be punished for the same under S. 500 of the Indian Penal Code.
4. The present appellant led her evidence in both the cases before the trial Court. It appears that she examined herself only, and produced number of documents. It also appears that no oral or documentary evidence was led by the present respondent No. 1. On the strength of evidence led before the trial Court in both the cases, the learned Magistrate concluded that no offence under S. 500 of the Indian Penal Code could be said to have been committed by the present respondent No. 1 as he had made the imputations against the present appellant in a proceeding before the Court and his case fell within the purview of Exceptions 8 and 9 of S. 500 of the Indian Penal Code. Keeping with the said findings, the learned Magistrate acquitted the accused in both the cases. Being aggrieved by the order of acquittal passed in both the cases, the original complainant has come in appeal to this Court.
5. In view of the arguments advanced before me, the following points mainly arise for consideration :-
(1) Whether the imputations that are made by the present respondent No. 1 in the proceedings before the Court, are per se defamatory ?
(2) If so, whether if could be said that the said imputations were made in a proceeding before the authority in good faith so as to bring the case of the respondent No. 1 within the purview of Exceptions 8 and 9 of S. 500 of the Indian Penal Code ?
6. There is absolutely no doubt that the imputations which have been made, are made in a proceeding before the Court and therefore before an authority. There is also no dispute that the imputations that have been made against the present appellant, are per se defamatory, making an allegation against a woman that she is not a spinster and that it was so found after the marriage and that she had actually married the respondent No. 1 when her marriage with her first husband was still in subsistence and that she also delivered a child definitely must be considered as defamatory if it is not true. For the offence of defamation truth of the allegation is a complete defence. But even in cases where one cannot claim the defence of truth, one can claim that the allegations were made in good faith if they are made in a proceeding before an authority. It would be worthwhile to consider the provisions of S. 499 of the Indian Penal Code. It runs as under :-
“499. Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.”
It also provides for certain Exceptions. It is not necessary to consider other Exceptions as only Eighth and Ninth Exceptions are relevant in the present case.
“Eighth Exception. – It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation.”
“Ninth Exception. – It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.” Now in the present case, there is no doubt that the present respondent No. 1 had filed a criminal case against the present appellant alleging that she had committed an offence of cheating and also of theft. Therefore, the accusation definitely was made to a lawful authority and the Court was the lawful authority over the present appellant in respect of the subject matter of accusation. But to avail of the protection of Exception Eight, the accusation must be made in good faith. Similarly, even to get the benefit of Ninth Exception, the imputation in respect of a character must be made for protection of the interests of the person making it and it must also be made in good faith. Now in a criminal case filed by the present respondent No. 1, one can definitely say that the respondent No. 1 had made imputations to protect his interest as according to him, he was cheated by the present appellant in the matter of marriage. But even for getting the benefit of the said Exception, the imputation has to be made in good faith. In the absence of good faith, the protection provided under the said two Exceptions would be available. It would also be necessary to consider the provisions of S. 105 of the Evidence Act which provides that –
“When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.”
7. Shri Anturkar who appears on behalf of the respondent No. 1, very fairly conceded that the position of law is clear and the burden of proving the circumstances which would entitle the benefit of Exceptions Eight and Nine of S. 499 of the Indian Penal Code is on the respondent No. 1. He however contended that in the present case in view of the decision reported in Sukhdeo v. State of Maharashtra, 1974 Mah LJ 777 : (1974 Cri LJ 1435), the present respondent No. 1 can be said to have discharged the said burden. His first contention is that in the above cited decision, Bhole, J. of this Court held that one has to consider as to whether the person making imputation has made the same in a manner which indicates that due care and attention was taken by the person making the imputation. He also tried to contend that in the present case, there is no publication and for that purpose also he relied on the same decision of this Court. Now first I will take into consideration the point of publication. In the case which is cited before me on behalf of the respondent No. 1 by Shri Anturkar, the advocate on behalf of the accused on instructions from the accused had replied to a notice and in the reply it was alleged that the complainant was not begotten from him but was born through sexual intercourse of his mother after she left him with some unknown person.
8. It was contended that in the said case sending of the said reply of the notice was not considered as publication as it was addressed to the complainant himself. It was tried to be contended in the present case on behalf of the respondent No. 1 (original accused) that in the present case also imputations are made in a proceeding between the present appellant and the respondent No. 1. Really speaking, one cannot understand as to how the said case relied upon at least on this count would be applicable to the facts of the present case. In the case which is cited, the contention on behalf of the complainant was that the notice was also published as required by the provisions of S. 499 of the Indian Penal Code at it must have been typed by the typist and as the complainant was illiterate it was required to be read through some person and therefore the accused in that case must be considered as having published the said notice, but he said contention was negatived and it was held that the communication by the client to the advocate was a privileged one and therefore even if the reply was typed by the advocate through a typist, it would also fall within the privilege. Similarly, even the contention of the complainant in that case that as the complainant had only studied upto 4th standard, it was necessary for the complainant to get it read from some other person resulting into the publication, was also considered as not amounting to publication. In the present case the imputations are made in a proceeding which is filed in Court and therefore publication is definitely clear. Even a publication to an authority over the person against whom the imputations are made must be held to be sufficient publication which falls within the purview of the said Section 499 of the Indian Penal Code.
9. Relying on the said decision, it was further contended that Bhole, J. further held that under the Ninth Exception of Section 499 of the Indian Penal Code, it is not defamation to make an imputation on the character of another provided that the imputation is made in good faith for the protection of the interest of the person making it or of any other person or for the public good. It was further observed that admittedly the imputation was made for the protection of the petitioner and the petitioner’s family interest and there was no doubt that he had narrated in good faith because he had taken due care and attention before sending notice through his lawyer. Now there is no quarrel with the proposition that even in the present case one could consider that the imputations were made for the protection of the respondent No. 1. But in the present case, one cannot hold in the absence of any evidence, that before making the said imputations, due care and attention was taken by the respondent No. 1. Shri Anturkar tried to contend that the fact that the respondent No. 1 had got the complaints, petition and application in the proceedings drafted by a lawyer would be sufficient to show that he had exercised due care and attention. It was also contended that except making the imputations in the proceedings, nothing else was done by the respondent No. 1 such as publicizing the same in some newspaper etc. and, therefore, one could definitely hold that the respondent No. 1 had made the said imputations in good faith. I do not think that merely because the respondent No. 1 had got the matter drafted through an advocate, it could be said that he had taken due care and had paid attention to the same so as to hold that he had done the said act in good faith. For bringing the act of making imputations in good faith, it is necessary that the person making imputations shows that he had taken due care of ascertaining the facts before making the imputations. If no due and necessary inquiry was made about truthfulness of the imputations, one must hold that no due care was exercised and if due care was not exercised, then the act must be considered as not done in good faith. Even Section 52 of the Indian Penal Code, to which I have referred to earlier, clearly states that nothing is said to be done or believed in good faith which is done or believed without due care and attention. Under these circumstances, merely because the imputations were made in a proceeding and that no publicity to the same was given by some other method, it would not be proper to hold that the act of the respondent No. 1 was done in good faith.
10. This Court in a decision reported in Baburao Shankarrao v. Shaikh Biban Baban Pahelwan, 1984 Cri LJ 350 observed, “normally speaking the onus of proving the commission of an offence is upon the prosecution exclusively. An argument could, therefore, be plausibly advanced on behalf of the defence, that absence of good faith is an integral part of the offence and if that is so, it is the prosecution who must establish the absence of good faith on the part of the accused. But such an approach would be erroneous, in the instant case, in view of the provision of Section 105 of the Evidence Act. The general law relating to defamation is to be found in the operative part of Section 499 of the Penal Code and the various Exceptions Nos. 1 to 10 only carve out the circumstances in which the act of the accused which was otherwise defamatory, would not amount to defamation within the meaning of the section. The onus of proving these circumstances must, therefore, be borne and discharged by the accused himself and it is not the function of the prosecution to prove that no such circumstance exists. It, therefore, cannot be legitimately contended that the burden of proving the want of good faith was upon the complainant or that the accused was subject to no onus to prove good faith on his part or that the non-discharge of the onus of the accused would not be of any consequence. It follows that the Exception No. 8 or 9 could be invoked by the accused only if he led evidence and proved that the application containing defamatory matter was made by him and copies of the same were sent by him to the various authorities and persons in good faith; and if he failed to discharge the onus of proving good faith, the Court must hold that the accused was not guided by any element of good faith.” It was also held in the said decision that the concept of good faith is defined in Section 52 of the Penal Code. The expression “due care and attention” is of a wide import and connotation. It is not enough for the accused to enter the plea of his honest belief in the allegations made by him against the target of his accusations. It is further necessary for him to satisfy the Court that before making those allegations, he had made necessary inquiries to satisfy himself that the belief that he entertained has got a reasonable foundation. If he proved that the allegations are true, then the burden upon him will be so much the lighter because in that case it will be almost taken for granted that he has taken all the necessary due care and attention while making these allegations; but if he does not take the responsibility of proving the truth of the allegations, then it is necessary for him at least to show that he believed in those allegations and his belief was not a wanton or reckless belief but was a belief based on and rooted in careful inquiries having been made by him in that behalf. This is the minimum that the accused is required to prove before he can claim any measure of good faith in committing the act. In the said case, there was absolutely no doubt that the respondent No. 1 had not taken the responsibility of proving that the allegations made by him were truthful. Hence it was held that it was necessary for him at least to establish by leading evidence that he had made imputations after making due and necessary inquiry and, therefore, he believed the same to be reasonably true. In the present case also, the respondent No. 1 did not lead any evidence at all. As stated earlier, the imputations made are per se defamatory and, therefore, unless the respondent No. 1 is in a position to show from the record that he had made necessary inquiry in respect of the allegations which he was making and on the basis of the said inquiry he had reasonably believed that the imputations which he was making had some substance the learned Magistrate was in error in holding that the imputations and the act of the accused, i.e. respondent No. 1, were covered by Exceptions 8 and 9 of Section 499 of the Indian Penal Code. The result, therefore, would be that the appeal will have to be allowed setting aside the order of acquittal and the respondent No. 1 will have to be convicted of the offence punishable under Section 500 of the Indian Penal Code.
11. The next question that arises for determination is about the sentence. On behalf of the appellant, it is contended that once it is established that the respondent No. 1 had made wanton and baseless allegations in respect of character of a woman with whom he had got married, it is necessary to take a serious view of the matter. It was contended that she has been harmed to such an extent that practically she would not be able to get any retribution at all. According to her, the allegations in respect of virginity at the time of her marriage and that she was already married and that she had married respondent No. 1 during the subsistence of her marriage with the former husband from whom she is also alleged to have got a child, definitely must he considered as very serious allegations in respect of the character and, therefore, there is definitely force in the contention of the appellant. It is also contended that the other allegation is in respect of theft and the said allegation was also made very wantonly as it was clear that the ornaments which were on the person of the appellant and which were actually given at the time of marriage to her could hardly be said to have been the subject matter of theft. Having given the ornaments to the wife it was certainly not open to the husband to say that the appellant had committed theft of the same. One can understand making a statement that she had taken away the ornaments which were given to her, in a matrimonial proceeding, but making an allegation of theft itself must also be considered as a serious allegation. The appellant also contended that the incidents have taken place in 1983 and since then she is required to run around the courts to get redress and even whenever she had got some redress, the said redress had been taken away by the appellate courts by showing undue leniency towards the respondent No. 1 by reducing the sentences that have been awarded in other proceedings. It is also brought to my notice by the appellant that the respondent No. 1 has been convicted of the offence punishable under Section 498A. Offence under Section 498A is also serious one and even in such an offence which is normally difficult to prove, the appellate court, which heard the appeal against the order of conviction in that case, has reduced the sentence to fine of sentence only. It is, therefore, contended that in a case like this, the respondent No. 1 does not deserve any sympathy and he should be dealt with severely so that it would also be deterrent for others. It was contended that the appellant being a woman was driven from one court to another to get redress and if the respondent No. 1 is ultimately let off on a sentence of fine only, it would mean that a rich person can get away even after ruining the life of a woman with whom he had got married only by making some payments if he is rich enough to afford. No doubt, there is some force in this contention. It is also true that the said contentions are tried to be made forcefully by the appellant who had appeared in person, due to the fate with which unfortunately she is required to meet. The marriage is no doubt dissolved and the appellant is now required to live her future life on her own and the possibility of her getting married again with the imputations and allegations that have been made in the proceedings also definitely would become less if not remote. The appellant, therefore, actually has tried to contend before me that it is a fit case where S.I. for two years which is a maximum sentence, should be given to the respondent No. 1. As against this, on behalf of the respondent No. 1, Shri Anturkar tried to contend that the entire episode is an unfortunate one. It is also contended that in the contempt proceeding which was started against the respondent No. 1 by the present appellant, the Division Bench of this Court had accepted the apology that was tendered by the respondent No. 1 and his advocate who was also a party to the said proceeding and no punishment was inflicted on the respondent No. 1. Now it is true that in the contempt proceeding the Division Bench of this Court ordered not to take any action against the present respondent No. 1 in view of the fact that the respondent No. 1 had undertaken to withdraw criminal revision application and all the criminal complaints which he had filed against the appellant and her relatives. But it must be taken into consideration that the said matter was in respect of contempt and in a contempt proceeding matter is between the Court and the contemner and if the Court finds that it is not necessary to take further action in the matter, the Court no doubt would be justified in not doing so. But in a case where the person is alleged to have been proved guilty of the offence and if the offence definitely is found to be a serious one, the same considerations would not apply. It would be necessary to take into consideration the imputations that were made even for determining as to what sentence should be awarded. The imputations which were made definitely were grave and not in good faith. Making of wanton allegations against a woman which would ruin her future life definitely needs to be taken care of and stringent view would be necessary. Leniency in such a case would be out of place. I have given anxious considerations to the submissions made by Shri Anturkar which I have stated above and still I am unable to persuade myself to accept those contentions and show some leniency and let off the accused merely on a sentence of fine. In a case like this, it is necessary to take a view in respect of the sentence which would also act as deterrent to others also.
12. Shri Anturkar has also pointed out that the matter in respect of the contempt had also gone to the Supreme Court and the Supreme Court also did not interfere with the said matter and confirmed the decision of the High Court. It was also pointed out that before the Supreme Court also the matter was tried to be compromised but the present appellant was not prepared to compromise the same and probably had demanded a larger sum for compromising the matter. Relying on this it was tried to be contended before me by Shri Anturkar that the Court Room should not be the place where vengeance should be tried to be taken. It was also contended that if the appellant was prepared to compromise the matter if a larger sum was paid to her, it would be also a matter which would be necessary to be taken into consideration in the present proceedings while awarding the sentence. Now in this respect, it must be stated that the appellant before me very clearly stated that she is hurt to such an extent that she is not prepared to compromise the matter at all. One definitely will have to take into consideration what she was required to go through in the last 7 years and, therefore, one must understand the feelings of the appellant and one must say that if she feels that she has been very shabbily treated by her husband from whom normally she would be expecting to get shelter and affection, her attitude in the matter definitely can be understood. It is always easy to say that the matter should be compromised when it pertains to somebody else; when it comes to oneself, one definitely is not even prepared to leave even the smallest portion of the claim. Under these circumstances, I do not think that as the attempts made to compromise at the stage of the Supreme Court also failed, it could be taken into consideration for taking a lenient view in the matter. One has to only consider the facts of the present case. The imputations that were made against the wife by the respondent No. 1 must be considered for the quantum of sentence in the present case.
13. Shri Anturkar also tried to contend before me that if the respondent No. 1 is sentenced to imprisonment he would probably lose his job and that would be a factor which would be necessary to be taken into consideration. No doubt, this is a factor which is normally taken into consideration by the Courts, but this factor normally is present in most, of the cases which come before the Court, particularly in case of the persons who are employed and when they commit offences and are tried and convicted by the Courts. This aspect is always tried to be projected before the Court to claim leniency. But one must also take into consideration the consequences before committing the offence and before harming another person, as has been done in the present case. It was the responsibility of the respondent No. 1 himself and if he has not taken into consideration the result of the imputations which he was making and what his erstwhile wife would be required to face in the society. I do not think that this would be a factor which deserves to be considered to let off the accused without a substantive sentence. Under these circumstances, I pass the following order.
14. Both the appeals are allowed and Respondent No. 1 the original accused is convicted of the offence punishable under Section 500 of the Indian Penal Code in both the cases, and is sentenced to S.I. for two months and a fine of Rs. 3,000/- each in default further S.I. for one month. Substantive sentences in both the case shall run concurrently. Respondent No. 1 is given time up to 30-7-1990 to surrender himself, subject to the condition that he shall pay the fine amount imposed by this order within a period of 15 days. If the fine amount is recovered, Rs. 3,000 out of the fine amount shall be paid, to the present appellant way of compensation.
15. Order accordingly.