R.L. Kalathia and Co. Vs. State of Gujarat
IN THE HIGH COURT OF GUJARAT
Criminal Appeal No. 920 of 1985
Decided On: 13.02.1998
Appellants: R.L. Kalathia and Co.
Vs.
Respondent: State of Gujarat
Hon'ble Judges/Coram:
M.S. Parikh, J.
Counsels:
For Appellant/Petitioner/Plaintiff: R.J. Oza
For Respondents/Defendant: S.P. Dave, Ld. APP and J.M. Panchal
JUDGMENT
M.S. Parikh, J.
1. This appeal under Section 378(4) of the Criminal Procedure Code, 1973 (for short 'Cr.P.C.') has been filed by the appellant (original complainant) M/s. R.L. Kalathia and Company, a registered partnership firm through its partner Mr. Harshadbhai Kalathia against the judgment of acquittal dated 28-2-1985 rendered by the learned 4th Joint Civil Judge (J.D.) and Judicial Magistrate First Class, Surat in Criminal Case No. 64 of 1983. The appellant is referred to as 'the complainant' herein and the opponents Nos. 2 to 5 are referred to as 'the accused' herein. The State of Gujarat is the first opponent in this appeal.
2. The complainant, a registered partnership firm, used to deal in the business of construction. The complainant asserted that it had good name and reputation in the business of construction and was getting the work of construction from the Government of Gujarat. In the course of its business the Government of Gujarat had given work contract for construction of a dam in Pigut Irrigation Scheme....
3. to 5. xxx xxx xxx.
6. It has been the defence of accused persons that a false case has been filed by the complainant. Loksatta is a responsible and fearless daily and has been performing its duty of reporting honestly. It publishes the reports with regard to irregularities and frauds after inquiring into the matter through its reporters. It publishes the reports of social workers, public workers and political leaders bona fide for the welfare of people by bringing to their notice, their difficulties and hardships and its intention is never personal or to defame some person. Its intention is to remedy the wrong which is noticed with a view to see that the administration becomes alive and takes appropriate remedies and steps. The accused No. 3 has asserted that he is social worker and has been making efforts to see that the Government and its administration is kept alive by making his statement in the public interest. Statement which he had made with regard to Pigut Dam is made bearing in mind the public interest. It has not been made with some prejudice or jealousy against some contractor. His intention has been to see that the Government machinery is kept alive for correcting its errors or drawbacks. According to the accused persons the complaint has been filed with a view to pressurise them for raising voice against the misdeeds and frauds of public servants. They have asserted that there has been a complaint filed against the complainant in the Court of Walia in respect of theft of forest wood. It has also been asserted that the complainant's name has been placed in black-list. It has finally been asserted that no financial loss has occurred to the complainant, as a result of the publications in question. Neither the Government nor the Government administration has made any clarification with regard to the publications and the statements and reports appearing in publications in question. Even the contractor has not made any public clarification in respect of such reports. Even after passage of long period neither the Government nor the contractor has given any clarification with regard to the news concerning low quality work of Pigut Dam. With regard to the news that there was a breakdown in the well of the dam in question and the well having not remained in existence, no clarification has been made either by the Government or the contractor. The accused No. 4 has further asserted that he has been attending to social and political activities for many years and he has been practising as an advocate for 7 years in the Court at Bharuch and finally that he has been a councillor in Bharuch Municipality. He has no ill-will, personal interest, prejudice or enmity with the complainant. He did not have any intention to defame the complainant, but as a part of his duty as an Indian citizen he has acted in public interest and in alarming the Government administration and in eradicating the irregularities of the Government servants. According to his stand a false complaint has been filed against him.
7. xxx xxx xxx.
8. Mr. R.J. Oza, learned Advocate appearing for the complainant has read the oral evidence adduced before the learned Magistrate. He has also made reference to the documents placed on record. According to his submission the publications in question have been impliedly aimed at the complainant with a view to lower down the complainant in the eye of public. That is how the publications are defamatory as contemplated by Section 499 read with Section 500 of the IPC. According to his submission the accused persons have not been able to show or establish before the learned Magistrate 9th Exception to Section 499 of the IPC. For the purpose of appreciating the submissions of Mr. Oza it would first be necessary to set out what are the publications and to find out from the evidence whether they are impliedly aimed at the complainant.
9. The publications in question are in Gujarati. The first publication is at Exh. 50 (p. 113 of the paper book). The report appears at page 6 of Loksatta of Thursday the 30th December 1982. It is under the caption "Recovery of Government money in Pigut Irrigation Project doubtful". Free translation thereof would read as under:
Shocking news with regard to recovery of Government money in Pigut Irrigation Project, of Walia Taluka in Bharuch District becoming doubtful and recovery of that amount getting deliberately delayed have come out.
It is said that the contractor of Pigut Irrigation Project has not paid royalty money of about Rs. 3 lakhs in respect of Rubal Metal, Hard Mooram, with the result that a police complaint under Section 42 of the Minerals Act, 1960 and Section 379 of the IPC has been lodged against the contractor of this work.
It has come out that the papers of this work have stopped moving despite passage of months after the filing of this complaint and it has come out that with the cooperation of a highly placed political person and with the soft feelings of employees of the Irrigation Department the case has been protracted. If above facts are true Government must take detailed inquiry into the matter and must take on hand the recovery of doubtful money; such is the public feeling.
The second publication appears at Exh. 61 and is at page 127 of the paper book. It has been published at page 6 in the Loksatta dated 24-1-1983. It is under the caption "The Scandals of Pigut Irrigation Project be inquired into by C.B.I." It would read:
Shri Chandubhai Deshmukh, Ex-Minister of Gujarat and Regional Secretary of Janata Party informs that Pigut Irrigation Project of Walia Taluka in Bharuch District is full of scandals like beehive. This project was sanctioned in the year 1972 for Rs. 66 lakhs. Till today it is not completed. Its works are outstanding. Against estimated cost of Rs. 66 lakhs Rs. 150 lakhs have been spent. There is no estimate of what would be the amount yet required to be spent. In spite of the contract of dam having been given at the rate of 130% above the estimated cost and in spite of passage of 4 years the work has not been completed. In order that there may not be competition of Machhu Dam (disaster) additional earthen work of Rs. 50 lakhs was got done and yet the same work was completed only in 90 days.
As the partner of the company to whom the work has been entrusted happens to be an old friend of a Minister, the scandal regarding the work has been overlooked. 3 to 4 works of this project have been handed over to one agency by employing different tactics.
There is no account from the Government stone found escavated from the digging work of the dam as per the estimate. The Geological Department has filed police case in this respect. But the same has been kept in abeyance on account of pressure of Ex-Minister of State. Contractor has been bringing labourers from outside instead of giving the work to the local tribal workers. Why is the compensation for acquisition of land going in the canal work not paid? For this work machinery to the tune of Rs. 75 lakhs is with the Sub-Department but its use is not being recorded in the books and the contractor has been using it at his will and paying its hire charges in lumpsum case. During the passage of 3 years Government has not recovered even a sum of Rs. 3 lakhs. Government machine of the value of Rs. 25 lakhs has been given on hire to the contractor and within a span of 25 hours it has been broken and returned to the Department, for repairing of which a sum of Rs. 30,000/- has been spent and yet the machine has not started working. In spite of the fact that the contractor hiring (the machine) is required to bear the repairing charges, the amount has been debited to the Government in the records. What is this type of conduct on the part of Government officers?
The road for the project has been completed by the contractor using the Government goods and why has the amount of such Government goods not been recovered?
Government machinery was given on hire in the drilling work of the project. The work was completed. The last bill was also paid. Yet the hire charge (rent) was recovered 12 months thereafter. How is that?
The Government has opened quality control centres for preventing corruption, headed by a Superintending Engineer. What do such officers look after? Are they lip-tight because Deputy Minister and Secretary of the Irrigation Department belong to Bharuch district and contractor is their friend?
Corruption practice has been employed in sanctioning Rs. 50 lacs in the matter of raising the height of the dam and giving related contract.
How long such irregularities will last in the Irrigation Department? How long the people of Gujarat will remain silent? All this corruption needs to be closely inquired into by the C.B.I. urgently.
Exh. 62 which is at page 129 of the paper book is the repeat publication in Loksatta dated 25th January 1983 and the same need not be repeated.
Exh. 63 which is at page 131 of the paper book is the last publication which has been referred to by the complainant. It is captioned 'Corruption of royalty in Geological Department under the Chief Minister'. Translated into English it would read as under:
Leading worker and district president of National Congress of Bharuch Shri Godigajbar states in his news report:
According to the information received there was digging work of around 80,000 cubic mtrs. Of stones in Pigut Project of Walia Taluka of District Bharuch out of which if 60% of the material is capable of being made use of 48,000 cubic mtrs. of rabal/metal can be used in construction work and the dam work, but such material is not credited in the Government book. Who then lifted it?
In the work contract there is a provision for refund of royalty. So it is understandable if the contract rates would be inclusive of royalty. During inquiry into the Geological Department (it could be noticed) around 2 to 3 lacs of rupees have been credited in the Geological Department towards royalty, whereas in this work no amount is credited. What corruption is practised in this has to be inquired into. Wherefrom did this contractor bring stones worth about Rs. 20 to 25 lacs ordinarily used in such dam constructions in Gujarat? Whether the royalty is paid or not? In spite of sending repeated written intimations under Registered A.D. post to the contractor why is no information sent? Why is even the irrigation department not sending information? Is there any collusion between these two departments?
There was a provision to give stone at the rate of Rs. 16/- per cubic mtr. if it was found in this work. Accordingly how much of such material out of 48,000 of cubic mtrs. was received and where has gone the rest of the material? Will that be inquired into?
According to the reliable circles (sources) it has come to light that the contractor of this work is an active worker of Congress (I). It is publicly discussed that one of the partners was studying with the Irrigation Minister, therefore, there is close friendship resulting in innumerable corruptions in this case. Hence the officers of the Geological and Irrigation Departments are keeping silence.
Therefore, all the corruption in this work must be immediately removed.
The chief Minister of the State himself has declared that no one's influence will be tolerated in the case of 'corruption'. Each department has been instructed to work according to law. Is it that this case is eliminated from the same? If the Government will immediately hand over this case to Vigilance Department, the corruption (corrupt practice) will come to light.
13-2-1998
10. Having reproduced the free translations of the publications according to which the complainant has alleged that he or his firm has been defamed, it would be necessary to reproduce the provision contained in Section 499 of the IPC, which defines defamation. Section 499 defines defamation as under:
"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."
Since Explanation 4 to Section 499 has been read by the learned Advocates appearing for the rival side, the same also might be reproduced. Explanation 4 would read as under:
"No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in loathsome state, or in a state generally considered as disgraceful."
The learned Magistrate has invoked 9th Exception on a bare reading of the aforesaid publications and, therefore, the same also need be reproduced:
"Imputation made in good faith by person for protection of his or other's interests, - 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 interest of the person making it, or of any other person, or for the public good."
It will be noted that the word 'good faith' appears in the 9th Exception. The said words have been defined in Section 52 of the Indian Penal Code. Accordingly, nothing is said to be done or believed in "good faith" which is done or believed without due care and attention.
11. It will be clear from the reading of the aforesaid provisions of law that what is necessary to be found out from the publications in question as also the evidence placed on record is whether the complainant has established beyond reasonable doubt the offence of defamation as contained in the aforesaid provisions punishable under Section 500 of the IPC and whether the publications in question in the background of the evidence placed on record disclosed 9th Exception to Section 499 of the IPC. Following facts appear from the evidence placed on record and there is no debate on the same even before this Court:
(1) The complainant was given the contract of construction of Pigut Dam in question pursuant to the notification of 1977.
(2) The work under the contract was to be completed within prescribed time and yet it was prolonged much beyond the prescribed time.
(3) A Criminal Case No. 1005/1983 was filed against the complainant as per the statements appearing in the publications in question.
(4) There was also a criminal case with regard to evasion of octroi filed against the complainant.
(5) Admittedly disproportionately excessive amount was spent after the work under the contract.
(6) At no place in any of the publications in question the name of the contractor finds its place.
(7) There are questions appearing in the publications with regard to delay in the work of construction under the project and with regard to the manner in which public money were spent, so as to bring to the notice of public the correct facts. The Government or none of its officers has gone to the press or public to explain the questions which have been asked in the publications in question.
(8) The major pointer in the publications in question on the face of them is against the concerned Government Departments and its officers/employees and apparently there does not appear any intention to defame the complainant. The reference to the word 'contractor' in the publications in question is with regard to the construction of dam under the project in question attended to by the contractor and supervised by the concerned departments and their officers/employees.
(9) The publications in question reveal the reports having been given by specified persons who are either the social workers or persons occupying some or the other position in public administration.
(10) The complainant has been placed in a black list by the Government, and
(11) There was a Machhu Dam disaster in the State, and
(12) The complainant has not been able to establish any economic loss by any evidence before the learned Magistrate.
If the aforesaid established facts coupled with the publications in question are viewed in the light of settled legal position, it would clearly appear that the conclusion reached by the learned Magistrate to the effect that the complainant has failed to establish beyond reasonable doubt the offence punishable under Section 500 of the IPC and that 9th Exception truly stood invoked on the face of the publications and the aforesaid established facts, would stand justified.
12. It has, however, been submitted on behalf of the complainant that the accused have not adduced defence evidence flowing from Exception 9 to Section 499 of IPC. The decision which has been referred to on behalf of the respondents to meet with the above submission, is one contained in the case of H. Sing v. State of Punjab reported in AIR 1996 SC 97.
In the case before the Supreme Court the Punjab Government issued a press note stating that certain Urdu dailies from Jullundur were indulging in mischief and false propaganda, alleging complicity of a Minister's son in smuggling on the border and that that was done with a view to malign the Government and to cause suspicion in the mind of public and finally that the papers publishing such false reports should come out openly with the name of the son of the Minister instead of repeatedly publishing things in a vague and indirect manner and should not take shelter behind anonymity. In response to the challenge thus issued by the Punjab Government following publications were issued by the appellant before the Supreme Court:
"My attention has been drawn to a Punjab Government Press Note categorically denying the complicity of a Minister's son in smuggling. That Press Note also thrown a challenge to some Urdu Dailies "to come out openly with the name of the son of the Minister" and then face the consequences. I do not know whether the newspapers concerned will take up this challenge of the Punjab Government or not, but as one of those who have been naming that son of the Minister as one of the leaders of the smugglers from Public platform, I hereby name that son as S. Surinder Singh Kairon son of S. Pratap Singh Kairon, Chief Minister. And I do so determined to face the consequences of the charge being openly levelled by me. I further allege that the son of our Chief Minister is not only a leader of smugglers but is responsible for a large number of crimes being committed in the Punjab. But because the culprit happens to be Chief Minister's son the cases are always shelved up.
If the Punjab Government accepts this challenge, it should do so by appointing an independent committee of impartial Judges from outside the Punjab and then let us see who has to face the consequences. If the Punjab Government dare not do so, I would not mind serving a term in Jail for having had the courage to come out with the truth. May I bring it to the notice of Punjab Government that Chief Minister's son is being discussed in almost every Punjab house, but people are afraid of talking about him in public lest they be punished for that."
The aforesaid statement gave rise to the complaint for defamation. In that proceeding the Trial Court upheld the stand of the complainant that the words used in the impugned publications were defamatory per se and that the appellant failed to make out a case either under the 1st Exception or under the 9th Exception to Section 499 of IPC. Before the High Court the appellant claimed protection of the 9th Exception only. But the High Court held that good faith as required to be established under the 9th Exception had not been proved. The appellant was not entitled to claim the protection of 9th Exception. The High Court, therefore, confirmed the appellant's conviction. Dealing with the statement of law as appearing in Exception 9 to Section 499 of the IPC it has first been pointed out that it is not defamation to make an imputation on the character of another, provided the imputation be made in good faith for the protection of the interest of the person making it or for any other purpose, or for public good. It has been observed that the requirements of good faith and public good have both to be satisfied for bringing home 9th Exception to the rescue of the accused. The question, therefore, was as to what would be the nature of proof on the part of the accused while taking recourse to 9th Exception to Section 499 of IPC. In that connection, the Apex Court has reiterated that the fundamental doctrine of criminal law is that the onus to prove its case lies on the prosecution. Observations of Viscount Sankey in Woolmington v. Director of Public Prosecutions, 1985 AC 462, to the effect "no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained'' and of Duff, J. in R. v. Clark, (1921) 61 SCR 608, which have been approved by Lord Halisham in Sodeman v. R. 1936-2 All ER 1138 to the effect:
"the necessity for excluding doubt contained in the rule as to the onus upon the prosecution in criminal cases might be regarded as an exception founded upon considerations of public policy. There can be no consideration of public policy calling for similar stringency in the case of an accused person endeavouring to displace a rebuttable presumption "have been stated for the purpose of emphasising the fundamental doctrine of burden of proof beyond reasonable doubt being on the prosecution. In the above light the Apex Court has considered the nature of onus of proof placed on accused persons claiming benefit of exception and it has been observed that there is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt and that no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds "in proving a preponderance of probability". As soon as the preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus. Following observations appearing in para. 14 of the citation might in this connection be reproduced:
It must be remembered that basically, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt. As Phipson has observed, when the burden of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; it is sufficient if he succeeds in proving a preponderance of probability, for then the burden is shifted to the prosecution which has still to discharge its original onus that never shifts, i.e. that of establishing on the whole case, guilt beyond a reasonable doubt."
Dealing with the words "good faith" appearing in the 9th Exception, reference has been made to Section 52 of the Code saying that nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention. Reference has also been made to the meaning of the words as appearing under the General Clauses Act saying: "A thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not." The Apex Court has pointed out distinction between the two definitions in that element of honesty appearing in the latter definition is not introduced in the first definition. Therefore, the inquiry would be whether the accused acted with due care and attention for the purpose of establishing his good faith. It has been observed that in dealing with the question of good faith, the proper point to be decided is not whether the allegations put forward by the accused in support of the defamation are in substance true, and has good reason after due care and attention to believe that such allegations were true.
Now on reading of the evidence in the case in hand, it would emerge that the facts regarding delay in construction work, use of excavated material, filing of criminal case against the complainant, quality of excavated work, waste of public money and so on and so forth are shown to be mainly true. It would also emerge that due care and attention appear to have been taken in inviting the Government machinery to answer the questions asked in the publication. All that clearly appear to have been aimed at public good.
The Apex Court has observed in H. Singh's case (supra) that in deciding whether the accused person acted in good faith it is not possible to lay down any rigid rule or test, but it would be a question to be considered on the facts and circumstances of each case. Illustrating this, it has been observed that what is to be borne in mind is: (1) nature of the imputation made, (2) under what circumstances imputations came to be made, (3) what is the status of the person who made the imputation, (4) was there any malice in his mind when he made the imputation, (5) did he make any inquiry before he made it, (6) are there reasons to accept his story that he acted with due care and attention and was satisfied that the imputation was true? These and other considerations would be relevant in deciding the plea of good faith.
13. It might be noted from the facts and circumstances pointed out by the learned Magistrate that not only the complainant failed to establish the charge of defamation emanating from the publications in question, but the accused had successfully pointed out from the material placed on record that the impugned statements were made in good faith and for the protection of public interests after making due inquiry and taking due care and attention. It would not be necessary to repeat what has transpired from the evidence and the reasons for reaching the conclusion about the accused having satisfied 9th Exception to Section 499 of the IPC. Suffice it to say that what the Apex Court has held in H. Sing's case (supra) about the appellant before it would substantially apply to the accused (respondents Nos. 2 to 5) before this Court.
14. In above view of the matter and bearing in mind the facts of the case, no indulgence can be shown in this acquittal.
In the result, this appeal fails and is accordingly dismissed.
(IMP) Appeal dismissed.