(Criminal Original Petition filed under section 482 Cr.P.C. to call for the records in C.C.No.7707 of 2007 pending on the file of XVII Metropolitan Magistrate Court, Saidapet, Chennai and quash the Complaint filed by the respondent.)
The petition is filed seeking to quash the criminal proceedings as against the petitioner ranked as fourth accused in C.C.No.7707 of 2007 on the file of the learned XVII Metropolitan Magistrate, Saidapet, Chennai.
2. The petitioner ranked as fourth accused in C.C.No.7707 of 2007 is a Partner of the daily Tamil Newspaper viz., Dina Malar. The complainant Sun TV Network Limited laid a complaint as against the Publisher, Editor and Partners of Dinamalar Tamil Daily Newspaper for the alleged defamatory article published in the Dinamalar Daily dated 30.9.2007.
3. It has been alleged in the private complaint laid as against the petitioner and other partners, Publishers and Editors of Dinamalar Daily for offences under sections 500 and 501 of the Indian Penal Code that the petitioner being one of the partners of Dinamalar Tamil Daily was also in a position to take the decision whether to publish or not to publish any article in his Daily Newspaper. The defamatory article was published as against the management of the complainant only due to the business enmity the partners had with the complainant. The partners also are well aware and conscious of the allegation contained in the defamatory publication dated 30.9.2007.
4. The petitioner, one of the partners of Tamil Daily Newspaper would contend that the statements made in the article were not per se defamatory. The alleged news item does not whisper anything about the role of the complainant. Only an aggrieved person can move the court to charge a person for the offences covered by sections 499 to 502 of the Indian Penal Code. The complainant is not the aggrieved person. Therefore, no complaint can be laid by the complainant as against him. Section 7 of the Press Act draws presumption only against the Editor or Resident Editor being the persons solely in charge of and responsible for the day to day reporting. Therefore, the partner cannot be directed to face the prosecution based on the complaint of defamation. It is only the Editor who controls the selection of the matters that are being published in Newspapers. Therefore, the petitioner being one of the partners of the Daily Newspaper has no role to plea. He has been implicated in the case of defamation only in his capacity as partner. The complaint, as such, does not disclose any essential ingredients that are necessary to make out an offence against the petitioner. A Company cannot file a complaint of injury of its feeling but, it has to prove that it has suffered damage resulting in loss of business because of the alleged imputation. Therefore, the petitioner would contend that the entire proceedings as against him will have to be quashed.
5. The complainant filed a counter stating that the news item published in Dina Malar dated 30.9.2007 clearly indicates that the petitioner/accused had published a defamatory item against the complainant. Similar petition was also filed by the other two accused in Crl.O.P.No.33138 of 2007 before this court and the same was dismissed holding that the Company was a person as defined under section 499 of the Code of Criminal Procedure. The complaint would read that the accused had knowledge of publication of the alleged defamatory matters and that they were also responsible for such publication. Therefore, the question of quashing the proceedings does not arise.
6. Learned counsel appearing for the fourth accused would submit that a complaint laid against a partner of a Newspaper is not at all sustainable. Only the Editor or the Resident Editor who has the discretion to publish or not to publish an article alone can be prosecuted if at all a defamatory article was published in the newspaper. The complaint does not disclose the role of the petitioner in the alleged defamatory article. Therefore, the complaint is not sustainable as against the petitioner.
7. Learned counsel appearing for the respondent/complainant would submit that this court has already decided that a Company can very well lay a private complaint alleging defamation and that prima facie case has been made out for launching prosecution as against the other accused. Further, necessary allegation has been made in the complaint attributing knowledge of the petitioner being one of the partners in the Daily Newspaper. It has also been alleged that out of business motive, such an article was published. Therefore, it is only the Trial Court which has to decide whether the defamatory charges have been proved. The question of quashing the criminal proceedings in the face of necessary allegation found in the complaint does not arise.
8. The complaint would specifically read that the petitioner who is also one of the partners of Dinamalar Tamil Daily Newspaper was in a position to take a vital decision as to whether an article can be published. It has been further alleged that only due to business enmity with the management of the complainant, such a defamatory article was published. To top it all, it has been stated in the complaint that the petitioner also was aware that the allegations contained in the said defamatory publication was not true.
9. The averment found in the complaint referred to above would indicate prima facie that the defamatory publication was made only due to business enmity. The business enmity will have direct impact on the management and administration of the business. Further, personal knowledge about the publication of the news item also was alleged in the complaint. It has been further stated therein that the petitioner also was in a position to take concrete decision as to the publication of the article concerned.
10. It is not as if the petitioner was implicated only in his capacity as a partner of a Newspaper. Only after making the aforesaid allegations reflecting his role in the matter of publication of the defamatory article, the complaint has been laid.
11. This court has also held in Crl.O.P.No.33138 of 2007 filed by A2 and A3, the Editor and Publisher of Dinamalar Tamil Daily Newspaper that sufficient allegation is there to take the case on file for the alleged defamatory article. Further, it has been held therein that a Company can prosecute for the defamatory article published against it. Therefore, the petitioner herein cannot be heard to say against such a verdict invited by the other two accused in this case.
12 In BHAGAT SINGH v. LACHMAN SINGH (AIR 1968 CALCUTTA 296), it has been held as follows:-
"The owner in order to be liable under this section has to have direct responsibility for the publication of the defamatory statement and he must also have the intention to harm or knowledge or reason to believe that the imputation will harm the reputation of the person concerned. The owner of a journal qua-owner has thus no responsibility under the section. The editor of the paper, even though he might not be directly responsible for a defamatory statement published in his paper attracts the responsibility by virtue of section 7 of the Press and Registration of Books Act by virtue of his registration as editor under the Act which registration is sufficient evidence that he was also the printer or publisher or printer and publisher of the paper concerned. The printer and publisher by virtue of their duties as such cannot of course avoid the legal liability for defamation. The owner's liability will be attracted provided it can be shown that he was responsible for the publication with the necessary intent, knowledge or reasonable belief in the matter."
13. Firstly, it is found that the said case has arisen out of the acquittal recorded by the Trial Court in a defamation case under section 499 of the Indian Penal Code. As there was no material to establish direct responsibility for the publication of the defamatory statement intended to harm the reputation of the person concerned, the court has held that Proprietor of the Journal in his capacity as owner cannot be held responsible under section 499 of the Indian Penal Code.
14. The complaint should contain some reasonable allegation that the partner also was liable for the defamatory action. Just because a person was a partner of some Newspaper business, he cannot be imputed with any knowledge about the publication of the defamatory statement nor can he be made responsible for the same. But, in this case, it is found that there is a concrete allegation that the petitioner being one of the partners of the Newspaper business was at the helms of affairs taking decisions as to what sort of articles could be published in the Newspapers. Business motive also was attributed for the impugned publication. It has also been alleged that the petitioner has knowledge that the defamatory article was not true. It is found that the petitioner has not been implicated just because he was one of the partners of the publishing house.
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>15. When there is a clear averment as to the role played by the petitioner, who was allegedly in charge of and responsible for the conduct of the business, he cannot avoid prosecution saying that he had no responsibility in publication of the alleged defamatory article. The Honourable Supreme Court in K.M.MATHEW v. K.A.ABRAHAM & OTHERS (2002(5) SUPREME 511) has categorically held that where a complaint specifically alleges that a person had knowledge about the publication of the alleged defamatory matter and he was also responsible for such publication, cognizance shall be taken holding that prima facie case was made as against the person concerned. 16. As sufficient allegation constituting the offence of defamation is found in the complaint as against the petitioner also to take the case on file by the XVII Metropolitan Magistrate, Saidapet, Chennai, the question of quashing the criminal proceedings as against him does not arise for consideration. Therefore, the petition seeking quashment stands dismissed.