TMI Blog2018 (8) TMI 2013X X X X Extracts X X X X X X X X Extracts X X X X ..... concerning whom it is written. Communicating a defamatory matter to the person concerned only cannot be said to be a publication. It is not the case of the complainant that the contents of the legal notice sent by the petitioner were published by him to any person other than the complainant. According to the complainant the notices were sent through post to his registered address. It has to be presumed that when a registered notice is sent to the last known address it is meant to be opened and read by the person concerned and not by any other person. In the absence of any allegation that such letters were in fact opened and read by the employees or any other persons other than the addressee, the complainant cannot contend that the petitioner had any intention to make a publication of the said contents of the notice to any outsiders. The complainant has not even examined any of his employees to show that the letter sent by the petitioner were opened by any of his employees and they had read the contents thereof - As a result, there was no communication or publication of the contents of the said notices/complaints within the meaning of Section 499 of IPC. Contents of legal not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addressed to his office address. There are no averments in the private complaint that the said letter has been read by any one other than the complainant. Even in his sworn statement no such allegation was made. The complainant did not examine any independent witness to show that the contents of the registered notices were read or circulated or published to any outsiders so as to constitute an offence punishable under Sections 499 and 500 of the Indian Penal Code. Without considering any of these aspects merely on the basis of a self serving statement of the complainant the learned Magistrate has issued summons to the petitioner to face trial for the alleged offences. 4. The learned counsel further submits that undisputedly the petitioner is a resident of Patna. The trial Court has not conducted any enquiry as contemplated under Section 202 of the Cr.P.C. before issuance of the summons. Therefore, on this count also the impugned proceedings are vitiated and are liable to set aside. He further submitted that no list of witness were enclosed to the private complaint indicating that the contents of the notice were not published or had not come to the knowledge of any third party. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused are fully aware that the complainant or his company are in no way concerned or involved with the personal disputes inter-se between the accused No.1 and her ex-husband, the said Sayan Jyoti Gupta. However, with malafide intent and with a view to intimidate and defame the complainant and his company, the accused No.1 caused to be issued through accused No.2 a series of notice(s) / rejoinder(s) / reply(ies) to the complainant with his official designation as CEO of the company at the office address with the only intention to lower the complainant and his companys reputation in the estimation of the companys employees. (underlining supplied) 10. In his sworn statement the complainant has reiterated the above allegations and has stated thus: Then in the month of October, 2010, I got a legal notice from accused No.1 and accused No.2 who is a lawyer of accused No.1 intimating me that I am harbouring an offender in whose name there is a case pending in Patna court. I ignored that letter and advised my employee to handle these personal affairs. Subsequently in December 22nd of 2010 my employee was arrested from the office and he was taken to the police station. I went to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urtful to the feelings of his family or other near relatives. Explanation 2.It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.No imputation is said to harm a persons 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 a loathsome state, or in a state generally considered as disgraceful. 13. The essence of Section 499 of IPC is the publication of imputations concerning any person with the intention to harm, knowing or having reason to believe that such imputations will harm the reputation of the person and they must be made or published to any person other than the person concerning to whom it is written or made. 14. Publication has been explained by the Bombay High Court in the above decision cited by the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouring any of the person, or any of his employee as alleged in the notice, yet in the absence of any material to show that the said statement was made with an intention to defame the petitioner, in my view the rigors of Section 499 do not get attracted. Furthermore the case of the complainant is that the petitioner herein has made the said statement on behalf of his client namely, accused No.1 and therefore the said imputations cannot be personally attributed to the petitioner. Therefore, viewed from any angle, I am of the view that the averments made in the private complaint and the statements made in the sworn statement of the complainant do not make out the ingredient of the offence under Sections 499 and 500 of the Indian Penal Code in so far as the petitioner is concerned. 18. It is also necessary to note that the petitioner is a resident of Bihar State. Section 202 of Cr.P.C. cast a mandatory duty on the Court to hold an enquiry before issuance of process, when the accused is residing at a place beyond the area in which the Court exercises its jurisdiction. There is nothing in the impugned order to indicate that the learned Magistrate has conducted any enquiry as contempla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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