Since the learned counsel for the complainant strongly objected to the consideration of documents, namely, Article 1 Memo No. MMHS-CI. II/T.A. Bill/PPG/5445 of 1977, office of the Medical Superintendent, Daga Memorial Government Hospital dated 10-11-1977 and the letter dated 7-8-1975, which according to the learned counsel for the complainant were not proved in accordance with law and, therefore, could not have been considered. I would first take up this argument of the learned counsel for the complainant. It would be seen that the accused persons moved an application under Section 91, of the Cr PC on 18-8-1981 for directions to the concerned authorities for production of the said documents for cross-examination of the complainant. The complainant objected to the said application and after hearing both the learned counsel for the parties, the trial Court by its order dated 5-11-1981 allowed production of the said documents and directed the concerned authorities to produce the documents mentioned in the application under Section 91, of the Cr PC and the concerned authorities produced those documents before the Court. It is also apparent from the record that the revision was filed against the said order of production of documents by the concerned authorities and the said revision was dismissed by this Court and, thereafter, the accused persons also gave a notice to the complainant to admit or deny these documents vide their application dated 7-7-1984. That application by way of notice to admit or deny the documents was also contested by the complainant by moving an application dated 16-8-1984 for deciding the preliminary issue/point about the relevancy or otherwise of the documents and trial Court by its order dated 16-8-1984 observed that the counsel for the complainant did not want to admit or deny the documents, but wanted to get the question decided on the ground that the said documents sought to be admitted or denied have no relevance in the case. The trial Court observed that unless the complainant examines the witnesses and they are cross-examined, the relevancy of the documents cannot be decided at this stage of trial and to ask the relevance of every document would amount to compel the accused to disclose the defence and line of cross examination, which would certainly be prejudicial to the accused. The trial Court also observed that the accused persons have made it clear that these documents are to be used only for contradicting the complainant and therefore relevancy could be decided only with reference to the examination-in-chief and questions put in cross-examination. The complainant examined herself as witness No. 1, and these documents were put to her in cross examination and she did not deny the correctness of the said documents in her cross examination. In this view of the matter, the argument of the learned counsel for the complainant that the said documents have not been formally proved is devoid of any merit. While the genuineness of the documents was not disputed dispite opportunity having been given after notice was served on the complainant and even in cross-examination by the complainant when she was confronted with the said documents, it cannot be said that any error of procedure or law has been committed by the trial Court. The said documents were produced before the Court under Section 91, of the Cr PC by the competent authorities, who were in possession of the said documents and despite opportunity being given to the complainant, the said documents were not denied. It may be observed that the documents which were produced under Section 91, of the Cr PC are not required to be proved like the documents which are produced by the prosecution or the accused.
Bombay High Court
Dr. Mrs. Pratibha W/O Prabhakar ... vs State Of Maharashtra And Other on 27 September, 1994
Bench: R Lodha
1. The news item "Shasnala Lutnari Lady Doctor" (Lady Doctor who duped the Government) published in Marathi daily newspaper 'Lokmat' in its edition dated 13-12-1978 which according to the appellant-complainant (hereinafter referred to as "the complainant") has harmed the reputation and defamed her, has given rise to the criminal action by her against the respondent Nos. 2 to 4 (hereinafter referred to as "the accused persons"). The complaint filed by the complainant under Section 500, 501 and 502 read with Section 34 of the Indian Penal Code against the accused persons, who at the relevant time were Chief Editor, Printer and Publisher, and Acting Editor of 'Lokmat' respectively was tried in Criminal Case No. 2269 of 1978 Dr. Mrs. Pratibha Prabhakar Gulhane v. Jawaharlal Darda and others in the Court of Chief Judicial, Magistrate, Nagpur, who vide his judgment dated 29-6-1989 has acquitted all the three accused persons for the said offence under Sections 500, 501 and 502 read with Section 34, of the Indian Penal Code. Dissatisfied with the judgment of acquittal dated 29-6-1989 passed by the Chief Judicial Magistrate. Nagpur, the complainant has preferred this appeal.
2. The Marathi daily newspaper 'Lokmat' published from Nagpur, published the following news item in its edition dated 13-12-1978, which in translation in English reads as under :
"Lady Doctor who duped the Government
Nagpur dated 12 (Through the Reporter) It is learnt that Dr. Mrs. Pratibha Gulhane, the Senior Medical Officer, from Daga Memorial Hospital (Post Partum Programme) duped the Government by presenting a false T.A. Bill.
The said information is received on the basis of the letter No. M.M.H.S. 80-2-T.A. Bill PPG-5445/1977 sent from the Medical College Hospital.
Smt. Gulhane on her own request was transferred from Akola to Daga Hospital, Nagpur, and as per the Government rules the T.A. Bill cannot be granted to the persons who has been transferred on her own request.
The information from the reliable sources is that the complaints have been made to the Ministry of Health from Kachari Sawanga and Nagpur also to the effect that she misused her power for her personal gain." (Exh. 130).
3. The complainant filed the complaint on 28-12-1978 under Section 500, 501 and 502 read with Section 34, of the Indian Penal Code in the Court of Chief Judicial Magistrate, Nagpur against the seven persons. The present respondent Nos. 2 to 4 were impleaded as original accused Nos. 1, 2 and 3 in the said complaint. The other accused persons impleaded in the complaint were Ramgopal Maheshwari, Chief Editor, Nav Bharat, Vinod Maheshwari, Shailandra Kumar and Satish Sathe. However the accused Nos. 4 to 7 were discharged by an order dated 9-3-1979. In the said complaint, the complainant alleged that at the relevant time she was a public servant working as Senior Medical Officer (Class I) at Daga Memorial Govt. Hospital, Nagpur. According to the complainant, the original accused Nos. 1 to 3, edited, printed and published the aforesaid news item (Exh. 103) in their newspaper daily 'Lokmat' published on 13-12-1978 making imputations against the complainant giving her name and other details amounting to defamation, namely, - (i) that one Dr. Pratibha Gulhane, a Senior Medical Officer (Post-Partum Programme) at the Daga Hospital, Nagpur, has duped the Government by presenting T.A. Bill. This has come to know from the letter No. M.M.H.S. - 80-2/T.A. Bill/P.P.G/5445/1977 sent from the Medical College Hospital; (ii) Smt. Gulhane was transferred from Akola to Daga Hospital, Nagpur at her own request and according to the government rules no transfer T.A. is granted in such cases, and (iii) It is reliably learnt that a complaint from Kacheri Sawanga and Nagpur has already been sent to the Ministry of Health to the effect that Smt. Gulhane takes under advantage of her position for her selfish motu." The complainant alleged that the said imputations were published with an intention to harm the reputation of the complainant and with the knowledge that the said imputations would harm the reputation of the complainant. It was also alleged by the complainant that the said news item has caused irreparable loss and harm to her reputation in the eyes of superior officers in the Department particularly and the public at large. The complainant also asserted that the said news items was defamatory and totally false, libelous and mischievous to the knowledge of the editor, printer and publisher. It was also alleged by the complainant that she has served the legal notice on the accused persons. The complainant also averred in the complaint that she had made a reasonable claim in her T.A. Bills permissible under the rules, which were ultimately accepted and passed by the competent authorities, namely, Treasury Officer, Nagpur, and Accountant General Maharashtra-II, Nagpur. The complainant also alleged that the contents of the news item were full of personal imputations against her and she had a reasonable belief that the information must have been obtained by committing theft of an official record/papers from the personal file which indicated the letter number in the news item appearing in the daily Lokmat dated 13-12-1978 pertaining to the complaint or the letters pertaining to the complainant must have been obtained with connivance of the office staff or that the information with full details must have been supplied by the staff having an ill-will against the complainant.
4. The trial Court on the said complaint vide its order dated 9-3-1979 issued summons to the accused persons. All the three accused persons appeared before the Court and pleaded not guilty.
5. The accused persons on 18-8-1991 moved an application under Section 91, of the Code of Criminal Procedure (Exh. 64) for directions to the authorities mentioned therein to produce the documents. It was stated in the application by the accused persons that for cross examination of the complainant, it was necessary to call the documents which were in possession of the Medical Superintendent, Daga Memorial Government Hospital, Nagpur, Medical Officer, primary Health Center, Kacheri Sawanga, Director of Health Services, Maharashtra State, Bombay and the Deputy Director of Health Services, Nagpur Circle, Nagpur. The accused persons stated that all these documents relate to the publication in question. The details of the documents in possession of the concerned officers were mentioned as follows.
"(1) Documents in possession of Medical Superintendent, Daga Memorial Government Hospital, Nagpur.
(a) Self assessment for of Medical Officers Year 1977-78, Name of Dr. (Mrs) P. P. Gulhane, Sr. Medical Officer, P.P.P. Daga Memorial Government Hospital, Nagpur. Appendix-A. From X, Form I-A.
(b) Letter of Dr. Mrs. P. P. Gulhane, Senior Medical Officer, Post Partum Programme, Daga Memorial Hospital, Nagpur, directed to the Medical Superintendent, Daga Memorial Hospital, Nagpur. Ref. Your Memo No. MMHS-CI. II/TA Bill PPG/5445 of 1977 dated 18-11-77 letter dated 21 Nov. 1977.
(c) Letter of Medical Superintendent, Daga Memorial (Govt) Hospital, Nagpur, dated 18-11-1977 No. MMHS-CI. II/T.A./Bill/PPG 5445/ of 1977 directed to Mrs. Dr. P. P. Gulhane.
(d) Letter dated 2-12-1977 of Medical Supdt., Daga Memorial Govt. Hospital, Nagpur, No. MMHS/CI/II/T.A. Bill/PPG/ /77 Ref : Her letter D/- 21st Nov. 1977 directed to Dr. Mrs. P. P. Gulhane.
(e) Letter D/- 3rd Dec. 1977 from the Medical Supdt., Daga Memorial (Govt.) Hospital, Nagpur, No. MMHS/CI-II/T.A. Bill/PPG/5642/ of 1977 directed to Mrs. P. P. Gulhane.
(ii) Documents in possession of Medical Officer., Primary Health Center, Kacherisawanga :
(a) Letter No. 630 D/- 17-6-1976 directed to District Health Officer, Zilla Parishad, Nagpur.
(iii) Documents in possession of Director of Health Services, Maharashtra State, Bombay, dated 7th August, 1975.
(a) Immediate Memo No. MMS/974/A dated 7-8-1975 Sd/- by V. N. Rao, Director of Health Services Bombay, Subject - Request for transfer from Dr. (Smt) P. P. Gulhane, Sr. Medical Officer, Post Partum Programme, District Hospital for Women, Akola, Ref. : Govt, Confidential letter UDPH and H.D. No. MMS/1273/77170/Med-IV, dated 1-7-1975.
(iv) Documents in possession of Deputy Director of Health Services, Nagpur Circle, Nagpur :-
(a) Confidential letter Dt. 29th Oct. 1977 from Dy. Director of Health Services, Nagpur Circle, Nagpur to the Civil Surgeon, Nagpur No. B/CLC/Complaint/8693 of 77 Sub-complaint of Shri V. S. Dhage, Jr. Clerk, Daga memorial (Govt) Hospital, Nagpur against Dr. (Mrs) P. P. Gulhane, Sr. Medical Officer, Post-Partum Programme, Daga Memorial Hospital, Nagpur.
(b) Letter D/- 5th Sept. 1977 directed to the Dy. Director of Health Services, Nagpur Circle, Nagpur, through the Medical Superintendent, Daga Hospital, Nagpur from Dr. Mrs. P. P. Gulhane, Sr. Medical Officer, Post Partum Programme, Daga Memorial Hospital, Nagpur.
(v) Documents in possession of Clerk of the Court, Civil Judge, Jr. Dn. Nagpur -
(a) Plaint in C.S. No. 81 of 1979 Vasant Sakharam Dhage v. Dr. Smt. P. P. Gulhane."
6. The complainant filed the say to the said application under Section 91 of the Cr.PC and contested the said application. However, the trial Court by its order dated 5-11-1981 was satisfied that the production of documents were necessary for persuing the evidence of the complainant and therefore the said application was allowed and the concerned authorities were directed to produce the aforesaid documents.
7. It will not be out of place to mention here that the complainant moved an application on 7-9-1983 (Exh. 102) before the trial Court under Section 294 of the Cr PC. In the said application the complainant prayed for issuance of notice to the accused persons to admit two documents, namely, (1) daily Marathi Newspaper 'Lokmat' dated 13-12-1978 under the caption "Shasnala Lutnari Lady Doctor" and (2) daily newspaper Lokmat dated 8-2-1980 having the news item "Sakhed Dilgiri," and the notice to admit these documents was issued to the accused persons. The accused persons vide their reply dated 20-10-1983 denied the correctness of the news item published under the caption "Sakhed Dilgiri" in the issue of the daily Lokmat dated 8-2-1980.
8. The accused persons also served upon a notice dated 7-7-1984 to the complainant to admit or deny the documents details of which were given by them in the application under Section 91, of the Cr PC and the details of which have been referred to hereinabove. The complainant submitted her reply to the said notice dated 7-7-1984 by way of application for deciding the preliminary issue/point about relevancy to otherwise of the documents and submitted that the Court should first decide the relevancy or otherwise of the documents listed by the accused as preliminary issue before proceeding in the matter in the interest of justice so as to enable the complainant either to admit or deny "those only relevant documents" on record. The trial Court vide its order dated 16-8-1984 overruled the objections of the complainant in the following terms :
"Heard the counsels. According to Shri Gulhane today he does not want to admit or deny the documents but wants to get this application decided on the ground that documents sought to be admitted or denied have no relevance with the case.
Unless the complainant examines the witnesses and they are cross-examined the relevancy of the documents cannot be decided at this stage of the trial. To ask the relevance of every document will amount to compel the accused to disclose the defence and line of cross examination. Certainly this will be prejudicial to the accused.
The accused has made it clear that their documents are to be used only for contradicting the complaint. So the relevancy can be decided only with reference to examination-in-chief and the question put in cross examination. If any part of document or documents or question is irrelevant, it would certainly be rejected and would not form part of evidence. Hence the order.
Order
Application is rejected. If the complainant wishes she may give admission or denial by 21-8-1984. Otherwise it will be held that complainant wants to deny the documents and case would proceed further."
On 21-8-1984 the complainant moved an application (Exh. 112) before the trial Court that she intended to challenge the aforesaid order dated 16-8-1984 and, therefore, the case be adjourned. The accused persons submitted their say to this application, and it was brought to the notice of the Court that vide order dated 5-11-1981 production of documents was ordered by the Court and against the said order the complainant had filed revision/application and the said revision application has already been dismissed by this Court and therefore the present application dated 21-8-1984 was intended to delay the trial and thereby prolong harassment to the accused persons. The trial Court vide its order dated 21-8-1984 passed the following order :
"The matter is pending since 1978. Revision against the order of production of documents has already been dismissed. It will not be proper and prudent to adjourn this old case only to enable the complainant to file revision.
The case is fixed for evidence on 14 and 15 of Sept. No adjournment would be granted. Complainant shall take all the steps to keep her witnesses present. Accused shall also keep their counsel present."
Thereafter the statement of the complainant and her cross-examination were recorded on 21-10-1988 and 4-2-1989.
9. The trial Court also recorded the statements of the accused persons under Section 313 of the Cr PC. All the accused persons in their statement under Section 313, of the Cr PC stated that the news item is based on true facts and has been published after verifying the correctness and truth of the news.
10. The Chief Judicial Magistrate, Nagpur after hearing the learned counsel for the parties and considering the evidence on record held that the complainant has failed to prove that on 13-12-1978 the accused persons in furtherence of their common intention defamed the complainant by printing and publishing the news item in daily Lokmat dated 13-12-1978 under the caption "Shasnala Lutnari Lady Doctor" knowing or having good reason to believe that such matter is defamatory making certain imputations against the complainant. In this view of the matter the Chief Judicial Magistrate, Nagpur acquitted all the accused persons of the offence under sections 500, 501 and 502 read with Section 34, of the Indian Penal Code.
11. In this appeal, the learned counsel for the complainant vehemently contended that the trial Court was not justified in acquitting the accused persons of the offence under Sections 500, 501 and 502 read with Section 34, of the Indian Penal Code. The learned counsel for the complainant submitted that the whole approach of the trial Court was erroneous inasmuch as there was presumption that the accused persons had not acted in good faith and that the imputations were not made by the accused persons in good faith for the protection of interest of the person making it or of any other person or for the public good and the said presumption has not been rebutted by the accused persons and the complainant has proved that by publishing the news item on 13-12-1978 in their newspaper Marathi daily 'Lokmat' imputations concerning the complainant were made intending to harm or knowing or having reason to believe that such imputation will harm the reputation of the complainant and therefore, the complainant has proved that the said news item was defamatory and the offences under Sections 500, 501 and 502 read with Section 34 of the Indian Penal Code were established by the complainant against the accused persons. Mr. Gulhane, learned counsel for the complainant also submitted that the trial Court committed serious error in considering the two documents namely, the Art, 1, letter dated 10-11-1977, office of M. S. Daga Hospital Nagpur, and the letter dated 7-8-1975, as proved and seriously erred in considering the same against the complainant. The learned counsel also placed strong reliance on the news item published in the Marathi daily 'Lokmat' dated 8-2-1980 under the caption "Sakhed Dilgiri" to show that the news item in Marathi daily 'Lokmat' dated 13-12-1978 under the caption "Shasnala Lutnari Lady Doctor" was false and not published in good faith and after due care and caution by the accused persons. Thus the learned counsel for the complainant submitted that the trial Court has committed a serious error of law and fact in acquitting the accused persons for the offences punishable under Sections 500, 501 and 502 read with Section 34, of the Indian Penal Code. The learned counsel for the complainant relied on the decisions in Harbhajan Singh v. State of Punjab , Chamanlal v. State of Punjab
Kharkar v. Mukund Chitnis (1991 Mh. LJ 1153) and Baburao v. S. K. Biban Baban (1984 Cri LJ 350).
12. In opposition to the submissions made by the learned counsel for the complainant, the learned counsel for the accused - respondents submitted that the trial Court has considered the evidence on record properly and the judgment of acquittal impugned in the present appeal does not suffer from any error of procedure, law or fact warranting interference by this Court. Mr. Darda, learned counsel for the accused persons strenuously urged that the complainant in her testimony has not been able to establish that the news item published in the Marathi daily Lokmat dated 13-12-1978 was false and amounted to defamation under Section 499, of the Indian Penal Code and therefore it cannot be said that the accused persons have committed the offence under Sections 500, 501 and 502 of the Indian Penal Code. The learned counsel for the accused persons submitted that exception nine to Section 499, of the Indian Penal Code can be proved by the accused persons even with reference to the cross examination of the complainant and preponderence of probabilities and strict proof by leading evidence by the accused persons is not required.
13. I have considered the rival contentions made by the learned counsel and perused the entire record and also the reasons given by the Chief Judicial Magistrate, Nagpur, acquitting the accused persons of the offence punishable under Section 500, 501 and 502 read with Section 34, of the Indian Penal Code.
14. Since the learned counsel for the complainant strongly objected to the consideration of documents, namely, Article 1 Memo No. MMHS-CI. II/T.A. Bill/PPG/5445 of 1977, office of the Medical Superintendent, Daga Memorial Government Hospital dated 10-11-1977 and the letter dated 7-8-1975, which according to the learned counsel for the complainant were not proved in accordance with law and, therefore, could not have been considered. I would first take up this argument of the learned counsel for the complainant. It would be seen that the accused persons moved an application under Section 91, of the Cr PC on 18-8-1981 for directions to the concerned authorities for production of the said documents for cross-examination of the complainant. The complainant objected to the said application and after hearing both the learned counsel for the parties, the trial Court by its order dated 5-11-1981 allowed production of the said documents and directed the concerned authorities to produce the documents mentioned in the application under Section 91, of the Cr PC and the concerned authorities produced those documents before the Court. It is also apparent from the record that the revision was filed against the said order of production of documents by the concerned authorities and the said revision was dismissed by this Court and, thereafter, the accused persons also gave a notice to the complainant to admit or deny these documents vide their application dated 7-7-1984. That application by way of notice to admit or deny the documents was also contested by the complainant by moving an application dated 16-8-1984 for deciding the preliminary issue/point about the relevancy or otherwise of the documents and trial Court by its order dated 16-8-1984 observed that the counsel for the complainant did not want to admit or deny the documents, but wanted to get the question decided on the ground that the said documents sought to be admitted or denied have no relevance in the case. The trial Court observed that unless the complainant examines the witnesses and they are cross-examined, the relevancy of the documents cannot be decided at this stage of trial and to ask the relevance of every document would amount to compel the accused to disclose the defence and line of cross examination, which would certainly be prejudicial to the accused. The trial Court also observed that the accused persons have made it clear that these documents are to be used only for contradicting the complainant and therefore relevancy could be decided only with reference to the examination-in-chief and questions put in cross-examination. The complainant examined herself as witness No. 1, and these documents were put to her in cross examination and she did not deny the correctness of the said documents in her cross examination. In this view of the matter, the argument of the learned counsel for the complainant that the said documents have not been formally proved is devoid of any merit. While the genuineness of the documents was not disputed dispite opportunity having been given after notice was served on the complainant and even in cross-examination by the complainant when she was confronted with the said documents, it cannot be said that any error of procedure or law has been committed by the trial Court. The said documents were produced before the Court under Section 91, of the Cr PC by the competent authorities, who were in possession of the said documents and despite opportunity being given to the complainant, the said documents were not denied. It may be observed that the documents which were produced under Section 91, of the Cr PC are not required to be proved like the documents which are produced by the prosecution or the accused. Moreover, in the present case the documents which were summoned under Section 91, of the Cr PC were produced pursuant to the summons, and produced by the persons who were in possession of the said documents and have only been used for the purpose of contradicting the complainant and that the complainant has been confronted with these documents in her cross-examination. Therefore, there is no merit in the submission of the learned counsel for the complainant that the documents Article 1 - MMHS CI. II/TA Bill/PPG/5445/ of 1977 Office of the Medical Superintendent, Daga Memorial Government Hospital dated 10-11-1977 and the letter dated 7-8-1975 has been erroneously considered by the trial Court without there being a formal proof of the said documents. The only evidence in support of the allegations made in the complaint is that of the complainant herself. In her examination-in-chief she has deposed that the news item dated 13-12-1978 published in the daily 'Lokmat' under the caption 'Shasnala Lutnari Lady Doctor' was defamatory. She also deposed in her examination-in-chief that she was transferred from Akola to Nagpur on her own request, but she has claimed the T.A. Bill in accordance with the rules. She also deposed that is was wrong to say that she has misused her power for her personal gain. In Cross-examination, however, she admitted that she was transferred to the Daga Memorial Hospital, Nagpur in 1975 and prior to that she was at Akola as Senior Medical Officer and she was transferred from Akola to Nagpur at her own request when she was confronted with the suggestion as to why she was required to go to Kacheri sawanga for tubectomic operations from 1975, she stated that she did not remember whether she was required to go to Kacheri-Sawanga. She was also cross examined about her visit to Bombay with reference to Article 'A' memo dated 10-11-1977 and she stated that she did not remember whether she had gone to Bombay in April 1977 or not. She also did not remember whether she has claimed T.A. Bill for her visit to Bombay in the month of April 1977 or not. She also did not remember whether her meeting at Bombay was on 22nd and 23rd April 1977 or not. As she did not remember whether any query was made to her with regard to her T.A. Bill for her visit to Bombay during the month of April 1977 from the Medical Superintendent, Daga Memorial Hospital on 18-11-1977. She also did not remember whether she had replied to that query on 21-11-1977 or not. She did not remember whether any query was made to her by the letter dated 10-11-1977 - Article 1 issued by the Medical Superintendent, Daga Memorial Hospital, Nagpur. In her cross examination she expressed her ignorance about the rule that when a Government servant is transferred on her own request she was not entitled to T.A. & D.A. she did not remember whether she submitted the bill of T.A. on her transfer to Nagpur from Akola, a transfer which was made on her own request. On being confronted with the letter dated 7-8-1975 issued by the Director of Health Services, Bombay to her, she stated that she did not remember whether she has received that letter or not.
15. The sole testimony of the complainant Dr. Pratibha Prabhakar Gulhane does not prove and is not sufficient to prove that the contents of the news item dated 13-12-1978 were incorrect and thus the complainant has failed to prove that the said news item published in Marathi daily Lokmat was published to harm the reputation of the complainant or with knowledge or reason to believe that the said news item would harm the reputation of the complainant. The evidence of the complainant is not sufficient to prove that the news item dated 13-12-1978 was defamatory. She has not been able to withstand the cross examination and, therefore, on the basis of such shaky testimony of the complainant the accused persons could not have been convicted for the offence under Sections 500, 501 and 502 read with Section 34, of the Indian Penal Code. Besides that, the defence of the accused persons in their statement under Section 313 of the Cr PC was that the published matter was correct and has been published after verifying the correctness and truth of the news. It is true that under Section 105, of the Evidence Act 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 any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances, and therefore the burden to prove that the case of the accused comes within the exception ninth of Section 499, of the Indian Penal Code was on the accused persons. To prove that the defence of the accused persons was covered under the ninth exception to Section 499, the burden was on the accused persons that the publication was made in good faith. The burden to prove that the case falls under any of the exceptions can be discharged by various ways and means. It was not necessary for the accused persons to lead positive evidence to prove that their defence was covered under the nineth exception to Section 499. The burden could be discharged by preponderance of probabilities and even by relying on cross examination of the complainant. In view of the cross examination of the complainant referred to hereinabove, I am of the opinion that the accused persons even otherwise by preponderance of probabilities have been able to discharge, dispel and dislodge the burden placed upon them to prove that their defence is covered under the nineth exception to Section 499, of the Indian Penal Code. The burden placed on the accused persons having been discharged by them as observed above, the complainant miserably failed to bring home the guilt of the accused persons that the publication made in the daily Lokmat was defamatory. The complainant thus failed to prove that the accused persons have committed the offence under Sections 500, 501 and 502 read with Section 34, of the Indian Penal Code and, therefore, it cannot be said that the trial Court has committed any error in acquitting the accused persons for the offence punishable under the aforesaid sections.
16. Adverting to the last argument of Mr. Gulhane, the learned counsel for the complainant, that the news published by the accused persons in their newspaper daily Lokmat on 8-2-1980 under the caption "Sakhet Dilgiri" shows that the accused persons had tendered apology and regrets for their news item dated 13-12-1978 and thus the news item dated 13-12-1978 is proved to be false and the trial Court could not have ignored the subsequent conduct of the accused persons by way of publication of the news item on 8-2-1980, it may be observed that the said news item dated, 8-2-1980 has been denied by the accused persons. As stated above, the complainant gave a notice of admission and denial of the news item dated 8-2-1980 to the accused persons vide applications dated 7-9-1983 (Exh. 102 and 103) and the accused persons by their reply Exh. 105 dated 20-10-1983 denied the correctness of the news published under the caption "Sakhet Dilgiri" in the issue of daily Lokmat dated 8-2-1980. Thus the said news item having been denied, the complainants has not led any evidence to prove the news item dated 8-2-1980. The complainant in her statement has not said a word about the news item dated 8-2-1980 and that is why in the statement under Section 313 of Cr.PC none of the accused persons were put any question relating to news item dated 8-2-1980. In this view of the matter, the trial Court was fully justified in not taking into consideration the news report dated 8-2-1980 published in the daily Lokmat.
17. None of the authorities referred to by the learned counsel for the complainant has any application in the facts and circumstances of the present case and, therefore, do not require any further discussion.
18. In view of the reasons stated above, I find myself in full agreement with the judgment of acquittal passed by the trial court and the said judgment does not call for any interference by this Court.
19. Consequently this appeal against the judgment of acquittal dated 29-6-1989 passed in Criminal Case No. 2269 of 1978 Dr. Mrs. Pratibha Prabhakar Gulhane v. Jawaharlal Darda and others by the Chief Judicial Magistrate, Nagpur, acquitting the accused persons (respondent Nos. 2 to 4 herein) for the offence under sections 500, 501 and 502 read with Section 34, of the Indian Penal Code, has no merit and is accordingly dismissed.
20. Appeal dismissed.
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