# Mr. R.P. Goenka & Ors v. State of U.P. & Anr

- **Citation:** (2019) 4 ILRA 59
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-22
- **Case number:** Crl. Misc. Application (U/S 482 Cr. P.C.) No. 1910 of 1997
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mr-r-p-goenka-ors-v-state-of-u-p-anr-45022
- **Pages:** 16

## Headnote

A. Criminal Law - Indian Penal Code, 1860
- Section 499 & 500- Defamation- Code of
Criminal Procedure - Section 482 - Indian
Evidence Act, 1872- At the stage of
summoning the accused, a Magistrate is
not supposed to pass a detailed judgement
but the order must reflect application of
mind- Magistrate must be satisfied that
there is material to issue process, in
absence of which, the Magistrate will
refrain from taking cognizance under
Section 190(1)(a) Cr.P.C. Ex-facie an
offence of defamation requires a false
statement and if a statement itself is not
false then Section 499 IPC is not attracted-
Exceptions laid down in Section 499
cannot be considered at the time of issuing
process by the Magistrate since the same
are defence of the accused - If an
inference is drawn by the person claiming
that before him the statement was made
then that person has to verify that a
statement justifying such inference was
made and unless such fact is not brought
before
Court
concerned,
any
other
statement of a person would amount to
hearsay and cannot be said to have proved
the
commission
of
the
offence
of
"defamation". A newspaper reporting is a
hearsay secondary evidence and not
admissible in evidence without proper
proof of contents under Indian Evidence
Act,
1872-
Trial
Court
cannot
treat
newspaper report as duly proved only by
production of copies of newspaper which
was not "legal evidence". Complainant
having implicated several other persons
who did not make the alleged statement is
ex facie illegal and amounts to gross abuse
of process of law.

Application u/s 482 Cr.P.C allowed. (E-3)

List of cases cited: -

## Text

_Characters 0–39,784 of 51,731. This is a partial read: ask again with offset=39784 for what follows._

4 All. Mr. R.P. Goenka & Ors. Vs. State of U.P. & Anr.
59

14. In Maksud Saiyed Vs. State of
Gujarat and Others (2008) 5 SCC 668,
Court said :

"it is obligatory on the part of
the
complainant
to
make
requisite
allegations which would attract the
provisions
constituting
vicarious
liability".

 (emphasis added)

15. In Sharad Kumar Sanghi Vs.
Sangita Rane (2015) 12 SCC 781, Court
said:

"When a complainant intends
to
proceed
against
the
Managing
Director or any officer of a company, it is
essential to make requisite allegation to
constitute the vicarious liability."

 (emphasis
added)

16. In S.M.S. Pharmaceuticals
Ltd. Vs. Neeta Bhalla and Another
(2005) 8 SCC 89, while dealing with an
offence under Section 138 of Act, 1881,
Court said:

"It is necessary to specifically
aver in a complaint under Section 141
that at the time the offence was
committed, the person accused was in
charge of, and responsible for the conduct
of business of the company. This averment
is an essential requirement of Section
141 and has to be made in a complaint.
Without this averment being made in a
complaint, the requirements of Section
141 cannot be said to be satisfied."
(emphasis added)

17. The same principle has been
reiterated
in
Maharashtra
State
Electricity Distribution Co. Ltd. and
Others Vs. Datar Switchgear Ltd. and
Others (2010) 10 SCC 479 and GHCL
Employees Stock Option Trust Vs.
India Infoline Ltd. (2013) 4 SCC 505.

18. In Sharad Kumar Sanghi
(supra) Court also said:

"When a company has not
been arrayed as a party, no proceeding
can be initiated against it even where
vicarious liability is fastened on certain
issues."

(emphasis added)

19. In view of above discussion,
proceedings initiated against applicant for
committing
offence
under
Section
29(1)(a) of Act, 1968 cannot be sustained.

20. Application is accordingly
allowed. Proceedings initiated against
applicant in Complaint Case No. 8976 of
2004 under Sections 29 (1)(a) of Act,
1968, Police Station Kavi Nagar, District
Ghaziabad, are hereby quashed.
----------

(2019)12 ILR A59

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
960 of 1997 connected with

 Crl. Misc. Application (U/S 482 Cr. P.C.) No.
1910 of 1997

Mr. R.P. Goenka & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
60 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri S. Trivedi, Sri Mohit Singh, Sri
Shashank Shekhar Mishra, Sri Shiv Kumar
Singh Rajawat, Ms. Saumya Chaturvedi,
Ms. Tanisha J. Munir

Counsel for the Opposite Parties:
A.G.A., Sri A.K. Awasthi, Sri Manish tiwari,
Sri V.C. Tewari, Sri Nikhil Chaturvedi

A. Criminal Law - Indian Penal Code, 1860
- Section 499 & 500- Defamation- Code of
Criminal Procedure - Section 482 - Indian
Evidence Act, 1872- At the stage of
summoning the accused, a Magistrate is
not supposed to pass a detailed judgement
but the order must reflect application of
mind- Magistrate must be satisfied that
there is material to issue process, in
absence of which, the Magistrate will
refrain from taking cognizance under
Section 190(1)(a) Cr.P.C. Ex-facie an
offence of defamation requires a false
statement and if a statement itself is not
false then Section 499 IPC is not attracted-
Exceptions laid down in Section 499
cannot be considered at the time of issuing
process by the Magistrate since the same
are defence of the accused - If an
inference is drawn by the person claiming
that before him the statement was made
then that person has to verify that a
statement justifying such inference was
made and unless such fact is not brought
before
Court
concerned,
any
other
statement of a person would amount to
hearsay and cannot be said to have proved
the
commission
of
the
offence
of
"defamation". A newspaper reporting is a
hearsay secondary evidence and not
admissible in evidence without proper
proof of contents under Indian Evidence
Act,
1872-
Trial
Court
cannot
treat
newspaper report as duly proved only by
production of copies of newspaper which
was not "legal evidence". Complainant
having implicated several other persons
who did not make the alleged statement is
ex facie illegal and amounts to gross abuse
of process of law.

Application u/s 482 Cr.P.C allowed. (E-3)

List of cases cited: -

1. R.P. Kapur Vs St. of Punjab AIR 1960 SC 866

2. Ramachandra Venkataramanan Vs Shapoorji
Pallonji & Co.Ltd. 2019 SCC OnLine Bom 524

3. Mehmood Ul Rehman Vs Khazir Mohammad
Tunda (2015) 12 SCC 420

4. Smt. Kiran Bedi Vs Committee of Inquiry
and anr 1989 (1) SCC 494

5. Board of Trustees of the Port of Bombay Vs
Dilipkumar Raghavendranath Nadkarni and Ors
(1983) 1 SCC 124

6. Vishwanath S/o Sitaram Agrawal Vs Sau.
Sarla Vishwanath Agrawal 2012 (6) SCALE 190

7. Kishore Samrite Vs St. of U.P. and Ors 2013
(2) SCC 398

8. Samant N. Balkrishna and anr. Vs George
Fernandez and others, 1969(3) SCC 238

9. Laxmi Raj Shetty and anr. Vs State of Tamil
Nadu, 1988(3) SCC 319

10. Quamarul Islam Vs S.K. Kanta and ors,
1994 Supp. (3) SCC 5

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri G.S. Chaturvedi, learned
Senior Advocate assisted by Ms. Saumya
Chaturvedi,
Advocate
and
SriArvind
Verma, learned Senior Advocate assisted by
Ms. Tanish J. Munir, Advocate for
applicants and Sri Nikhil Chaturvedi,
learned A.G.A. for State as well as Sri
Manish Tiwari, Advocate for ComplainantRespondent.

2. Both these applications have been filed
against same proceedings pending in the Court
of 9th Additional Chief Judicial Magistrate,
Ghaziabad, hence were heard together and are
being decided by this common judgment.
4 All. Mr. R.P. Goenka & Ors. Vs. State of U.P. & Anr.
61

3. Application No. 960 of 1997 has
been filed by 12 applicants with a prayer
to quash Complaint No. 447 of 1996 filed
by Respondent-2 in the Court of 9th
Additional Chief Judicial Magistrate,
Ghaziabad
and
entire
proceedings
including Criminal Case No. 2234 of
1996 as also bailable warrant dated
11.09.1996
issued
by
Magistrate
concerned against applicants.

4. Applicant-1 is the Chairman of
M/s Gramaphone Company of India Ltd.
(hereinafter referred to as "GCIL")
having its registered office at 33, Jessore
Road, Dumdum, Calcutta. Applicants-2,
5, 7, 8, 9 and 11 were Directors of GCIL
when
application
was
filed
and
Applicants-4, 6 and 12 were former
Directors
having
ceased
w.e.f.
07.03.1996, 30.11.1995, and 01.011.1995
respectively. Similarly Applicants-3 and
10 were Directors and ceased to be so
w.e.f.
15.11.1996
and
28.06.1996
respectively.

5. GCIL is engaged in the business
of manufacturing and marketing of Sound
Recordings,
Audio
Cassettes
and
Compact Discs etc. with the Trademark
Logo "HMV". In 1994 GCIL got copy
right ownership of sound track recordings,
lyrics and musical composition in respect
of film "Hum Apke Hain Kaun". Towards
end of December, 1994 M/s Super
Cassettes
Industries
Ltd.,
i.e.,
Respondent-2 also introduced Audio
Cassettes of aforesaid film infringing
copy rights of GCIL. It resulted in a
litigation inasmuch as GCIL filed Suit
No. 2924 of 1994 in Delhi High Court.

6. Respondent-2, i.e., Complainant,
filed a complaint under Sections 500, 501,
502 read with Sections 34 and 120B IPC
against all the applicants and five others
stating that a news item was published in
"The Economic Times" dated 10.05.1996
with the title "Gramaphone Co-accuses TSeries of faking HMV cassettes" and
published a defamatory article/ news item,
in connivance and conspiracy of accused,
against Chairman and Managing Director,
Sri Gulshan Kumar and Company. The
said news item reads as under:

"Gramaphone Co accuses TSeries of faking HMV cassettes

Mr.
Sanjiv
Goenka,
vicechairman, The Gramaphone Company of
India Ltd. (GCIL), today accused TSeries of faking HMV audio cassettes.

Talking to reporters after the
company's extraordinary general meeting,
Mr. Goenka said some 65,000 cassettes
of the popular Hindi film 'Hum Apke
Hain Kaun' were seized from the
premises of T-Series in January.

T-Series, which has emerged as
possibly
the
fastest
growing
music
company, is owned by Mr. Gulshan
Kumar.

Attacking the organization, Mr.
Goenka said: "T-Series is hampering the
Gramaphone Company in fighting the
counterfeit problem."

Already, a similar case between
the two companies is pending before the
Delhi High Court.

Earlier, during the meeting the
GCIL board passed the special resolution
for restructuring the company's capital.

The company has decided to
slash its capital base by 60 per cent to
enable the company which has now come
out of the BIFR ambit to pay dividend
within the current financial year.

The
extraordinary
general
meeting also passed a resolution to float a
wholly owned international subsidiary in
62 INDIAN LAW REPORTS ALLAHABAD SERIES
the name of RPG Music International Ltd.
to fully exploit the potential of Indian
music, which is quite popular abroad.

The overseas assets of GCIL
will be transferred to this company.

GCIL, taken over by the R.P.
Goenka group in the early 1980s and only
recently deregistered from the BIFR's sick
list, had an accumulated loss of Rs. 15
crore on March 1995.

Under the resolution passed
today, each Rs. 10 equity share would be
reduced to a Rs. 4 equity share and,
thereby, the company's existing equity
capital of Rs. 18.17 crore would be
reduced to Rs. 7.27 crore.

The company would seek the
permission of the Calcutta High Court to
undertake the reduction in equity.

Minority
shareholders,
however, expressed their resentment at
the
proposed
plan
expressing
dissatisfaction at being deprived of Rs. 6
in their existing share.

 However, the capital reduced
would increase the earnings per share
(EPS) of the company by at least two-andhalf times and hence total market
capitalisation of the company would go
up.

The
holding
of
the
RPG
Enterprise in GCIL is around 50 per cent,
while 25 per cent is held by the financial
institutions.

Another 10 per cent is held by
the EMI and 15 per cent by minority
shareholders." (Emphasis added)

7.

Complainant
alleged
that
Chairman and Managing Director, Sri
Gulshan
Kumar
of
ComplainantCompany was shocked to read the entire
article pertaining to them as it has no
truth. Complainant-Company has made
audio cassettes of aforesaid film in
compliance of provisions of Copyright
Act, 1957 and paid prescribed royalty to
accused company, i.e., GCIL. All the
accused persons conspired together to
discredit, humiliate, denigrate and defame
complainant in the estimation of right
thinking
members
of
society
(dissimulating)
by
publishing
false,
frivolous
and
defamatory
article
containing
imputations
against
Sri
Gulshan Kumar, Chairman and Managing
Director
of
Complainant-Company.
Imputations against them were made,
edited, printed and published by accused
persons in furtherance of their conspiracy
with common intention to defame and
denigrate the complainant as an industry,
industrialist, social and religious person of
high morale, standard and dignity in
society at large. Complainant sent a legal
notice dated 11.05.1996 which remained
unreplied.
Accused
persons
edited,
printed, published and circulated the
aforesaid article containing false, reckless
and
defamatory
remark
against
complainant
and
its
Chairman
and
Managing Director without any substance
and there was no relevancy to make such
defamatory remarks in extraordinary
general meeting of GCIL. Accused
persons have no reason or excuse and are
not protected under any law to make such
false, frivolous and reckless imputations
against Chairman and its Managing
Director. The acts and deeds of accused
are not exempted under any of exceptions
provided under Section 499 IPC or under
any other Act. Accused persons are fully
aware that imputations made by them
against complainant has no truth. They
were also aware that defamatory remarks
will injure reputation of complainant. The
sole objective of accused persons was
only to harm reputation of complainant.
4 All. Mr. R.P. Goenka & Ors. Vs. State of U.P. & Anr.
63
Accused persons have no privilege under
any law to publish libel/ defamatory
articles against complainant. Complainant
and its Chairman/ Managing Director
have suffered ill reputation among fellow
traders, industrialists, industries, dealers,
family member, employees, directors,
officers, associates and members of
society who have started looking down on
complainant and as such it has also
suffered
reputation/
image
amongst
industries, traders, dealers, stockists,
business circle etc., who has started
asking questions and complainant is
facing an uphill task in satisfying
everyone. Several persons have sent, to
complainant, in writing, that after going
through the above said news item they
have lost faith in honesty of complainant
and its Chairman/ Managing Director.
GCIL and other members of society have
also
read
the
entire
defamatory
publication. Complainant's friends and
others
have
made
enquiries
from
complainant on telephone at Plot No. 1,
Film Center, Sector 16A, Noida, District
Ghaziabad, where complainant has its
Corporate Office. Complainant has also
read defamatory language published in
said newspaper at Film Center, Noida.
Newspaper was being circulated and sold
in the area of Noida and Ghaziabad
through various vendors. The act done by
accused persons constitute an offence
publishable under Sections 500, 501, 502
read with Sections 34/120B IPC.

8.

After
registering
aforesaid
complaint, Magistrate recorded statement
of Sri S. Kanan, Senior Executive, Super
Cassettes Industries Ltd. on 01.06.1996
under Section 200 Cr.P.C. Statements of
Sri Aditya Kumar Jain, Advocate and Sri
Gulshan Kumar son of Sri Chandra Bhan
were recorded under Section 202 Cr.P.C.
Thereafter Magistrate passed order on
14.06.1996 mentioning that on the basis
of evidence and material on record there
are sufficient ground to proceed against
Accused-1 to 17 in complaint for an
offence punishable under Section 500 IPC
and consequently it summoned accused
persons to appear for trial. On 11.09.1996
when accused persons were not present,
Magistrate issued bailable warrant to all
accused persons and it is at this stage this
application has been filed.

9. Application No. 1910 of 1997 has
been filed by sole applicant-Sanjeev
Goenka in his capacity as Vice Chairman
of GCIL against aforesaid Criminal Case
No. 2234 of 1996 arising from Complaint
No. 447 of 1996 wherein summoning
order was issued on 11.09.1996 and,
therefore, facts being common, are not
repeated.

10. Sri G.S. Chaturvedi, learned
Senior Counsel appearing for applicants
contended
that
alleged
statement
attributed to Sri Sanjeev Goenka, Vice
Chairman, GCIL, does not constitute a
defamatory statement and, therefore,
Section 500 IPC is not attracted at all and
Magistrate has not applied its mind on
this aspect. He further contended, when
statement alleged to have been made only
by Sri Sanjeev Goenka, accusation by
impleading Applicants-1 and 3 to 12, in
Application No. 960 of 1997, is wholly
illegal and Magistrate without application
of mind on this aspect, in a mechanical
manner, has issued summons to all the
accused and for this reason alone,
summoning order and entire proceedings
are vitiated against the applicants. He next
contended that there was no legal
evidence available before Magistrate
justifying inference, even prima facie, to
64 INDIAN LAW REPORTS ALLAHABAD SERIES
be drawn that applicants are guilty of
committing offence under Section 500
IPC, therefore, also entire proceedings are
illegal and liable to be set aside. He said
that entire complaint and evidence is
founded on news item published in
newspaper and no person before whom
alleged statement said to have been made
was examined. Statement of Sri S. Kanan,
Senior
Executive
of
Respondent-2
recorded under Section 200 Cr.P.C. and
two alleged persons whose statements are
recorded under Section 202 Cr.P.C. are all
strangers and third parties who have no
knowledge about the matter except what
they derived from reading of newspaper.
Therefore, alleged witnesses are nothing
but strangers and hearsay. A newspaper
by itself is not admissible in evidence
unless the person reported the matter is
also examined and, therefore, entire
proceedings initiated, only on the basis of
newspaper article is clearly founded on no
legal
evidence
at
all,
therefore,
proceedings initiated against applicants
are nothing but gross abuse of process of
law, hence, entire proceedings are liable
to be set aside. He lastly contended that
Magistrate has not examined the matter
that there was an apparent business rivalry
among complainant-Respondent-2 and
GCIL
of
which
applicants
were
Chairman/Vice-Chairman/
Directors,
sitting or former, and a suit was already
pending in Delhi High Court wherein
CGIL
has
made
complaint
that
Respondent-2 has committed breach of
copyrights. To pressurize and blackmail
accused applicants and as a counterblast,
above
complaint
was
made
and
unfortunately,
Magistrate
without
application of mind has proceeded to
summon accused applicants, therefore,
there is a serious legal error on the part of
Magistrate
and
entire
proceedings
amounts
to
harassment
of
accused
applicants by initiating wholly unlawful,
not maintainable and illegal proceedings.

11. Sri Arvind Verma, learned
Senior Advocate adopting arguments of
Sri Chaturvedi in connected application
also reiterated the said arguments and
both learned Senior Advocates placed
reliance on Supreme Court's judgement in
R.P. Kapur Vs. State of Punjab AIR
1960 SC 866 and a Single Judge
judgement of Bombay High Court in
Ramachandra Venkataramanan Vs.
Shapoorji Pallonji & Company Ltd.
2019 SCC OnLine Bom 524.

12. Learned counsel appearing for
Respondent-2, on the contrary, submitted
that a perusal of complaint as also the
statements recorded by Magistrate under
Sections
200
and
202
Cr.P.C.
categorically show commission of an
offence punishable under Section 500 IPC
and, therefore, Magistrate has rightly
summoned accused-applicants and they
are liable to be tried for the said offence,
hence, no interference is called for and
would be justified by this Court. He
submitted that at the stage of summoning
accused persons in a complaint case,
Magistrate's scope of enquiry is confined
to the complaint and evidence adduced
before it and it cannot examine the merit
and demerits of case in detail. Magistrate
has done what was required by it and it
cannot be said that from the material
placed on record, prima facie offence
punishable under Section 500 IPC is not
made out, therefore, both the applications
deserve
to
be
dismissed
and
no
interference would be justified.

13. I have heard learned counsel for
parties at length and perused record as
4 All. Mr. R.P. Goenka & Ors. Vs. State of U.P. & Anr.
65
also authorities and relevant law on the
subject.

14. At the stage of summoning accused
persons, a Magistrate is not supposed to pass
a detailed judgement. The requirement,
however,
is
that
order
must
reflect
application of mind. Magistrate must be
satisfied that there is material to issue
process. If complaint on the face of it does
not disclose commission of an offence or if
there is no legal evidence in support of
complaint to prove the charge, then
Magistrate will refrain itself from taking
cognizance under Section 190(1)(a) Cr.P.C.
In Mehmood Ul Rehman Vs. Khazir
Mohammad Tunda (2015) 12 SCC 420,
Court said that satisfaction for proceeding
would mean that the facts alleged in the
complaint would constitute an offence and
when considered along with the statements
recorded, would, prima facie, make the
accused answerable before Court. If no
application of mind is evident or no offence
is made out, Court said that High Court
under Section 482 Cr.P.C. is bound to invoke
its inherent power in order to prevent abuse
of power of Court.

15. Section 499 IPC provides as to
what is "defamation" and reads as under:-

"499. Defamation.--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 expected, to defame that person."

16. There are four Explanations and
ten Exceptions in Section 499 IPC which
I had not quoted.

17. Explanations covers some
shades of the words, spoken or intended
to be read etc., which may amount to
"defamation" while exceptions give the
illustrations of what will not constitute
"defamation". To be more particular,
Explanations-1, 2 and 3 provide certain
aspects
which
would
amount
to
defamation and Explanation-4 explains
the words "will harm the reputation of
such person" which is a necessary and
integral part of Section 499 IPC so as to
constitute
defamation.
Offence
of
defamation, therefore, consists of three
essential ingredients. (i) making or
publishing an imputation concerning a
person; (ii) such imputation must have
been made by words either spoken or
intended to be read or by signs or by
visible representations; and, (iii) the said
imputation must have been made with the
intention
of
harming
or
with
the
knowledge or having reason to believe
that it will harm the reputation of the
person concerned.

18. Thus, to bring an offence under
Section 500 IPC, prosecution has to show,
(a)
that
an
imputation
was
made
consisting of words spoken or written or
intended to be read or made by signs or
by visible representations; (b) that the
imputation concerned the complainant i.e.
the person defamed and the person who
has come forward qua complainant
alleging that defamation concerned him,
are identical persons; (c) that the accused
made or published the incriminating
imputation; and, (d) that the intention
behind making and publishing words
causing harm to the reputation of such
person.

19. Offence punishable under
Section 500 IPC, therefore, is to protect a
fundamental right of a person i.e.
66 INDIAN LAW REPORTS ALLAHABAD SERIES
'reputation' which is part of right to
enjoyment of life and liberty and property
having an ancient origin as explained by
Supreme Court in Smt. Kiran Bedi v.
Committee of Inquiry and another
1989 (1) SCC 494 wherein Court
reproduced the observations from D.F.
Marion v. Davis 10 55 ALR 171 as
under:-

"The right to enjoyment of a
private
reputation,
unassailed
by
malicious slander is of ancient origin,
and is necessary to human society. A
good reputation is an element of
personal security, and is protected by the
Constitution equally with the right to the
enjoyment of life, liberty and property. "
 (emphasis added)

20. In Board of Trustees of the
Port
of
Bombay
vs.
Dilipkumar
Raghavendranath
Nadkarni
and
Others (1983) 1 SCC 124, Court said that
"right to reputation" is a facet of right to
life of a citizen under Article 21 of
Constitution.

21. In Vishwanath S/o Sitaram
Agrawal v. Sau. Sarla Vishwanath
Agrawal 2012 (6) SCALE 190, Court
dealt with the aspect of "reputation"
though in a different context, and said:-

"........reputation which is not only
the salt of life, but also the purest treasure
and the most precious perfume of life. It is
extremely delicate and a cherished value this
side of the grave. It is a revenue generator
for the present as well as for the posterity. "
(emphasis added)

22. In Kishore Samrite Vs. State of
U.P. and Others 2013 (2) SCC 398,
Court said:-

"The term 'person' includes not
only the physical body and members but
also every bodily sense and personal
attribute among which is the reputation a
man has acquired. Reputation can also be
defined to be good name, the credit, honour
or character which is derived from a
favourable public opinion or esteem, and
character by report. The right to enjoyment
of a good reputation is a valuable privilege
of ancient origin and necessary to human
society. 'Reputation' is an element of
personal security and is protected by
Constitution equally with the right to
enjoyment of life, liberty and property.
Although 'character' and 'reputation' are
often used synonymously, but these terms are
distinguishable. 'Character' is what a man is
and 'reputation' is what he is supposed to be
in what people say he is. 'Character' depends
on attributes possessed and 'reputation' on
attributes which others believe one to
possess. The former signifies reality and the
latter merely what is accepted to be reality at
present. ". (emphasis added)

23. Offence under Section 500 IPC,
therefore, covers a very important aspect
involving a person's right to life and
liberty, hence when a complaint is made
that a person's reputation has been
jeopardized, any Magistrate if has taken
cognizance in the matter by initiating
proceedings, Court under Section 482
Cr.P.C. or in writ jurisdiction under
Article 226 of Constitution should not
interfere lightly unless a clear case of
abuse of process of law is made out. I,
therefore, would examine the matter in
question, whether here a case of abuse of
process has been made out or not.

24. Before coming to other aspects
of the matter, first of all, straightway I
propose to consider whether news item,
4 All. Mr. R.P. Goenka & Ors. Vs. State of U.P. & Anr.
67
said to have been published in daily
newspaper "The Economic Times", taking
on the face of it to be correct, satisfy the
requirement of Section 499 IPC so as to
constitute an offence of defamation
punishable under Section 500 IPC.

25. The published news items has
various parts. The first part, talks of
alleged statement made by Sri Sanjeev
Goenka; second part, talks of a case
pending between two companies in Delhi
High Court; and, third part, deals with the
meeting of GCIL Board and passing of
resolution for restructuring the Company's
capital and
gives some
details
of
restructuring
of
Company
and
shareholding thereof.

26. For the purpose of present case,
though second part i.e. pendency of case
between two companies i.e. GCIL and TSeries in Delhi High Court, as per
applicants, is the genesis for entire dispute
but
as
per
complaint
made
by
Respondent-2, it is the first part of news
item which has caused in commission of
offence punishable under Section 500
IPC. The first part of news item again
talks of two things. One is, what has been
said by Mr. Goenka and another,
inferential
news
which
reflects
the
conclusion drawn by Reporter. Two
statements are said to have been made by
Sri Goenka in the aforesaid news item; (a)
"Mr. Goenka said, some 65000 cassettes
of popular Hindi film "Hum Aapke Hain
Kaun" were ceased from the premises of
T-Series in January", and (b) "Mr.
Goenka said, T-Series is hampering the
Gramaphone Company in fighting the
counterfeit problem".

27. The remaining two sub-parts of
first part of above news item show the
inference drawn by Newspaper Reporter
and these sub-parts are; (i) Mr. Sanjeev
Goenka, Vice-Chairman, the Gramaphone
Company of India Limited (GCIL), today
accused T-Series of faking HMV audio
cassettes and (ii) T-Series, which has
emerged as possibly the fastest growing
music company, is owned by Mr. Gulshan
Kumar.

28. Obviously, the inference drawn
by
Newspaper
Reporter
cannot
be
attributed to be the statement of Sri
Goenka unless such statement is brought
on record to show that statement causing
inference drawn by Newspaper Reporter
was also stated by Sri Goenka and the
said inference is not an extra stretching of
a fact which as such has not been uttered
by the person to whom it is attributed.

29. The first part of statement
of Mr. Goenka, published in news items,
relates to a fact and another is the opinion
formed by Mr. Goenka on a particular
aspect.

30. Now, when I go through the
complaint, I do not find even a whisper
stating that statement of Mr. Goenka that
"65000 cassettes of Hindi film "Hum
Aapke Hain Kaun" were ceased from the
premise of T-Series in January", is a false
statement and no such seizure had taken
place. In the complaint, newspaper article
has been reproduced in para-10 and
thereafter from paras-11 to 17 it is said
that aforesaid news item constitute an
offence of defamation punishable under
Section 500 IPC but I do not find even a
whisper in the entire complaint that this
statement of fact alleged by stated by Mr.
Goenka that a particular number of
cassettes were seized from the premise of
T-Series, is false and incorrect. When
68 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid statement was not shown
incorrect in entire complaint, I do not find
that utterance of such statement of fact do
constitute an offence of "defamation" as
defined
in
Section
499
IPC
and
punishable under Section 500 IPC. Exfacie an offence of defamation required
firstly, a false statement and if a statement
itself is not false, one need not go further
as to whether such statement has the
effect of damaging one's goodwill or
reputation or image, inasmuch as, if a
statement of fact which is not false is
uttered then Section 499 IPC is not
attracted at all.

31. Further the alleged statement of
Mr. Goenka, when talks of seizure of
cassettes from the premise of T-Series,
nowhere stated that said cassettes were
fake. This part of statement in news item
is an inference drawn by Newspaper
Reporter and on what basis he drew this
inference, atleast from the two statements
of Mr. Goenka, which are reproduced in
aforesaid news item, it is difficult to find
any reason for forming such opinion.
Reporter may have extended the word
"seizure" in the manner that seizure must
be of fake cassettes.

32. The second part of alleged
statement of Mr. Goenka shows that TSeries is obstructing GCIL fighting
against counterfeit problem but it does not
show or statement suggests that T-Series
itself is indulged in counterfeit cassettes
and is encouraging the same. Further, Mr.
Goenka has not named Respondent-2 at
all i.e. Super Cassettes Industries Limited
or its Chairman and Managing Director,
Sri Gulshan Kumar. That is a fact stated
in the News item by Newspaper Reporter
and he has said on his own that T-Series
Company is owned by Sri Gulshan
Kumar. I do not find that from reading of
newspaper item that any common man
would immediately relate it to M/s Super
Cassettes
Industries
Limited
as
Respondent-2 has not been named by Mr.
Goenka.

33. Rest averments contained in
paras- 11 to 15 of complaint are the
manner of reaction of Mr. Gulshan Kumar
after reading said news item and his
friends, members of society etc. known to
him which would be irrelevant if the news
item itself fails to bring applicants within
the catch of Sections 499/500 IPC.

34. In a matter, complaining of
offence
of
defamation,
the
alleged
statement has to be appreciated in a
manner which will be read, understood
and viewed by right thinking and
reasonable minded person of ordinary
prudence. The statement has to be read
and understood in its entirety and not
selectively, in piecemeal, or by adding
something which is not there. Natural and
ordinary meaning of words would be
supplied and what meaning and message
it would convey to a man of ordinary
prudence is a crucial aspect. Imputation of
fraud, dishonesty and corruption in any
manner
directly
attributing
to
complainant, no doubt, would amount to
defamation but every statement which is
not liked by complainant himself cannot
be said to be a defamatory statement.

35. I have no manner of doubt that
while considering the questions, whether
an offence under Section 499 IPC
punishable under Section 500 IPC has
been committed, and whether Magistrate
is justified in issuing process, the
4 All. Mr. R.P. Goenka & Ors. Vs. State of U.P. & Anr.
69
exceptions laid down in Section 499 IPC
would not be considered since the same
are defence available to accused and not
to be looked into at the stage of issue of
process by Magistrate but he (Magistrate)
yet has to examine whether alleged
statement, if read, as it is, do satisfy the
requirement of "defamation" as defined in
Section 499 IPC. It cannot be ignored that
different persons react to the same
situation
differently,
had
different
assessments and judgment of a situation
and facts are based on human nature,
mindset, approach, intelligentsia and
ability of appreciation. Reaction of a
reasonable person or right thinking
member of society to the words spoken is
a relevant consideration to find, whether
statement
in
question
amounts
to
defamation. Section 499 IPC clearly
provides that statement of imputation
must be with the intent of causing harm or
having
reason
to
belief
that
such
imputation will harm reputation of the
person about whom it is made. Meaning
thereby, the identity of person in respect
of whom the statement is made must be
clear from the statement itself and not
from the inference drawn by the person
who claims that in his presence or before
him an statement was made.

36. Further, if an inference is drawn
by the person claiming that before him the
statement was made then first of all it is
the person who has drawn inference has
to verify that a statement justifying such
inference was made and unless such fact
is not brought before Court concerned,
any other statement of a person would
amount to a hearsay and cannot be said to
have proved that an offence under Section
499 IPC punishable under Section 500
IPC has been committed. Thus prima
facie I am of the view that alleged
statements of Mr. Goenka which are
reported in aforesaid news item do
constitute an offence of defamation under
Section 499 IPC and punishable under
Section 500 IPC is made out.

37. Then the next aspect on which
non-application of mind by Magistrate is
clear, is that, the news item very clearly
and categorically refers to Mr. Goenka
who made alleged statement constituting
defamation but in the complaint several
persons, i.e., Applicants-1 and 3 to 12 in
Application No. 960 of 1997 have been
implicated. Alleged statement nowhere
shows that they either authorised Mr.
Suneel Goenka to make such statement or
that he was talking on behalf and under
authority of all these persons to make
such statement. News item itself refers to
the statement of Mr. Sanjeev Goenka only
and
not
anyone
else.
Therefore,
implication of persons other than Sri
Goenka in the complaint by complainantRespondent-2 is ex facie illegal and
amounts to gross abuse of process of law.
Magistrate having failed to apply its mind
on this aspect has committed gross
illegality and summoning orders issued to
other persons, i.e., Applicants-1 and 3 to
12 in Application No. 960 of 1997 is
clearly illegal and cannot be sustained.

38. The next submission is that
witnesses examined by Court below were
all strangers and their statements are
nothing but hearsay, inadmissible in
evidence at all, and there was no legal
evidence whatsoever since reporter of
newspaper before whom the statement
allegedly made, was not examined and
newspaper by itself is not admissible in
evidence, therefore, entire proceedings are
illegal and bad in view of law laid down
in R.P. Kapur (supra) which says that if
70 INDIAN LAW REPORTS ALLAHABAD SERIES
a process has been initiated on the basis of
material which do not constitute "legal
evidence", then such a process would
amount to abuse of process of law and
must be quashed.

39. Learned counsel appearing for
complainant could not dispute that three
persons examined by Court below, i.e.,
Sri S. Kanan, under Section 200 Cr.P.C.
and Sri Aditya Kumar Jain, Advocate and
Sri Gulshan Kumar, under Section 202
Cr.P.C. were not the persons before
whom alleged statements were made by
Sri Sanjeev Goenka. They have founded
the entire case on the basis of newspaper
article which they have read, quoted in
complaint and placed in evidence.

40. Newspaper reporting, whether
correct or not, has not been fortified. A
newspaper reporting by itself is a hearsay
secondary evidence and not admissible
unless the Reporter is examined or any
person before whom the incident has
occurred, is examined and prove the facts
as such.

41.

Question
as
to
whether
newspaper
report
is
admissible
in
evidence and if so in what circumstances,
has been considered time and again. In
Samant N. Balkrishna and another vs.
George Fernandez and others, 1969(3)
SCC 238 this aspect has been considered
by Supreme Court. Therein the dispute
had arisen from an election petition
wherein Sri George Fernandez was
declared elected from Bombay South
Parliamentary Constituency of Lok Sabha
in the elections held in February, 1967
which was challenged by Samant N.
Balkrishna, an elector in the Constituency
on various grounds including allegations
of corrupt practice. Election petition was
dismissed by High Court and that is how
the matter reached Supreme Court.
Therein certain allegations of false
publication of a news item in 'Maratha'
was pleaded in election petition so as to
constitute corrupt practice on the part of
returned candidate through its agent but a
direct allegation of corrupt practice
against returned candidate was sought to
be added which was not approved by
Supreme Court. In para 47 of the
judgment, in the context of news item
published in newspaper 'Maratha', Court
observed as under:

"A news item without any
further proof of what had actually
happened through witnesses is of no
value. It is at best a secondhand
secondary evidence. It is well-known that
reporters collect information and pass if
on to the editor who edits the news item
and then publishes it. In this process the
truth might get perverted or garbled. Such
news items cannot be said to prove
themselves although they may be taken
into account with other evidence if the
other evidence is forcible."

 (emphasis added)

42. Court also observed that trial of
an election petition is made in accordance
with Code of Civil Procedure but a
corrupt practice must be proved in the
same way as a criminal charge is proved.
An election petitioner must exclude every
hypothesis except that of guilt on the part
of returned candidate or his election
agent. When a corrupt practice is alleged
against a returned candidate through his
agent, consent of returned candidate has
to be proved or election petitioner must
go further and prove that the result of
election in so far as returned candidate is
4 All. Mr. R.P. Goenka & Ors. Vs. State of U.P. & Anr.
71
concerned, was materially affected. In
para 48 of judgment, Court said that a
newspaper reporting a meeting, does so as
part of its own activity, and there can be
no inference of consent. What was
necessary, had to be pleaded and proved,
that Mr. Fernandez said this and this.
Newspaper reports could be taken in
support but not independently. Here the
plea was not taken at all and evidence was
not direct but indirect.

43. In Laxmi Raj Shetty and
another v. State of Tamil Nadu, 1988(3)
SCC 319 Court had an occasion to
consider the matter arisen from a trial for
conviction
under
Section
302
IPC
wherein punishment of life imprisonment
was awarded to convict. In an incident of
robbery and murder of Manager of a Bank
appellant,
Laxmi
Raj
Shetty
was
convicted under Section 302 IPC with
death sentence by Trial Court and under
Sections 392 and 449 IPC imprisonment
for seven years each. High Court
confirmed death sentence and other
sentence under Section 302, 392, 449 IPC
and matter went in appeal to Supreme
Court.