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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 31ST DAY OF JANUARY, 2023

BEFORE

THE HON’BLE MR. JUSTICE K.NATARAJAN

CRIMINAL PETITION NO.4359 OF 2022

CONNECTED WITH
CRIMINAL PETITION NO.4451 OF 2022

IN CRIMINAL PETITION NO.4359 OF 2022

BETWEEN

SRI. SANTHOSH KUMAR M

S/O THIMMAPPA KERKERA,
AGED ABOUT 41 YEARS,
R/AT 2ND FLOOR,
DAWOOD COMPLEX,
OPP. TO POST OFFICE
BANK ROAD, UPPINANGADY,
DAKSHINA KANNADA DISTRICT - 574 241 ... PETITIONER

(BY SRI K RAVISHNAKAR BHAT AND

SRI THRIBHUVAN K, ADVOCATES)

AND

1 . SRI. A KESHAVA BHAT

S/O P SHANKARA BHAT,
AGED ABOUT 61 YEARS,
R/AT NO 16, 1ST FLOOR,
6TH MAIN, 14TH CROSS,
VYALIKAVAL,
BENGALURU 560003

2 . SRI P YOGISH
S/O DINAKARA POOJARI,
AGE MAJOR,
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KADATHILA HOUSE,
MOGRU VILLAGE AND POST,
BELTHANGADY TALUK 574 241,
DAKSHINA KANNADA DISTRICT

3 . SRI PRASAD KADTHILA

S/O BABU POOJARY,
AGE MAJOR,
KADATHILA HOUSE,
MOGRU VILLAGE AND POST,
BELTHANGADY TALUK 574 241,
DAKSHINA KANNADA DISTRICT
... RESPONDENTS
(BY SRI S RAJASHEKAR, ADVOCATE FOR R1
SRI K RAMABHAT, ADVOCATE FOR R2 AND R3)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482

OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
A. ALLOW THIS CRL.P AND THEREBY QUASH THE
PROCEEDINGS IN PENDING C.C.NO.30741/2021 ON THE FILE
OF THE VIII ACMM, BANGALORE AS PER ANNEXURE-A AGAINST
THE PETITIONER. B. SET ASIDE THE ORDER DATED 02.09.2021
PASSED BY THE LVI ADDL. CITY CIVIL AND SESSIONS JUDGE,
BANGLAORE (CCH-57) AS AGAINST THE PETITIONER AS PER
ANNEXURE-B.

IN CRIMINAL PETITION NO.4451 OF 2022

BETWEEN

1 . SRI P YOGISH
S/O DINAKARA POOJARY,
AGED ABOUT 57 YEARS,

2 . SRI PRASAD KADTHILA

S/O BABU POOJARY,
AGED ABOUT 47 YEARS,
BOTH ARE R/AT KADATHILA HOUSE
MOGRU VILLAGE AND POST,
BELTHANGADY TALUK 574241,
DAKSHINA KANNADA DISTRICT
... PETITIONERS
(BY SRI RAMA BHAT K, ADVOCATE)
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AND

1 . SRI A KESHAVA BHAT

S/O P SHANKARA BHAT,
AGED ABOUT 61 YEARS,
ADVOCATE R/AT NO 16,
1ST FLOOR, 6TH MAIN,
14TH CROSS, VYALIKAVAL,
BENGALURU 560003

2 . SRI SANTHOSH KUMAR M

ADVOCATE,
S/O THIMMAPPA KERKERE,
AGED ABOUT 41 YEARS,
R/AT 2ND FLOOR
DAWOOD COMPLEX,
OPP TO POST OFFICE,
BANK ROAD,
UPPINANGADY 574241,
DAKSHINA KANNADA DISTRICT
... RESPONDENTS
(BY SRI RAJASHEKAR S., ADVOCATE FOR R1
SRI. THRIBHUVAN K, ADVOCATE FOR R2)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482

OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO a)
QUASH THE PROCEEDINGS IN C.C.NO.30741/2021 ARISING
OUT OF P.C.R.NO.1445/2018 ON THE FILE OF VIII ADDL.C.M.M,
BENGLAURU AS NOT MAINTAINABLE (ANNEXURE-A) AGAINST
THE PETITIONERS ) SET ASIDE THE ORDER DATED 02.09.2021
PASSED BY THE LVI ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH-57) AS AGAINST THE PETITIONERS
AS PER ANNEXURE-B.

THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 08.12.2022 THIS DAY, THE COURT
MADE THE FOLLOWING:
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ORDER

The Crl.P.No.4359/2022 is filed by the

petitioner/accused No.3 and Crl.P.No.4451/2022 is filed by

the petitioners/accused Nos.1 and 2 under section 482 of

Cr.P.C for quashing the criminal proceedings against them

in CC.No.30741/2021 pending on the file of VIII ACMM,

Bengaluru, for the offence punishable under Sections 499

of IPC.

2. Heard the argument of learned counsel for both

parties.

3. The case of the petitioners is that the

respondent/complainant who is an advocate filed a

complaint under section 200 of Cr.P.C before the

Magistrate for the offence punishable under Section 499 of

IPC and the learned Magistrate previously dismissed the

complaint on 2.2.2019. Thereafter, the complainant

approached the Sessions Court under section 397 of Cr.P.C

by filing revision petition and the revisional Court had set

aside the order of dismissal of the complaint and

remanded the matter back to the Magistrate to take

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cognizance against the petitioners. Subsequently, the

learned Magistrate have taken the cognizance and issued

the process, under section 204 of Cr.P.C which is under

challenge before this court.

4. The complainant has averred in the complaint

that the petitioner/accused No.3 is a practicing advocate at

Dakshina Kannada. The accused Nos.1 and 2 (petitioners

in Crl.P.No.4451/2022) have engaged the service of

accused No.3 for filing objections/written statement before

the Upalokayuktha in a complaint against the accused

Nos.1 and 2, wherein the accused No.3 filed a statement of

objections by making defamatory allegation against the

complainant, with an intention to tarnish the image of the

complainant. Therefore, he has filed the complaint before

the Magistrate and also said to have filed a civil suit for

claiming damages of Rs.1 crore which is pending in the

Civil Court.

5. The learned counsel for the petitioner who is

appearing for accused No.3, has contended that this

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petitioner is an advocate practicing at Dakshina Kannada,

he has filed statement of objection on behalf of his client,

i.e., accused nos.1 and 2 and there is no personal interest

or no intention to tarnish the image of the complainant.

The accused Nos.1 and 2 were running the quarry business

and the complainant had filed a public interest litigation

and later withdrawn the same. Subsequently, complainant

filed a complaint to the Lokayuktha and this petitioner

appeared as an advocate. Therefore, there is no criminal

intention to defame the complainant, he has only acted in

a good faith for protecting his client, therefore, the

advocate cannot be held for defamation. The entire

documents should be looked into and it should not be pick

and choose of Men's Rea or criminal intention to defame

the complainant. Hence, prayed for quashing the

complaint against the accused No.3.

6. The learned counsel for the petitioners/accused

Nos.1 and 2 also taken similar contention that the

complainant already filed civil suit for Rs.1 crore damages,

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now the suit is in the stage for evidence. There is no

allegation or statement made by these accused in order to

attract Sections 499 or 500 of IPC. Exception of 5 and 9 of

the Section 499 of IPC, there is protection available to

these petitioners. Further contended the advocate filed

objection, they have not obtained signatures of the

accused Nos.1 and 2, therefore, the question of punishing

the accused Nos.1 and 2 does not arises. Hence prayed

for quashing the criminal proceedings against them.

7. Per contra, learned counsel for the respondent

has contended, whether there is intention or Mens rea to

defame the complainant, is matter of trial. The accused

Nos.3 has acted as a counsel for the accused Nos.1 and 2

and accused No.3 alone signed the written statement.

The complainant is an advocate and he has put in 41 years

of practice. The complainant also has filed a public

interest litigation and as per the direction of the High court

he has withdrawn the writ petition and approached the

Upalokayuktha. In the said proceedings the accused Nos.1

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to 3 filed written statement by making damaging

statement, which attracts defamation. The complainant

being an advocate should have been very careful in

preparing statement of objection while making defamatory

allegation against the complainant, therefore the matter is

required for trial and they can take defense in the cross

examination independently. The accused No.3 whether he

himself acted and mentioned the averments in the written

statement of objection, or at the instruction of accused

Nos.1 and 2 he has made such allegation, are all to be

considered only after the trial. Therefore, at this stage, it

is not fit case for quashing the criminal proceedings, hence

prayed for dismissing the petition.

8. Heard the arguments of both parties and perused

the records. The allegation against accused Nos.1 to 3 is

that the complainant who is a practicing advocate filed a

public interest litigation before the High Court of

Karnataka, to stop the stone quarry/mining of the accused

Nos.1 and 2. It is an admitted fact that the High Court of

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Karnataka disposed of the matter by directing the

petitioners to approach Upalokayuktha. Accordingly a

complaint has been filed before Upalokayuktha and in that

proceedings the accused No.3 who is an advocate

appeared before the Upalokayuktha on behalf of the

accused Nos.1 and 2. It is an admitted fact that the

accused Nos.1 and 2 filed statement of objection through

accused No.3, it is also an admitted fact that the accused

No.3 filed statement of objection without obtaining

signatures of the accused Nos.1 and 2. It is alleged by the

accused No.3 in the statement of objection in

Uplok/Mys/1720/2017 that a proceeding before

Upalokayuktha in the statement of objection at Para 6 he

has stated, where the complainant filed a writ petition

before the High Court in WP No.39001/2015 and the

complainant in the habit of filing the writ petitions against

the accused Nos.1 and 2 by using the tactics to threaten

the accused Nos.1 and 2 and used to get the money and

thereafter withdraw the writ petitions. He has further

contended, the complainant filed one more writ petition in

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W.P.No.3221/2016 before the High Court with an intention

to extort money from the accused Nos.1 and 2 and when

the accused Nos.1 and 2 did not agree to pay any money

therefore, through writ petition he has filed complaint

before the Lokayuktha. Subsequently, the complainant

also made a demand from the accused Nos.1 and 2 and

not able to get money, hence he has filed the complaint

before the Lokayuktha. On perusal of these statements, it

categorically reveals it is a defamatory statement against

the complainant by the accused Nos.1 to 3. Therefore,

now it cannot be bifurcated whether the accused No.3

himself written those defamatory statement against the

complainant or he has prepared objections only on

instruction of accused Nos.1 and 2, since the statement of

objections were not signed by the accused Nos.1 and 2.

The accused No.3 alone filed these statement of objections

by signing himself on behalf of accused Nos.1 and 2.

Therefore, accused Nos.1 and 2 in one side and accused

No.3 in another side cannot blame each other for making

such a defamatory statement against complainant stating

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that the complainant is in the habit of extorting money

from the accused Nos.1 and 2 by filing the writ petitions

and demanding money for withdrawing the PIL, thereafter

he has filed another PIL and made a demand of money

when the same was failed, he has used the tactics to file

complaint before the Lokayuktha etc., It cannot be said

there is no intention or Men's Rea to tarnish the image of

complainant by the accused persons.

9. It is also seen from the order of the Sessions

Judge, as the Sessions Judge categorically gone through

the records and clearly come to the conclusion that there

is a prima facie case made against the accused persons for

framing of charge. The averments made by the accused or

defamatory statement made by the accused will not fall

under the exception of the section 499 of IPC as the

statement made by the accused No.3 cannot be said to be

in a good faith while conducting the trial or proceedings.

The accused No.3 is a practicing advocate and he himself

drafted the objection on behalf of the accused Nos.1 and 2

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and he himself is aware about the consequences about the

statement of objections filed before the public authority in

a court of law. Therefore, without going to the trial, this

Court cannot jump into the conclusion, there is no

defamatory statement made by the accused persons or

there is no criminal intention or Mens Rea to defame the

complainant, therefore, matter is required for trial. I have

gone through the judgments produced by the petitioners

which will not be applicable to the case on hand.

In view of the above findings the judgment relied by

the respondent is not required to be considered in detail at

this stage.

Therefore, both the petitions are devoid of merits

and is liable to dismissed.

Accordingly, both petitions filed by accused Nos.1 to

3 are hereby dismissed.

Sd/-
JUDGE
AKV