Allowed

Fr.Joseph Cheruvelil v. State of Kerala

Kerala HC22 Oct 2009Crl.MC/529/2006

Case brief

AI extract

What is this about?

The court quashed criminal proceedings against the petitioner in a defamation case involving a teacher. It held the complaint invalid because it failed to allege specific defamatory statements made by the petitioner verbatim, relying instead on subsequent witness testimony to fill the deficiency.

What did the court decide?

Annexure A1 and A2 and further proceedings initiated against the petitioner on the basis of Annexure A1 and A2 are quashed.

Fr.Joseph Cheruvelil Vs State of Kerala — Cheating and Forgery | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS.JUSTICE K.HEMA

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THURSDAY, THE 22ND DAY OF OCTOBER 2009/

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Crl.MC.No. 529 of 2006

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CMP.4901/2005 of C.J.M.,KOTTAYAM

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PETITIONER/IST ACCUSED.:

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FR.JOSEPH CHERUVELIL, VICAR DEVA MATHA CHURCH, PAMPADI, KOTTAYAM RESIDING AT LOURDES, FORANE CHURCH, COLLECTORATE PO KOTTAYAM.

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BY ADV. SRI.BECHU KURIAN THOMAS

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RESPONDENTS/COMPLAINANTS:

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STATE OF KERALA, REPRESENTED BY THE

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PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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MERLIN CRUZE.F. D/O.B.FRANCIS,

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W/O.REJI,T.JOSEPH, MANDHIRYAN HOUSE.

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PAMPADI POST, KOTTAYAM.

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BY ADV. SRI.MANJERI SUNDERRAJ FOR R2 BY ADV. SRI.B.PREMNATH (E)FOR R2 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR FOR R1

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-10-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.HEMA, J.

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Crl.M.C.No. 529 of 2006

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Dated this the 22^nd day of October, 2009.

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ORDER

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This petition is filed to quash the complaint Annexure-A1 and also an order passed in CMP No.4901/2005 which is marked as Annexure-A2. All further proceedings initiated against the petitioner who is the first accused in the case are sought to be quashed.

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A complaint was filed by the second respondent

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herein stating that she was working in a Public School & Junior College as a Malayalam teacher from 1^st August, 2001 onwards without giving room for any adverse comment, criticism or complaint against her. She worked on the last working day of the previous academic year and she was paid vacation salary also. She was certified by school authorities as very efficient and sincere teacher. But the Principal and Manager of the school started physically preventing the complainant from entering the

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school, teacher's room and the class to perform as a teacher. There is no reason why the complainant should be kept away in such a manner.

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The complainant requested the Manager and the Principal of the school not to deny her continued service but it did not yield any positive reply. She felt that she may be denied employment in the next academic year and she was forced to file W.P.(C) No.14043/2005 before this court and an interim order was granted restraining the school authorities from discontinuing or disturbing the complainant's service as a teacher. While the order was enforced, the school reopened on 1.6.2005 and she met accused 1 and 2 and the Manager of the school and furnished the order to them. But they did not allow her to enter the teacher's room or the class room. When she insisted she was given a computer print-out sheet showing the names of teachers and was asked to sign against her name.

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The complainant was then left to stand in the

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open ground under hot sun in front of the school. During the following days also, the same thing happened. The media people came to the school on 1.6.2005 and on seeing the complainant's plight on the first day of the academic year itself, they enquired about the matter. She also heard the media people asking the Principal and Manager about the matter and the version given was that in view of the complaints from parents and pupils certain teachers including the complainant were being kept away.

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It is later learnt from media reports that the school authorities took a stand that there was a referendum by parents and pupils of the school wherein complainant was criticized and she was asked to improve teaching. To certain other news reporters Fr.Mani Puthiyedam had stated that the complainant was terminated from the service owing to her inefficiency of teaching. These are absolutely baseless and false allegations. In the Desabhimani Malayalam daily, a news item appeared quoting the third accused who claimed to

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be the PTA President of the school making allegations that the complainant was found to be the worst criticized teacher in the referendum. These reports are false and defamatory and lawyer notices were issued to the school as well as PTA on behalf of the complainant.

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The defamatory statements were made by accused to malign the complainant. The accused together are now propagating amidst the public that the complainant is not a good teacher and hence she was thrown out of the school. The imputations are made to lower the estimation in the eye of the general public etc. The claim that there was a referendum is utter falsehood. The accused, in collusion with each other, acted in common intention making false imputations against the complainant. Therefore, the complaint on file under Sections 499, 500 and 34 IPC.

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The petitioner is the first accused in the case and he is said to be the Principal of the school, where the complainant is a teacher. According to learned counsel

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for the petitioner, there is absolutely nothing in the complaint to show that the petitioner has made any statement to the effect that the complainant is an inefficient teacher and hence she is being terminated from service. No whisper is made against the petitioner made any defamatory statement against the petitioner. Specific allegation is made only in paragraph 8 and as per the allegation the petitioner as the Principal was asked by the media people about the complainant and a reply was given that in view of the complaints of parents and pupils certain teachers including the complainant are being kept away.

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There is no allegation that the Principal made any statement to the effect that the complainant was either terminated or was inefficient in teaching in the complaint. In paragraph 1 of the complaint, Fr. Mani Puthiyedan is alleged to have made some statement which are allegedly defamatory to the complainant. But, petitioner's name is shown differently. The reference

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made in paragraph 8 is also not with respect to the petitioner, it is pointed out. It is also pointed out that the complainant filed a complaint mainly based on news paper report, a copy of which is produced as AnnexureA3. It is submitted that on a reading of the said report it will be seen that there is absolutely no reference to the petitioner as having made any defamatory statement. If at all something is stated it is only by the third accused and even such statement it cannot be said to be defamatory.

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It is also submitted that what exactly is statement given by the petitioner personally does not find a place in paragraph 8. In the light of the decision reported in Madhavi Amma Vs. Sherief (1985 KLT 330) , it is essential that as far as possible, the defamatory statement has to be quoted in the complaint in first person. The statement, if any, made by the petitioner or other accused should have been stated in the first person in the complaint. But the complaint does not show any

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such detail, it is argued. Therefore, the complaint may be quashed, it is submitted. It is also pointed out that the complainant is on inimical terms with the Manager and this complaint was filed to wreck vengeance. It is also submitted that though three persons shown as accused, the court has taken cognizance only against the first accused, even though there is nothing in the complaint to connect him with the offence.

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Learned counsel for the complainant argued that the complaint has to be read as a whole in which even it will be clear that the accused had acted in such a way to defame the complainant. He had also made imputations which affects her reputation. There are allegations in the complaint to the effect that the accused have made statement that she was terminated from service owing to her inefficient teaching. Though she is a teacher of the school she was made to stand in the yard in hot sun and the media people had approached her and enquired about her plight.

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This is a case where the complainant was subjected to harassment by the Management and she was even driven to the court for filing a writ petition to retain her as a teacher in the school, it is submitted. It is not necessary that complainant should state every minor things in the complaint. The complaint is not an encyclopedia of events but the relevant facts could be stated in evidence, it is submitted. The complainant produced documents and she also has witnesses to be examined in support of her case. CW2 was already examined. Therefore, there is absolutely no ground to quash the complaint under Sec.482 Cr.P.C, it is argued.

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On hearing both sides, and on going through the complaint I find that what exactly are the defamatory statements or imputations made by each of the accused are not stated in the complaint in first person. It is necessary that such statements are quoted in the complaint itself, for the court to decide whether such statements are defamatory or not. It may appear from a

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reading of the complaint that the complainant is aggrieved mainly because of news paper report in which it is published that the complainant was thrown out of the school because of her inefficient teaching, but such a news paper report is not produced by the complaint.

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However, Annexure-A3 was produced as the news paper report and it could be the one which was referred to in the complaint. But there is nothing in Annexure-A3 to show that the first accused who is the petitioner herein had made any defamatory statement against the complainant at any point of time. Even in paragraph 9, a general and vague statement is made referring to the Principal and Manager of the school that they gave a reply that the complainant was kept away, along with the other teachers in view of certain complaints from parents and pupils. Even in such statement no imputation was made that she is an inefficient teacher or that she was terminated from service.

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In none of the other paragraphs in Annexure-A3 there is any specific allegation against the petitioner has made any statement which is defamatory. In paragraph 9, a reference is made to one Fr.Mani Puthiyedam (is having made some statement), but he is not the petitioner. The petitioner's name is Fr.Joseph Cheruvelil. On going through the complaint I have no doubt that the court ought not have taken cognizance of the offence alleged on the basis of a complaint, since allegations are totally lacking in the complaint that petitioner made any defamatory statement against the complainant.

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It is seen from Annexure-A2 order that as per the sworn statement given by the complainant, the first accused openly told that on the basis of a referendum it was found that she was an inefficient teacher, hence she had been terminated from service. According to complainant, first accused disclosed the said aspects to the media persons and the same was published in the media. It is also stated in the order that CW2 who is a

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parent gave a statement that on 1.6.2005, the first accused openly told the media people that the complainant was terminated since she was inefficient in teaching.

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From the sworn statement of CWs.1 and 2 the court came to the conclusion that “in the presence of media persons and others petitioner openly told the complainant is an inefficient teacher and she was terminated from the service. Such a statement before the media persons prima facie amount to defamatory”. On going through the complaint it can be seen that there is absolutely nothing thereon to reveal that the first accused at any time made any statement that the complainant was terminated from service or that he stated to the media people that she was an inefficient teacher. It is needless to say that evidence is adduced in a case, to prove what is alleged. In the absence of any allegation in the complaint regarding defamatory statement made by petitioner, statement made by CWs.1 or 2 in court will

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not help the complainant to prove her case.

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On going through the judgment in Madhvi Amma v. Sherief (1985 KLT 330) , it is clear that following a Supreme Court decision in Balraj Khanna & Ors v. Moti Ram (1971 SCC Crl.647) , this court held that it will be highly desirable if the actual words said to have been used by an accused which are alleged to be defamatory are reproduced in the complaint by the complainant. The actual word used or the statements made may be reproduced verbatim by the complainant if the words are few and the statement is very brief. It appears that the alleged defamatory statement is very brief and it relates alleged termination and inefficiency. Therefore, it was most desirable that she had reproduced such specific statement in the complaint.

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Even in paragraph 9 of the complaint complainant has made a general statement against the Principal and the Manager and it is only stated generally that they made a statement. In the light of the dictum

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laid down in the decision cited above I find that this is a case where the complainant ought to have been reproduced the actual words in the complaint or atleast produced a copy of the news paper report which contain the alleged statement made to the media people. The allegation made in the complaint do not disclose that petitioner has made any defamatory statement and hence the court ought not have been taken cognizance of the complaint.

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It is held in the decision cited above that cause of action which is alleged in the complaint cannot be allowed to be substituted by subsequent evidence adduced in the case. Evidence could be allowed to be made only for the purpose of substantiating the allegations and the cause of action made out in the complaint. Even though CW1 stated that the first accused made some statement regarding the termination and inefficiency etc. no such allegations are made in the complaint. Evidence can be allowed to be adduced only

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for the purpose of substantiating the allegations in the complaint. In the absence of the relevant allegations in the complaint, the complaint is defective and the court ought not have taken cognizance of the evidence against the petitioner on the basis of such complaint. Hence, the entire proceedings against petitioner have to be quashed.

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In the result, the following order is passed:

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Annexure A1 and A2 and further proceedings initiated against the petitioner on the basis of Annexure A1 and A2 are quashed.

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Petition is allowed.

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K.HEMA, JUDGE

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cms

Fr.Joseph Cheruvelil v. State of Kerala

Case brief

What is this about?

What did the court decide?

Fr.Joseph Cheruvelil v. State of Kerala

Case brief

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