Francisco do CarmoFernandes v. Malena Pereira
THE HIGH COURT OF BOMBAY
Citation Unavailable
Media Involved: Newspaper
Decided on: 18.08.2010
N.A. Britto, J.
1. The Complainant seeks special leave to appeal against the acquittal of the accused under Section 499/500 I.P.C. by Judgment/Order dated 19-3-2010 of the learned J.M.F.C., Panaji. The parties hereto shall be referred to in the names as they appear in the cause title of the complaint.
2. The Complainant and the accused are all members of a Co-operative Society known as "Mayfair Co-operative Housing Society" and all of them have flats in the said Society and each of them have five shares in the said Society.
3. There is no dispute that the plot on which the building was constructed belonged to the Complainant. The building was constructed through a contractor by name J.K.F. Enterprises. The accused are the Managing Committee Members for the year 1999-2000. Accused No.1 was the chairperson, accused no.2 was the Member, accused no.3 the treasurer, and accused no.4 the Secretary of the said Society. The complaint is based on a notice published by the accused i.e. the Managing Committee Members of the said Society published on the Navhind Times dated 15-4-1999. It reads as follows:-
WARNING NOTICE IN PUBLIC
INTEREST
Mayfair Coop. Housing Society Ltd. Panjim, wish to alert public that the Office cum Shop space of approx. 225 sq. mtrs. on the ground floor of Society's building MAYFAIR belongs to the Society. It was never allotted to any one. Mr. Francisco do CarmoFernandes(CHICO) took illegal physical possession of the said ground floor premises while he was Chairman of the Society and leased to Mr. Stephen Pereira and others. HE DOES NOT HAVE ALLOTMENT LETTER OR TITLE TO THE SAID PREMISES, nor IS HE HOLDING SOCIETY'S SHARES REPRESENTING THE SAID PREMISES, while he is holding 5(five) shares of Rs.100/-representing his residential flat No.B/5 as other 13 Members of the Society are holding similar five shares. Therefore anyone contemplating any kind of deal for the said premises with Mr. Chico Fernandes may do so at his/her risk and consequences unless he produces Society's Allotment letter and share certificate in his favour representing the ground floor office cum shop space. Society will soon demand possession of the property.
MANAGING COMMITTEE
Mayfair Cooperative Housing Society Ltd.
15.4.99
4. The dispute between the Complainant and the Managing Committee of the said Society is regarding six shops covering 225 sq.meters on the ground floor of the building known as "Mayfair Apartments". According to the Managing Committee i.e. the accused, the said six shops belonged to the Society while according to the Complainant they belonged to him. The complaint was filed with the allegation that the Complainant was the owner in possession of the said six shops on the ground floor of the building identified as shops A, B, C, D, E and F; that shops D and E were acquired by the Complainant by succession after the death of his brother Carlos Antonio Fernandes; that the Complainant was the owner of flat no. D, and the flat A was also acquired upon the death of Carlos Antonio Fernandes. The Complainant financed the construction of four shops while his brother financed the construction of two others; that the other persons had agreed to finance the construction of other flats and thus they became owners of the same by virtue of the finance given by them to construct the flats and each of the flats were constructed for a sum of Rs.35,600/-or thereabout and three of the flats were constructed at the cost of Rs.51,000/-; that the Complainant, his brother and the owners of the flats had formed the said Co-operative Society; that the Complainant and his late brother Carlos could not have become the members of the said Society but for the fact that they had one flat each in the building known as Mayfair, and according to the Complainant the Co-operative Society so formed came to own only the land and not the building existing thereon and the function of the said Society was only to maintain the building, or rather the units of the building were always possessed and owned by various persons who had financed the construction of the same and the transferees of such persons as the said flats were and are of the persons who financed the same; that the accused knew the above factual situation that each of them owned a flat which they occupied and the Complainant owned and possessed two flats and six shops as the Complainant constructed the same for himself and that even the flat B-5 and shops D and E were constructed by his brother through the Complainant; that the Complainant had leased the said shops from time to time by himself and on the authority of his brother and shops A, B, C, D and E were leased to Mandovi Plastics until they were evicted on 10-3-1999 under orders of the Court and shop F was leased to one KashinathDamodarNaik; that when the accused realized that the Complainant was successful in the eviction of Mandovi Plastics and that consequently the Complainant would be able to lease out the said five shops for a good rent, the accused who constituted the Managing Committee of the said Society deliberately and intending to harm the reputation of the Complainant issued a notice in the Navhind Times of 15-4-1999 in the capacity of being the members of the Managing Committee. The said notice alleged that the office cum shop space of approximately 225 sq. meters on the ground floor was never allotted to the Complainant, and further alleged that the Complainant had taken illegal physical possession of the ground floor while Complainant was the Chairman of the said Society and leased it to the said Mandovi Plastics through Stephen Pereira, and that the Complainant was holding only five shares of Rs.100/-allegedly representing the residential building B-5, and thus the accused deliberately and to their own knowledge falsely published the above notice and the said publication was defamatory and it lowered the status and harmed the reputation of the Complainant before the public and falsely portrayed to the public that the Complainant was of a low moral character and not trustworthy and dishonest; that the Complainant is a businessman and in the year 1999 was the owner of hotel Mayfair and had also an agency of tyres and had a good standing in the Society but the said notice lowered the image of the Complainant before the eyes of the public and seriously harmed his reputation; that the business of the Complainant was badly affected by the said publication of the accused, and which in fact was false and it resulted in a considerable loss to the Complainant's business, besides harming his reputation; that the Complainant offered to the accused an opportunity to save themselves from prosecution when the Complainant by his notice dated 12-5-2000 called upon the accused who were the members of the Managing Committee of the said Society to publish an apology on two newspapers but the accused failed to publish the same and preferred to ignore the said notice.
5. The Complainant examined himself in support of the complaint and his Chartered Accountant. The accused did not examine any of them.
6. The learned trial Court came to the conclusion that the intention of the accused in publishing such notice was to make the public aware not to enter into any transaction with the Complainant as the office cum shops on the ground floor of the Society building the Complainant did not have any right to them. The learned trial Court also noted that the Complainant had failed to produce on record any allotment letter or title to the said premises i.e. the office cum shops, and, therefore the case of the Complainant that the office cum shops on the ground floor of the Society building belonged to him could not be accepted. The learned trial Court also held that it was rather difficult to believe that once the land and the flats were transferred by valid documents in favour of the flat owners they would become the owners of the flats as well as the land appurtenant to it, and since the Society was formed and the Society ratified all the acts done by the Chief Promoter, it follows that the Society was the owner of the building also. The learned trial Court also came to the conclusion that from the documents produced by the Complainant it could be seen that there were serious disputes as regards the ownership of the office cum shop on the ground floor of the said building. The learned trial Court also held that the defence of the accused when the Complainant was the Chairman of the said Society had taken possession of the said shops was fortified by the case put up by the accused in Case No.44/272/98/ABN/ARCZ/2000-2001. The learned trial Court also held that the Complainant had not examined other witnesses to show that after reading this notice there was any imputation on the character, goodwill of the Complainant and that not a single witness had come forward to depose that due to the public notice in the newspaper the reputation of the Complainant was lowered or harmed in their eyes. The learned trial Court also held that the case of the Complainant that the general tourists had stopped coming to his hotel could not be accepted and that the Complainant's witness Shri Kamat had failed to establish that the losses suffered could be attributed to the public notice inasmuch as there was nothing in the evidence of PW2/Kamat even to suggest that the reputation of the Complainant was lowered or the accused had intentionally harmed and lowered the reputation of the Complainant.
7. I have heard Shri R. G. Ramani, learned Counsel on behalf of the Complainant and Shri J. Vaz, learned Counsel on behalf of the Respondents.
8. Shri Ramani, learned Counsel on behalf of the Complainant submits that there was no dispute that the land on which the building was constructed belonged to the Complainant. Learned Counsel submits that there were 12 members who financed the construction of 12 flats which have been allotted to them. Learned Counsel submits that two flats and six shops exclusively belong to the Complainant. Learned Counsel concedes that the land was transferred to the Society on 30-10-1971. Learned Counsel submits that the Society is of a residential building and is of a tenant-ownership housing society. Learned Counsel submits that shops have not been financed by anybody except the Complainant and his brother. Learned Counsel submits that there is material on record that the reputation of the Complainant was lowered by publication of the said notice, in the estimation of the public.
9. On the other hand, Shri Vaz, learned Counsel on behalf of the accused submits that the accused as members of the Managing committee gave the said notice in good faith because according to the Society the said six shops were not financed by the Complainant but were built along with the building from the contributions made by all the members. Learned Counsel further submits that the Complainant has not stated as to which part of the notice lowered the reputation of the Complainant.
10. As informed by learned Counsel on behalf of the parties the Society had filed a claim before the Assistant Registrar of Co-operative Societies for recovery of possession of five shops on the ground floor of the said building of the said Society and also to restrain the Complainant from carrying out any alterations and parting with the physical possession of the said shops as well as for recovery of the amounts received by the Complainant from the year 1971 by leasing the shops to other parties with interest thereon. The said claim was dismissed by the Assistant Registrar. The dismissal was confirmed by the Co-operative Tribunal and a Writ Petition filed therefrom is pending before this Court.
11. As already noted, the learned trial Court has come to the conclusion that not a single witness has come forward to depose that due to the public notice in the newspapers the reputation of the Complainant was lowered or harmed in the eyes of the public. In my view, this conclusion of the learned Magistrate cannot be said to be erroneous. It is the Complainant's own version that because of the said notice that the Complainant's reputation before the public was harmed. None else has come forward to depose that because of the said notice that they thought that the Complainant was a man of no integrity. Learned Counsel points out to a stray statement in the evidence of PW2/Kamat that when he read the said notice he was taken back. The said statement cannot be taken to convey that on reading the said notice he thought that the notice defamed the Complainant. He could have taken aback probably because on reading the notice he came to know that the shops did not belong to the Complainant but to the Society. As noted by this Court, in the case of Valmiki Faleiro v. LaurianaFernandes e Diniz and others(2005(2) Bom.C.R.(Cri.) 465) the essence of the offence of defamation is the harm caused to the reputation of a person. Character is what a person actually is and reputation is what neighbours and others say he is. In other words, reputation is a composite hearsay and which is the opinion of the community against a person. Everyone is entitled to have a very high estimate of himself but reputation is the estimation in which a person is held by others. The commission of offence of defamation or publishing any imputations concerning any person must be intending to harm or knowing or having reason to believe that such imputation will harm, the reputation of such person(Emphasis supplied). It is nobody's case that the said notice is per se defamatory. That the Complainant by the said notice was portrayed as a person of low moral character appears to be a product of his own imagination. Such a conclusion cannot be culled out by a normal prudent person from a reading of the said notice which the accused as members of the Managing Committee had published under claim of right to the said five shops which the Complainant was letting out from time to time and was about to let out after the eviction of the said Mandovi Plastics. A reading of the notice, on the face of it does not show that it was published with an intention or knowledge to harm the reputation of the Complainant. Therefore, in my view, the conclusion arrived at by the learned Magistrate that not a single witness had come forward to depose that due to the public notice the reputation of the Complainant was lowered or harmed in the eyes of the public cannot be faulted.
12. The Complainant also examined the said Chartered Accountant to prove that because of the said notice the Complainant had suffered losses. However, the cross-examination of PW2/Kamat shows that there were accumulated losses for previous years in the running of the business of Mayfair Hotel amounting to Rs.63,51,693.62. When specifically questioned, PW2/Kamat was unable to tell what was the reason for the said losses for the previous years. PW2/Kamat had also stated that the said hotel was being run by the daughter of the Complainant. It is therefore obvious that the losses suffered by the Complainant in his business had nothing to do with the publication of the said notice.
13. Learned Counsel on behalf of the accused has also pointed out to the cross-examination of the Complainant particularly certain admissions made by him to support the case of the accused that the said 5-6 shops could not have exclusively belonged to the Complainant. In fact, it is not even the case of the Complainant as to what he and his brother had contributed for the construction of the said six shops. On the contrary, the accused were able to secure admissions from the Complainant to the effect that the Complainant himself, in the balance-sheet submitted by him, in the year 1975-1976 had shown that the members had contributed a sum of Rs.5,62,386/-and the costs of the land and building was Rs.5,61.949. The said admissions by the Complainant give a clear indication that the building as a whole was constructed with a contribution from the members, and if that be so the shops could not have exclusively either belonged to the Complainant or his brother. This would show that the accused as members of the Managing Committee had published the said notice in good faith to protect the rights of the Society. That is the conclusion which is inescapable from the admissions made by the Complainant notwithstanding the fact that the claim of the Society has, otherwise been dismissed by the Assistant Registrar of the Co-operative Societies. I find there is no merit in this application, and therefore the same is hereby dismissed.