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  To the charge of defamation under Section 500 IPC, if the accused invokes the aid of Tenth Exception to Section 499 IPC, "good faith" and "public good" have both to be established by him...SC jt dt 14.05.2010
                                                          REPORTABLE

                  IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

          CRIMINAL APPEAL NO. 1079                   OF 2010
            (Arising out of S.L.P. (Criminal) No. 898 of 2009)


JEFFREY J. DIERMEIER & ANR.                    --          APPELLANTS


                               VERSUS


STATE OF WEST BENGAL & ANR.                   --         RESPONDENTS



                            JUDGMENT



D.K. JAIN, J.:


     Leave granted.


2. This appeal, by special leave, arises from the judgment dated 18 th

  November 2008 rendered by a learned Single Judge of the High Court of

  Calcutta in C.R.R. No. 523 of 2008. By the impugned judgment, the

  learned Judge has dismissed the petition preferred by the appellants under
   Section 482 of the of the Code of Criminal Procedure, 1973 (for short

   "the Code") seeking quashing of a private complaint filed by respondent

   No.2 in this appeal, for an offence under Section 500 read with Section

   34 of the Indian Penal Code, 1860 (for short "the IPC").


3. The facts, material for the purpose of disposal of this appeal, may be

   stated thus:


      Appellant No.1 is the President and Chief Executive Officer of the

Chartered Financial Analysts Institute (hereinafter referred to as "CFA

Institute"), incorporated under the laws of the State of Virginia, United

States.   Appellant No.2 is the President of the Indian Association of

Investment Professionals, who is a member of the society of CFA Institute.

CFA Institute is a non stock corporation and confers the designation of Chief

Financial Analyst ("CFA" for short) upon its members who fulfil a

minimum professional criterion. CFA certification is considered to be a

definitive standard for professional competence.

4. In the year 1985, on being approached by the Institute of Chartered

   Financial Analysts of India (for short "ICFAI"), respondent No.2 herein,

   a registered society, having its office at Kolkata, CFA Institute entered
into a licence agreement with them to conduct its CFA program in India.

The agreed arrangement continued for quite some time.            However,

realising that respondent No.2 was not adhering to the required standards

and quality in the said program, CFA Institute decided to wean off its

arrangement with ICFAI - respondent No.2. Since, in the meanwhile,

respondent No.2 was attempting to get the trademarks of CFA Institute

registered in India, in the year 1997, CFA Institute issued a notice of

termination of its licence with the said respondent. On receipt of the said

notice, respondent No.2 filed a declaratory suit before the District Courts

in Hyderabad, seeking a declaration regarding the change of their name

"ICFAI" and their use of the designation "CFA". However, they did not

succeed in getting any interim or final relief in the said suit. In the year

2004, CFA Institute filed a Civil Suit [C.S.(OS) No.210 of 2004] in the

High Court of Delhi for permanent injunction restraining respondent

No.2 from using the trade marks, services, service marks or trade name

CFA, Chartered Financial Analyst, The Institute of Chartered Financial

Analysts of India, ICFA and ICFAI or any other name or mark which

may be identical or deceptively similar to these marks and passing off

CFA Institute Programs or business as that of CFA Institute. Vide Order
   dated 4th August 2006, the High Court passed the following order by way

   of interim relief:


      "30. In view of the above, I allow the application under Order
      XXXIX Rules 1 & 2 CPC and restrain the defendants, during
      the pendency of the suit from using any of the trademarks or
      service marks CFA, Chartered Financial Analyst, The Institute
      of Chartered Financial Analysts of India, ICFA and ICFAI or
      any other name or mark which may be identical or deceptively
      similar to these marks and from passing off their programmes
      or business as that of the plaintiffs. However, this order of
      injunction will not come into effect till the end of current
      academic session of the CFA Programme run by the
      defendants. Nor will anything said herein will mean final
      expression of opinion of this Court."
                                                [Emphasis supplied]


5. On 30th January 2007, respondent No.2, through its sponsored University

   in Tripura - The Institute of Chartered Financial Analysts of India

   University, Tripura (hereinafter referred to as "the University"), issued an

   advertisement inviting applications for fresh enrolments for award of

   "CFA" certification. According to CFA Institute, since the programmes

   which were current at the time of passing of the order of interim

   injunction by the High Court of Delhi on 4th August 2006 had come to an

   end in January 2007, the invitation for fresh enrolment in terms of the

   advertisement issued on 30th January 2007 was for subsequent
programmes, which were not current at the time of the interim injunction

order and, therefore, it was in breach of the said interim injunction.

Accordingly, on 12th February 2007, CFA Institute issued a public notice

under the caption "A Word of Caution to the Indian Investment

Community", (hereinafter referred to as "Word of Caution").                                                 The

relevant extract of the said publication reads thus:


   "There is confusion over the "CFA" name in India, and you
   deserve to know the facts. The Chartered Financial Analyst
   (CFA(R)) designation from CFA Institute is the only globally
   recognized CFA designation for financial professionals.

   However, the Institute of Chartered Financial Analysts of India
   (Icfai) offers an educational program specializing in finance,
   which they term the "CFA Program", and awards a title called
   the "CFA".
   On 4th August 2006, the Delhi High Court recognized that CFA
   Institute owns the exclusive rights to the CFA trademarks and
   that continued use by Icfai causes irreparable harm. The court
   ordered an interim injunction requiring Icfai to stop using the
   "Chartered Financial Analyst" and "CFA" brands and to change
   its corporate and "CFA" title names. Unfortunately, Icfai has
   continued its unauthorized use of our trademarks by running
   advertisements from an Icfai-sponsored university.

   ......................................................................................................
                 ..........................................................................

   If you are planning to either hire an investment professional or
   obtain a designation, you need to make informed decision that
   benefit your future. Visit www.cfainstitute.org/India for more
   information about enrolling in the CFA Program, Scholarships,
      joining the IAIP, and the latest updates about our efforts to end
      this confusion and support the Indian Investment Community."
                                               (Emphasis added by us)


6. Alleging that the said public notice was defamatory within the meaning

   of Section 499 of the IPC, respondent No.2 filed a private complaint

   against the appellants. The trial court took cognizance of the complaint

   and issued summons to the appellants.         Feeling aggrieved by the

   summoning order, the appellants preferred the afore-noted petition before

   the High Court of Calcutta.       As already stated, by the impugned

   judgment, the High Court has dismissed the said petition. Hence, the

   present appeal by the accused.


7. Shri Shanti Bhushan, learned senior counsel appearing on behalf of the

   appellants strenuously urged that the High Court gravely erred in

   declining to exercise its jurisdiction under Section 482 of the Code in a

   case where the complaint ex facie lacks basic ingredients of Section 499

   of the IPC. Learned counsel submitted that by offering a prospectus for a

   new session beginning in the year 2007, which would be of 12-18 months

   duration, the University, a sponsored University of ICFAI had violated

   the injunction order issued by the High Court of Delhi on 4 th August 2006
   and, therefore, in the wake of a misleading advertisement, the appellants

   were compelled to issue a "Word of Caution".


8. Learned counsel contended that from the provisions of the Institute of

   Chartered Financial Analysts of India University, Tripura Act, 2004 (for

   short "the Act"), it was clear that the University was nothing but an alter

   ego of respondent No.2. In support of the contention, learned counsel

   referred to certain provisions of the Act showing that it is respondent

   No.2 who appoints the Chancellor of the University and in turn the

   Chancellor appoints the Vice-Chancellor; under Section 20 of the Act,

   the Board of Governors consists of Chancellor, Vice-Chancellor and

   three other persons nominated by respondent No.2; under Section 21 of

   the Act, the Board of Management consists of 9 persons of whom as

   many as 7 persons are to be the nominees of respondent No.2. It was,

   thus, submitted that all the acts of the University were really the acts of

   respondent No.2 itself and, therefore, the advertisement issued for fresh

   admission by the University was clearly in breach of the order passed by

   the Delhi High Court. According to the learned counsel, the effect of the

   advertisement dated 30th January 2007 would have been to induce

   prospective students to believe that joining the new course offered by the
   University in the year 2007 would entitle them to get CFA designation

   from CFA Institute. It was argued that it was in these circumstances and

   keeping in mind the public interest that the appellants had issued a "Word

   of Caution" to the students who wished to obtain CFA certification.

   Learned counsel asserted that the prosecution of the appellants on

   account of publication of the said "Word of Caution" is an abuse of the

   process of the Court inasmuch as the said "Word of Caution" published

   by them was a public duty and thus, a legitimate expression. It was also

   absolutely necessary and in public interest and was singularly covered by

   the Tenth Exception to Section 499 of IPC.


9. It was also the assertion of the learned counsel that the contents of the

   "Word of Caution" did not in any way lower or cast a reflection on the

   moral or intellectual character of respondent No.2 and, therefore,

   Explanation 4 to Section 499 of the IPC, which imposes restrictions in

   the law of defamation, is clearly attracted in favour of the appellants. It

   was thus, pleaded that in the light of Explanation 4 as well as Tenth

   Exception to Section 499 IPC, the allegations in the complaint did not

   constitute an offence of defamation punishable under Section 500 IPC

   and, therefore, the High Court ought to have quashed the complaint. In
    support of the proposition, learned counsel placed reliance on the

    decisions of this Court in the case of State of Haryana Vs. Bhajan Lal1

    and Shatrughna Prasad Sinha Vs. Rajbhau Surajmal Rathi & Ors.2.

    Relying on Rajendra Kumar Sitaram Pande & Ors. Vs. Uttam & Anr.3,

    learned counsel argued that under the given circumstances, requiring the

    appellants to undergo trial would be travesty of justice.


10.Per contra, Shri K.K. Venugopal, learned senior counsel appearing on

    behalf of respondent No.2 supported the impugned judgment and

    submitted that all the grounds urged on behalf of the appellants for

    quashing the complaint involve determination of disputed questions of

    fact for which the matter has to go to trial and, therefore, the High Court

    was justified in not analyzing and returning a finding on the truthfulness

    or otherwise of the allegations in the complaint. Heavily relying on the

    majority view expressed by a Bench of three Judges in Sewakram

    Sobhani Vs. R.K. Karanjia, Chief Editor, Weekly Blitz & Ors.4, learned

    counsel argued that answers to the questions whether the appellants were

    entitled to protection under Explanation 4 or that the advertisement was

1
  1992 Supp. (1) SCC 335
2
  (1996) 6 SCC 263
3
  (1999) 3 SCC 134
4
  (1981) 3 SCC 208
      issued in "good faith" and for "public good" as contemplated in the Tenth

      Exception are questions of fact and matters for evidence and, therefore,

      trial in the complaint must continue. In this behalf, reliance was also

      placed on the decisions of this Court in M.N. Damani Vs. S.K. Sinha &

      Ors.5 and Shriram Refrigeration Industries Vs. Hon'ble Addl.

      Industrial Tribunal-Cum-Addl. Labour Court, Hyderabad & Ors.6


11.Learned counsel argued that a reading of the offending publication as a

      whole would show that omission of the sentence "However, this order of

      injunction will not come into effect till the end of current academic

      session of CFA programme run by the defendants nor will anything said

      herein will mean final expression of opinion of this Court" was a

      conscious and deliberate suppression intended to portray ICFAI as a

      wrong doer, which has violated an injunction order passed by the High

      Court and in the process is in contempt of the said order. According to

      the learned counsel, suppression of the fact that the interim injunction did

      not apply to the "current academic session of the CFA Programme",

      which was to conclude only in May 2009; had subjected the students who

      were undergoing the three year course to fear and anxiety that three years
5
    (2001) 5 SCC 156
6
    (2002) 9 SCC 708
    of their lives would be wasted, giving the impression that respondent

    No.2 had cheated them.        It was contended that the conscious and

    deliberate omission of the last sentence of the order of interim injunction

    was with the sole objective to deter the students from enrolling in the

    CFA Programme offered by the four Universities in the State of

    Uttarakhand, Meghalaya, Tripura and Mizoram by creating a fear

    psychosis amongst the aspirants and, therefore, the offending publication

    was not in "good faith" and "public interest" as is being pleaded by

    learned counsel for the appellants.


12.Placing reliance on the decision of this Court in Chand Dhawan (Smt)

    Vs. Jawahar Lal & Ors.7, learned counsel submitted that since the High

    Court had observed that the allegations in the complaint prima facie

    constituted an offence under Section 499 IPC, it did not err in refusing to

    interfere in the matter. Reliance was also placed on the decisions of this

    Court in Som Mittal Vs. Government of Karnataka8 and Som Mittal Vs.

    Government of Karnataka9 to contend that power to quash criminal

    proceedings is to be exercised in the rarest of rare cases.


7
  (1992) 3 SCC 317
8
  (2008) 3 SCC 574
9
  (2008) 3 SCC 753
13.Shri Venugopal also contended that the University at Tripura, not being a

     party to the suit at the time of passing of the order by the High Court was

     not bound by the said order, yet the statement in the advertisement that

     the continued unauthorized use of appellant's trademark through the

     sponsored Universities is per se defamatory and has caused immense

     harm to the image and reputation of respondent No.2 in the eyes of the

     Indian Investment Community as also the student community at large.


14.Learned senior counsel strenuously urged that since the stand of the

     appellants before the High Court was that they were entitled to the

     protection of Fourth and Fifth Exceptions to Section 499 IPC, they

     cannot now be permitted to rely upon Explanation 4 and Tenth Exception

     to Section 499 IPC so as to build up a totally new case before this Court.

     In support of the proposition that a new plea, which is essentially a plea

     of fact, cannot be allowed to be urged for the first time at the hearing of

     appeal under Article 136 of the Constitution before this Court, learned

     counsel placed reliance on the decisions of this Court in Jagir Kaur &

     Anr. Vs. Jaswant Singh10, State of Bihar & Ors. Vs. Shyam Yadav &

     Ors.11 and D.S. Parvathamma Vs. A. Srinivasan12.
10
   [1964] 2 S.C.R. 73
11
   (1997) 2 SCC 507
12
   (2003) 4 SCC 705
15.Thus, the question for consideration is whether or not in the light of the

   allegations as projected in the complaint against the appellants, it was a

   fit case where the High Court in exercise of its jurisdiction under Section

   482 of the Code should have quashed the complaint against the

   appellants?


16.Before addressing the contentions advanced on behalf of the parties, it

   will be useful to notice the scope and ambit of inherent powers of the

   High Court under Section 482 of the Code. The Section itself envisages

   three circumstances under which the inherent jurisdiction may be

   exercised, namely, (i) to give effect to an order under the Code; (ii) to

   prevent abuse of process of Court; and (iii) to otherwise secure the ends

   of justice. Nevertheless, it is neither possible nor desirable to lay down

   any inflexible rule which would govern the exercise of inherent

   jurisdiction of the Court. Undoubtedly, the power possessed by the High

   Court under the said provision is very wide but is not unlimited. It has to

   be exercised sparingly, carefully and cautiously, ex debito justitiae to do

   real and substantial justice for which alone the court exists. It needs little

   emphasis that the inherent jurisdiction does not confer an arbitrary power
       on the High Court to act according to whim or caprice. The power exists

       to prevent abuse of authority and not to produce injustice.


17.In one of the earlier cases, in R.P. Kapur Vs. State of Punjab13 this Court

       had summarized some of the categories of cases where inherent power

       under Section 482 of the Code could be exercised by the High Court to

       quash criminal proceedings against the accused. These are:


           (i)          where it manifestly appears that there is a legal bar
                        against   the   institution   or   continuance     of   the
                        proceedings e.g. want of sanction;

           (ii)         where the allegations in the first information report or
                        the complaint taken at its face value and accepted in
                        their entirety do not constitute the offence alleged;

           (iii)        where the allegations constitute an offence, but there is
                        no legal evidence adduced or the evidence adduced
                        clearly or manifestly fails to prove the charge.

18.In Dinesh Dutt Joshi Vs. State of Rajasthan14, while dealing with the

       inherent powers of the High Court, this Court has observed thus:

           "....The principle embodied in the section is based upon the
           maxim: quando lex aliquid alicui concedit, concedere videtur
13
     AIR 1960 SC 866
14
     (2001) 8 SCC 570
      et id sine quo res ipsae esse non potest i.e. when the law gives
      anything to anyone, it gives also all those things without which
      the thing itself would be unavailable. The section does not
      confer any new power, but only declares that the High Court
      possesses inherent powers for the purposes specified in the
      section. As lacunae are sometimes found in procedural law, the
      section has been embodied to cover such lacunae wherever they
      are discovered. The use of extraordinary powers conferred upon
      the High Court under this section are however required to be
      reserved, as far as possible, for extraordinary cases."


19.The purport of the expression "rarest of rare cases", to which reference

   was made by Shri Venugopal, has been explained recently in Som Mittal

   Vs. Government of Karnataka (supra). Speaking for a bench of three

   Judges, Hon'ble the Chief Justice said:


      "When the words 'rarest of rare cases' are used after the words
      'sparingly and with circumspection' while describing the scope
      of Section 482, those words merely emphasize and reiterate
      what is intended to be conveyed by the words 'sparingly and
      with circumspection'. They mean that the power under Section
      482 to quash proceedings should not be used mechanically or
      routinely, but with care and caution, only when a clear case for
      quashing is made out and failure to interfere would lead to a
      miscarriage of justice. The expression "rarest of rare cases" is
      not used in the sense in which it is used with reference to
      punishment for offences under Section 302 IPC, but to
      emphasize that the power under Section 482 Cr.P.C. to quash
      the FIR or criminal proceedings should be used sparingly and
      with circumspection."
20.Bearing in mind the afore-stated legal position in regard to the scope and

   width of the power of the High Court under Section 482 of the Code, we

   shall now advert to the facts at hand.


21.As noted above, the gravamen of the allegations made against the

   appellants in the complaint under Section 500 of the IPC is that when on

   30th January 2007, respondent No.2 through its sponsored University at

   Tripura issued advertisement for fresh enrolments for award of CFA

   Certification, CFA Institute, through its President and CEO, appellant

   No.1, in this appeal, issued the offending "Word of Caution" wherein

   they: (1) deliberately and consciously did not publish the full text of the

   interim injunction granted by the High Court against respondent No.2

   vide order dated 4th August 2006. They did not mention that order dated

   4th August 2006 was with a rider that the said order will not come into

   effect till the end of the current academic session of CFA programme run

   by the society and (2) the defamatory advertisement portrays that the

   designation given by CFA Institute is the only valid designation and the

   CFA certificate given by the society is not valid. According to the

   complainant, all this was a malicious act on the part of appellant No.1,

   with the intention to harm their reputation in the estimation of the public
in general and its present and past students in particular and, therefore,

they are liable to be punished under Section 500 read with Section 34 of

the IPC.   For the sake of ready reference, the relevant portion of the

complaint is extracted below:


   "That in the defamatory advertisement, the accused persons
   have stated inter alia as follows--

         "The Chartered Financial Analyst (CFA) designation
   from CFA Institute is the only globally recognized CFA
   designation for financial professional. However, the Institute of
   Chartered Financial Analysts of India (Icfai) offers an
   educational programme specializing in finance, which they
   term the `CFA Programme' and awards a title called the CFA".

         That in the aforesaid advertisement, the American
   Association has falsely claimed sole global recognition of its
   `CFA' designation even though the same is not recognized by
   any Government and/or Statutory authority either in USA or in
   any other country including India. The sole purpose of using
   the word `Charter' by the accused is purely with an intention to
   defraud and/or mislead the public to convey statutory
   recognition. The said advertisement does not disclose that
   unlike the "CFA' degree granted by the Society, the so called
   "CFA Charter is not recognized by any University in India or
   outside and the students who obtain such "Charter" cannot
   pursue further studies based on the "CFA Charter" so awarded
   by the CFA Institute. The tenor of the above statements in the
   defamatory advertisement portrays an image that the
   designation, given by the CFA Institute, is the only valid
   designation and the `CFA' degree given by the Society is not a
   valid one. However, the situation is to the contrary and the
   Society is a body recognized by the various statutory authorities
   of India to be entitled to grant the "CFA" degree. The sole
   purpose is to defame and scandalize and thereby lower the
image of the Society in the eyes of the general public as also in
the eyes of its present students as also potential students and
thereby harm the image of the Society, so that the organization
of the accused persons can benefit therefrom.

That in the defamatory advertisement dated 12.02.2007, the
accused persons have further stated as follows:-

      "On 4th August, 2006, the Delhi High Court recognized
that CFA Institute owns the exclusive rights to the CFA
trademarks and that continued use by ICFAI causes irreparable
harm. The court ordered an interim injunction requiring Icfai to
stop using the "Chartered Financial Analyst" and "CFA" brands
and to change its corporate and "CFA" titles names.
Unfortunately, Icfai has continued its unauthorized use of our
trademarks by running advertisements from an Icfai-sponsored
university".

        The said statements are patently false and defamatory in
nature. The accused persons deliberately, wilfully and with
malafide intention have not mentioned in the advertisement that
the order dated 4.8.2006 passed by the Hon'ble High Court of
Delhi, granting temporary injunction, has been made with a
rider that the said "order of injunction will not come into effect
till the end of the current academic session of the CFA program
run by the Society." It is well within the knowledge of the
accused that the current academic session of the CFA
programme of the Society has not come to an end and as such it
cannot be said that there has been unauthorized use of the
alleged trade marks of the CFA Institute. Continuance of the
current academic session from a University, sponsored by the
Society, cannot be said to be in violation of the order of
injunction passed by the Hon'ble High Court of Delhi.
Moreover, the defamatory advertisement does not mention the
fact (which is within the knowledge of the accused) that against
the above interim order of injunction, an appeal is pending in
the Hon'ble High Court of Delhi. The tenor of the said
defamatory statement makes it clear that the accused, with
malafide intent to injure and harm the Society, had misquoted
      the order passed by the Hon'ble High Court of Delhi on
      4.8.2006."
                                             (Emphasis added)


22.Since the factum of publication of the "Word of Caution" is not in

   dispute, the question for determination is whether the afore-extracted

   allegations in the complaint constitute an offence of "defamation" as

   defined in Section 499 of the IPC and would attract the penal

   consequences envisaged in Section 500 of the IPC?


23."Defamation" is defined under Section 499 of the IPC. It 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 excepted, to defame that
      person."


24.To constitute "defamation" under Section 499 of the IPC, there must be

   an imputation and such imputation must have been made with intention

   of harming or knowing or having reason to believe that it will harm the

   reputation of the person about whom it is made. In essence, the offence

   of defamation is the harm caused to the reputation of a person. It would

   be sufficient to show that the accused intended or knew or had reason to
   believe that the imputation made by him would harm the reputation of the

   complainant, irrespective of whether the complainant actually suffered

   directly or indirectly from the imputation alleged.


25.However, as per Explanation 4 to the Section, no imputation is said to

   harm a person's reputation, unless that imputation directly or indirectly

   lowers the moral or intellectual character of that person, or lowers the

   character of that person in respect of his caste or of his calling, or lowers

   the credit of that person, in the estimation of others or causes it to be

   believed that the body of that person is in a loathsome state, or in a state

   generally considered as disgraceful.


26.As stated above, the thrust of the argument of learned counsel for the

   appellants was that since the "Word of Caution" was issued in "good

   faith" for the benefit of those who were planning to acquire CFA

   Certificate, and the same being for the "public good", the case falls

   within the ambit of Tenth Exception to Section 499 of the IPC and,

   therefore, the appellants cannot be held liable for defamation.


27.Tenth Exception to Section 499 of the IPC reads as follows:

      "Tenth Exception.--Caution intended for good of person to
      whom conveyed or for public good.--It is not defamation to
      convey a caution, in good faith, to one person against another,
      provided that such caution be intended for the good of the
      person to whom it is conveyed, or of some person in whom that
      person is interested, or for the public good."


28.It is plain that in order to bring a case within the scope of the Tenth

   Exception, it must be proved that statement/publication was intended in

   "good faith" to convey a caution to one person against another; that such

   caution was intended for the good of the person to whom it was

   conveyed, or of such person in whom that person was interested, or for

   the "public good".


29.Before dealing with the question whether or not the Tenth Exception

   would be attracted in the instant case, it would be appropriate at this

   juncture, to deal with the objection raised by learned senior counsel

   appearing for respondent No.2, that no plea regarding applicability of the

   Tenth Exception having been urged before the High Court, the appellants

   are estopped from raising such a plea at this stage. Ground IV in the

   petition before the High Court was in the following terms:


      "Ground IV - For that the publication dated February 12, 2007
      was essential and in public interest and thus made to protect the
      interest of the general public who might otherwise have been
      induced to join the course offered by the complainant/opposite
      party no.2 in the belief that it was entitled to conduct the same.
      The language of the publication is a fact and there is no
      question of there being any defamation involved in the same."


30.It is clear from the above that in their defence, the appellants had pressed

   into service the Tenth Exception to Section 499 of the IPC. It was their

   case that the publication in question was in public interest as it was made

   to protect the interests of those who were planning to join the CFA

   course announced by the University. In our view, the appellants are not

   seeking to raise a new ground and, therefore, respondents' objection on

   that account deserves to be rejected.


31.Now, reverting back to the main issue, as afore-stated, the appellants

   issued the offending "Word of Caution" ostensibly in order to warn those

   who were either planning to hire an investment professional or to obtain

   a CFA designation that there was an interim injunction against

   respondent No.2 from using their afore-noted trademarks. It is claimed

   by the appellants that the said notice was aimed at that group of people

   who were interested in acquiring a definitive standard for professional

   competence or for those who wanted to hire such professionals and not

   for the general public as such. According to them, this is clear from the

   text of the "Word of Caution", which says that "If you are planning to
   either hire an investment professional or obtain a designation, you need

   to make informed decisions that benefit your future." However, it cannot

   be denied that while the publication refers to the interim order passed by

   the Delhi High Court, it omits to mention that the said injunction will not

   come into effect till the end of current academic session of the CFA

   programme, which, according to respondent No.2, was to conclude in

   May 2009, and that the order would not mean expression of final opinion

   on the matter. According to respondent No.2, the omission of last two

   sentences of the interim order was a conscious and deliberate

   suppression to somehow project ICFAI in a bad light in order to harm its

   reputation in the eyes of the professional community and, therefore, the

   offending publication was neither in "good faith" nor in "public

   interest".


32.It is trite that where to the charge of defamation under Section 500 IPC,

   the accused invokes the aid of Tenth Exception to Section 499 IPC,

   "good faith" and "public good" have both to be established by him. The

   mere plea that the accused believed that what he had stated was in "good

   faith" is not sufficient to accept his defence and he must justify the same

   by adducing evidence. However, he is not required to discharge that
  burden by leading evidence to prove his case beyond a reasonable doubt.

  It is well settled that the degree and the character of proof which an

  accused is expected to furnish in support of his plea cannot be equated

  with a degree of proof expected from the prosecution in a criminal trial.

  The moment the accused succeeds in proving a preponderance of

  probability, onus which lies on him in this behalf stands discharged.

  Therefore, it is neither feasible nor possible to lay down a rigid test for

  deciding whether an accused person acted in "good faith" and for "public

  good" under the said Exception. The question has to be considered on

  the facts and circumstances of each case, having regard to the nature of

  imputation made; the circumstances on which it came to be made and the

  status of the person who makes the imputation as also the status of the

  person against whom imputation is allegedly made. These and a host of

  other considerations would be relevant and required to be considered for

  deciding appellants' plea of "good faith" and "public interest".

  Unfortunately, all these are questions of fact and matters for evidence.


33.In the instant case, the stage for recording of evidence had not reached

   and, therefore, in the absence of any evidence on record, we find it

   difficult to return a finding whether or not the appellants have satisfied
   the requirements of "good faith" and "public good" so as to fall within

   the ambit of the Tenth Exception to Section 499 IPC. Similarly, it will

   neither be possible nor appropriate for this Court to comment on the

   allegations levelled by respondent No.2 and record a final opinion

   whether these allegations do constitute defamation.             Reading the

   complaint as a whole, we find it difficult to hold that a case for quashing

   of the complaint under Section 482 of the Code has been made out. At

   this juncture, we say no more lest it may cause prejudice to either of the

   parties.


34.For the afore-going reasons, we are of the opinion that the High Court

   was right in refusing to quash the complaint under Section 500 IPC. The

   appeal, being devoid of any merit, is dismissed accordingly. Nothing

   said by the High Court or by us hereinabove shall be construed as

   expression of final opinion on the merits of the complaint.



                                              ..................................J.
                                              (D.K. JAIN)



                                              ..................................J.
                                             (H.L. DATTU)
NEW DELHI;
MAY 14, 2010.



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