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TMI Blog2018 (10) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... putation i.e. defamation/libel/slander. There is no other tort of malicious implication which can be separately sued for. The Plaintiff has not been able to show any judgment where the so called tort of malicious implication has resulted in a cause of action. The Plaintiff has merely relied upon judgments to argue that the question of limitation is a mixed question of facts and law. This Court has already held that the suit is not barred by limitation. The question is whether the suit is otherwise barred. In the present case, all the statements which are relied upon which form the basis of cause of action in the suit having been made before DRI officials/Customs Authorities, in statements recorded under Section 108 of the Customs Act, 1962. There is no publication of the said statements. Mr. Oike in fact having also retracted the same, no case of defamation is made out. As per the settled law, statements made in judicial and quasi-judicial proceedings before courts, authorities and tribunals are protected as being privileged. A suit for defamation on the basis of statements in such proceedings is clearly not maintainable. There is yet another dimension to this whole case. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director of the Defendant company. Mr. Oike in his statement to the DRI stated that products such as tanks for culturing, storage and blending, water sterilizer, injection moulding machine, unscrambler selector, filling/sealing machine and refrigeration unit, were described as `dairy machinery on the advice of the Plaintiff who was the CFO and Company Secretary. The statement of Mr. Oike dated 25th August, 2011 reads as under: Statement of Mr. Kiyoshi Tatsuei Oike, Managing Director of M/s. Yakult Danone India Pvt. Ltd., aged 61 years; Date of Birth 04-10- 1949, having permanent residence at 3-21-6, room No.401, Miyanishi-Chou, Fuchu-City, Tokyo, Japan; residing at B-406, 1st Floor, New Friends Colony, New Delhi; recorded before the Senior Intelligence Officer, Directorate of Revenue Intelligence, Mumbai Zonal Unit under Section 108 of the Customs Act, 1962 on 25.08.11 at the office premises of Yakult Danone India P. Ltd. 52, Okhia Industrial Estate, Phase-Ill, New Delhi-20. On being asked about the person who advised the company in the matters regarding import of the said machinery, I state that Shri Anil Chaudhry who was our Chief Financial Officer and Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng asked as to whether Shri Anil Choudhary claimed to have saved Customs duty to the tune of ₹ 362 lakhs in the said SAR by wrongly classifying the said goods as dairy machinery under CTH 843420, I state that Shri Anil Choudahry advised me to classify the goods mentioned in Table II and III as dairy machinery and Customs duty was saved by such wrong classification. 5. The show cause notice, which was addressed to the company was replied to by the Plaintiff, and it resulted in order dated 31st December, 2013 passed by Commissioner of Customs. The Commissioner of Customs held that the goods were liable to be confiscated and penalties were also liable to be imposed. Insofar as the role of Mr. Oike and Mr. Anil Chaudhary is concerned, the Commissioner held as under: ................ YDL, India, is a company which has knowingly committed the acts of omission and commission which rendered the said goods liable to confiscation and, are thereby liable for penal action under section 114 A; Since I am inclined to impose penalty on YDL India under Section 114A, I can not impose penalty under Section 112 in terms of the proviso to Section 114A. (vii) Mr Kiyoshi Tat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the goods does not merit classification as parts of dairy Machinery. For the reasons stated above and looking to the fact that the issue involves of intended mis-declaration, mis-classification and suppression of facts we do not find any infirmity in the order passed by adjudicating authority and uphold the same in as much as the same is related to Appellant M/s Yakult Danone (India) Pvt. Ltd. 9. As regard penalty imposed upon Shri Kiyoshi Tatsui Oike, Managing Director is concerned we find that he was concerned with overall working and not particularly involved in any contumacious conduct. The correspondence for changes of HS codes and alteration of SPE sheets was an act between its parent company M/s Yakult Honsha Ltd, Japan and Mr. Tomoshi Suzuki on the advice of Consultant M/s SBBFL. We thus find that no active involvement of Shri Oike is appearing in record that he orchestrated the alleged acts of violation of Custom laws and intended to cause revenue loss. We therefore do not find it fit to impose penalty and set aside the penalty imposed upon him. 10. As regard penalty upon Shri Anil Choudhary is concerned, we find that he was merely an employee who acted o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicatory bodies, there was no cause of action to file the present suit. Thus, the filing of the suit is not barred by limitation. 11. Insofar the tort of malicious prosecution/malicious implication is concerned, the averments made in the plaint are primarily against the Managing Director and various other officers of the parent company of the Defendant. It is argued on behalf of the Defendant that the conditions to constitute malicious prosecution are not satisfied. Further there is no tort such as malicious implication, hence the suit is not maintainable. 12. A perusal of the plaint reveals that the suit is based on compensation for loss of reputation and malicious implication. The allegation of conspiracy and connivance is based on the statements made by Mr.Oike to the Customs Authorities on 25th August, 2011 and 12th September, 2011. In the said statements, Mr. Oike had stated that the Plaintiff had advised him to classify the machinery as dairy machinery instead of capital machinery. He had also stated that the Plaintiff had claimed credit for saving of the customs duty in his performance appraisal report for 2007-08. These statements, according to the Plaintiff were mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons so summoned shall be bound to state the truth upon any subject, respecting which they are examined or make statements and produce such documents and other things as may be required: Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860). The said provision is part of Chapter XIII of the Customs Act, 1962 which vests the customs authorities with enormous powers, including that of seizure, arrest, confiscation etc., Thus, in the very least, the statements recorded by these authorities as part of the Enquiries conducted by them would be quasi-judicial in nature. 15. In Miss Kamalini Manmade v. Union of India (1967) 69 Bom LR 512, the Plaintiff filed a suit for recovery of ₹ 1 lakh towards damages for defamation. The Plaintiff had been described as Miss Prostitution Solicitor in a telephone directory. The Defendants had initially submitted that such an expression had appeare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of applying this common, law rule in this country. I shall first refer lo sonic of the decisions of the other High Courts and then I will come to the decisions of this Court on the point . The Court, after considering the Indian law on the issue went on to hold as under: 30. In other words, this Court has clearly taken the view in the case mentioned by me above, that the English common law rule pertaining to absolute privilege in regard to defamatory statements made in the course of judicial proceedings, even though such statements are false or malicious, would be applicable in India to civil actions in libel or slander and apart from the question as to whether making of such statements would make these statements criminally liable. The same view has been accepted and expressed in a later Division Bench ruling reported in Govind Ramchandra v. Gangadhar Mahadeo. In that case allegations were made in a petition as well as in the affidavit in support of it, addressed to the High Court for taking steps under the Bar Council Act, 1926, against a legal practitioner under the disciplinary jurisdiction and the legal practitioner filed a suit to recover damages for libel contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivilege attached to the occasion and not to the individual. It is possible that sometimes counsel or the parties or witnesses may take advantage of the occasion and indulge in false or malicious statement which has the effect of bringing down the reputation of some other person; that would certainly be mischievous. But to say that statement would be privileged only in the absence of malice would put these persons in considerable strain and apprehension on such occasions. Basis of privilege is not absence of malice or the truth of statement or the intention of the maker but public policy. Any restriction on privilege during the occasion would create constraints in the process of administration of justice. 16. There is logic behind this rule. When participating in a judicial proceeding, persons concerned must be able to devote their entire attention to the conduct of the proceedings; be they Judges, counsel, parties or witnesses. At every stage they should not be compelled to pause and analyse the absolute relevancy of the statements they proposed to make in the course of proceedings; to insist that they should do so would seriously hamper and weaken judicial process. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any defamatory action. In the light of this observation, the present plaint deserves to be rejected under Order 7 Rule 11(d), CPC, 1908 being barred by law. 18. In Nau Nihal Singh v Sunil Kumar, (2013) 202 DLT 465 , in the context of a statement made during cross-examination before the Additional District Judge, compensation was sought by the Plaintiff. The Court rejected the plaint. 19. A contrary view has however been taken by the Gauhati High Court in Mohini Gohain Baruah v. Putali Gohain Baruah CRP No.328/2016 (Decided on 9th March, 2017) wherein a Learned Single Judge has held: 14. Thus, the inevitable conclusion of this court is that there being no codified law for defamation or in respect of tort, a person can avail civil remedy under the four corners of Specific Relief Act, 1963 and the rules of evidence as prescribed under the provisions of Evidence Act, 1872 would govern such suits. Moreover, the absolute privilege under Evidence Act, 1872 can only be found from the provisions of section 121 to 129 thereof. The foreign law, being not applicable to India, presumption of absolute privilege cannot be made outside the scope of the provisions of the E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Plaintiff which according to the Defendant was submitted by him at the time when he was recruited, claims that the Plaintiff is a highly dedicated professional having around 16 years of experience in handling accounts, finance, legal, secretarial, commercial, human resources and administration . He was a member of institutions which are as under: Institute of Cost and Works Accountant of India qualified in June 1990 (ICWAI); Institute of Company Secretaries of India qualified in June, 1993 (ICSI); Society of Certified Public Accountant of India qualified in October 2003 (CPA) 25. His work experience, as stated in his curriculum vitae, included handling of commercial activities relating of sales tax, VAT, assessments in Delhi and Haryana and supervised logistics including warehousing, commercial contracts with Freight Forwarder, Clearing Agents, Consignees accounts and courier companies. These areas of expertise of the Plaintiff are not denied by him. 26. The Plaintiff has not impleaded Mr. Oike or any of the so called officers, who were allegedly involved in the criminal conspiracy. The present suit claims damages for loss of reputation against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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