When Shakespeare was wrong

Who steals my purse steals trash; ...................

But he that filches from me my good name

Robs me of that which not enriches him,

And makes me poor indeed. (Othello 3.3)

When the Bard of Avon wrote Iago’s mouthful, he did not foresee the law a few hundred years adrift. “Robbing” a man, and especially a woman, of his or her reputation can indeed now make the victim richer; IF the conditions for such judicial relief can be met.

Defamation, libel and slander find safe harbour in modern law. The question asked is whether there was a storm brewing. In other words, are the basic ingredients met? Is there truth in the barbs or not? Is the public “realm” (in rem) made aware? Most importantly, has the “victim” really suffered? And finally, was there malice, an intentional attempt on the part of the defendant to cause hurt?

We have recently been entertained with some very dirty linen, totally unwashed, being aired in public. Once again, for all the wrong reasons, the Bombay Parsi Punchayet is making its presence felt. If nothing else, senior-most Trustee Dinshaw Mehta, in his 20-year occupation of one chair or another, has kept the pot on the boil.  This time, his co-trustees have charged him with embezzlement of Rs. 48 lakhs! In Mehta’s words, these are the trustees he had “married” five years ago and “divorced” two years back. Poor losers, he says.

Instead of the Family court, they are threatening to head for other fora; the Trustees to the Esplanade Court, with Mehta counter-threatening a trip to the Hon. Court. Mehta wants to opt for relief caused by “Defamation”.

The soap serial is in its nascent stage. The Saas-Bahu evil eyes are preparing for a blistering neighbourhood brawl. Before the proverbial stuff hits the fan, let us analyse the facts.

AND YOU BE THE JUDGE.

The three terms, ‘defamation’, ‘libel’ and ‘slander’ are similar but different in interpretation. Defamation is the effect while the other two are the vehicles for the damage, either by the written word or by the spoken one. Obviously Mehta is referring to a newspaper report about a police complaint filed by the estranged “spouses”, where it is said that Mehta fiddled the cash.

Mehta has, in another newspaper, asked for apology failing which he will sue for Rs. 50 crores! Obviously Mehta considers his own worth very high, but if the matter reaches the temple of justice, the presiding deities may consider him more mortal. So let us consider the facts. Or is it fiction?

The Trust has seven trustees who quarrel most of the time. Elections involve strong-arm men and assaults by gangs of designated trustees. There is no love lost. This then shows animosity to begin with. Next the Trust has immense properties and, as everyone knows, these are goldmines in Mumbai. Most deals in Mumbai involve what is euphemistically called the “Cash Component”. All the Trustees are aware of this or should be. And the housing portfolio is the source of most acrimony.

From reports reaching us, the stew was simmering for a month. The Board Room and battle ground merged. Heated arguments in board meetings followed. This means that all the Trustees knew something was amiss. Next came the calls for resignation. Failure of that move led to a Police complain and the media went to town. Naturally Mehta got upset and slapped a notice. A main witness is reported to be in a coma!

Suppose Mehta does not get his demanded apology and decides to move the courts; and the case were to come before you. Remember that all the ingredients must be met in criminal matters; maybe not so in civil suits. Mehta would have to take the stand as a witness and face a barrage of questions. The fact that a criminal complaint has been filed against him may be used by him to avoid the rigours of cross-examination but adverse inferences can be drawn from that.

A parallel can be seen in the O J Simpson case in the death of his wife, Nicole. He was acquitted in the murder trial but found culpable in the civil suit and fined $4,000,000/-. While our matter under consideration is not that grim, what would your advice be as opposing sides’ advocates?

AND HOW WOULD YOU JUDGE THE CASE?

By: Bapoo M. Malcolm,

Advocate, Bombay High Court

Courtesy By: Moneylife