IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS, CHANDIGARH

IN THE MATTERS OF:

HARRY KHARBANDA ...COMPLAINANT

VERSUS

AYUSHI SAINI ... DEFENDANT

FOR OFFENCES CHARGED UNDER SECTION 500 OF INDIAN PENAL CODE, 1860

WRITTEN SUBMISSIONS ON BEHALF OF THE COMPLAINANT

COUNSEL APPEARING ON BEHALF OF THE COMPLAINANT

MANJOT SINGH RAI

 MEMORANDUM ON BEHALF OF PROSECUTION

TABLE OF CONTENTS

1. List of abbreviations iii

2. Index of authorities iv
i) Table of cases iv
ii)Books and articles iv
iii) Statues iv
3. Statement of jurisdiction v

4. Statement of facts vi

5. Statement of charge viii

6. Summary arguments ix

7. Arguments advanced x

8. Prayer xiv

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LIST OF ABBREVIATIONS

CrPc Code of criminal procedure, 1973

IPC Indian penal code, 1860

AIR All India Reporter

v. Versus

Mad Madras High Court

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INDEX OF AUTHORITIES

TABLE OF CASES
1. Luchmi Narayan, A.I.R. 1931 All. 126
2. Rekhabai v. Dattatraya, H.P. Baidy, A.I.R. 1930 Cal.645
3. Thiagaraya v. Krishnasami, (1892) 15 Mad. 214

STATUTES
1. Indian Penal Code, 1860
2. Code of Criminal Procedure, 1973
3. Evidence Act, 1872

BOOKS AND ARTICLES

1. Indian Penal Code, 20th edition 2016 by S.N. Mishra
2. Criminal Procedure Code, 6th edition by R.V. Kelkar
3. Lal, Batuk, the Law of Evidence, (18th Ed. 2010)

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STATEMENT OF JURISDICTION

I. The Complainant has approached the Court of Judicial Magistrate First Class,
Chandigarh under Section 190 r/w 1791 and 199(1)2 of the Code of Criminal Procedure,
1973.

Note: as held in Rekhabai v. Dattatraya3 where an offence of defamation was committed

through a letter, the case can either be tried at the place where he letter was written and
posted or at the place where the letter was received and read, on the same principle the case
has been filed before the judicial Magistrate First Class, Chandigarh.

1
When an act is an offence by reason of anything which has been done and of a consequence which has ensued,
the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or
such consequence has ensued
2
Prosecution for defamation: (1) No court shall take cognizance of Offence punishable under Chapter XXI of
the Indian Penal Code (45 of 1860) except upon a complaint made by a person aggrieved by the offence
3
H.P. Baidy, A.I.R. 1930 Cal.645

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STATEMENT OF FACTS

1. Mr Harry Kharbanda (hereinafter referred to as complainant) is a very famous actor in

the Punjabi film industry. One Ayushi Saini (hereinafter referred to as accused) on 3rd
October, 2018 posted on her social media that the complainant sexually harassed her 10 years
ago in the year 2008 on the sets of the movie “Amritsar to Australia”.

THE 2008 INCIDENT

2. As mentioned in the social media post of the accused, during the shooting of the
movie, the accused was to do a solo dance sequence for a song. The accused alleged that
without informing her, the actor and the director changed the sequence of a song that was
originally planned to be a solo dance to a couple sequence. The accused mentioned that even
though originally there was no scene of the complainant with her, but still the director and the
choreographer approached her and tried to convince her to perform with the complainant.

4. at the time of shooting when the whole crew was present, stated that the actor
suddenly held her from behind and started swaying her. When the accused broke away, the
complainant told her that he was just rehearsing the choreography

5. Then the accused in a fit of rage stormed out of the set and locked herself in her
vanity van. The accused then refused to talk to anyone. Later when the accused was trying to
leave the sets, she was mobbed by several people who surrounded her car and were angrily
shouting her and some even threw stones at her car.

6. When the accused tried to talk to one of the people protesting, he replied they were
sent by the producers and that she was the reason that the film was being halted.

7. With the help of the police the accused was allowed to leave and the accused then
lodged a complaint with Chandigarh Police. In her complaint the accused mentioned that the
actor/complainant had deliberately caused the change in the dance sequence, so that he could
get a chance to get intimate with the accused.

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8. The accused was a newcomer then and had appeared in only 2 films till then thus
nobody from the industry had come to support her except one journalist who had witnessed
the incident and then later had supported her statements on the social media in 2018 as well.

9. The Complainant in the present case has stated that the whole incident is fabricated by
the accused so that she could gain public sympathy and recreate her career in the Film
industry. The complainant has alleged that the accused had wrongly used the social media to
defame him.

10. The complainant claims the incident, which the accused had referred to, had not
happened the way she narrated. In fact the accused actress, before the beginning of the
shooting of the film, had perfect knowledge that a dance sequence was included in her
contract and the whole film revolved around the actor’s character so he was an integral part
of the film.

11. Regarding the allegations, the Complainant stated that he had treated the actress with
utmost respect throughout the shooting. Also the complainant has alleged that accused had
tried to defame the complainant in order to take revenge as she could not complete the film.
Also the complainant had no role when the mob attacked her car.

12. The complainant also said that he also defended himself in 2008 in front of the press
as well stating that he has not done anything. The complainant stated that he had never
treated any woman like this and in fact he is a social activist and is also a passionate
philanthropist.

13. Hence, a criminal complaint has been filed by Mr. Harry Kharbanda as under section
500 of IPC against Ms. Ayushi Saini in Chandigarh to Judicial Magistrate First Class,
Chandigarh.

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STATEMENT OF CHARGE

1. Whether the accused is guilty of defaming the complainant under section 500 of Cr.P.C.?

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SUMMARY OF ARGUMENTS

I. Whether the act of the accused satisfies the ingredients of defamation?

It is humbly submitted before this Hon’ble Court that the act of accused fulfils all
the necessary ingredients of defamation as the statement made by the accused are:
1. Referred to the complainant directly.
2. The statement made by her is in written form.
3. The whole act of the accused indicates her intention to cause
harm to the complainant

II. Whether the accused is guilty of defamation?

It is humbly submitted before this Hon’ble Court that the accused Ayushi Saini is
guilty of defaming the complainant as she had published on her own social media
account a fabricated incident which never happened and also falsely implicated
the complainant for sexually harassing her.

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ARGUMENTS ADVANCED

ISSUE I

Whether the statements made by accused satisfy the ingredients of defamation?

It is humbly contended that Ayushi Saini (herein referred to as accused) is guilty of unlawful
offence under sec. 500 of the I.P.C., 1860. It is to be noted that the essential ingredients of
defamation are as follows:
1. Making or publishing any imputation concerning any person. [1.1]
2. Such imputations must have been :-
a) Words, either spoken or intended to be read
b) Signs; or
c) Visible representations.[1.2]
3. Such imputations must have been made with the intention of
harming or with knowledge or reason to believe that it will harm
the reputation of the person concerning to whom it is made. [1.3]

1.1 STATEMENTS OF THE ACCUSED REFERRED TO THE COMPLAINANT

The statements made by the accused on her social media page referred to the
complainant directly with name, there is no ambiguity or confusion as to whom the
statements referred. Also, the statements of the accused are published on social media
as electronic records which is to be treated as document as under sec. 65A and 65B of
the Indian Evidence Act, 1872.

1.2 WRITTEN IMPUTATIONS

Also, the statement by the accused are published as they can be viewed by anyone who
has access to computer. For the offence of defamation the publication of defamatory

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material is essential, in case of Thiagaraya v. Krishnasami4 it was held that

defamatory material, if written will constitute publication when it is distributed or
broadcasted as in this as it was broadcasted through social media of the user.

1.3 HARMS REPUTATION OF THE PERSON

The accused had knowledge that publishing such material would cause harm to the reputation
of the complainant and also lower his character in the estimation of others. The test to
determine whether any statement is defamatory or not is whether under the circumstances in
which writing was published; a person of reasonable prudence to whom publication was
made would be likely to understand it in a libellous sense.5

ISSUE II
Whether the accused is guilty of defamation?
I humbly submit before this Hon’ble Court that the accused is guilty of defamation because
there are many facts which have been mis-represented or omitted to suit the wrongful gains
of the accused. Such errors will be highlighted in the following:

2.1 NO TRUTH IN STATEMENTS MADE BY ACCUSED

a) The accused was properly informed about all the changes in dance sequence
before hand; though the change was sudden the accused was properly informed.
b) The complainant was never involved in the decision of changes made in the
movie, it was the decision of the writers, the producers and the director. The
complainant was never involved.
c) During the shoot of the dance sequence the complainant never sexually assaulted
the accused; the actor was merely performing as told by the choreographer. But,
instead it was the accused; she then suddenly ran to her van and did not come out
for the rest of the day.

4
(1892) 15 Mad. 214
5
Luchmi Narayan, A.I.R. 1931 All. 126

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d) As far as the mobbing incident is concerned the complainant had nothing to do

with it, also it clear from the statement of the accused that the people who mobbed
her were sent by the producers.6

2.2 THE ACCUSED NEVER FOLLOWED UP ON HER COMPLAINT

The accused lodged a complaint against the complainant in October 2008, i.e. 10years
ago, the accused never again went to the police and not even used her right to ask the
Court to force the police to finish their investigation or file a case against the
complainant for the 10 years. This shows the malicious nature of accused. Even now
the accused did not lodge any formal complaint or file a suit in the Court of law
because the accused knows she her statements are lies and would not hold up in a
formal investigation or in the Court

2.3 STATEMENT OF ACCUSED DOES NOT FALL UNDER ANY EXCEPTIONS.

The statement made by the accused is defamation because the defamatory material published
by the accused does not fall under any exceptions mentioned u/s 499 of the IPC, 1860.
Exceptions under sec. 499, IPC:
1. Imputation of truth which public good requires to be made or published
2. Public conduct of public servants
3. Conduct of any person touching any public question
4. Publication of reports of proceedings
5. Merits of case decided in Court or conduct of witness mad others concerned
6. Merits of public performance
7. Censure passed in good faith by person having lawful authority over another
8. Accusation preferred in good faith to authorized person

2.4 REVENGE FOR LOSING THE PART IN THE MOVIE

The accused has falsely implicated the complainant because she wanted revenge from the
complainant for getting her removed from the movie whereas the truth is the accused
could not cope with pressure of learning choreography in a short time as she was just an

6
Factsheet Para 3, line 17

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amateur then and is trying to blame someone else for incompetency. Also, her tantrum of
running to her vanity van and not talking to anyone cost the movie a big chunk of the
budget then, which caused many of the daily paid staff angry and also the producers
which led to the mobbing and in turn her firing of the movie respectively.

2.5 FULFILMENT OF ALL INGREDIENTS OF DEFAMATION

The act of the accused fulfils all the necessary ingredients of the offence of defamation under
sec. 499 of IPC which are:

1. The post which is the publication of her statement directly refers to the accused
without any ambiguity or concealment.
2. The written statement of her is the imputation made in form words of visual
representation.
3. Finally, the false allegations of sexual harassment have caused great harm to the
character and reputation of the complainant in the society and especially among his
peers. Also, since the statement of the accused the amount of offers for work for the
complainant have drastically reduced.

Hence, it can be concluded on the above basis that the false allegations and fabrication on an
incident which never happened and a police complaint which didn’t result in the conviction
of the complainant, the accused has defamed the complainant by fabricating and falsely
accusing him of crime he never committed.

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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited,
it is humbly requested that this Honourable Court may be pleased to adjudge and declare:

4. Convict Ms. AYUSHI SAINI for the offence of defamation under Sections 500 of the
Indian Penal Code, 1860.

5. Declare a sentence of simple imprisonment for a term which may extend to

two years, and/or also be liable to fine under Section 500 of the Indian Penal Code,
1860.

and/or

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE COMPLAINANT

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