P. Govinda Menon, J.
1. This is an appeal filed by Sri G. Chandrasekhara Pillai under Section 417(3), Cri. P. C. against the order of the District Magistrate, Trivandrum acquitting the accused (respondent) who was tried for an offence of defamation punishable under Section 500 of the Indian Penal Code.
2. The complainant is an Ex-Minister, a member of the Kerala Legislative Assembly and was the president of the Trivandrum District Textile Printing and Allied Mills Industrial Cooperative Society Limited (hereinafter referred to as the Society). The accused Sri Karthikeyan is the Editor, Printer and Publisher of the evening daily paper 'Pothujanam', published at Trivandrum which is said to have a wide circulation not only in the Trivandrum City but in other places in the Kerala State. In the issue of the paper dated 27th March 1962 an article was published purporting to be from the Newspaper's own correspondent, entitled 'Bogus Company for nine lakhs' with sub-headings printed in bold headlines 'Kumbhakcnamgalum Thattippukalum'' (swindles and frauds); One Ex-Minister and two high ranking officers, Industries Minister privy to the swindle Kumbhakonam). The complainant's case was that the allegations contained in the article, in so far as it refers to him, are all absolutely false and baseless and was made and published with intent to defame him and lower him in the estimation of the public.
3. Ex. P-1 is the printed copy of the Newspaper and Ex. P-2 is the article in question. The article purports to state the tale of a big fraud or swindle in the society above named of which the complainant is the president. It is stated that the society submitted a scheme for the starting of a textile printing and dyeing mill with a total investment of nine lakhs, out of which the cost of machinery and accessories was three lakhs, working capital five laths and organisational expenses one lakh. It is stated that the Industries Minister Sri Damodara, Menon tentatively sanctioned a loan of rupees three laths to the society, but the officer responsible for implementing the order insisted on an audit of the accounts of the society before payment was made, that the Minister said that audit could be done later and the money may be paid at once, that the complainant attempted to use his influence over the officer, but the office stated that the society was a bogus one and that if the amount of rupees three lakhs is to be paid the Minister would have himself to pass orders to that effect and finding no other way the Minister and the village Bose, meaning the complainant, had to yield to the obstinacy of the officer concerned. The article further stated that the accounts of the society when audited disclosed the magnitude of the fraud perpetrated by the swindling racket and the hollowness of the pretensions of this tall man who holds his head aloft and his pretensions about character and principles. It then referred to the collecting of a share capital of Rs. 75,000/- in the course of three days to enable the society to qualify for a loan of seven and a half lakhs of rupees and the purchase of a dormant textile mill belonging to the wife of the paid secretary of the society and added that when it because clear that the details regarding this naked swindle would be exposed the complainant and another person made an attempt to give up their membership. The article concluded by saying that many swindles and frauds had taken place in this country, that Kerala had given birth to 'Kayamkulam Kochunny and Vellayani Paramu (two well known dacoits)' but Kerala had not so far witnessed such tall persons holding their heads aloft and parading with their off-repeated panegyrics of character and principles clad in Khadi robes but with thieving auger hidden beneath.
4. The complainant caused to be issued a lawyer's notice bringing to the notice of the accused that the allegations were entirely false and made without any foundation and are calculated to defame him and asking for a withdrawal and an expression of regret. In the reply notice sent by the counsel the accused claimed that the facts stated in the article were true and made after careful and close scrutiny and on being satisfied that they were true and believing bona fide that they would serve the public good. He refused to withdraw the imputations and offer an apology. So the complaint was filed before the District Magistrate. On a consideration of the oral and documentary evidence adduced in the case, the learned District Magistrate came to the conclusion that the impugned words were per se defamatory, but upheld the plea of the accused and acquitted him holding that the imputations made by the accused were substantially true and would come within exceptions 1, 8 and 9 to Section 499 of the Penal Code. The correctness of the conclusion reached by the learned Magistrate is challenged in this appeal.
5. The fact that the imputations contained in the impugned article refer to the complainant is amply proved and is not disputed. The complainant has in his evidence referred to the various portions of the article which would indicate that the reference is to him and there has been no cross-examination on the point and this has not been denied by the accused either in the reply notice or when he was questioned under Section 342, Cri. P. C.
Similarly the fact that the article in question is per se defamatory is also not a matter in controversy and that is the finding of the learned Magistrate and no serious attempt has been made to challenge this finding. That the article is on the face of it calculated to harm the reputation of the complainant is clear. Graver charges could not have been brought against any man than these and there can be no question that the writer of the article and the accused who published it knew or must have known that these imputations would lower the reputation and character of the complainant in the mind of any one who reads the article. The whole purport of the article is that the complainant was a party to a big conspiracy to defraud the Government, to fabricate false documents and records in connection therewith, that the entire money transactions were false and untrue and that the complainant brought to bear on the honourable Minister and on the officer concerned undue pressure to achieve the so called objects of the conspiracy. The article refers to an attempt made by the complainant to draw three lakhs of rupees which attempt was foiled by the obstinacy of a certain officer and it went on to say that the appellant is guilty of acts which are more heinous and criminal than what are associated with the two notorious characters 'Kayamkulam Kochunny and Vellayani Paramu' and with all the pretentions about character and principles, the complainant always carries about:
under his khadi robes the thieving auger. If these imputations are not true and are false, there could be no doubt that the accused would be guilty of the offence of defamation unless, of course, he is able to bring his case within any of the exception to Section 499, I. P. C.
The accused has not denied the fact of publication and, in fact, when questioned, has owned the full responsibility for the publication of the article and sought to justify his conduct by claiming that what has been stated is true in substance and in fact and the expressions of opinion are fair comment made in good faith and for public good. So the only question for decision is whether the accused can claim protection under any of the exceptions to Section 499, I. P. C.
6. Now it cannot be disputed that the burden is on the accused to make out that his case would come under any one of the exceptions. Under Section 105 of the Evidence Act when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the Code, is upon him and the Court shall presume the absence of such circumstances. The burden that is cast on the accused in a criminal case by virtue of Section 105, no doubt, is not so onerous as the primary burden cast on the prosecution to prove the offence beyond reasonable doubt. It is sufficient if the accused who pleads an exception satisfies the Court of the probability of what he has been called upon to establish and that if on the evidence it appears probable that the defence set up is true he is entitled to a decision in his favour even though he may not have succeeded in proving the truth of his version beyond reasonable doubt.
But it is not sufficient if the accused' is able to create a doubt that the statement may or may not be true. Authority for the position may be had in the decision in Lalmohan Singh v. The King, AIR 1950 Cal 339 where Harries, C. J., stated:
'It is to be observed that exception 1 requires that the allegation is true and if Mr. Dutt's argument is accepted exception 1, should read: 'It is not defamation to impute anything which may or may not be true.' I do not think that the principle of the Allahabad Full Bench case can be made to apply in the present case. To say something of a person which holds him to contempt is defamatory. If what is said is true then that is a defence. On the other hand if there is a doubt as to whether it is true or not, there is no defence at all and as the matter tends to bring the person defamed into contempt it is defamatory under Section 500 I.P.C.'
7. Now we will see whether the accused has succeeded in proving that exception 1, 8 or 9 would apply in this case. To correctly understand and appreciate the case a few facts about the society have to be stated:
The evidence shows that on 10-7-1960 a preliminary meeting of the promoters of the society including the complainant was held at the Sri Chitra Textiles at Manacaud, Trivandrum to discuss the feasibility of starting a textile printing and allied mill on a co-operative basis. At that meeting it was resolved to register a society for the purpose and an ad hoc committee consisting of five persons with the complainant as chairman and one V. Madhavan Nair as convenor was constituted to draft the bye-laws. At the next meeting on 22-7-60 twenty eight persons were present including those who had attended the first meeting and the draft bye-laws were discussed and passed. The said bye-laws were sent to the District Industries Officer and they were approved and the society was registered. The first general body meeting of the society was held on 17-10-60 and the first set of directors were selected and the directors met the same day and elected the complainant as the president. At that meeting it was resolved to piepare a scheme for the establishment of a textile bleaching, printing and calendering plant and to apply for Government aid. On 22-10-60 the draft scheme was discussed and approved. The Board appointed a sub-committee consisting of two members to make enquiries and to purchase a concern to start a linen factory in the first instance and decided to collect share capital not exceeding one lakh of rupees.
The sub-committee inspected and in their report suggested that the site, building, furniture, equipments etc., of the Sri Chitra Textiles might be purchased. They valued the looms and its accessories and recommended the purchase after paying a goodwill of Rs. 15,000/-. The Board of directors after discussion approved the recommendation of the sub-committee and resolved to purchase the same. The building was got valued by the Executive Engineer. Ex. P-9 is the report. The land was valued by the Tahsildar and Ex. P-8 is his report. The proposal to purchase the factory was then sent up to the District Industries Officer, who after verification, approved the purchase of the land and building. Thereafter the factory with all its equipments was purchased and the sale deed was executed. The scheme was then prepared in the required pro forma and was submitted to the Government. The Director of Industries after having the scheme, examined by Sri O. T. Krishnan the textile expert and after obtaining remarks of the District Industries Officer recommended for the sanction of the loan. His report is Ex. P-3. In that report the Director of Industries stated that the District Industries Officer who conducted preliminary enquiries about the proposed venture has reported that the proposed factory is well laid out and is equipped with all necessary looms and accessories required for starting the linen weaving industry which the society proposes to take up in the initial stages. It was also stated that the society had collected a share capital of Rs. 74,500/- from its members who are workers allied to the proposed industry as defined in the rules for the grant of state loans to industrial cooperative societies. It was further stated that the textile expert who has examined the scheme has reported that there is very great scope for starting a Textile Printing and Mercirizing factory in the State. The Director wound up by saying that the scheme is a sound one and there may not be any difficulty in marketing the goods and recommended that the required financial aid for the venture may be sanctioned. Then the matter was referred to the Director of Small Scale Industries to ascertain whether linen weaving textile printing, finishing etc., would come within the approved category for purposes of loan under the Small Scale Industries Aid Scheme. After some correspondence the matter was referred to the Textile Commissioner, Bombay.
8. When the correspondence about this was in progress the Government received an anonymous petition forwarded to them by the Special Police Establishment, Delhi containing certain allegations about the formation and the conduct of the society. On receipt of this the Joint Secretary to the Government in the Industries Department sent confidential D. O. letters to the Registrar of Cooperative Societies for an audit and an enquiry into the conduct of the society; to the Collector for the valuation of the land; the Chief Engineer for valuation of the buildings; and to the Director of Technical Education for the valuation of the Machinery, looms etc.
Under the order of the Collector the same Tahsildar who had valued the land in the first instance valued the property again and fixed the value at Rs. 250/- per cent. The Executive Engineer, P.W.D. valued the building at Rs. 34,000/-and less depreciation at Rs. 30735. The Principal, Institute of Textile Technology, Trivendrum valued the total cost of the completed looms and accessories and dyeing equipments at Rs. 9565/-. His report is Ex D-16, but it did not include the valuation for the dismantled heap of looms stocked in the shed. A senior Inspector of the Cooperative department conducted an audit and he has expressed his opinion that the valuation was excessive, that there was no justification for the payment of any amount for goodwill, that most of the persons were not real textile workers and he doubted whether the share amount had, in fact, been collected and whether they were not mere book entries and he suggested that a detailed enquiry be conducted under Section 45 of the Co-operative Societies Act. On this report the Deputy Registrar of Co-operative Societies suggested that the bona fides of the transaction could be ascertained only after a detailed investigation is conducted by more competent authorities. The Joint Registrar of Co-operative Societies in forwarding the audit report, however, remarked that there was reason to suspect that there was a conspiracy by the promoters to falsify the accounts for the purpose of inducing the officers of the Industries Department to give financial assistance to the society. This was on 2-12-1962 and on 27-3-1962 the impugned publication was made.
The accused examined the Joint Secretary as DW 1, the Deputy Registrar of Co-operative Societies as DW 2, the Senior Auditor who conducted the audit as DW 3 and Sri K. Ananthan Pillai, who is shown as one of the share-holders, as DW 4 in support of their case.
9. The question for consideration is whether the allegations in the article have been proved to be true and whether the comments have been made bona fide and in good faith. The sheet-anchor on which the whole defence is founded is the audit report. I did not understand the learned counsel for the defence to argue that the imputations, each one of them have been proved to be true. His main argument was that there were facts and circumstances which would show that the imputation was made in good faith and for public good.
Learned defence counsel referred to various circumstances from which an inference could be drawn that all was not well with the society and that there was sufficient justification for saying that it was a bogus society and as the complainant had associated himself with an organisation which had committed fraud the accused was justified! in making the imputation which he had made against the complainant. Learned counsel referred to Section 17 of the Contract Act defining what fraud is and stated that if it is proved that the representations made in the application for loan were not true it would be a case of fraud. It was farther stated that fraud in its very nature is incapable of direct proof and that it is sufficient if the evidence given is such, as might lead to the reasonable inference that fraud must have been committed. Learned counsel pointed out that the society was ostensibly for the benefit of the textile workers and from the membership register it would be apparent that most of the members were not really textile workers and even well known persons who are not in the textile business have been shown as textile workers. He then referred to the valuation made by the different officers and the auditor's report and stated that the observations made by the auditor and the Joint Registrar were well justified on the evidence and when the article is based on the findings in the audit report no offence could be said to have been committed.
10. It was contended by the learned counsel for the appellant that the audit report Ex. D-10 and confidential reports Ex. D-17 made by the Joint Registrar of Co-operative Societies ought not to have been admitted in evidence at all and the learned District Magistrate was not justified in rejecting the claim of privilege put forward by the department. DW 3 is the Senior Auditor. When he was examined a copy of the confidential report made by the Joint Registrar was filed. He had remarked that there was reason to believe that there was a conspiracy among the promoters to falsify the accounts for the purpose of inducing the Industries Department to render financial assistance to the society, but as that report itself would show the Joint Registrar had not conducted any independent enquiry. He has not been examined; in Court and no opportunity has been afforded to the complainant to show that his findings are based on no evidence. The opinion expressed by him in his report is, therefore, practically of no value and I feel that the report ought not to have been admitted in evidence. There is considerable force in the submission made by the learned counsel for the complainant that it is a highly prejudicial and one-sided report ignoring the fact that the scheme had been scrutinised and approved by the officers of the Industries Department. It was pointed out that the second valuation made by the Executive Engineer is higher than the value paid by the society and in so far as the valuation of the land is concerned the self-same Tahsildar who had fixed the price at Rs. 300/- per cent bas for no understandable reasons reduced the rate to Rs. 250/- in his second valuation. Learned counsel for the defence did not Seriously contend for the position that the valuation of the land and building was in any way excessive, but reliance was placed on the report made by the Principal, Institute of Textile Technology which showed that the valuations made by the Sub-committee for the looms and accessories were far too high, Learned counsel for the appellant pointed out that the report itself shows that the entire looms were not valued and it is submitted that here again the Principal was not examined and no opportunity was given to cross-examine him and show that his report cannot be the last word on the subject. It was further stated that there is nothing wrong in purchasing the goodwill, that in certain cases even the Government had done so and in any case It had been paid only after sanction was obtained from the department.
The price paid to the vendors may or may not be high, but the real question is whether from thisfact it could be inferred that the complainant was a party to inflate the valuation or that there was any conspiracy to defraud the Government. All that a president could do in a case of this nature Is to appoint a sub-committee to fix the valuation which has been done and the sub-committee's valuation report was considered by the Board and It was only after getting the approval of the District Industries Officer that the transaction was concluded and the money was paid.
Learned counsel for the appellant then submitted that the observations made by the senior auditor that the share amounts had really not been collected is not based on any satisfactory evidence, that he had not questioned all the shareholders or recorded their statements and that it is improbable and most unlikely that without actually getting the price for the property and the equipments, the owners would have agreed to sell and they would not have executed the sale deed, which would once for all extinguish their rights in the property. So if they had been paid the price the share money must necessarily have been collected from the members. It is true that consideration had not been paid by cheque and the share amount collected had not been remitted into bank and the price had not been paid before the Registrar at the time of registering the document, but from these facts alone it cannot be concluded that it was an entirely sham transaction.
It is true that DW 4, Sri Ananthan Pillai, haa given evidence that even though shares worth Rs. 1000/- were allotted to him and shown as having been paid by him he had, in fact, paid only Rs. 50/- and that he had intimated that he is not in a position to pay the balance amount. He has however admitted that in the schedule of members his name, address and signature were all written in his own hand-writing and it is item No. 23 in Ex. D-3. It may be that what he says in Court is true or as suggested it might be that he is only deposing untrue facts to help the accused. Whatever that may be, merely because one person has been examined to show that he has not paid the full amount of the share money that by itself is no reason to conclude that none of the other share-holders would have paid the share. None of the other share-holders have been examined nor have they come forward with any complaint.
11. There is no material to show that any information beyond the audit report was in the possession of the accused when the statement was published. No evidence was led to show that the accused made any independent enquiry or investigated into the truth of the charges that had been, made in the article. The audit report and the confidential remarks made by the Joint Registrar even if it may amount to a libel may be a privileged communication made in the course of the discharge of their official duties. In the report the auditor D W 3 expressed only a suspicion and wanted a detailed enquiry. Even if the auditor had used identical language which had been indulged in by the accused, the publication of a, similar imputation would have given to the accused no protection. The accused cannot justify a defamatory statement on the ground that such report had appeared elsewhere or that rumours to that effect were afloat. Every repetition of a libel is a new libel and each publisher is answerable for his act to the same extent as if the calumny originated from him. The publisher of a libel is clearly responsible, irrespective of the fact whether he is the originator of the libel or is merely repeating it. So reliance on the audit report is totally insufficient for founding the various charges made in the article and there can be no justification for the various assertions of fact made by the accused in the article.
No attempt was made, for example, to prove the truth of the allegation that the society had either applied for any interim payment or that the minister bad, in fact, sanctioned an advance payment of three lakhs or that the complainant had at any time used his influence and tried to draw the amount, but had been foiled in his attempt. The accused has not chosen to tell the Court as to who the officer was who stood in the way of the complainant taking away the money. The Joint Secretary to the Government, when examined was not asked anything about this matter for the purpose of justifying the allegations made. In fact, from the questions asked and the answers elicited it would show that no such thing had happened and that the allegation made by the accused is not true. It has also come out in the evidence of DW 1, the Joint Secretary that when a loan is granted to a small scale industry the entire loan would be deposited in the bank and the society would be able to draw the money for necessities only with the counter-signature of the District Industries Officer.
Similarly, no attempt was made to justify the statement that the complainant withdrew his membership when he knew that the fraud would become public. The evidence shows that he had resigned much earlier than even the receipt of the anonymous petition or the audit conducted by DW3 and the complainant has given satisfactory explanation as to why he had to resign.
No attempt was made by the accused to justify the serious imputations made against the complainant in the article where the writer alleged that the appellant is guilty of acts which are more heinous and criminal than that were committed by Kayamkulam Kochunni and Vellayani Paramu, who were notorious dacoits and thieves. The allegation that the complainant carries about the thieving auger concealed under his khadi robes is also an assertion of fact which is thoroughly unjustified. DW 1 when examined was questioned whether the complainant was a person of the type of the two dacoits 'Kochunni and Paramu' and he has stated that the complainant is not a person ol that type.
Exception 1 to Section 499 I.P.C., recognises the publication of truth as a sufficient justification if it is made for the public good. When truth is set up as a defence it must extend to the entire libel and it is not sufficient that only a part of the libel is proved to be true. Here as stated already the truth of the various allegations had not even been attempted to be proved. I, therefore, cannot agree with the conclusions of the learned District Magistrate that the imputations have been proved to be true.
12. The ingredients of the ninth exception on which the entire arguments had been rested are that the imputation on the character of another should be made in good faith and for the protection of the interests of the person making it of of any other person or for the public good. So the accused has to prove that the publication was both in good faith and for the public good. The term good faith is defined in Section 52 of the Indian Penal Code. It says that nothing is said to be done or believed in good faith which is done or believed without due care and attention. So if an act is not done with due care and attention it cannot be said to be done in good faith. Good faith contemplates an honest effort to ascertain the truth of the facts.
What would amount to fair comment has been considered by a Bench of this Court in the case: in R. Sankar v. State, 1958 Ker LT 1158: (AIR 1959 Kerala 100), wherein Raman Nayar, J., speaking for the Bench stated:
'A mere perusal of exceptions 2, 3 and 9 is sufficient to show that these exceptions which embody the defence compendiously known as 'fair comment', apply only to expressions of opinion or imputations on character, and not to assertions of fact. The latter can be justified only by truth. Comment must be on actual and not on imagined conduct; and even if the accused person genuinely believed the imputed conduct to be real that would be no defence. If the opinion or the imputation purports to be based on facts, then the person claiming the benefit of these exceptions must prove those facts. It is not enough for him to say that he believed those facts. When the allegations of fact are as in the present case in themselves defamatory and those allegations are nod proved to be true no defence of fair comment can possibly arise. For, 'fair comment' cannot justify a defamatory statement which is untrue in fact. 'A comment cannot be fair which is built upon facts which are not truly stated'. And as emphasised by Herschell, L. C. in Davis v. Shepstone, (1886) 11 A C 187 at p. 190:
'There is no doubt that the public acts of a public man may lawfully be made the subject of fair comment or criticism, not only by the press, but by all members of the public. But the distinction cannot be too clearly borne in mind between comment or criticism and allegations, of fact such as that disgraceful acts have been committed, or discreditable language used. It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct.'
The learned Judge further stated:
'With regard to the defence of fair comment, Section 499 I.P.C. only codified the prevailing English law, what in Campbell v. Spottiswoode (1863) 122 E.R. 288 Blackburn, J., regarded as so clearly settled. Dealing with the defence of fair comment put forward in that case Cockburn, C. J., observed :
'I think the fair position in which the law may be settled is this; that where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives which arise fairly and legitimately out of his conduct so that a jury shall say that the criticism was not only honest but also well founded, an action is not maintainable. But it is not because a public writer fancies that the conduct of a public man is open to the suspicion of dishonesty, he is therefore justified id assailing his character as dishonest.'
Dealing with the same question in Joynt v. Cycle Trade Publishing Co., (1904) 2 K. B. 292, Vaughan Williams, J., said that plea of fair comment could not be sustained
'unless facts were proved which made it reasonable to make such a suggestion. That is the law as I understand it to have been laid down by Crompton, J., in (1863) 122 ER 288. The learned judge said: if he (the critic) imputes to the person whom he is criticising base and sordid motives, which are not warranted by the facts, I cannot think for a moment that because he bona fide believes that he is publishing what is true, that is any defence in point of law.'
Bona fide belief might, in such a case have some bearing on the quantum of damages in a civil action; perhaps also on the question of sentence in a criminal prosecution; but otherwise it is irrelevant.'
Reference may also be made to the decision of the Privy Council in Arnold v. King Emperor AIR 1914 P.C.116. This decision brings out four principles:
Firstly, that 'good faith' means good faith and also the exercise of due care and attention;
Secondly, that due care and attention means that the libeller should show that he had taken particular steps to investigate the truth and had satisfied himself from his enquiry, as a reasonable man that he had come to a true conclusion;
Thirdly, that the conduct of the accused, during the course of the proceedings in a court, is a relevant factor in determining his good faith; and Fourthly, that if there are several imputations good faith or truth must be proved with respect to every imputation, and, if he fails in substantiating truth or good faith in respect of any one imputation, conviction must stand.
In this case as referred to earlier the accused has not said a word that he had investigated into the truth of the imputations which he made in the article. Exception 9 applies only to an expression of opinion regarding character and not to assertions of fact which are in themselves defamatory.
A publisher of a defamatory statement can only be protected if he shows that he had taken all reasonable precautions and then had a reasonable and well-grounded belief in the truth of the statement. The plea of 'good faith' implies the making of a genuine effort to reach the truth, and a mere belief in the truth, without there being reasonable grounds for such a plea, is not synonymous with good faith. Exception 9, therefore, covers two matters, proof of good intention and the exercise of reasonable care and skill, having regard to the occasion and the circumstances. Mere subjective belief without any objective basis is not a 'dependable criterion for substantiating the ninth exception; an unnecessary aspersion is indicative of want of good faith.
The finding of the learned Magistrate is very halting and what is stated is that the accused has 'some' justification in claiming protection under the exception. But this will not suffice. The learned Magistrate has stated that a perusal of the whole article shows that there are unwarranted insinuations and references, but the learned Magistrate found that the intention of the accused was only to bring out the main facts before public and the Government. Again the learned Magistrate has stated that 'the accused had made some embellishments, additions etc., in the article probably to meet the taste of the public and to attract their pointed attention to the main facts so as to make it an interesting readable matter.' That would not exonerate the accused.
Even if the accused felt some suspicion about the society from the audit report and thought that the publication was necessary in this case it was clearly a case of excessive publication which would take the case out of the privilege conferred by exception 9 to Section 499 I.P.C. Vide the decisions in Queen-Empress v. Janardhan Damodhar Dikshit ILR 19 Bom 703 and Rama Rao v. Emperor AIR 1943 Oudh r.
I cannot understand how exception 8 can have any application in this case. Exception 8 leads:
'It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation.'
So in order to establish a defence under this exception the accused would have to prove that the person to whom the complaint was made had lawful authority over the person complained against in respect of the subject matter of the accusation. Accusation before the public by publication in a newspaper is not the sort of lawful authority contemplated by the exception.
So on a careful and anxious consideration of the evidence and the facts and circumstances of the case I have no doubt in my mind that the accused is not protected under any one of the exceptions to Section 499, I. P. C. It, therefore, follows that the accused is guilty of the offence charged against him.
13. Another argument may also be mentioned. It was stated that in an appeal against an order of acquittal the appellate Court would not ordinarily interfere with the trial court's appreciation of the oral evidence of the witnesses unless there are strong grounds to show that the trial Court has grossly misconducted itself in the appreciation of the evidence on record. The powers of the appellate Court in an appeal against acquittal had been dealt with in the leading case of the Privy Council in Sheo Swarup v. Emperor, AIR 1934 PC 227 (z).
The principles contained in that decision have been subsequently affirmed and reiterated by the Supreme Court in a series of cases. In some of these cases, it is true their Lordships have emphasised the necessity of interference only on 'substantial and compelling reasons.' What really is 'compelling and substantial reasons' has been made clear by the Supreme Court in the case in Harbans Singh v. State of Punjab, AIR 1962 SC 439 where Das Gupta, J., speaking for the Bench has observed as follows:
'But on a close analysis, it is clear that the principles laid down by the Court in this matter have remained the same. What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the Court of appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate Court comes to the conclusion that the view taken by the lower Court is clearly an unreasonable one that, itself is a 'compelling reason' for interference. For, it is a Court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established.'
To the same effect is the decision in Agarwal v. State of Maharashtra, AIR 1963 SC 200.
So where there is a total absence of any justification for holding that any of the exceptions would apply in this case and where the order of acquittal is clearly wrong resulting in a miscarriage of justice, it becomes necessary to interfere with the order of acquittal.
14. Then the only question that would remain is the question of sentence. One of the first duties of the law is to protect the personal reputation and adequately to punish those who falsely and maliciously attempt to destroy it without legal justification or excuse. In the words of Sri R. Malins, V. C., in Dixon v. Holden, (1869) 7 Eq. 488 at p. 492, a person's reputation, is his property, and, if possible, more valuable than other property. I, therefore, agree with the submission made by the learned counsel that serious notice should have to be taken of such' offences. But I believe the complainant's anxiety in prosecuting the accused was personally to vindicate his character and in this he has succeeded. Punishment of the offender from the point of view of the complainant is a secondary matter. His purpose would have been substantially served if he had obtained a retraction and an expression of regret from the accused. So all things considered, I think a sentence of a fine would meet the ends of justice.
In the result, the appeal is allowed and the order of acquittal passed against the respondent-accused is set aside. He is found guilty and convicted of the offence under Section 500, I. P. C., and is sentenced to pay a fine of Rs. 500/- and in default he would undergo simple imprisonment for three months. Time for payment of fine one month from this date.