E.K. Moidu, J.
1. The appeal by a private-complainant before the Additional First Class Magistrate, Tellicherry is directed against the order acquitting the respondent-accused in respect of an offence under Section 500, Penal Code. The complaint was filed on 15.5.68. The complainant examined as P. W. 1, Jacob Onden is a regular and active member of the Pastorate, Tellicherry which is a unit of the Church of South India Diocese of the North Kerala. He has been working as a lay preacher in the various Pastorates within the Diocese on the invitation of the Presbyter incharge in recognition of his character, ability and knowledge under the instruction of the. head of the Diocese. He has also been chosen by the Education department of the Government of Kerala to address students of High Schools and Colleges on Psychophysical exercise, art of talking and other useful subjects of educative value. For a while he was also an active and Executive Committee member and instructor of Sree Narayana Mission, Institution, Calicut. While so, he was respected and liked by a large circle of his friends and well-wishers who recognised his abilities and talents so much so they treated him with great respect and admiration.
2. The respondent Rev. Stanley Pandingadan was a Pastor of the church of the South India Pastorate at Tellicherry. When he worked in that capacity there was a charge against him, that he misappropriated a sum of Rs. 252.52 out of the funds of the Pastorate, but' he was not prepared 'to settle the claim through mediation. On the other hand, he tendered his resignation which was also accepted by the Bishop. Thereafter, the respondent joined a rival group which opposed the Church of South India and made attempts to enter the churchea which are directly under the church of South India and conduct services. The Christian members of the church felt aggrieved of the conduct of the repondent. However, the complainant initiated a criminal proceeding against the respondent before the Addl. First Class Magistrate, Tellicherry charging him of the defalcation of the church money. While the complaint was pending, the matter was compromised between the parties, with the result the complaint was withdrawn on the respondent paying to the church the amount due to it and costs due to the complainant.
3. Thereafter, the respondent started accusing the complainant of various charges when he caused the publication of Ext. P1 news in the 'Manorama' daily D/- 20-8.68 bringing to the notice of the public that the criminal complaint against the repondent was withdrawn on condition of the payment of money due to the church and to himself. The respondent than published Ext. P2 D/- 31-3-68 in the same paper denying that the withdrawat was conditional on payment of money, but, it : was an unconditional withdrawal. In answer to that publication, the complainant issued a printed leaflet Ext. P3 D/- 6-4-68 setting fourth all the circumstances under which the case was withdrawn. 0! course, the appellant-complainant made certain other allegations also against the respondent. It was in answer to that printed leaflet that the disputed pamphlet in question Ext. P4 D/- 27-4. 68 was published by the respondent against the appellant. The relevant portion of Ext. P4 pertaining to the imputation directed against the appellant is read as follows;
A modern mercenary messiah who blows his pipe according as he is paid.... One who has no qualms about blurting out whatever comes to his tongue, a cur that attacks all and sundry. This glutton whose sole aim in life is filling his stomach is a dog that barks for any master who feeds it. This Onden has neither status in society nor self respect. The Bishop conferred many honours on Ondan and gave him financial and other help as a reward for acting according to bis (the Bishop'.s) wishes, (This cur) filled its stomach for a time remaining in the Christian fold. Then it thought the feed would be better in the Arya Samaj and joined it. As the fare there was not good the cur jumped back to the Christian camp. Biff raff. An anti-social being that divides and destroys.
4. In support of the complaint, the appellant has been examined as P. W. 1 and he has chosen to examine 4 other witnesses as P. Ws. 2 to 5. The respondent, however, did not examine any witnesses. The evidence of P. W. 1 is that he has been defamed by the publication of Ext. P4 and that on account of the publication his name has been lowered in the estimate of his friends and well-wishers. Ext. P4, according to him, has been published by the respondent and he distributed the copies thereof to various persons. P. W. 2, who is a well-wisher of the appellant belonging to Chova, which is within the jurisdiction of the Court below, was a neighbour of the respondent. He stated that Ext. P4 was published by the respondent. A brother of his brother-in-law produced a copy of Ext. P4 to be handed over to him and he, in his turn, handed over a copy of Ext. P4 to P. W. 1. P. W. 5 stated that be handed over a copy of Ext. l'4 to P. W. 2 when he got 10 to 18 copies of the same from the respondent himself on the advice that he should distribute them among his friends. P.W. 3 is the Managing Director of one Associated Timbers Ltd, He stated that he read Ext. P4 when a copy was given to him by P.W. 1, He is a resident in Vadikkakom, Tellicherry within the limits of the Court below. P. W. 4 is a resident of Chova. He stated that he got a copy of Ext. P4 from the respondent. P. Ws. 1 to .4 have stated that on account of the publication of Ext. P4, the name of the appellant has been lowered in the estimate of his friends and well-wishers. It may also be noted that P. Ws. 2 to 4 had not been cross-examined by the respondent's Advocate.
5. When the respondent was questioned by the lower Court under Section 842, Criminal P. C., he stated that he published Ext, P4 and that it was published for the protection of his own interest, He further stated that all the averments in Ext. P4 are correct. However, he pleaded, that he was not guilty.
6. The Court below found that there had not been due publication of Ext. P4 and even if there was publication the respondent is protected in his own interest to make the publication and that he being protected under Exception 9 of Section 499, Penal Code was not guilty of any offence.
7. The first point we have to consider is whether Ext. P4 per se is defamatory or not. There is a personal attack directed against the appellant in Ext. P4. He has been described as a mercenary messiah who blows his pipe according as be is paid. He has been mentioned as a person who had neither status in society nor self respect. It is also stated that he filled his stomach for a time remaining in the Christian fold and then he thought that the feed would be better in the Arya Samaj and joined it. He is described as a rif raff and an anti social being, that divides and destroys. He is further described as a glutton who saw his life to fill his stomach as a dog that barks for any master who feeds it. I am sure that these words will constitute imputation concerning the appellant intending to harm his reputation in the estimation of others. These words are likely to lower the moral or intellectual character of the appellant or his calling, The position of the appellant was that of a lay preacher in the various Pastorates under the North Kerala Diocese of the Church of South India, The evidence of P. Ws. 2 to 4 is that the appellant was held in high esteem and that on account of the publication his name has been lowered in the estimate of the various members of the Christian community in North Kerala as well as among his friends, and well-wishers'. I have, therefore, no hesitation in seeing that these words per se are defamatory, which would harm the reputation of the appellant,
8. With regard to the publication, the court below seems to have taken an extraordinary view that the publication should be in some form of advertisement of the allegations by the respondent against the appellant. It is not necessary for such publication to be made within the provision of Section 499. Penal Code. Publication, according to that Section, implies communication to at least one person other than the person defamed. 80, there can be no publication unless the subject-matter of the libel 'is communicated to a third person. The question whether the subject-matter had in fact been communicated to a third person is, therefore, material, for upon it depends the question of publication. In this regard, the evidence of P. Ws. 1 to 5 may be seen. They have given evidence that everyone of them came into possession of the copies of Ext. P4 and that P. Ws. 2 to 5 had either communicated the contents thereof to P. W. 1 or others and P. W. 5 himself had received 10 to 18 copies of the same from the respondent for distribution among his friends. P. W. 5 complied with the request of the respondent by distributing them. P. Ws. 2 to 4 had not been even cross-examined by the respondent's Advocate, Under these circumstances, I find that there had been publication within the meaning of Section 499, Penal Code.
9. The question as to jurisdiction whether the court below had the right to entertain the complaint within its file was not directly raised by the respondent. But, there was no question of lack of jurisdiction in this case. There is the evidence of P. Ws. 1. 2, 3 and 5 that the publication was within the jurisdiction of the court of the District Magistrate, Tellicherry in which the complaint was filed. P. W. 2 is a resident of Chova. P. W, 8 was a resident of Tellicherry town. P. W. 5 lived in the mission compound, Chova. P. W. 5 received the copies within the jurisdiction of the lower court, So, the publication of Ext, P4 was made within the territorial limits of the court below and as such the court below had jurisdiction to entertain the complaint.
10. The next question is whether the appellant is protected under Exception 9 of Section 499, Penal Code. Exception 9 reads as follows:
It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.
On a reading of the illustrations under that exception it was clear that the instant case did not come within the exception. Under this exception it is not defamation to make an imputation on the character of another, pro. vided that the imputation be made in good faith for the protection of the interest of the person making it or for the public good. There is an imputation in Ext. P4 that the, appellant joined the Arya Samaj. That is an assertion of fact which has to be proved by the respondent to establish that the imputation is true. When the benefit of the first Exception can be availed of only when the imputations are true, it cannot be open to the respondent to say that he should be given the benefit of that Exception even when he is merely able to show that there is some possibility of the imputations being true. In this case there is not even a suggestion that it is true.
11. That the comment that the appellant joined the Arya Samaj which believed and practised conversion of all other communities and religious adherents to its fold is per se defamatory of the appellant who professes to be a true Christian. The respondent did not prove that he comes within the exception BO far as that part of the comment is concerned. When no question of reasonable doubt as to the truth of imputations arises, the charge of defamation shall be fully established where the ingredients of Section 499, Penal Code are established beyond doubt and the respondent, fails to establish the truth of the imputations.
12. The test of exception 9 is that the imputation on the character of another should be made in good faith and for the protection of the interest of the person making it or of any other person or for the public good. What would amount to fair comment has been considered by a Bench of the Kerala High Court in the case E. Sankar v. State AIR 1939 Ker 100 wherein Raman Nayar J., (as he then was) speaking for the Bench stated:
A mere perusal of Exceptions 2, 8 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 assertion 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 not 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 me fair which is built upon facts which are not truly stated.
13. Apart from that, the respondent is not able to point out as to how he was justified in making the comment to protect his own interest. It would be open to him to criticise the appellant regarding his conduct for filing an alleged .false complaint against him. It would be open to him to criticise that as a lay preacher the appellant did not perform his duties for the good of the public. Nothing of the kind was commented upon in Ext. P-4. On the other hand, the respondent lost his balance and made comments upon the appellant's conduct in a callous manner without any justification.
14. It is contended on behalf of the respondent that the appellant's conduct in publishing Ext. P-8 leaflet was not beyond board and therefore Ext. P-4 publication shall be deemed to be one which the respondent was privileged to make in his own interest. In Ram Narain v. King-Emperor AIR 1924 All 566 a person published a pamphlet defaming another by describing him as, 'a sharif badmash' which when translated into English meant the 'gentleman scoundrel.' It was contended that it has not lowered the moral or intellectual character of the person and no offence was committed. But, Daniels J., stated:
This argument overlooks the fact that a person commits defamation within the meaning of Section 499, who publishes any imputation concerning any person intending to harm the reputation of that person whether harm is actually caused or not. A person who publishes defamatory matter against another in a case not covered by any of the exceptions can. not escape punishment on the ground that the reputation of the person attacked was so good or that of the persons attacking so bad, that serious injury to the reputation was not in . fact caused.
15. The above observation exactly fits in with the case on hand. On the facts and circumstances of the, case, I am of the opinion that the words in question are per se defamatory which is sufficient to harm the reputation of the appellant, that it had its due publication and that it did not come in any of the exceptions contemplated under Section 499, Penal Code. So, the Court below was not correct in acquitting the respondent. I find the respondent guilty of the offence under Section 500, 'Penal Code; imposition of a fine of Rs. 100/- will meet the ends of justice in this case.
16. In the result, the appeal is, allowed; the order of acquittal is set aside; the respondent, accused is convicted and sentenced to pay a fine of Rs. 100/-; in default to undergo simple imprisonment for one; month, under Section 500, Penal Code. Time for payment of fine one month from this date.