Varadaraja Iyengar, J.
1. This Criminal Revision Petition is by the accused 1 and 2 against their conviction for the offence of defamation under Section 500 I. P.C. and sentence of fine of Rs. 50 (each in default to suffer rigorous imprisonment for one month) imposed therefor.
2. The complainant is Ayyavu Chettiar. His daughter Parvathi was married on 14-11-1956 to the 2nd accused Shunmugham Chettiar who is the son of the 1st accused Subbu Chettiar. Parvathi left her husband's house on 18-1-1957 on account, according to her, of ill-treatment at the hands of the accused. On 18-3-1957 a registered notice was issued to the accused 1 and 2 through lawyer demanding maintenance for her. To this a reply Ext. p2 was caused to be sent by the accused through their lawyer denying the maintenance claim under Ext. P1 on account of Parvathi's unchastity, Ext. P2 went further and alleged that her father knew about her immoral conduct and also positively helped her immoral ways and that he deceived the accused into entering into the marriage alliance.
It was for these allegations made against him that Ayyavu Chettiar filed 'he complaint herein. The accused pleaded not guilty. Evidence was let in by the prosecution by examining the complainant as P. W. 1 and the registered clerk of the accused's lawyer who sent Ext. P2 as P. W. 2 and a stranger P. W. 3. P. W. 1 swore to having Ext. P2 read to him by the clerk of his lawyer, because it was written in Malayalam language which he did not know. He denied the allegations against him contained in Ex. P2. P. W. 2 spoke' to the issue of Ext. P2 by his master 'under instructions' and his own writing of it. P. W. 3 spoke to his acquaintance with P. W. 1. The 1st accused in his statement under Section 342 Criminal Procedure Code admitted to his having gone to his Vakil in respect of Exit. P1 but he said that it was on the next day that Ext. P2 was sent and it was not he but his clerk that instructed the vakil in the matter.
The second accused when questioned stated that he had no knowledge about the receipt of Ext. P1 or the issue of Ext. P2 and had nothing to do with the allegations therein. The defence let in the evidence of D. W. 1 to D. W. 4 to prove the misconduct of Parvathi but they were unable to make out anything of significance against P.W. 1. On the above evidence the learned District Magistrate of Palghat before whom the case came on for trial held that (he 1st accused's statement that his clerk gave instructions for the preparation of Ext. P2 was totally unacceptable and the responsibility for the allegations made in Ext. pg was on the accused themselves. He further held 'hat the plea of justification by truth or that under Exception 9 to Section 499 had no substance. In the result he convicted and sentenced the accused as I have already mentioned and hence this revision.
3. Mr. P. Govinda Menon learned counsel appearing for the accused before me took two points (i) that the court below has wrongly refused to apply Exception 9 to Section 499, (ii) that the authorship of the accused as regards the defamatory matter in Ext. P2 cannot be said to have been established in the case. On the 1st question it has to be remembered that the Exception relates to private communication which a person makes in good faith for the protection of his own interests or of any other person or for the public good. There can be no question here of protection of the accused's interests as against P. W. 1. Nor is there an iota of good faith. For whatever might be the character of Parvathi the daughter of P. W. 1, 'there was absolutely no reason to indulge in the defamatory statement against P. W. 1 that he knew about her immoral conduct and even encouraged her in such conduct. This aspect is therefore found against the accused. The next question is whether the accused are the authors as found by the court below. It is no doubt true in this connection that Ext. P2 mentions that it was issued by counsel under instructions and P. W. 2 further gave evidence that there were instructions in the matter. But who exactly, viz., whether it was 'he 1st or the second accused or both who gave the instructions, is not seen in Ext. P2 nor was it made clear by P. W. 2. The question was one for proof particularly as the 1st accused put forward his. clerk as the one who gave instructions and the 2nd accused denied all part in it. Counsel who issued Ext. P2 did not testify in the matter and indeed could not in the face of the prohibition imposed by Section 126 of the Evidence Act against disclosure of such communications. Thus in Palaniappa Chettiar v. Emperor, 1935 Mad WN 460, where the accused was charged with defamation because his Vakil put a defamatory question to the complainant and the vakil gave evidence that he did so on the instructions of his client, it was held by Burn, J. that the instructions concerned were inadmissible under Section 126, Evidence Act and the accused was not guilty of defamation 'committed as it were by proxy through the mouth of his vakil.' Similarly in Saukhi Gope v. Uchit Rai, AIR 1948 Pat 56 where also a party to a judicial proceedings was charged under Section 499 for the alleged defamatory questions put by his counsel in cross-examination, it was held that it was not possible to assume that the questions were put upon definite instructions.
'It would have to be proved, and having regard to Section 126, Evidence Act it could not possibly be proved, unless with the client's express consent which in the circumstances he would hardly be likely to accord. Consequently no one could ever be prosecuted for defamation in regard to any instructions which he might have given to his lawyer, ft is the lawyer's business to decide whether he could properly act upon the instructions, and whatever responsibility might ensue from acting upon those instructions would be his and no one else's.'
There is finally Appayya v. Rama Subbayya, AIR 1950 Mad 537, in which Somasundaram, J. set aside the conviction entered against the accused by the court below and acquitted him when the charge against the accused was only that he gave instructions to P. W. 6 who put certain questions which were defamatory. The learned Judge followed 1935 Mad WN 460 above cited. Learned counsel for the respondent complainant sought to support the view of the court below that so long as Ext. P1 stood proved, there was nothing wrong in presuming that the accused gave the instructions therefor. But such presumption is not inevitable seeing that counsel's volition has intervened and it is anyhow unsafe to found criminal liability on the accused on such basis.
4. The result is that the conviction and sentence passed against the accused by the court below are quashed and they are acquitted of the offence charged against them. The fine, if any,paid will be refunded.