Krishnaswamy Reddy, J.
1. The revision petitioner, Chelliah, is accused 2 in C. C. No. 726 of 1964 on the file of the Additional First Class Magistrate, Coimbatore. The petitioner was charged along with accused 1 and 3 originally under Section 500, I.P.C., but he alone was convicted under Section 500 I.P.C., and sentenced to pay a fine of Rs. 200 by the learned Additional First Class Magistrate. On appeal, the conviction and sentence were confirmed by the learned Sessions Judge, Coimbatore. There are no merits in this revision petition.
2. The only point that has been raised by the learned Counsel is that even assuming that the allegations made by the revision petitioner were per se defamatory, the lower Courts must have held that he made such allegations in good faith and in the interests of his sisters claiming the benefit of exception 9 to Section 499 I.P.C. Both the Courts below have negatived the contention of the petitioner. To appreciate the contentions raised by the learned Counsel for the petitioner, it may be necessary to note the facts of the case briefly:
3. Accused 1 Satyanathan is a bus operator in Salem. One Thambithurai was the son of accused l's brother. The petitioner and accused 3 are the cousins of the said Thambithurai. Accused 2 was also the Manager in the Bus Transport business of accused 1. On 16.2.1964, Thambithurai married P.W. 1 Rajeswari, against whom the allegations in the question were made, as per Hindu rites and customs, after converting himself into Hinduism. After the marriage, P.W. 1 and Thambithurai were living as husband and wife in Sankaridrug in Salem Dt. P.W. 1 conceived. On the night of 14.8.1964, about six months after the marriage, Thambithurai met with a car accident and died on the next day. Thambithurai was possessed of considerable properties, both moveables and immoyeables. He had a car which was involved in the accident. At the time of the accident, Thambithurai had a cash of Rs. 7000, diamond ring and other valuables P.W. 1 was having the keys for the Godrej safe and other admirals in which the valuables were kept. After the death of Thambithurai, accused 1 approached P.W. 1 and told her that it would not be proper for P.W. 1 to keep the keys as she was young. Saying that he would settle the matter in respect of the properties of Thambithurai, he took the keys from P.W. 1 and also took the cash, diamond ear ring and other valuables. As the sisters of Thabithurai began to give trouble to P.W. 1, she came away to Tier house in Coimbatore. She later approached accused 1 for settlement. But he did not care to take interest in the matter.
4. On 19.10.1964, P.W. 1, Rajeswari caused a lawyer's notice to be issued to the three accused statins that they had misappropriated the valuables taken by them from her custody and that they had driven her out of the house in collusion with the sisters of Thambithurai, The petitioner and the other two accused sent a reply on 21.11.1964 through their counsel, which is the subject matter of the prosecution. In that notice, they denied that Rajeswari was the wife of Thambithurai and that the child in the womb of Rajeshwari was not conceived through Thambithurai. If the revision petitioner and the other accused had stopped with this, probably they would be justified in having made such allegations by way of defence to the notice issued to them by P.W. 1. But the following further allegations made in the notice are not disputed that they are per se defamatory:
Your client is a Koothadichi, She has paramours wherever she goes. Your client or the alleged child in the womb are not entitled to succeed to the estate of P. Alfred or claim in any share of the same.
This notice is in English. P.W. 1 does not know English language. The notice received by her advocate was passed on to Rajeswari's (P.W. l's) brother Shanmugham. P.W. 1 approached P.W. 2 Vellingiri to translate the contents of the notice. P.W. 2 accordingly translated the contents of the notice to Rajeswari and others from her house in the presence of other neighbours P.Ws. 3 and 4. When P.Ws. 3 and 4 heard the imputations read over, they felt that Rajeshwari (P.W. 1) was described as a debaucherous girl, There cannot be any doubt that describing a woman that she has paramours wherever she goes, is scandalous and will bring down the reputation of the woman concerned to a considerable extent in the eyes of the public, It is, therefore, per se defamatory. The petitioner does not dispute the fact that the notice was issued under their instructions and that the allegation was made in the notice by the advocate on the petitioner giving instructions to the advocate. But the contention of the petitioner is that he made this allegation in good faith in the interests of the sisters of Thambithurai, and claimed the benefit of Exception 9 to Section 499, I.P.C.
Once the petitioner has admitted that he was responsible for the defamatory statement, it is for him to discharge the burden while claiming the benefit of Exception 9 to Section 499, I.P.C, that he made such allegation in good faith, and in the interests of the sisters of Thambithurai. He has not discharged that burden in this case.
He does not contend that the allegations were true. Nor is he able to say as to how he got information that P.W. 1 was going after paramours. There is absolutely no warrant for any inference to be drawn from any circumstances brought on record that the petitioner honestly believed that P.W. 1 was going after paramours. It is true that the petitioner need not let in evidence to show that he acted in good faith. But at least, there must be materials on record for the Courts to infer that the petitioner acted in good faith. As already noted, such materials are absent in this case. The allegations that P.W. 1 was not married to Thambithurai, or that the child was not conceived through Thambithurai, might be justifiable as it will be necessary in the interests of the parties in the nature of things to make such an imputation, whether it is fully true or false. The petitioner has undoubtedly exceeded in having made such an irresponsible statement which he was not able to substantiate even to the slightest extent that P.W. 1 was having paramours wherever she went. Though the petitioner may be said to be interested in making the allegations, the allegations were too violent for the occasion and disproportionate to the facts of the case,
5. In H. Singh v. State of Punjab, : 1966CriLJ82 , the Supreme Court held that where to the charge of defamation under Section 500, I.P.C., the accused invokes the aid of Exception 9 to Section 499, good faith and public good have both to be established. The failure to prove good faith would exclude the application of the Ninth Exception in favour of the accused even if the-requirement of public good is satisfied. The-Supreme Court further observed that where the accused is called upon to prove that his case falls under an Exception, law treats the onus as discharged if he succeeds in proving the preponderance of probability. Applying this principle, I am unable to say in this case that the probabilities are in favour of the revision petitioner to infer good faith.
6. The petition is dismissed.