Nasim Ali, J.
1. This is an application in revision against the conviction and sentence of the petitioner under Sections 500 and 504, I.P.C. The case for the prosecution as stated in the petition of complaint is as follows:
2. On 15th November 1933 the complainant Moulana Syed Mohammad Arab received a letter from the accused petitioner in which the petitioner made serious allegations against the complainant. The petitioner knew them to be false. He made those allegations with intent to insult him and to cause him to break the peace. The petitioner communicated to Mr. Noor Mohammad, Kazi Abul Karim, and others that be had already written a letter to the complainant and told them that the complainant had been implicated in a case with Moti, prostitute, in Maharaj Road Estate. The complainant was thereby defamed and the character and credit of the complainant were lowered in the estimation of others. The accused also threatened the complainant that he would publish the false allegation to the discredit of the complainant. The defence of the accused petitioner was that the letter was not intended to insult or defame the complainant but to protect his interest, and therefore he did not commit any offence under the Indian Penal Code. The petitioner also denied the publication as alleged by the prosecution. The learned Magistrate who tried the case has not accepted the prosecution case that the statements in the letter conveyed the sense of association of the complainant with a prostitute or dancing girl of the name of Moti. He however held that there were other passages in the letter which defamed the complainant and that the accused failed to prove that he had any justification for making those imputations in the letter. As regards publication the learned Magistrate relying on the evidence of Noor Mohammad, the father-in-law of the complainant, has found that the contents of the letter were communicated to the said Noor Mohammad and a copy of the letter was shown to him. The learned Magistrate has also held that the accused gave the complainant provocation likely to lead him to commit a breach of the peace and which the accused knew to be likely to arise.
3. Now it appears that the case for the prosecution as stated in the petition of complaint is that the accused communicated to Noor Mohammad, the father-in-law of the complainant, Hazi Abdul Karim and others, that he had already written to the complainant the letter in question and told them that the complainant had been implicated in a case with Moti, prostitute in Maharaj Road Estate, and thereby defamed the complainant. The petition of complaint does not show that all the contents of the letter were communicated to Noor Mohammad and others. It is also not alleged therein that a copy of the letter was shown to them. The finding of the learned Magistrate about publication is based solely on the evidence of the father-in-law of the complainant, i.e. Noor Mohammad. The other persons to whom the communication was alleged to have been made were not called. Noor Mohammad in his evidence stated that the accused showed him a copy of the letter and that he read the contents of that letter and that on reading the contents he became aware about certain secrets and about the alleged connexion of the complainant with Moti, prostitute. He does not say that the petitioner told him that the complainant had been implicated in a case with Moti, prostitute. The allegation in the petition of complaint that the petitioner told Noor Mohammad that the complainant was implicated in a case with Moti, prostitute, was not substantiated by the evidence of Noor Mohammad. Again the story of Noor Mohammad that a copy of the letter was shown to him does not find a place in the petition of complaint. The learned Magistrate himself has not accepted the prosecution case that the statements in the letter conveyed the sense of the association of the complainant with Moti, prostitute. Noor Mohammad's statement that he came to know of the connexion of complainant with Moti prostitute on perusal of the copy of the letter cannot therefore be accepted. His evidence about his coming to know about other defamatory matters in the letter on perusal of the copy of the same alleged to have been supplied by the accused cannot also be accepted inasmuch as the complainant in his petition of complaint did not say so. The learned Magistrate was of opinion that Noor Mohammad's evidence on certain points is at variance with that of Mr. Avari's and that Mr. Avari's evidence was more reliable. The learned Magistrate himself has observed:
The witness's (Noor Mohammad's) memory might have failed him or he might have suppressed the fact out of anxiety to remove any supposition of bias against him.
4. It further appears that Noor Mohammad got the notice Ex. A issued by Mr. Sen on the accused under instructions of the complainant. This notice does not mention that the letter and the contents thereof were published by the accused. In view of all these facts and circumstances it would not be safe to hold on the evidence of Noor Mohammad alone who appears to be interested in the success of the prosecution that there had been any publication of the alleged defamatory matter by the accused. So even if it be held that the letter contained defamatory matter it has not been satisfactorily proved in this case that the accused published the same. In this view of the matter the petitioner cannot be convicted under Section 500 as the delivery of the letter to the complainant was obviously and not a publication such as would render the petitioner liable to punishment for defamation as the letter could not have injured the complainant in the estimation of others to whom they were not made known.
5. As regards the question whether the letter really contains any defamatory matter, suffice it to say that the Magistrate himself was unable to accept the suggestion of the prosecution that the words in the letter conveyed the sense of the association of the complainant with a dancing girl. As regards the passages in the letter relating to the petitioner's knowledge of certain secrets concerning the complainant, the learned Magistrate thought that the defence evidence about the publication of the pamphlet in which an attack was made against the Wahabias by the complainant might be true. The learned Magistrate however has held that there were other passages in the letter which were defamatory and the petitioner had no justification for making these allegations against the complainant. The learned Counsel appearing on behalf of the petitioner however contended that his client made these imputations in good faith to protect his own interest and consequently he was protected by the ninth exception contained in Section 499, I.P.C. But in view of my conclusion that there had been no publication of these imputations by the petitioner it is not necessary to pursue this matter any further.
6. As regards the offence under Section 504, it is very difficult to make out on what materials the learned Magistrate came to the conclusion that the petitioner gave the alleged provocation to the complainant intending or knowing it to be likely that it would cause a breach of the peace. It is true that such an intention may be inferred from the circumstances attending the insult. The offence under Section 504 does not depend upon the mere sensitive feeling of the offended but upon the intention or knowledge of the offender. In this case the prosecution has failed to prove such intention or knowledge on the part of the petitioner. The result therefore is that the Rule is made absolute. The conviction and sentence of the petitioner under Sections 500 and 504, I.P.C., are set aside and he is acquitted. The fine, if paid by him, must be refunded to him.