1. The accused, who have been convicted by the trial Court for an offence under S. 500 of the Penal Code and sentenced to pay a fine of Rs. 100/- which conviction and sentence have been confirmed in appeal, have filed the present revision challenging the conviction and sentence. The respondent preferred a private complaint against the petitioners for the above offence on the following allegations made in the complaint. The respondent, after practising as an Advocate for two years, took up business in sale of silk yarn and was holding several posts as Secretary of the Handloom Weavers' Association, Salem, Member of All India Silk Yarn Producers' Association and so on. He was enjoying a high reputation. Respondents 2 to 4 are the sons of the first respondent and they are living together as a joint family. The third respondent was a broker in Salem in yarn. In that business, he had purchased silk yarn from several merchants and had failed to return the price amount and had utilised them for the benefit of the joint family. The third petitioner approached the respondent and one Mohanraj and Venkateswaran stating that he was being hard presssed by the Silk merchants to whom he owed heavy amounts and that the respondent and others should act as mediators and pacify them and settle the different claims of the creditors. Thereupon, on 7-2-1982, a mediation was held in which I the petitioners agreed that the respondent and the other two mediators, should sell the properties of the petitioners on behalf of the petitioner and pay the creditors and in token of the settlement, an agreement was written up signed by all the petitioners. Next day, on 8-2-1982, the petitioners went to the office of the Sub-Registrar and had the above agreement registered. They also handed over in terms of the above agreement, all the documents relating to the properties, to the respondent and the other two mediators. However, on 25-4-1982, the respondent received a notice through a counsel, on instructions from the petitioners stating that with the help of the police and others, the petitioners were taken to the police station and were intimidated and forced to enter into an agreement and they signed the agreement and under compulsion and police help they were taken to the office of the Sub-Registrar to get the agreement registered. On 27-4-1982 in the issue of Malai Murasu, a publication was made by an Advocate, on instructions from the petitioners, containing the same allegations and the public who saw the above notice started thinking ill of the respondent. The reputation enjoyed by the respondent in the public, was lowered. The respondent had been defamed by the petitioners through the above publication.

2. During trial, the respondent examined himself as P.W 1 and examined P.Ws 2 and 3 to speak to his reputation being defamed and P.W 4, the Advocate who made the publication in the ‘Malai Murasu’. The petitioners pleaded innocence and had no oral or documentary evidence to offer. On the learned Magistrate accepting the complainant's case and convicting the petitioners and sentencing them as shown above and the same having been confirmed in appeal, the present revision has been filed.

3. Thiru C. Selvaraj, learned Counsel for the petitioners would strongly urge that the petitioners would be entitled to Exception 9 to S. 499 of the Indian Penal Code, that the imputation was made in good faith for the protection of the petitioners' interest and that, therefore, the publication being covered by the above exception, would not attract the penal provision. Learned Counsel relied upon certain decisions which I shall refer to during the discussion.

4. Per contra, Thiru V. Jeevahan, learned Counsel for the respondent would urge that the publication had been made in bad faith, without any honesty of purpose, containing false allegations and had not been followed up by any civil action to have the agreement set aside and as such, the publication would not be covered by Exception 9 to S. 499 of the Indian Penal Code.

5. The only question that arises for consideration is whether the petitioners are entitled to the protection of Exception 9 to S. 499 of the Indian Penal Code.

6. Reference may first be made to the nature of the publication. The agreement was entered into on 7-2-1982. It has been signed by all the four petitioners. It has been registered in the Sub-Registrar's Office on 8-2-1989, with all the petitioners appearing for the registration. On 25-4-1982, Ex. P. 2 notice has been sent through a counsel on instructions from all the petitioners, repudiating the agreement and pleading coercion, threat and intimidation by the respondent and the other mediators, who are alleged to have obtained the signature of the petitioners in the agreement and got the registration done with the help of the police. On 27-4-1982, the publication, Ex. P. 3 has been made in ‘Malai Murasu’ a Tamil daily of wide circulation, particularly in Tamil Nadu. Offending passages in Ex. P. 3 so far as they relate to the petitioners are that the respondent and the other two mediators used their influence and in an unlawful manner compelled and terrorised the petitioners got a false document on 7-2-1982 and using that false document, were trying to sell the house and lands mentioned in the publication, that the respondent and the two mediators have no right to sell the above properties and that the petitioners did not give them any right or authority to sell the properties and if anyone bought the properties or entered into any agreement of sale in respect of the properties, the said transactions would be illegal in the eye of the law and would not bind the petitioners.

7. The above publication would show that the petitioners-complainants are accused of having used their influence to compel and terrorise the petitioners into executing false documents and on the basis of those documents, were attempting to sell the properties. The publication imputes that through the unlawful sale of the petitioners' properties, the respondent and the other mediators, were trying to get a wrongful gain for themselves or bring about a wrongful loss to the petitioners, which would bring their act within definition is the term ‘dishonestly’ as defined in Sec. 24 of the Indian Penal Code. In short, the publication imputed dishoestly to the respondent and the other mediators. The publication is defamatory.

8. Exception 9 to Section 499 of the Indian Penal Code is 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 interests of the person making it, or of any other person, or for the public good.”

9. The term “Good Faith” occurring in the above exception has been defined in S. 52 of the Indian Penal Code as hereunder:

“Nothing is said to be done or believed in “good faith”, which is done or believed without due care and attention.”

“Good faith” has also been defined in the General Clauses Act 10 of 1897 in S. 3, subsec. (22) as follows:

“A thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not.”

10. Reading all these provisions together, the Supreme Court in H. Singh v. State of Punjab, AIR 1966 SC 97 : (1966 Cri LJ 82) held that the element of honesty, which is introduced by the definition in the General Clauses Act, is not introduced by the definition in the Indian Penal Code and, hence, in considering the elements necessary to establish “good faith” for Exception 9 of S. 499 of the Indian Penal Code, it was clear that the element of honesty was not necessary and it had only to be established that the accused acted with due care and attention. Simple belief or actual belief by itself, would not establish “good faith”. The accused must show that he had a rational basis to make the statement, though logical infallibility was not required. The Court further observed at page 88 of Cri LJ 1966:

“Thus, it would be clear that in deciding whether an accused person acted in good faith under the Ninth Exception, it is not possible to lay down any rigid rule or test. It would be a question to be considered on the facts and circumstances of each case—what is the nature of the imputation made; under that circumstances did it come to be made; what is the status of the person who makes the imputation; was there any malice in his mind when he made the said imputation; did he make any enquiry before he made it; are there reasons to accept his story that he acted with due care and attention and was satisfied that the imputation was true? These and other considerations would be relevant in deciding the plea of good faith made by an accused person who claims the benefit of the Ninth Exception.”

11. The same principle was reiterated by the Supreme Court in a later decision in Chaman Lal v. State Of Punjab† , (1970) 1 SCC 590 : AIR 1970 SC 1372 : (1970 Cri LJ 1266), wherein also it was laid down that “Good Faith” required, care and attention and prudence in the background of the context and circumstannces. Earlier a learned Judge of this Court in Ayeasha v. Peerkhan Sahib, AIR 1954 Mad 741 : (1954 Cri LJ 1239) had laid down that an essential ingredient of “good faith” was whether, the accused had reasonable grounds for believing the imputations to be true and for believing that it was necessary for his safety to give publicity to them. On the nature of the burden of proof on the accused, a Division Bench of the Karnataka High Court in B. Mallangouda Patil v. M. Basappa Konnur, 1980 MLJ (Crl) 373 held that if the materials on record establish preponderance of reasonable probability of a particular exception to S. 499 of the Indian Penal Code being applicable, then the burden is to be held satisfactorily discharged by the accused.

12. It follows, therefore, from the above decisions that the accused in order to bring his case under Exception 9 to S. 499 of the Indian Penal Code, must first establish that in making imputation he acted with due care and attention. The imputation need not be true. Whether he acted with due care and attention, would depend upon the facts of each case. Being an exception, the burden of proof on the accused, is not the same as that on the prosecution. The accused need not prove the exception beyond reasonable doubt as a prosecution is required to prove the guilt of the accused during trial. It would be sufficient if on a preponderance of probabilities, due care and attention could be made out, in which case, the accused would be entitled to succeed.

13. Reverting to the facts of the instant case, we find that on 7-2-982, the agreement had been signed by all the petitioners. On 8-2-1982, it had been registered at the Sub Registrar's Office, where all the petitioners had appeared and admitted execution of the agreement. The petitioners had not raised even a little voice of protest thereafter. For months they had kept quiet and had obviously allowed the respondent and the other mediators, to act on the agreement in selling the properties and settling the dues to the creditors. 2½ months after the registration of the agreement, possibly when parties were coming forward to purchase the property, actuated by mala fides and with a desire to resile from the agreement and to defeat the claims of the creditors and to retain their properties, this publication had been made, attributing dishonest as defined in S. 24 of the Indian Penal Code, to the respondent and the other mediators. It is clear that the petitioners have acted in a mala fide manner. When mala fide is present, “good faith” is ruled out. The publication, therefore, not having been made in “good faith” without any care or attention cannot be brought under the umbrella of the 9th Exception to S. 499 of the Indian Penal Code. I am unable to accept the contention of the learned counsel for the petitioners to the contrary. The conviction and sentence are, therefore, confirmed and this revision is dismissed.

14. Revision dismissed.