1. This is an appeal with special leave by the complainant in c. C. No. 42 of 1963 on the file of the district magistrate, Tellicherry, Against the order acquitting the accused of offence punishable under s. 500 i. P. C.

2. The gist of the complaint was that the 1st accused preferred a false complaint before the adhur police station stating that the complainant, His brother and their father set fire to a cow pen and a watching shed belonging to and in the possession of the 2nd accused, That the police after investigation found the complaint to be false and referred it, That the 1st accused then filed a complaint before the magistrate containing the same averments, That the magistrate finding that there was prima facie case committed the accused in the case, Namely, The complainant, His brothers and their father, To stand their trial before the sessions court, That the sessions court acquitted the accused finding that the case has not been proved, And that accused 2 to 5 abetted the 1st accused in the commission of the offence by giving false evidence in the magistrate's court and before the sessions court. The case of the complainant was that the allegations in the complaint in that case that the complainant his brothers and their father set fire to the cow pen and the watching shed are per se defamatory and have lowered his reputation among the public, And therefore the accused committed an offence under s. 500 i. P. C.

3. The 1st accused contended that the complaint was filed under the bona fide belief that it was the accused in the case, Namely, The complainant, His brothers and their father, Who set fire to the cow pen and the watching shed and that he was protected by exception 8 to s. 499.

4. The learned district magistrate found that the 1st accused was protected by the exception to s. 499 as he filed the complaints under the bona fide belief that it was the complainant his brothers and their father who set fire to the cow pen and the watching shed. He observed that the fact that the complainant and others were committed for trial by the learned magistrate and that accused 3 to 5 gave evidence before the magistrate as well as before the sessions court that the complainant, His brothers and their father were instrumental in setting fire to the cow pen and the watching shed would show that the 1st accused filed the complaints in good faith. The learned magistrate also said that it was the duty of the complainant to have proved that the 1st accused had no bona fides in filing the complaints and that as it has not been proved, The accused cannot be found guilty of the offence.

5. The 1st accused preferred a complaint ex. P5 before the adhur police station alleging that the complainant, His brothers and their father set fire to the cow pen and the watching shed belonging to the 2nd accused, Along with two other accused. That complaint was referred by the police as false. Ex. P8 is the refer notice issued on the report. The 1st accused filed a petition protesting against referring the case and thereafter filed ex. P3 complaint before the sub magistrate. On the basis of this complaint, The sub magistrate enquired into the complaint and finding that there was prima facie case committed the accused to the court of sessions to stand their trial. The sessions court, After trial passed ex. P2 judgment finding that the accused there were not guilty. The main reason for finding that the accused were not guilty was that the evidence adduced on behalf of the prosecution was not trustworthy and that the case of the accused that the cow pen and the watching shed caught fire accidentally cannot be ruled out. Before the sessions court as well as before the committing magistrate's court, Accused 1 and 3 to 5 had given evidence supporting the case of the 1st accused.

6. The first question for consideration is whether the learned magistrate was right in saying that because the sub magistrate committed the complainant and others, The accused in that case to stand their trial before the sessions court, That was prima facie evidence of the bona fides of 1st accused in filing the complaints. In support of the contention that the committal order is. Not even prima facie evidence that the accused committed the offence charged, Mr. K. Chandrasekharan, Appearing for the appellant, Referred to the ruling in kushi ram versus hashim air 1959 sc 542 and bipat gopa versus state of bihar air 1962 sc 1195. In both these rulings, It was held that for a magistrate to commit the accused to the sessions court it is only necessary that there should be some legal evidence as regards the guilt of the accused. We agree that merely because the sub magistrate committed the complainant and others to the court of sessions, There is no presumption that they were guilty. The committal order is no proof that the 1st accused was actuated by bona fides in filing the complaints.

7. The next question for consideration is whether the learned magistrate was right in holding that the burden of proving that the 1st accused was not actuated by good faith in filing the complaints was upon the complainant. Exception 8 to s. 499 of the indian penal code runs as follows.

"it is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation."

there is no dispute that the accusation was made to a lawful authority. The question is whether the 1st accused had good faith and on whom did the burden of proving that he was actuated by good faith in making the accusation lie.

8. As regards the onus the supreme court in h. Singh versus state of punjab air 1966 sc 97 has held that the burden of proving good faith in making an accusation is on the accused. The court observed:

"it is true that under s. 105 of the evidence act, If an accused person claims the benefit of exceptions, The burden of proving his plea that his case falls under the exceptions is on the accused. But the question which often arises and has been frequently considered by judicial decisions is whether the nature and extent of the onus of proof placed on an accused person who claims the benefit of an exception is exactly the same as the nature and extent of the onus placed on the prosecution in - a criminal case; and there is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, He is not required to discharge that burden by leading evidence to prove his case beyond a reasonable

doubt. That, No doubt, Is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an exception. Where an accused person is called upon to prove that his case falls under an exception, Law treats the onus as discharged if the accused person succeeds in proving a preponderance of probability

". As soon as the preponderance of probability is proved, The burden shifts to the prosecution which has still to discharge its original onus. It must be remembered that basically, The original onus never shifts and the prosecution has, At all stages of the case, To prove the guilt of the accused beyond a reasonable doubt. As phipson has observed, When the burden of an issue is upon the accused, He is not, In general, Called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty: it is sufficient if he succeeds in proving a preponderance of probability, For then the burden is shifted to the prosecution which has still to discharge its original onus that never shifts, I. E. That of establishing on the whole case, Guilt beyond a reasonable doubt."

the same view was taken in regard to the burden of proof. In thangavelu versus ponnammal air 1966 sc 97. Therefore, The further question for consideration is whether the 1st accused has succeeded in proving that he was actuated by good faith in making the accusation. The supreme court has held in h. Singh versus state of punjab air 1966 madras 363 as follows:

"good faith is defined in s. 52 of the code. Nothing, Says s. 52, Is said to be done or believed in 'good faith' which is done or believed without due care and attention. It will be recalled that under the general clauses act, "a thing shall be deemed to be done in good faith where it is not in fact done honestly whether it is done negligently or not. " the element of honesty which is introduced by the definition prescribed by the general clauses act is not introduced by the definition of the code; and we are governed by the definition prescribed by s. 52 of the code.

in considering the question as to whether there was good faith on the part of the 1st accused we have to enquire whether he acted with due care and attention. A mere plea that he believed that it was the complainant and others who committed the act may not sustain his case of good faith. Simple belief or actual belief by itself may not be enough. There must be some reasonable ground for his belief. That is where the element of due care and attention plays an important role. As was held by the calcutta high court in the matter of the petition of shibo prasad pandah, Ilr 4 calcutta 124 in dealing with the question of good faith, The question to be decided is not whether the allegations made in the complaint are in substance true, But whether he was informed and had good reason after due care and attention to believe that such allegations were true. It may be noted in this connection that the charge against accused 2 to 5 was that they abetted the 1st accused in filing the complaints both before the police and before the magistrate. There is no evidence in support of the charge against these accused. The fact that accused 3 to 5 gave evidence in support of the case before the magistrate's court as well as in the sessions court is not sufficient to show that they abetted the 1st accused in filing the complaint. So we are only concerned with the question whether the 1st accused had good faith in filing ex. P5 complaint before the police and ex. P3 complaint before the magistrate.

9. Mr. Chandrasekharan submitted that the learned sessions judge came to the conclusion in ex. P2judgment that the evidence of accused i and 3 to 5 who spoke in support of the case of the prosecution there, Was unreliable and that the prosecution case cannot be believed; and therefore the 1st accused could not have believed in the truth of the allegations in the complaints and had no bona fides in making them. Ex. P2 the judgment acquitting the complainant and others is not evidence in this proceeding that the complainant and others did not commit the offence. Previous acquittal of a party may, Of course, Be proved when it is "a fact in issue as would be the case in an action for malicious prosecution, But there are a variety of reasons why it should not be admitted as evidence of innocence in a subsequent civil proceedings or in a proceeding, Though criminal in nature has a predominantly civil character. The standard of proof is different, So that an acquittal only means that the case against the accused has not been proved beyond reasonable doubt. Accordingly, In helton v.

alien 1940 (63) clr 961 where the claimant under a will had been tried and acquitted of the murder of the testatrix the high court of australia was inclined to the view that she could not rely on this as an evidentiary fact in her favour when her right? under the will were contested by the next of kin. In packer v. Clayton 1932 (97) jp 14 there are some observations of avory j., In a divisional court to the effect that in affiliation proceedings, The acquittal of the respondent on a charge of sexual offence against the complainant was something that could have been taken into account by the justices as showing that the girl's evidence did not convince the jury, But it is doubtful whether this could be said to be so after hollington versus hewthorn co. Ltd., 1943 kb 587. That case lays down in the clearest possible terms that a previous conviction is not even admissible as evidence of the facts upon which it was founded,

at any rate when these facts are directly in issue in subsequent civil proceedings. In that case, The conviction of one of the defendants for careless driving was held to be inadmissible as evidence of his negligence in proceedings for damages on that ground against him and his employer. The main reason for the decision was that the conviction merely proved that another court, Acting on evidence which was unknown to the tribunal trying the civil proceedings was of opinion that the defendant was guilty of careless driving. This case has been criticised by text book writers. For instance, See rupert cross on evidence, 1958 edn. Page 344. Whatever might be the rule as regards an order of conviction, We do not think that an order of acquittal is admissible in evidence in a subsequent civil proceeding or in a proceeding having a predominantly civil character as here, To prove that the party is not guilty of the act charged in the previous criminal case. Although ex. P2 judgment affords no presumption that the complainant did not commit the act charged against him in the criminal case, The general presumption of innocence being available to the complainant, We think, Counsel is right in his submission that the onus of proving that the allegations in the complaints were not defamatory was upon the accused. Whether or not the allegations in the complaints were true, If the accused have succeeded in proving good faith in filing the complaints, They are entitled to be acquitted. It might be that the statement of the accused under s. 342 of the criminal procedure code would be sufficient to discharge the burden of proving good faith. In state of maharashtra v. Laxman jairam 1963 mlj (cr.) 456 the supreme court said that the statement by the accused under s. 342 crl. P. C. Was sufficient to discharge the burden of proof cast on him. That case arose under the bombay prohibition act, And the court said

"under s. 342 of criminal procedure code (v of 1898) the court has the power to examine the accused so as to enable him to explain any circumstances appearing in evidence against him. Under s. 342 (3) the answers given by the accused may be taken into consideration in such enquiry or trial. The object of examination under s. 342 of the code therefore is to give the accused an opportunity to explain the case made against him and that statement can be taken into consideration in judging the innocence or guilt of the person so accused. Thus, If the courts below have accepted this explanation, It must be held that the respondent has discharged the onus placed upon him by s. 66 (2) of the bombay prohibition act.

all that the learned judge meant to say in the decision of the supreme court in c. S. D. Swamy v. The state 1960 scj 160. Was that the evidence of the statement of the accused in the circumstances of that case was not sufficient to discharge the onus but that does not mean that in no case the statement of an accused person be taken to be sufficient for the purpose of discharging the onus, If a statute places the onus on him. (see the head note).

10. In the circumstances we do not think that it would have been possible for the 1st accused to lead any other evidence as regards his good faith in filing the complaints. The fact that accused 3 to 5 swore to the case of the 1st accused before the sub magistrate and the sessions court lends support to the case of the 1st accused that he filed the complaints in good faith bona fide believing in the truth of the allegations therein. The fact that the cow pen and the watching shed were destroyed by fire is not disputed. Although the learned magistrate was not right, In saying that the burden of proving want of good faith in making the accusation was on the complainant we think that the statement made by the 1st accused under s. 342 crl. P. C. Together with the other circumstances proved is sufficient for holding that the 1st accused has discharged the onus of proving that he was actuated by good faith in making the accusation. We think that the 1st accused has made out his case of good faith by a preponderance of probability and that is all what the law required of him. We confirm the order of acquittal and dismiss the appeal.