In this case the appellant was charged, under Sect. 500 Indian Penal Code, with having defamed the respondent. The alleged defamation falls under two heads, which have been called in this case, Ex. A (1) and Ex. B. In the complaint, Ex. B or the material portions thereof are more or Jess stated in detail, in paragraph 4. As regards Ex. A (1), it is said that the complaint is defective, in that there is no specific reference to Ex. A (1) in it. Paragraph 3 of the complaint runs:

“That the accused, on learning of the said marriage, i.e, the second marriage of the complainant, acted maliciously, in spreading calumnious reports, regarding the complainant's character, with intent to defame him and ruin his standing and position.”

Several authorities were cited to induce us, to hold that, as Ex. A (1) was not specifically referred to, in the complaint, that there was no complaint at all as regards that defamation and that, therefore, the whole proceedings with regard to that item are null and void. I have carefully considered the cases cited, namely Empress of India v. Kallu(1), Queen Empress v. Deokinandan(2) and In re Pedda Anjinigadu(3) and I think that they have no bearing on the present case. All that Sect. 198 of the Criminal Procedure Code requires is that:

‘no Court shall take cognizance of an offence falling under……Chapter XXI of the Indian Penal Code…………except upon a complaint made by some person aggrieved by such an offence.’

In Chidambaram Pillai v. Emperor(4), it was held that it was at most an irregularity, if, in a complaint of sedition, the seditious speeches and words were not set out. The charge in the present case is quite specific and contains the words alleged to be defamatory in Ex. A (1). I am of opinion that this objection fails.

A great deal of our time and a great deal of the time and the ingenuity of the learned Vakils, who appeared before us, were wasted on account of the manner in which these proceedings had been conducted in the Lower Court. The alleged libels themselves were apparently filed in the District Court in Bangalore, in connection with a suit, which the daughter of the accused had brought, against the complaintant, in the present case, for breach of promise of marriage and seduction. As we hear, judgment went against the complainant in that case, for a considerable sum, and he appealed to the Honourable, the Resident from that judgment. Considerable time was occupied in a discussion, as to whether or not the originals were actually in the Lower Court, when this case was heard. The complainant has sworn to an affidavit, to in which he says that the originals were in Court and he gave his deposition with reference to them. In his deposition, however, which he signed as correct, the reference is, with a single exception, to certified copies and not to the originals. It strikes me as an extraordinary way to proceed with either a Criminal matter in defamation, or a Civil action, without the alleged libels in original being not only not produced, but closely scrutinised by the Court and placed before the witnesses. The learned vakils on either side could be of no assistance in this respect, as neither of them appeared in the Court below. Mr. Jayarama Aiyar for the respondent in this appeal argued that a further opportunity should be given to the prosecution to produce the originals; but, for the reasons I am about to give, it seems to me that such a course would not only be unfair to the accused in the appeal in its present state, but further, that points for consideration here can be disposed of, without reference to this point.

I may perhaps usefully make some general remarks with regard to charges of defamation, before I come to the particular matters charged in the present case. It seems to me to be undoubted that the law in India demands publication, i.e, that the defamatory matter was read by at least one other person than the defamer and the defamed. The words of Sect. 499 Indian Penal Code are:

“Makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of such person etc.”

To my mind, a person who makes an imputation intending to harm is not guilty of an offence, if he either makes such imputation and, for instance, locks it away in his safe, or otherwise prevents it, from getting to the knowledge of anybody except himself. The intention to harm can only be evidenced by some overt act, which in this case would be publication as it is called, i.e, bringing it to the knowledge of some person other than the defamed. I think this is clear from Expln. 4 to the section; where it is pointed out that a person's reputation is not the estimation in which he holds himself, but the estimation in which he is held by others. Thus it is impossible to harm, unless these others, or at least one of them, has knowledge of the defamatory statement. As has been constantly pointed out, the English Criminal Law of libel is different. There, a defamatory statement made only to the person defamed may be the subject of a prosecution, provided the defamation would lead to a breach of the peace. This view is supported by the Full Bench ruling, in Queen-Empress v. Taki Husain. It is perfectly clear what the question before the Full Bench there was, from the judgment of Mahmood, J., at page 219 of the report. He says:

“the question before us is an extremely limited one, namely, whether or not a libellous communication made only to the person whose character is attacked amounts to the offence of defamation, as defined in Sect. 499 of the Indian Penal Code,”

and the question is answered by the majority of the Full Bench in the negative. This being the law, it is clearly the duty of the prosecution to prove affirmatively that the accused published the libel (see Jeremiah v. Vas) and the fact that the accused has omitted to deny publication will not supply the deficiency. In that case, a difference of opinion arose between Sundara Aiyar, J., and Phillips, J., on the question, as to whether the conviction should be set aside, or fresh evidence recorded, where the Magistrate had improperly refused to take evidence, which the prosecution attempted to adduce. On reference to a third Judge, (Benson, J.), additional evidence was taken. We have no evidence in the present case, that the prosecution protested, when the District Magistrate returned the original defamations to the Resident's Court, though it is said that the Counsel for the accused did protest against the reception of certified copies. I think the learned District Magistrate was wrong in conducting the proceedings on certified copies alone, if in fact he did so; but I am willing for the purposes of this case to assume that Mr. Skipp's affidavit is correct and that he actually had the originals in his hands when he gave his evidence.

Now, Ex. A (1) is said to have been a letter posted in Bangalore by the Appellant bearing postal seal:

“Bangalore, 4th January 1922, 8-45 a.m”

and the following words were written on the outside of the cover, though it is not clear from the evidence, whether they were written on the front or the back of the cover:

“Worse than the thief is the ingrate, for he is a thief who steals our goodness and kindness. Then stabs you, then twists the dagger.”

It was addressed to Mr. T. C. Skipp's St. Marks Square, Local. Mr. Skipp's evidence with regard to Ex. A (1) is exceedingly meagre. He says that some time in January, 1922, he received a letter from the accused or rather a new year wish and that Ex. A (1) is a copy of the words written on the cover. He further says:

“I am positive these letters” (including Ex. B to which further reference will be made) “were written by the accused. She has admitted them in Court”.

To begin with, assuming as I have said, that Mr. Skipp had the original in his hands and that it bears the post mark as stated, it is to my mind doubtful if Mr. Skipp's deposition can be said to be a proof of the handwriting of the accused. I am assuming in his favour that the letter was posted and received by him. As the words were written on the outside of the communication, it would fall within the decisions relating to post cards. It has been held that there is evidence of publication, if the libel be written on a post card. Lord Reading, C.J, in Huth v. Huth says:

“The mere fact that the words are written on a postcard which is posted must be taken as some evidence that a third person will read it or has read it.”

The publication in this sense is merely notional. No person has been called to actually prove that it was read. As I have already stated, this may not be necessary; but more significant still, no person has been called to say that he or she read the words complained of and connected them with Mr. Skipp, the addressee. In the absence of the original, which is again to be greatly deplored, I will assume in favour of the prosecution that the words complained of were written on the front of the cover and therefore must have been more or less close to the name of the addressee. If the words are defamatory,—on which more hereafter—it appears to me extremely doubtful whether it can be presumed that, in the absence of positive evidence that the words were ever actually read by anybody, the words are connected with Mr. Skipp. The words are said to be taken from a book of moral phrases and Maxims called “Brass tacks” and I find it extremely difficult to say that the words must inevitably have been taken to refer to Mr. Skipp, by reason of the notional publication which is presumed, when an open communication is sent through the post. Are the words defamatory? There is one case of the year 1869, Cox v. Lee, in which it was held actionable to charge a man with ingratitude. There is no question, of course, that this could not be the subject of a criminal charge under the English law. I am very much inclined to doubt whether, under the terms of Sect. 499, Indian Penal Code, to charge a man with ingratitude involves an intention to harm the reputation of such person. It would depend largely on evidence as to the reputation that the person enjoyed in the society, in which he moved, for gratitude or other proper, but not necessary, ingredients in a good character. I am, however, content to say that presuming publication in favour of the complainant and even assuming that the words in question are capable of a defamatory meaning, there is no ground in the circumstance of their appearing in Ex. A, for connecting them with the complainant.

Now with regard to Ex. B: The evidence with regard to Ex. B is also in my opinion strangely deficient. It again depends entirely on the deposition of the complainant himself. B is said to be a letter written to one of the complainant's sons, then in England, by the accused and it contains statements which, it has not been contended, may not be defamatory of the accused. Here again, the complainant says he is positive that this letter was written by the accused and that she has admitted them in Court. We have no evidence but it may be that this so-called admission refers to something that occured in the Breach of Promise Trial. The admission has not been produced or exhibited, and, under the circumstances, we can pay no regard to it whatever. It is said or assumed that Ex. B must have been posted by the accused in Bangalore, to the complainant's son in England, and it is then said by the complainant that he received the letter complained of, Ex. B, enclosed in a letter of the son to him, the complainant. Much argument was expended on the question as to whether, assuming this letter was posted in Bangalore, there would be any publication in British India, to bring it within the jurisdiction. As I have stated above, the complainant must prove publication in fact. The words must be published within the territorial jurisdiction. The King v. Burdett is an authority for saying that a letter is deemed to be published both where it is posted and where it is received and opened. Here even the Original of Ex. B would seem to bear no marks of posting whatever the complainant says:

“Cyril (that is one of his sons) sent me Ex. B with a letter. I have not got that letter, I do not know where it is”

This seems to justify the assumption that Ex. B was enclosed in a letter of Cyril's to his father, the complainant. There is no legal evidence that Cyril ever received Ex. B, or returned the letter with its original cover; and there is no evidence from the complainant of any posting of the letter by the accused in Bangalore or elsewhere. I am ready to assume in favour of the prosecution that, if it is proved that the letter had been posted, it is immaterial whether it had been posted in Bangalore or in Mysore Territory. The learned District Magistrate as J. P., would have jurisdiction over European British subjects, to which class the accused belongs, in Mysore. But as to the posting of the letter, there is again only the presumption that, when the complainant said that he was positive that that letter was written by the accused, that was sufficient to prove her handwriting. Assuming that Posting in Bangalore, if proved, would be sufficient publication, unless the accused could show that it had come directly and unread into the possession and control of the complainant, on the authority of R. v. Burdett; it seems to me fatal to the prosecution case that the son was not examined, either in person, or in commission to prove receipt of this letter. That will be evidence that it had been sent through the post. It would also have been satisfactory, but perhaps strictly unnecessary, if he could have proved that he had read the contents. On the bare deposition of the complainant, with all the deficiencies, it, in my opinion, presents, I am of opinion that it has not been proved that Ex. 4 (1) emanated from the accused. This seems to be fatal in the case of Ex. B also.

Before finishing, I should like to emphasize the fact once more that, though I expressed great surprise at the hearing, at the course adopted by the learned District Magistrate, in allowing certified copies of the libels to go in, my judgment is based on the assumption that nothing but the original libels were before the Court and in the hands of the witness, when he gave his deposition.

On these grounds, I am clearly of opinion that the conviction on neither of these alleged libels can stand and that the conviction must be set aside. The fine inflicted on the accused must be refunded, if it has been paid.

Hughes, J.—The accused has been found guilty of defamation under Sect. 500 of the Indian Penal Code. There are two counts in the charge. The first count relates to certain alleged defamatory words said to have been written by the accused, on or about 12th January, 1922, at Bangalore, in a letter to the son of the complainant. The second count relates to certain words, alleged to have been written by the accused, on or about 4th January, 1922, at Bangalore, on the outside of an envelope, addressed and posted to the complainant.

The case has been badly handled throughout. The complaint itself is exceedingly vague and does not even specifically refer to the matter of the second count. There is a mass of irrelevant evidence. The deposition of P.Ws 2 to 9 are of no use whatever. But the most serious defect is that the original writings containing the alleged defamation referred to in the counts have not been marked as exhibits, though it appears they are available and could have been marked. Instead of that, certified copies of those documents, which have been exhibited in the Civil Court, have been treated as evidence in this case. If it had been necessary, I think additional evidence should have been allowed to be taken in this appeal, so that the originals might be sent for and the complainant examined with reference to them; for it appears to me that the Court was at fault in not seeing that the originals were filed. The certified copies should not have been marked as Exhibits and it was the duty of the Court to insist on the originals being filed. If the Court had insisted, the complainant would have done so; for it seems from his affidavit the originals where actually in Court.

But in the view I take of this case, it is not necessary; for even assuming the documents were written by the accused, a fact which she has not denied, I do not think the conviction can stand.

Taking the second count first, it is doubtful whether the description of a man as an ‘ingrate’ would lower in the estimation of others his moral or intellectual character, or his credit (vide Explanation 4 of Sect. 499, Indian Penal Code). But taking it that it is defamation to style a man an ingrate, with the added commentary that an ingrate is worse than a thief, there is nothing to show that the words referred to the complainant. No witnesses have been called to speak to this and the complainant himself does not say that the words refer to him.

The conviction as to the second count therefore cannot be supported.

With regard to the first count, the difficulty is one relating to jurisdiction. Some passages in the letter (copy of which is marked as Ex. B) are clearly defamatory. In the complaint, it is alleged that the accused wrote the letter and it was posted at Bangalore and sent to the complainant's son, who was in England. There is no direct proof that the letter was written in Bangalore but we are asked to presume this fact because the letter is headed “22 Cubbon Road.” Such a presumption has been drawn, but personally I think it is not a safe presumption. People may put their usual address at the head of their letters, whether actually written there or not. However if the letter was written at Bangalore that would not be enough to give jurisdiction to the District Magistrate, Bangalore. It would be necessary to prove that it was there handed over to somebody to take to the addressee, or that it was there posted. If the letter was so handed over or posted at Bangalore, the accused would have had no further control over it and that offence of making an imputation, with intent to harm reputation, would so far as the accused is concerned be complete [vide Krishnamurthy Aiyar v. Parasurama Aiyar]. But in this case there is no evidence that the accused handed over the document to anybody at Bangalore, or that she posted it there. There is in fact no evidence really that the letter was posted at all. The complainant says that his son sent the letter on to him. But there is no evidence as to how the son got the letter. The letter, if any, which was sent by the son, enclosing this letter to his father, has not been produced and the son has not been examined as a witness.

We cannot presume, that the letter of which Ex. B is a copy, was sent by post to England, or that it was posted at Bangalore Cantonment or City.

It follows that it is not shown that the District Magistrate had the jurisdiction to try this case. The conviction on the first count also cannot be sustained. I agree that the appeal must be allowed and the accused acquitted, and the fine, if levied, refunded.

C. K.Appeal allowed : Case remanded.