JUDGMENT Stevens and Henderson, JJ. - The Petitioner before us has been convicted u/s 500 of the Indian Penal Code of committing defamation in respect of the complainant by describing him and others of his caste as Brithial Banias. This Rule was granted to show cause why the conviction and sentence should not be set aside on the ground that the acts of the Petitioner do not amount to the offence of defamation. 2. It appears that in the Province of Assam a caste originally known as Haris and more euphemistically described as Brithials, that is, persons following an occupation, have to a considerable extent risen in the social scale and that in many cases they now follow occupations of a much higher class than that belonging to their original caste. For instance, they sometimes exercise the craft of goldsmith. At the recent census, in accordance, as it appears from the evidence, with official orders, a number of persons, amongst whom the present complainant was included, were described by the enumerators in the census papers as Brithial Banias, although subsequently on a remonstrance by some of them, also apparently including the complainant, the caste designation was altered to Gandha Bania. 3. The Petitioner before us is, it seems, the collecting panchait of his village. He is said, as appears from the evidence, to have defamed the complainant by giving a chaukidari receipt to him in which he is described by the designation of Brithial Bania and also by sending a letter to the panchait of a neighbouring village desiring him to co-operate with him in putting an end to the pretensions of persons who, being really Brithial Banias, wished to be described as Gandha Banias. He is also said to have informed a certain assembly, which had met for the purpose of worship, that the complainant belonged to the former caste. 4. There has not been a proper charge in the case. The charge sets out that the defamation was committed on or about the 12th day of April and afterwards by describing the complainant as Brithial Bania. The charge does not set forth the particular occasions on which the defamation is said to have been committed, so as to give the accused person, now the Petitioner, an opportunity of defending himself with reference to each act alleged to have been committed by him. 5. The charge does not set forth the particular occasions on which the defamation is said to have been committed, so as to give the accused person, now the Petitioner, an opportunity of defending himself with reference to each act alleged to have been committed by him. 5. The 12th of April is apparently the date of the chaukidari receipt. The delivery of such a receipt to the complainant himself was obviously not a publication such as would render the Petitioner liable to punishment for defamation. As regards the other two occasions there is no definite finding by the Deputy Magistrate in his judgment. The letter was not written or signed by the Petitioner himself but it was written by a nephew of his who has given evidence in the case. The nephew states that he himself wrote the letter and that he did not write it under the instructions of the Petitioner. All that the Deputy Magistrate says on this subject is that there cannot in his mind be any doubt that the denial of the witness that he wrote the letter under the instructions of the accused is prompted only by a desire to save his uncle. In other words, if this can be taken to be a finding against the Petitioner, it is a finding not only not upon evidence, but against the evidence in the case. 6. As regards the statement said to have been made before the religious assembly, there is no distinct finding on the subject. 7. We think that even if the Petitioner did make the statement in question on the occasions on which he is alleged to have made it, to the effect that the complainant and others similarly situated belonged to the caste of Brithial Banias, he would not be liable to conviction for defamation, unless it could be shown that he did so otherwise than in good faith. We have already said that these persons were, under official instructions, so described in the census papers and there is nothing to show that the Petitioners had any information of the alteration which is said to have been subsequently made in the caste designation in those papers. 8. We have already said that these persons were, under official instructions, so described in the census papers and there is nothing to show that the Petitioners had any information of the alteration which is said to have been subsequently made in the caste designation in those papers. 8. As regards the intention of the Petitioner, the Deputy Magistrate states in his judgment as follows : "That the epithet was applied with a malicious motive is proved by the fact that when the complainant and his caste-men objected to it, the accused did not apologise to them for his inadvertent use of it towards them. Before this Court also the complainant hasnot expressed regret for his act." 9. It seems to us that the subsequent omission of the Petitioner to apologise for the use of the caste designation in question cannot be taken as indicating that he used it at the time with a malicious intention. 10. It is stated by the complainant in evidence (and in his explanation, which has been submitted in showing cause against this Rule, the Deputy Magistrate has referred to the circumstance) that the Petitioner endeavoured to obtain from the complainant and from his caste-fellows a payment of Rs. 100 as an inducement to describe them as they desired to be described. There is no finding in the judgment that such an attempt was in fact made by the Petitioner; indeed there is no mention of the matter at all. If the Deputy Magistrate believed that that was the case he should certainly have recorded a definite finding on the subject. 11. On the whole we think that the conviction of the criminal offence of defamation was not justified and that if the complainant considers himself aggrieved by the action of the Petitioner his proper remedy lies in a suit in the Civil Court. 12. The Rule is made absolute and the conviction and sentence are set aside. The fine, if realised, or so much thereof as may have been realised, must be refunded. If the amount which was directed to be paid to the complainant by way of compensation has in fact been paid to him, he must refund it.