JUDGMENT 1. The Appellant has been convicted on two charges under sec. 500, I. P. C., and has been sentenced to fees of Rs. 100 and Rs. 200, or Rs. 300 in all. The Appellant, H. Grant, is an assistant yard Master in the East Indian Railway and the complainant, D. M. Mathews, is an Officiating District Traffic Superintendent of the same Railway. Both seem to have been stationed at Asansole on the 23rd June last, the date of the commission of the alleged offences. The defamatory statements, the subject of the first charge, are said to have been made in a letter written by the accused on the 23rd June to the District Traffic Superintendent, through the Station Superintendent, and those which are the subject of the 2nd charge are said to have been made verbally to R. W. Egan. The statements refer to the same occurrence and impute to the complainant Mathews' acts of impropriety with Mrs. Egan, the wife of R. W. Egan, on the night of the 22nd June. 2. Another accused W. Duthie was tried with the present Appellant for similar offences but was acquitted. 3. It was not denied by the Appellant that he made statements in the letter to the District Traffic Superintendent and verbally to Egan imputing misconduct to the complainant, but it was denied that he said to Egan exactly what Egan has deposed to in his evidence. In respect of both statements he pleaded that they were privileged. 4. As to the 1st charge it is to be observed that the Magistrate holds that the letter was written by the Appellant at the instance of Egan. As, however, Egan's attitude was the result of the previous verbal communication made to him by the accused he holds that the statements in the letter were not privileged. 5. As to the 2nd charge the Magistrate accepts Egan's evidence as to the statements made to him by Appellant, and finding that the Appellant acted as a mischief-maker rather than as a friend to Egan in making them he found that they were not made in good faith. 6. In support of this appeal it has been contended that the statements in both instances were privileged and that on the findings of the Magistrate himself the Appellant should have been acquitted. 7. The statements complained of were to the effect that Mathews and Mrs. 6. In support of this appeal it has been contended that the statements in both instances were privileged and that on the findings of the Magistrate himself the Appellant should have been acquitted. 7. The statements complained of were to the effect that Mathews and Mrs. Egan were closetted together from 12-27 to 2-40 A.M. on the morning of the 23rd June in the first class compartment of a composite carriage which was standing on the line at the Asansole Station and that they were behaving in a manner such as to render unavoidable the conclusion that acts of impropriety were taking place between them. 8. The Magistrate does not decide whether in fact the two persons said to have been seen in the carriage that night were the complainant and Mrs. Egan, but he finds that the statements were founded on fact and that the Appellant in good faith believed that the persons he said were the two persons he named. He further finds that the evidence adduced by Mathews and Mrs. Egan to prove alibis at the time mentioned was not sufficient. 9. The prosecution endeavoured to prove that the statements were wantonly malicious and were made in consequence of a quarrel between Grant and Mathews over what happened during a strike of the Railway guards in October 1905. This however the Magistrate holds that the prosecution failed to prove. The correctness of these findings has not been disputed and after referring to the record we see no reason to differ from them. 10. The Magistrate has, however, convicted the Appellant on the ground that the statements, though not malicious, were not made in good faith. 11. In support of the appeal it has been contended that the Magistrate has erred in his interpretation of the meaning of " good faith," and that it is nothing more than is required by the English law. " To entitle matter otherwise libellous to the protection which attaches to communications made in the fulfilment of a duty bond fides, or to use our own equivalent, honesty of purpose is essential: and to this again two things are necessary : first, that the communication be made not only in the course of duty, that is, on an occasion which would justify the making of it but also from a sense of duty. Secondly, that it be made with a belief in its truth (Mayne, Crl. Law, 3rd Ed., para. 674). 12. It is urged that in this case the Appellant made the statements honestly believing them to be true, and this the Magistrate has found to be the case. It is also urged that as a friend of Egan he made them under a sense of duty. 13. The Magistrate has held that if the Appellant had reason to suspect misconduct on the part of Mrs. Egan he ought first to have sifted the matter " by putting the matter squarely to her " and then he might have received a satisfactory explanation. As he failed to do this the Magistrate holds that he acted as a mischief-maker, not as a friend. We think, however, that the Magistrate in taking this view has failed to take into consideration the social position of the accused and has expected from him conduct which would have been natural in a higher sphere of life. No doubt it would have been better if, when the suspicions of the Appellant were aroused, he had tried to prevent any acts of impropriety from taking place: but the question is whether, after he had seen what he saw and when he supposed that Mathews and Mrs. Egan were the persons whom he had seen, it can be concluded that he acted otherwise than under a sense of duty in telling Egan. Egan was his friend and it seems to us not possible on the facts to hold that he was actuated by any other motive. Under these circumstances the Appellant could not have been convicted of defamation unless express malice had been proved by the prosecution. The Magistrate has found that the prosecutor entirely failed to prove the malice alleged. Malice cannot be presumed or inferred from the failure of the Appellant to do the acts which the Magistrate has thought he ought to have done. Disagreeing therefore with the Magistrate we hold that in this case the prosecutor failed to prove that the Appellant was guilty of the two offences of defamation with which he was charged. We acquit him and direct that he be discharged. The fine or such portion of it as may have been realised will be refunded. Gupta, J. I agree.