JUDGMENT 1. THIS Rule is against an order dated the lj3rd April 1968 passed by Shri S. R. Bhattacharjee, Presidency Magistrate, 5th Court, Calcutta discharging the two accused in Case No. C/l of 1967 under section 253 (1) of the Code of Criminal Procedure. 2. THE facts leading on to the present Rule can be put in a short compass. The complainant who is a founder-member and the present vice-president of the Pei May School and a respectable businessman of Calcutta running his own tannery business, filed a petition of complaint before the learned Chief presidency Magistrate, Calcutta on 2-1-67 against the two accused under sections 500, 503 and 504 I. P. C. for publishing, in a newspaper styled as "the chinese Journal of India", a letter which is highly defamatory in character and absolutely false and scandalous with the motive of lowering the complainant in the estimation of the people. The accused No. 1, Chang Chi Hua was described as the Manager, printer and the publisher of the "chinese Journal of India" and also as a member of the committee of the Pei May School. The accused No. 2, Yee Sang Lui (since deceased) is alleged to be the writer of the letter. After examining the complainant on oath the Chief Presidency magistrate, Calcutta sent the matter for judicial enquiry by his order of the same date, Shri K. D. Banerjee, presidency Magistrate, 9th Court, Calcutta, who held the enquiry, submitted a report recommending a process under section 500 I. P. C. against both the accused. On the basis of the said report the Chief Presidency Magistrate, Calcutta, by his order dated the 10th February, 1967, issued summons against both the accused under section 500 I. P. C. and transferred the case on the 5th June, 1967 to the file of Shri A. Sengupta, Presidency Magistrate, 5th Court, calcutta for disposal. The learned Magistrate was transferred and the present incumbent recorded the evidence and delivered judgment. Four witnesses, including the complainant, were examined by the learned trying magistrate, who ultimately by his order dated the 23rd April, 1968, discharged both the accused under section 253 (1) of the Code of Criminal Procedure. This order has been impugned and forms the subject-matter of the present Rule. Four witnesses, including the complainant, were examined by the learned trying magistrate, who ultimately by his order dated the 23rd April, 1968, discharged both the accused under section 253 (1) of the Code of Criminal Procedure. This order has been impugned and forms the subject-matter of the present Rule. The accused opposite party No. 2, Yes Sang Lui alias Lui husan Hsin died subsequently and on an application made in that behalf and upon the submission of the learned Advocates appearing on behalf of the respective parties, the Rule was discharged so far as the said opposite party No. 2 is concerned by an order passed by this court on the 17th February, 1969 and proceeded against the accused opposite party No. 1, Chang Chi Hua. Mr. Nalin Chandra Banerjee, advocate (with Messrs Chittaranjan das, Anathbandhu Pal and Arun Kumar Mukherjee, Advocates), appearing on behalf of the complainant petitioner in support of the Rule, has made a twofold submission. The first contention of Mr. Banerjee is one of law viz., that the learned Presidency Magistrate has misunderstood and misinterpreted the essential elements constituting the offence of defamation and erred in holding that the said offence can only be established when the imputation published, concerning the person aggrieved, intended to harm his reputation by lowering the moral or intellectual character of the said person in the estimation of others or by lowering his credit. He has urged in this context that where the allegation or imputation is per se defamatory, as in the present case, no evidence is called for from others, to establish that the imputation concerned intended to harm the reputation of the complainant by lowering the moral or intellectual character or the credit of the person defamed, "in the estimation of others" as enjoined in explanation 4 to section 499 I. P. C. In support of this contention, Mr. Banerjee has made a reference to several cases which will be considered in the proper context. The second contention of Mr. Banerjee has made a reference to several cases which will be considered in the proper context. The second contention of Mr. Banerjee however is one of fact and is that even if the definition of defamation based on the footing of Explanation 4 to section 499 I.P.C. be accepted, there is sufficient evidence on the record, viz., by p. w. s 1, 3 and 4, that the publication impugned was calculated to lower the complainant's position in the Chinese society and as such the case came within the ambit of Explanation 4 to section 499 I. P. C. 3. MR. Ajit Kumar Dutt, Advocate, (with Mr. Bejoy Kumar Bhose, Advocate), appearing on behalf of the accused-opposite party No. 1, Chang Chi hua, joined issue and contended that the concept of defamation sought to be made out by Mr. Banerjee is unwarranted and untenable and is not only dehors the statute but is not also borne out by the leading cases on the point. In this context Mr. Dutt submitted that the interpretation given by Mr. Banerjee overlooks the material provision in explanation 4 to section 499 I.P.C. enjoining that the gravamen of the offence of defamation is harming the complainant's reputation by lowering his credit or his moral or intellectual character in the estimation of others. Mr. Dutt in this context distinguished the principles laid down in the cases tilted by Mr. Banerjee and referred to authorities in support of his submission. With regard to the second contention of Mr. Banerjee, Mr. Dutt submitted that the same is clearly unwarranted and untenable and the evidence on record rules out the same. Besides his submissions on the two substantive grounds raised by Mr. Banerjee on being half of the petitioner, Mr. Dutta also raised two ancillary grounds, impugning the maintainability of the present proceedings and justifying the order of discharge. The first of these grounds relates to the effect of the earlier complaint, reference whereto was suppressed, as filed before the learned Chief presidency Magistrate, Calcutta, being case No. C/27 of 1967, over the publication dated the 23rd December, 1966 as well as the other two publications dated 6-12-66 and 11. 12. The first of these grounds relates to the effect of the earlier complaint, reference whereto was suppressed, as filed before the learned Chief presidency Magistrate, Calcutta, being case No. C/27 of 1967, over the publication dated the 23rd December, 1966 as well as the other two publications dated 6-12-66 and 11. 12. 66; and the second ground, relates to the effect on the present proceedings of the suit filed in the high Court by the complainant himself claiming rupees five lakhs as damages for defamation against the accused opposite-party No. 1 as well as some others, wherein the accused is stated to have offered an unconditional apology. The accused opposite-party No. 2 having died, the learned Advocates on his behalf had drawn the attention of the court to the said fact by a petition duly affirmed by an affidavit on the 6th February, 1969 and this court by its order dated the 17th February, 1969, discharged the Rule against the said opposite party No. 2, Tee Sang Lui alias lui huan Hsin. 4. HAVING heard the arguments advanced by the learned Advocates appearing on behalf of the respective parties, and on going through the evidence on record, I will take up for consideration in the first instance, the two ancillary grounds raised by Mr. Dutt appearing on behalf of the accused-opposite party No. 1. The first ancillary ground is that the complainant has suppressed material facts in the petition of complaint of the present case, being Case no. C/l of 1967, by not referring to the earlier petition of complaint, filed by him, being Case No. C/27 of 1967, relating not only to the imputation dated the 23rd December, 1966 (Ext. 4 and 4 (1) but also to the two other imputations dated 6-12-66 (Ext. 1) and 11-12-66 (Ext. 3) and the order passed therein by the court below as well as the High Court; and also by not even mentioning the same in his evidence given in court. I agree with Mr. 4 and 4 (1) but also to the two other imputations dated 6-12-66 (Ext. 1) and 11-12-66 (Ext. 3) and the order passed therein by the court below as well as the High Court; and also by not even mentioning the same in his evidence given in court. I agree with Mr. Dutt that there should better have been a reference, both in the petition of complaint as well as in the evidence of p. w. 1, to the previous complaint filed, being Case No. C|27 of 1967, and the orders passed therein by the learned chief Presidency Magistrate, Calcutta, as well this Hon'ble Court but in the facts and circumstances of the case, the mere absence of the same would not be tantamount to a wilful suppression. A reference to the earlier complaint and the orders passed therein by the learned trying: magistrate as well as the High Court, would show that the same does not in any way affect the maintainability of the present proceedings. The learned trying magistrate was therefore not correct in holding that "this court is not competent to frame a charge in respect of items already held by the Hon'ble High Court as innocent". There was no cloud over the facts and even if there was any, the same was lifted by the categorical averments made in the present petition of complaint as to the cause of action. I hold therefore that on this ground alone the proceedings cannot be held to be not maintainable and the order of discharge be justified. The first ancillary ground therefore fails. The second ancillary ground relates to the fact that in January, 1937, a suit was filed by the complainant in the Hon'ble high Court against the complainant opposite-party No. 1 as well as several others claiming rupees five lakhs as damages for having defamed the complainant and the attention of the High court having been drawn to the publication dated the 8th February, 1967, the accused in the present case had offered unqualified apology which the high Court had accepted. The materials on the record, however, do not clearly establish whether the imputation concerned which forms the subject-matter of Case No, C/l of 1967 giving rise to the present Rule, was also in any way, the subject-matter of the said suit and as such it is not possible for me to come to any finding either way. Of things that do not exist and things that do not appear the reckoning in a court of law is the same. Accordingly, the second ancillary ground of Mr. Dutt also fails. I will now take up for consideration the two substantive grounds, raised by Mr. Banerjee in support of the Rule, and over which Mr. Dutt, on behalf of the accused opposite-party No. 1, has joined issue. The first contention of mr. Banerjee, referred to above, is that where the imputation is per se defamatory, as in the present case, no evidence is called for from others to establish that the imputation concerned intended to harm the lowering of his moral or intellectual character or his credit in the estimation of others. In support of his contention Mr. Banerjee referred to some commentaries and also to reported decisions. Mr. Banerjee referred in the first instance to the observations of dr. Gour in his Penal Law of India (6th Edn.) at page 2362 and also to several cases. While commenting on explanation 4 to section 499 I.P.C. Dr. Gour has observed that "this explanation is intended to define the term 'harm' as applied to reputation in connection with the definition of this offence. It does not, however, cover all cases wherein defamation may be committed, for the actual harming of one's reputation is by no means necessary for the purpose of the offence. " There is a reference by Dr. Gour in his book to the observations of Mr. Justice straight in the case of (1)Queen-Empress v, Mccarthy, to establish his point. Mr. Banerjee referred to the said decision of Mr. Justice Straight and Mr. Justice Tyrrell in the case of (1) Queen-Empress v. Mccarthy reported in I.L.R. 9 All page 420, Mr. Justice straight delivering the judgment of the court, observed at page 426 that explanation 4 of section 499 I. P. C. "does not apply where the words used and forming the basis of a charge are per se defamatory. Justice Tyrrell in the case of (1) Queen-Empress v. Mccarthy reported in I.L.R. 9 All page 420, Mr. Justice straight delivering the judgment of the court, observed at page 426 that explanation 4 of section 499 I. P. C. "does not apply where the words used and forming the basis of a charge are per se defamatory. When an expression, used verbally in writing, is doubtful as to its significance, and some evidence is necessary to decide what the effect of that expression will be, and whether it is calculated to harm a particular person's reputation, it is possible that the principle enunciated in Explanation 4 of section 499 might, and would with propriety, be applied". The next case referred to by Mr. Banerjee is the case of (2) Gobinda Pershad Pandey and anr., v. G. L. Carth, decided by Mr. Justice prinsep and Mr. Justice Stanley reported in I. L. R. 28 Calcutta page 63. Mr. Justice Prinsep delivering the judgment of the court observed that in order to constitute the offence of defamation, it, is not necessary that there should be evidence to show that the complainant has been injuriously affected by such alleged defamation and that the law requires merely that there should be an intent that the person who makes the imputation has done so intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person. The next case referred to is the case of (3)Andrao Balkrishna Rangnekar v. Emperor reported in A. I. R. 1915 Bombay page 28 (Full Bench) Mr. Banerjee relied on the observation made in the said case by Mr. Justice Heaton at page 34 that "my own opinion is that Explanation 4 like the other three merely describes the quality or nature of the imputation and not its actual effects". Mr. Banerjee next referred to the case of (4) Alex Primento and anr. v. Emperor, reported in A. I. R. 1920, Bombay page 339 wherein it was held that in order to render the offence of defamation complete there must be an imputation with reference to a person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation of the person against whom the imputation is made. Proof of actual harm to the reputation of the person defamed is not necessary. Mr. Proof of actual harm to the reputation of the person defamed is not necessary. Mr. Banerjee pinpointed the observations made by Mr. Justice Shah in the abovementioned decision relating to the principles laid down by Mr. Justice davar in the Full Bench decision reported in (3) A.I.R. 1915 Bombay page 28 holding inter alia that he was unable to agree with the said observations of mr. Justice Davar and in fact agreeing with the observations made by Mr. Justice Heaton on the point in the said case. The later decision by Mr. Justice Dalai in the case of (5) Mohan lai v. Ram Charan and anr., reported in A.I.R. 1928 All. page 213 was also relied on by Mr. Banerjee wherein it was held that when a complaint makes out a clear case of defamation, explanation to section 499 I.P.C. does not apply and the decision in (1) I.L.R. 9 all page 420 was followed in this context. Mr. Banerjee accordingly argued an the basis of the abovementioned authority and decisions that in cases of imputations which are per se defamatory the requirements laid down in explanation to section 499 I. P. C. are redundant and the test of the credit of the complainant being lowering in the estimation of others is not necessary. 5. MR. Dutt joined issue and contended that Dr. Gour in his Penal Law of India was not making any comments himself but was merely referring to the observations by Mr. Justice Straight in the case reported in I.L.R. 9 All page 420. Mr. Dutt contended that some meaning and effect must be given to the provisions contained in Explanation 4 to section 499 I.P.C. as otherwise the intention of the legislature as contained therein would be defeated. The rules of interpretation of statute do not attribute redundancy to a statute. In this context Mr. Dutt referred to the observations made by Maxwell in his interpretation of Statute (10th Edn.) at page 163 and also to the case reported in (6) A.I.R. 1967 S.C. page 389 at page 393. In connection with the repugnancy Maxwell observed that the proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest, and he further referred to Kent's Commentaries on American Law, 12th Edn. vol. In connection with the repugnancy Maxwell observed that the proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest, and he further referred to Kent's Commentaries on American Law, 12th Edn. vol. 1, 463n that "the true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail". With regard to the decision in (1) I. L. R. 9 All page 420, Mr. Dutt submitted that the said observation upon ultimate analysis, is unwarranted and untenable because it was creating a new species of defamation not covered by the definition in section 499 I.P.C., as the legislature has made no such classification like 'imputations per se defamatory'. Mr. Justice prinsep according to Mr. Dutt was indeed trying to legislate by making the said observations. With regard to the decision reported in (2) I. L. R. 28 Calcutta page 63, Mr. Dutt adopted the observations of Mr. Justice Davar in the Full bench case of (3) Anandrao balkrishna Rangnekar v. Emperor, reported in a. I. R. 1915 Bombay page 28 wherein his Lordship disagreed with the view taken in the case reported in I. L. R. 28 calcutta page 63 on the ground that title learned Judge in the latter case overlooked the provisions of Explanation 4 to section 499 I. P. C. and referred further to the view taken in the case of (7) Bhooni Money Dossee v. Natobar biswas, reported in I. L. R. 28 Cal. page 452 wherein Mr. Justice Harington enjoined that the party aggrieved alleging grave imputation would have no remedy in a civil court unless and until he proved the actual damage. With regard to the case of (4) A lex Primerdo and anr. v. Emperor, reported in A. I. R. 1920 Bombay page 339 Mr. Dutt submitted that Mr. Justice Shah who held otherwise in the present case did not make any observation in the earlier case reported in A. I. R. 1915 Bombay, page 28 whereto he was a party. This expression of disagreement with Mr. v. Emperor, reported in A. I. R. 1920 Bombay page 339 Mr. Dutt submitted that Mr. Justice Shah who held otherwise in the present case did not make any observation in the earlier case reported in A. I. R. 1915 Bombay, page 28 whereto he was a party. This expression of disagreement with Mr. Justice Davar delivering the judgment in that Full Bench case is belated and in any event is not warranted by the provisions of Explanation 4 to section 499 I. P. C. Mr. Dutt further contended that his submissions are the same with regard to the agreement by Mr. Justice heaton in the decision reported in (1)I. L. R. 9 All page 420. As to the case of (5) Mohan Lai v. Ram Charan and anr. reported in A. I. R. 1928 All page 213 decided by Mr. Justice Dalai, Mr. Dutt submitted that Mr. Justice Dalai merely relied on the observations made in the case reported in (1) I. L. R. 9 All page 420 and that he has already made his submissions regarding the latter case. Mr. Dutt further contended in this context that defamation is a term of law and Explanation 4 forms an integral part of section 499 I. P. C. The concept of defamation enjoins (a) publication (b) harm and (c) harm as defined in Explanation 4 to section 499 i. P. C. Therefore the definition of defamation as given in the first part of section 499 I. P. C. would be rendered nugatory without the provisions of Explanation 4 to section 499 I. P. C. and the expression 'publication' would lose its meaning. Mr. Dutt has finally submitted that there is no real anomaly between imputations requiring proof of "the estimation of others" as provided for in explanation 4 and imputation which are per se defamatory, requiring no such proof because the said two classes refer to two different stages viz., the stage of issuing process and the stage of framing charge. Mr. Justice Straight's observations made in (1) I. L. R. 9 All page 420 or the Commentary of Dr. Gour in his Penal Law of India can only be sustained if those relate to the first stage of issuing process. Mr. Justice Straight's observations made in (1) I. L. R. 9 All page 420 or the Commentary of Dr. Gour in his Penal Law of India can only be sustained if those relate to the first stage of issuing process. At the stage of framing of the charge, as in the present case, there is no other way left to the court but to appraise the evidence and determine whether the imputations concerned lowered the moral or intellectual character or the credit of the complainant in the estimation of others as borne out by the evidence. There can no longer be any question of ruling out such evidence merely because the imputation appears to the court to be per se defamatory. The court is not an executive authority and cannot act on a subjective satisfaction only at the time of framing charges but must proceed on the evidence adduced. The subjective satisfaction of the court may be the sine qua non at the stage of issuing the process but it is not so at the stage of framing of the charges. 6. FOR a proper determination of the point raised above, it is pertinent to refer to the definition of defamation as contained in sec. 499 of the Indian Penal code Defamation has been defined as "whoever, by words either spoken or intended to be read, or by signs or by visible representations 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, is said except in the cases hereinafter excepted, to defame that person". Then there are four explanations and nine exceptions. For the purpose of the present case a consideration of the first three explanations would not be necessary and I would at once refer to Explanation 4, the interpretation whereof is the point at issue. Then there are four explanations and nine exceptions. For the purpose of the present case a consideration of the first three explanations would not be necessary and I would at once refer to Explanation 4, the interpretation whereof is the point at issue. Explanation 4 to section 499 of the Indian Penal code is as follows : "no imputation is said to harm a person's reputation, unless that imputation directly or indirectly in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful". Bereft of all verbiage, the pith and substance of the offence of defamation, as defined above, appears to be the publication by the accused of an imputation concerning the complainant, intending to harm or knowing or having reason to believe that such imputation will harm the reputation of the said complainant, directly or indirectly, in the estimation of others, by lowering the moral or intellectual character of that person or his credit. The above interpretation of section 499 I. P. C., taking Explanation 4 to be an integral part of defamation, rules out any new species of defamation as per se defamatory and but the same appears to be in conflict with some of the decisions, cited by mr. Banerjee. For a proper appraisal, one will have to depend on the Rules of interpretation of Statute. The principles of Interpretation of Statutes rule out; redundancy. As was observed by loud Sumner in the case of (4) Quebec railway, Light, Heat and Power Co. Ltand. v. Vandry, A. I. R. 1920 PC 181, at p. 186 that "effect must be given if possible to all the words used, for the legislature is deemed - not to waste its wards or to say anything in vain". Mr. Justice Subbarao (as His Lordship then was), also observed in the case of (9) Ghunashyamdas v. Regional Assistant commissioner of Sales Tax, Nagpur, a. I. R. 1964 SC 766 at p. 772 that "a construct on which attributes redundancy to a Legislature shall not be accepted except for compelling reasons". Mr. Justice Subbarao (as His Lordship then was), also observed in the case of (9) Ghunashyamdas v. Regional Assistant commissioner of Sales Tax, Nagpur, a. I. R. 1964 SC 766 at p. 772 that "a construct on which attributes redundancy to a Legislature shall not be accepted except for compelling reasons". Some meaning and effect, therefore, must be given to the words used by the legislature giving effect to its intention and anything short of that would be long off the mark. 7. IT is significant to note that the complainant himself filed by him in this case as well as in his evidence in court that his prestige has been lowered in the society by the impugned publication forming the subject matter of the present Rule. It appears therefore, that he himself has proceeded on the footing that Explanation 4 to section 499 I. P. C. is an integral part of defamation and enjoins that the imputation complained of is said to harm the complainant's reputation when it lowers [his moral or intellectual character or [his credit in the estimation of others. 8. IT is pertinent in this context to refer to the authorities for a proper 'definition of the term 'defamation' and the ingredients of the offence. Many definitions have been attempted to circumscribe this word 'defamation' but none has been found exhaustive. The concept of defamation is as old as the hills. In chapter XVIII of Book III of kautilya's Arthashastra, the author deals with defamation. After defining the same, Kautilya proceeded to divide the subject of defamation under three heads: (a) Calumny (b) Contemptuous conduct and. (c) Intimidation. The facts disclosed in the present case purport to bring the same within the first head, calumny. The term defamation has been defined in the Shorter oxford English Dictionary (3rd Edn.)edited by C. T. Onions as the bringing of ill-fame upon any one or to disgrace. The Indian Penal Code makes no distinction between written and spoken defamation and the term 'defamation' is used to embrace both libel and slander. Odgers on Libel and Slander (6th Edn.) has observed that "every man has a right to have his good name maintained unimpaired. This right is a jus in rem. a right absolute and good against all the world". Odgers on Libel and Slander (6th Edn.) has observed that "every man has a right to have his good name maintained unimpaired. This right is a jus in rem. a right absolute and good against all the world". In this connection a reference may also be made to the Law on Defamation by Richard o'sullivan and Roland Brown, where the authors have defined the term defamation as follows : "defamation may be broadly defined as a false statement of which the tendency is to disparage the good name or reputation of another person", and in that context the authors referred to a passage in Shakespeare's othello, viz., that "who steals my purse, steals trash; its something, nothing:. . . . . But he that filches from me my good name, Robs me of that which not enriches him, and makes me poor indeed". It will be pertinent also to refer to the definition of libel as given by gatley on Libel and Slander at page 15 that "any written or printed words which tend to lower a person in the estimation of right-thinking men, or cause him to be shunned or avoided, or expose him to hatred, contempt, or ridicule, constiture a libel". The classical definition of the term, however, has been given by Mr. Justice Cave in the case of (10) Scott v. Sampson reported in (1882) 8 Q. B. D. page 491 as a "false statement about a man to his discredit". This language has been approved of in a series of decisions following the same, amongst others, in the case of (11) Yousoupoff v. Metro-Goldwyn-Mayer reported in (1834) 50 TLR 501 at page 584 by Lord Justice Scrutton. On a later occasion, in the House of lords, in a case of alleged defamation by telegram in the case of (12) Sim v. Stretch reported in (1936) 52 TLR 669 at page 671, Lord Atkin when inviting their Lordships to lay down a formal definition, proposed as a test in that particular case as follows :- "would the words tend to lower the plaintiff in the estimation of the right-thinking members of the society generally". A reference to the above-mentioned observations would make it abundantly clear that the golden thread that runs through the said observations is that in order to constitute the offence, the impugned publication must tend to lower the person aggrieved in the estanuttion of others and that is the concept incorporated in Explanation 4 to section 499 of the Indian Penal Code. In view of the state of authorities referred to above and the conflict of decisions of the different High Courts and in view of the Division Bench decision of this High Court on the point, there are two alternatives open to me as a Single Bench viz., either to abide by the decision of the Division Bench of this High Court relating to imputations being per se defamatory and decide accordingly or to refer the case to the division Bench for properly determining the matter, by referring it to a larger Bench, if necessary. In the instant case however, neither would be necessary, as I find on an appraisal of the publication impugned (Ext. 4 and ext. 4 (1) that it does not disclose an imputation which is per se defamatory and as such evidence is necessary to determine the point at issue. On ultimate analysis, this Rule can be disposed of here on merits. The point raised by Mr. Banerjee is however an intriguing "one, and is to await a proper determination against the backdrop of apposite facts and circumstances. I hold accordingly that the first ground of law, raised by Mr. Banerjee, is not attracted to the facts and circumstances of the present case, and therefore fails. 9. THE second contention put forward by Mr. Banerjee, is one of fact relating to the appraisal of evidence. Mr. Banerjee contended that even if the interpretation of Mr. Dutt, relating to the ingredients of defamation be accepted, the evidence on record, particularly that of p. w. s 1, 3 and 4 pinpoint that the moral or intellectual character of the complainant or his credit must be lowered in the estimation of others by the imputation alleged and as such the order of discharge is bad and repugnant. I have given this matter my anxious consideration by going through the evidence on record in details but I could not find scintilla of evidence warranting the above-mentioned proposition. I have given this matter my anxious consideration by going through the evidence on record in details but I could not find scintilla of evidence warranting the above-mentioned proposition. P. W. 1, the complainant himself, has stated that "because of the publication of this defamatory piece I suffered morally and as a result I also suffered mentally. " Even if this be taken to be tantamount to a lowering of the moral or intellectual character of the complainant in the estimation of others, the said evidence is not corroborated. P. W. 3, Lee Jan Sung's evidence clearly is that he did not believe all that was written in the publication and he went to see the complainant. This does not conform to the requirements of explanation 4 to section 499 of the Indian Penal Code, there being no statement that the publication concerned lowered the moral or intellectual character of the complainant in the estimation of the witnesses or other people. P. W. 4, Lee Shit Pean is stated to be the sheetanchor of the prosecution case by Mr. Banerjee but on traversing his evidence, I find that it will indeed be a perilous perch for the prosecution. The imputation in question is Ext. 4 and the translation thereof is Ext. 4/1. P. W. 4 has stated in his evidence that "having read these, the writings in Ext. 4 (1) in Ext. 4, I became rather angry and went to see the complainant". The witness further stated that "my reaction after reading para. 6 of the writing was sadness" and that "my reaction after reading para. 7 of the writing was also the same. I felt that his pure name was tarnished". Ultimately the witness stated that he went to see the complainant at his residence at 57, north Tangra Road and there he asked the complainant "why he was being slandered so" and he said that the publication was a calculated one to lower his position in the Chinese society. Unfortunately, however, the test laid down by section 499 of the Indian Penal code is not the communication by the complainant to the witnesses concerned stating that the publication was calculated to lower his position in society but as to whether the same, in the estimation of the said witness and others, lowered the moral or intellectual character or the credit of the complainant. The kingpin of the offence of defamation is "in the estimate of others" and the feeling of the complainant communicated to the witness cannot do duty for the same. I accordingly hold against the second contention of mr. Banerjee also and the same fails. 10. BEFORE I part with the case, I must observe that the case was very ably argued by the learned Advocates appearing on behalf of the respective parties, and between themselves, they left no stone unturned in placing before the court all the cases available on the point, either in their favour or even against them. This is true to the high traditions of the Bar. In the result, I discharge the rule and I uphold the order dated the 23rd April, 1968 passed by Shri S. R. Bhattacharjee, Presidency Magistrate, 5th Court, Calcutta, in Case No. C/1 of 1967, discharging the accused under section 253 (i) of the Code of Criminal procedure.