M. U. SHAH, J. ( 1 ) THIS revision application arises out of a complaint for the offence punishable under sec. 500 Indian Penal Code which was filed by the opponent No. 2 herein named Prabhudas Bhogilal Dudhwala in the Court of the Judicial Magistrate First Class 7 Court Baroda which was registered as Criminal Case No. 77 of 1966. The complainant opponents case is that the accused who is the applicant herein was staying as a tenant in his house. The accused had on September 10 1965 made an application against the complainant before the Sub-Divisional Magistrate under sec. 107 of the Code of Criminal Procedure 1898 (V) of 1898 for taking out chapter proceedings against him. The case was registered as Chapter Case No. 632 of 1965. In that application made in Gujarati several wild and reckless defamatory imputations were made against the complainant with the intention to harm the reputation of the complainant. It stated inter alia that the present complainant Prabhudas Bhogilal who was the landlord of the premises which the present accused Gulabchand was occupying as a tenant with a view to obtain possession of the said premises in order to realise higher rent was making frantic intriguesagainst him. The application further stated that on the night of June 10 1965 while the applicant therein (present accused) was sitting in his house and mending mangoes the opponent therein (present complainant) entered his house and committed criminal trespass; that he gave wild abuses and gave a kick on his back; that he took out a knife from his pocket opened it raised it at him and menacingly demanded of him the withdrawal and settlement of his application (complaint) made against the complainant accusing him of having committed murder of his son or else he would meet the same fate as did the son. After narrating the other facts relating to the incident in the pen-ultimate paragraph of the application it was stated that the opponent was a rich influential frenzied type man and a leader of a gang of miscreants and he (present accused) had apprehension that any time he (present complainant) might cause harm to his person and property. In his examination on-oath recorded below his application Ex. 15 the accused had inter alia stated that the complainant was a dangerous `goonda. In his examination on-oath recorded below his application Ex. 15 the accused had inter alia stated that the complainant was a dangerous `goonda. These imputations made in the pen-ultimate paragraph of the present accuseds application and in the examination on oath below it are the defamatory imputations of which the present complainant has made grievance in his complaint in Criminal Case No. 77 of 1966 out of which this revision application arises. It may here be stated that the accused had not proceeded with his application Ex. 15 which was dismissed because of default of his appearance on the date of hearing. At the trial the accused had pleaded protection under Exception 8 to sec. 499 I. P. Code. However he had led no evidence whatsoever to show that he had exercised good faith in making these imputations. Both the Courts below have taken the view that the said imputations are defamatory to the complainant and were made with the intention of harming or with the knowledge that they would harm the reputation of the complainant. Both the Courts have also held that the accused did not prove good faith in making the imputations and therefore was not entitled to the protection of Exception 8 to sec. 499 I. P. Code. The learned Judicial Magistrate had convicted the accused for the offence under sec. 500 I. P. Code and sentenced him to suffer imprisonment till the rising of the Court and to pay a fine of Rs. 100/in default rigorous imprisonment for one month. The order of conviction and sentence has been upheld by the learned Additional Sessions Judge Baroda in Criminal Appeal No. 137 of 1966. The present revision application is directed against the said order dismissing the appeal of the accused. ( 2 ) MR. A. M. Joshi learned Advocate appearing on behalf of the applicant-accused has not contested the finding of the lower Court that the imputations made were defamatory. He has however contested the finding that the applicant was not entitled to the protection of Exception 8 to sec. 499 I. P. Code. Further he has contended that the accused was also entitled to the benefit of Exception 9. Now Exception 9 to sec. He has however contested the finding that the applicant was not entitled to the protection of Exception 8 to sec. 499 I. P. Code. Further he has contended that the accused was also entitled to the benefit of Exception 9. Now Exception 9 to sec. 499 provides that it is not defamation to make an imputation on the character of another provided the imputation be made in good faith for the protection of the interest of the person making it or for any other person or for the public good. In the present case the ingredient of public good is not available to the accused and that is not the case as urged by Mr. Joshi whose contention was that the imputations were made for the protection of the interest of the accused who made them. This Exception relates to private communications which a person makes in good faith for the protection of his own interests etc. This Exception appears to be mere reproduction of the guiding principle which was stated by Lord Campbell C. J. in Harrison v. Bush (1855) 5 E. and B. 344 348 namely:- A communication made bona fide upon any subject-matter in which the party communicating has an interest or in reference to which he has a duty is privileged if made to a person having a corresponding interest or duty although it contains criminatory matter which without this privilege would be slanderous and actionable. The requirements of good faith and public good have both to be satisfied. Having regard to the admitted fact that the imputations did not relate to private communications and to public good the Exception cannot be invoked in this case. But even when and if the Exception is available in a case the accused has necessarily to prove that he made them in good faith. ( 3 ) EXCEPTION 8 to sec. 499 provides that 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. To avail of the benefit of this Exception the accused must prove that:- (i) the accusations were made to a person in authority over the party accused and (ii) the accusation must be preferred in good faith. To avail of the benefit of this Exception the accused must prove that:- (i) the accusations were made to a person in authority over the party accused and (ii) the accusation must be preferred in good faith. This exception does not formulate according to the decision of the Special Bench of the Calcutta High Court in Satish Chandra Chakravarti v. Ram Doyal De I. L. R. 48 Cal. 388 which has been followed by the Full Bench of the Bombay High Court in Bai Shanta v. Umrao Amir Malek 28 Bom. L. R. 1 any rule of absolute privilege. The Exception introduces a qualified privilege. The accused must therefore show that the accusations were preferred in good faith. The expression good faith has been defined in sec. 52 of I. P. Code. It provides that Nothing is said to be done or believed in good faith which is done or believed without due care and attention. This is a negative definition but it indicates that an act is said to be done in good faith when it is done with due care and attention. Indeed it does not require logical infallibility. The plea of good faith may be negatived on the ground of recklessness indicative of want of due care and attention if the imputations in question as in the instant case have been made as categorical statements of facts. Apart from that there is no doubt that the accused must substantiate his plea of good faith to be entitled to the protection of the Exception. Of course the degree of proof that is to be offered by the accused for the purpose is not the same as is expected of the prosecution which is required to prove its case beyond reasonable doubt but is as in civil proceedings. In Harbhajan Singh v. State of Punjab and another A. I. R. 1965 S. C. 97 Gajendragadkar C. J. speaking for the Court has in this connection observed at page 101: -. . . 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. . . 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. . . . . THE observations further at p. 102 of the report are:- it will be recalled that it was with a view to emphasizing the fundamental doctrine of criminal law that the onus to prove its case lies on the prosecution that Viscount Sankey in Woolmington v. Director of Public Prosecutions 1935 A. C. 462 observed that no matter what the charge or where the trial the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and attempt to whittle it down can be entertained. This principle of common law is a part of the criminal law in this country. That is not to say that if an Exception is pleaded by an accused person he is not required to justify his plea; but the degree and character of proof which the accused is expected to furnish in support of his plea cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case. ( 4 ) NOW examining the case before me in that light it must be remembered that the imputations referred to earlier have been held to be defamatory and the finding is not in challenge before me. ( 4 ) NOW examining the case before me in that light it must be remembered that the imputations referred to earlier have been held to be defamatory and the finding is not in challenge before me. It was therefore for the accused to have discharged the onus which lay on him to show that he acted in good-faith. But here the accused has led no evidence and made out no circumstance which would show that he had so acted in good-faith in preferring the wild and reckless accusations aforesaid to be found in the application Ex. 15. He has not shown that such imputations were called for in his application for security proceedings. Again in answer to the questions put to him by the learned Judicial Magistrate in the case under sec. 342 of the Code of Criminal Procedure the accused has gone to the extent of even denying that he made an application in Ex. 15 and that he made the reckless imputations which are found in Ex. 15. In this situation it must be held that the accused has failed to prove good faith and the failure would exclude the application of Exception 8 and even of Exception 9 assuming it can be invoked in the case. ( 5 ) I must say that Mr. Joshi had contended before me that there was an absolute privilege of the parties to the judicial proceedings. Mr. Joshi has for the purpose relied upon the following observations of Tulzapurkar J. sitting as a Single Judge in the matter of Mist Kamalini Manmade v. Union of India (1965) LXIX Bom. L. R. 512 remarks at p. 526:-HAVING regard to the aforesaid discussion of the several authorities it is clear to me that the English common law Rule pertaining to absolute privilege enjoyed by Judges advocates attorneys witnesses and parties in regard to words spoken or uttered during the course of a judicial proceeding is applicable in India. . . . But it has to be remembered that the Tulzapurkar J. was concerned in that case with a civil suit for damages for defamation and the learned Judge has taken pains to add the following material qualification to the passage aforesaid: -. . . . . at any rate in relation to civil suits filed for damages for liable or slanders. But it has to be remembered that the Tulzapurkar J. was concerned in that case with a civil suit for damages for defamation and the learned Judge has taken pains to add the following material qualification to the passage aforesaid: -. . . . . at any rate in relation to civil suits filed for damages for liable or slanders. The decision is thus with respect not an authority for the view canvassed by Mr. A. M. Joshi. Again as observed by me earlier the Full Bench of the Bombay High Court has in Bai Shanta v. Umrao Amir Malek (supra) followed the decision of the Special Bench of the Calcutta High Court in Satish Chandra Chakravarti v. Ram Doyal De (supra) laying down that there is no such absolute privilege. In the said Calcutta case which was concerned with a criminal prosecution for defamation under sec. 499 Indian Penal Code distinction between the position obtaining with regard to criminal prosecutions and the position obtaining with regard to civil actions has been clarified as under at page 425 of the report:- Our conclusions then may be summarized as follows:- (I) If a party to a judicial proceeding is prosecuted for defamation in respect of a statement made therein on oath or otherwise his liability must be determined by reference to the provisions of sec. 499 Indian Penal Code. Under the Letters Patent the question must be solved by the application of the provisions of the Indian Penal Code and not otherwise the Court cannot engraft thereupon exceptions derived from the common Law of England or based on grounds of public policy. Consequently a person in such a position is entitled only to the benefit of the qualified privilege mentioned in sec. 489 Indian Penal Code. (II) If a party to judicial proceeding issued in a civil Court for damages for defamation in respect of a statement made therein on oath or otherwise his liability in the absence of statutory rules applicable to the subject must be determined with reference to principles of justice equity and good conscience There is a large preponderance of judicial opinion in favour of the view that the principles of justice equity and good conscience applicable in such circumstances should be identical with the corresponding relevant rules of the common Law of England. . . . . . . . . The aforesaid observations having been followed by the Full Bench of the Bombay High Court in Bai Shanta v. Umrao Amir Malek (supra) are binding to me apart from the fact that I am in respectful agreement with the said observations. Tested in the light of the first rule it is plain that the question of good faith is material and as the aforesaid imputations which are not absolutely privileged are not shown to have been made in good faith the accused must be held to be not entitled to the benefit of Exception 8. ( 6 ) I must say that Mr. A. M. Joshi had relied upon the decision of a Division Bench of the Bombay High Court in Emperor v. Esufalli Abdul Hussein (1918) 20 B. L. R. 601. In that case whilst an application and a counter application to prevent breach of the peace were being investigated into by the police the accused called the complainant a `rogue. It appeared that some four months previously the complainant was convicted and fined at the instance of the accused. The accused having been convicted of defamation it was held that the accused was protected by Exception 9 in as much as the statement was made apparently for the protection of his own interests and when his application was under investigation by the police and that the statement was made by him in good faith Kemp J. who was a party to the said judgment with Shah J. had in his judgment agreeing with the reasoning of Shah J. therein observed at p. 603:-I think that the fact that the statement otherwise defamatory was made in good faith is corroborated by the fact that the complainant in the present case had been convicted and fined for insult to the accused. I also think accuseds remark about him was made in the protection of his own interests. The decision has no applicability in the instant case. It is true that public policy requires that a party preferring a legal proceeding shall do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for a libel. But the privilege is a qualified one and not absolute. A person who deliberately makes defamatory statements without justification is not protected. ( 7 ) FOR the aforesaid reasons the contentions raised by Mr. But the privilege is a qualified one and not absolute. A person who deliberately makes defamatory statements without justification is not protected. ( 7 ) FOR the aforesaid reasons the contentions raised by Mr. A. M. Joshi have no merit and are rejected. In the result the revision application fails and the rule is discharged. .