DATTU RAMA ATWADKAR v. PARVATHIBAI — 1971 DIGILAW 201 (KAR)

( 1 ) THE petitioners Dattu Rama Atwadkar, Toppanna Rama Atwadkar and Shattu Rama Atwadkar were convicted for the offence punishable under S. 500 IPC. , and sentenced to pay a fine of Rs. 300 each and in default of payment of fine, it was ordered that the petitioners be sentenced to undergo SI. , for three months by the Judicial Magistrate, First Class, belgaum. The petitioners appealed to the Court of the Sessions at Belgaum. The II Additional Sessions Judge, who heard the appeal concurred with the decision of the Court below and consequently dismissed the appeal. Aggrieved by this decision, the petitioners have preferred this revision petition. ( 2 ) PARVATHIBAI, respondent herein, is the widow of one Ghalagu who died about forty years ago. After the death of Ghalagu, the respondent as an heir of her deceased husband, was in actual possession of the landed properties which were originally in possession of her husband. After the death of her husband, she was leading a pious and chaste life. The petitioners 1 to 3 are sons of Rama, who was the brother of her husband. Respondent-1 filed a complaint against the petitioners alleging that the petitioners with the evil intention of taking the properties which were in her possession, published a notice in the weekly paper called Marathi belgaum Samachar on 17th June 1967, making imputation against her. The relevant part of the imputation being:"after the death of her husband, Parvathibai led an immoral and loose life and on that account she has lest her rights over the properties. "respondent-1 alleged that this is highly defamatory and this statement is untrue and publication oi this matter has lowered her in the estimation of the public and in particular her near relatives and men of her community. Due to the publication of such a matter in her old age, it has affected her reputation as well as health. The defamatory, statement according to her, has been given wide publicity by publishing the same in the said news paper. Immediately thereafter, she gave a notice to the petitioners calling upon them to publish in a local newspaper expressing apology and stating that the defamatory matter is false. But the petitioners did not take any notice of it. Therefore, according to her, the matter published bv the petitioners being defamatory one, they are liable to be punished under S. 500 IPC. But the petitioners did not take any notice of it. Therefore, according to her, the matter published bv the petitioners being defamatory one, they are liable to be punished under S. 500 IPC. The defence of the petitioners was that the contents of the defamatory statement were true and they gave publication of such matter on account of the fact that respondent-1 was selling out the properties with the intention that no one should purchase the said properties and her father had published one more notice of the same type some twenty years ago. In substance, their defence was that they published the defamatory matter because it was a fact and secondly that such imputation was made in good faith for the protection of their interest as they were entitled to the properties as reversioners. ( 3 ) THE petitioners admitted having published the said statement in the newspaper touching the character of respondent-1 and there is no dispute in this case that such a statement was published at the instance of the petitioners 1 to 3 in the weekly newspaper and that was widely circulated. There cannot be any doubt that the imputation made by the petitioners is a serious one and as stated by respondent-1 it must have lowerer her reputation among the public in general and in particular among her people. In addition to that there cannot be any doubt that her health was affected. ( 4 ) THE petitioners' contention all along has been that the imputation made against respondent-1 is true and secondly they made such an imputation in good faith lor the protection of their own interest and for the public good. The petitioners, therefore, claimed the bencnt of Exception (1) or Exception (9) to S. 499 IPC. Exception (1) provides that it is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. It is clear from the language of the section that the imputation should be true and be for the public good. Public good is the good of the general public as contra-distinguished from that of an individual. Whether or not it is for the public good is a question of fact. It is clear from the language of the section that the imputation should be true and be for the public good. Public good is the good of the general public as contra-distinguished from that of an individual. To come within this exception the imputation should not only be proved to be true, but it must also be proved that it was for the public good. There are undoubtedly many cases in which the spreading of true reports, prejudicial to the character of an individual, would hurt the feelings of that individual, without producing compensating advantage in any other quarter. The spreading of such reports can seldom or never produce any good to the public sufficient to compensate for the pain given to the person attached, and to those who are connected with him. Therefore, the onus of proving the statement or at least of showing that he had reasonable ground for believing it to be true, and was actuated in making such statement not by malicious motives, but by an honest zeal for the public interest, lies on the person making the statement. In this case, firstly, the petitioners have not let in evidence to show that respondent-t led an immoral and loose life after the death of her husband. Secondly, they have not proved that the defamatory statement made against her touching her character was for public eood. That being the case, the petitioners cannot get the benefit of Exception (1) to S. 499 IPC. The other Exception the petitioners seek protection under is Exception (9) to S. 499. Exception (9) provides that it is not defamation to make an imputation on the character of another provided that the impuation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. This Exception relates to private communications which a person makes in good faith, for the protection of his own interests or of any other person or for the public good. Under this Exception, the person making the allegation need not prove the truth of the imputation. This Exception covers not only such allegations of facts as could be proved true but also expressions of opinions and personal inferences. Under this Exception, the person making the allegation need not prove the truth of the imputation. This Exception covers not only such allegations of facts as could be proved true but also expressions of opinions and personal inferences. 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, although it contains incriminatory matter which without this privilege, would be slanderous and actionable. In other words, besides the bona fides of the person making the imputation the person to whom the imputation is conveyed must have a common interest with the person making it which is served by the communication. This Exception also takes in certain cases where, any one, in the transaction of business with another, has a right to use language bona fide, which is relevant to that business, and with due regard to his own interest makes necessary statement even if it should directly, or by its consequences, be injurious or painful to another. The rule of public policy on which this principle is based if that honest transactions of business and of social intercourse would otherwise be deprived of the protection which they should enjoy. Where the defamatory statement is not relevant to the circumstances in which it is made, it cannot be said to be made in good faith. In considering whether there was 'good faith; i. e. , due care and attention, the position of the person making the imputation must be taken into consideration. The standard of care and caution required by the expression 'good faith' varies with the circumstances of each case the plea of good faith may be negatived on the ground of recklessness indicative of want of due care and caution if the imputation in question had been made as categorical statement of facts. To sum up, if good faith is not established it is not necessary to consider whether public good is involved. Therefore, the question to be considered in cases of this nature, is, would any fair man, however prejudiced he might be, or, however exaggerated or obstinate in his views, have written the criticism. Here, the facts admitted point out that the petitioners had no semblance of right in the properties of respondent-1. Therefore, the question to be considered in cases of this nature, is, would any fair man, however prejudiced he might be, or, however exaggerated or obstinate in his views, have written the criticism. Here, the facts admitted point out that the petitioners had no semblance of right in the properties of respondent-1. The evidence in this case shows that the father of the petitioners and the husband of respondent-1 became divided long back, prior to the death of the husband of respondent-1 and after the death of her husband, respondent-1 was, and continued to be in possession even on the date of the publication of defamatory statement. ( 5 ) THE publication was on 17-6-1967. One of the defence set up by the petitioners is that the imputation was done in good faith for the protection of their own interest and for the public good. According to them, after the death of respondent-1, they were entitled to the properties as nearest reversioners. As respondent-1 was making arrangements to sell them, they published such a notice making allegations against her touching her character with a view to see that their interest is protected and also for the public good. If, on the admitted and proved facts, the father of the petitioners and the husband of respondent-1 became divided long ago and the husband of respondent-1, died about forty years ago leaving behind his widow namely respondent-1, one son and three daughters, at any rate, after coming into force of the Hindu Succession Act in 1956, the widow, the son and the daughters became entitled to the properties and the petitioners could not have got the properties after the death of respondent-1 as they claimed. Even assuming that they were entitled to get the properties after the death of respondent-1, there was absolutely no need to publish a notice touching the character of respondent-1. That was absolutely irrelevant for protecting their interest if there was any, more so for interest of the public. ( 6 ) MR. Even assuming that they were entitled to get the properties after the death of respondent-1, there was absolutely no need to publish a notice touching the character of respondent-1. That was absolutely irrelevant for protecting their interest if there was any, more so for interest of the public. ( 6 ) MR. R. U. GOULAY, learned Counsel for the petitioners contended that taking into consideration the circumscances under which the notice was published, the petitioners honestly believed that they were entitled to get the properties alter the death or respondent-1 and lor that purpose they published imputation against respondent-1 stating that she was unchaste by giving notice to the intending purchasers, in their own interest, not to purchase the properties from an unchaste woman and thereby wanted to protect their own interest and ior public good. Where the accused is called upon to prove substantially his claim that his case falls under an Exception, law treats the onus as discharged if he succeeds in showing a preponderance of probability. As soon as the preponderance of the probability is established the burden shifts to the prosecution which still has to discharge its original onus. The entire evidence has been read out to me. I am unable to find anything in the evidence on behalf of the petitioners or on behalf of the respondent which would probabalise their case to bring it within Exception (1) or Exception (9) to S. 499. No due care and attention appears to have been taken by the petitioners justifying honest belief in the truth of the allegations and in such circumstances they cannot take the benefit of previous similar publications as contended by the petitioners. There is no indication in this case to show that the accused persons made the publication in good faith and on the other hand the evidence and circumstances point out that the accused persons did make the publication intending to harm the reputation of respondent-1, the object being to harass her and try, if possible, to get the properties for which they were not, at any rate, entitled. That being so, the petitioners cannot succeed in bringing their case under any of the Exceptions to S. 499. That being so, the petitioners cannot succeed in bringing their case under any of the Exceptions to S. 499. The Courts below have found, as a matter of fact, that the imputation made against respondent-1 is false and was not made with good faith either to protect their own interest or for public good. That is a question of fact. I see no reason to differ from that finding. In the result, this revision petition fails and the same is dismissed. --- *** --- .