JUDGMENT: The printer and publisher of a daily newspaper was prosecuted for the offence of defamation. She was acquitted by the trial Magistrate and hence the complainant has come up in appeal. The complainant is the President of Cannanore Co-operative Clinic and Nursing Home Society. The newspaper in which the imputations were published has circulation in and around Cannanore where the hospital run by the Society is situate. The imputations were published in the Readers’ column of the newspaper in the name of a “well wisher”. There is no dispute that the accused is the publisher of the newspaper, nor has the publication been disowned except saying that the name of “well wisher” is Sri Karunakaran. 2. The imputations were published under the capitation “Enquiry must be held in to the affairs of the Co-operative Hospital”. The publication, as a letter to the editor, mentions about the functioning of the Co-operative Hospital of which, the complainant is the President. The following are the three main imputations about which the complainant is the President. The following are the three main imputations about which the complainant has serious grievance. (1) The consequence of Kunhamb's (complainant) holding the post of Presidentship and the Manager's administration of the hospital is that a large number of embazzlements are taking place in the hospital, (2) The allotment of night duty to nurses in the hospital is now made at the whims and convenience of the President and Manager of the hospital. One particular nurse is being harassed by compelling her to attend night-duty on all days, (3) The President is in the habit of giving his signature on the vouchers prepared to suit the needs of the person who prepares them. This practice of the President should lead the hospital to doldrums. 3. Learned Magistrate acquitted the accused mainly on the ground that the imputations have not been incorporated in the body of the complaint. Learned Magistrate has also observed that the publication is justified although it has slightly transgressed the limit. Reference has been made to the decision of Padmanabhan, J., in Madhavi Amma v. Sherief Madhavi Amma v. Sherief 1985 K.L.T. 330 in support of the conclusion that the complaint is defective inasmuch as it did not incorporate at least the questioned portions of the publication. Reference has been made to the decision of Padmanabhan, J., in Madhavi Amma v. Sherief Madhavi Amma v. Sherief 1985 K.L.T. 330 in support of the conclusion that the complaint is defective inasmuch as it did not incorporate at least the questioned portions of the publication. In the said decision, the learned Judge has extracted the averments made in the complaint in that case and held that a “mere reading of the complaint alone will not impress anybody that the publications were defamatory to any extent and that it goes without saying that the complaint by itself does not make out a cause of action at all”. 4. Can it be held that an accused is entitled to acquittal merely because the libellous imputations are not separately reproduced in the complaint? It is true that in a case of slander, the non-mention of slanderous words in the complaint may amount to denial of opportunity to the accused to know of what imputations he is prosecuted against. Similarly, when the complaint pertains to libel non mention of the libellous words in the complaint can have the same consequence if the copy of the publication is not attached with the complaint. But the position is different when the complainant produces the document, along with the complaint, containing the imputations. In Balrqj Khanna v. Motiram In Balrqj Khanna v. Motiram 1971 S.C.C. (Crl.) 647 the following guidelines have been laid down by the Supreme Court to deal with a complaint which does not incorporate the words complained against “The actual words used or the statements made may be reproduced verbatim by the complainant if the words are few and the statement is very brief. But in cases where the words spoken are too many or the statements made are too long, in our opinion, it will be the height of technicality to insist that the actual words and the entire statements should be reproduced verbatim. The object of having, if possible, the actual words or the statements before the Court is to enable it to consider whether those words or the statements are defamatory in nature. That purpose or object will be served if the complainant is able to reproduce in his complaint or evidence in a substantial measure the words of imputation alleged to have been uttered”. That purpose or object will be served if the complainant is able to reproduce in his complaint or evidence in a substantial measure the words of imputation alleged to have been uttered”. The object of having actual words or statement before Court is highlighted in the said decision“. That object can be achieved not only by mentioning the defamatory words in the body of the complaint, but by other modes, e.g. If the copy of the newspaper or pamphlet which contains the defamatory words could be appended with the complaint, that would help the Court to know what the defamatory words complained against are. The Supreme Court in the aforecited decision has also observed that” a complaint cannot be thrown out on the mere ground that the actual words spoken or the statement made have not been stated in the complaint“. It has to be remembered that no particular form is prescribed for a complaint. Sec.2(d) of the Code of Criminal Procedure (for short ‘the Code’) defines the”complaint“as the allegation made orally or in writing to a Magistrate”with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence“. Sec.190(1) of the Code empowers a Magistrate to take cognizance of an offence upon receiving a complaint of facts which constitute such offence. These provisions indicate that if the Magistrate is able to take cognizance of the offence made out in the complaint, he is empowered to proceed further. Thus, when the Magistrate is able to find out the words of imputation from the complaint, even if those words are not reproduced in the body of the complaint, it is not proper to dismiss the prosecution unless there are other grounds to do so. 5. In this case an issue of the newspaper containing the alleged defamatory imputations was produced along with the complaint. That will serve the purpose since the complaint will include the said material also as part of the complaint. 6. For the aforesaid reasons, learned Magistrate's reasoning that the prosecution is defective inasmuch as the complaint does not contain the alleged defamatory words cannot be sustained. 7. The imputations enumerated above arc per se defamatory. There is no dispute on that point. But the complainant seeks to take assylum under Exceptions One, Three and Nine of Sec.499 of the Indian Penal Code. 8. 7. The imputations enumerated above arc per se defamatory. There is no dispute on that point. But the complainant seeks to take assylum under Exceptions One, Three and Nine of Sec.499 of the Indian Penal Code. 8. Learned counsel for the accused referred me to some decisions ( Purushoitam Vijay v. State Purushoitam Vijay v. State A.I.R. 1961 M.P. 205, Vishan Samp and Empress of India v. Mcleod Empress of India v. Mcleod I.L.R. 3 A.I.R. 343 in support of his contention that the publication of the imputations can be justified as expression of fair comment. Those decisions considered the application of the first and third Exceptions. In this case, there is no scope for the application of the third exception which protects expression of”any opinion“in some circumstances. The imputations complained against are not mere expressions of”opinion“. They relate mainly to predication of facts. Third Exception applies only to opinions and not to affirmation of facts. That apart, if the accused fails to establish that he made a pre-publication enquiry, the accused would not succeed in coming under the exceptions for which good faith factory is sine qua non. Exceptions Three and Nine are among those exceptions in which ”good faith“ factor is the predominent ingredient. Sec.52 of the Indian Penal Code defines good faith.”Nothing is said to be done or believed in good faith which is, done or believed with due care and attention“. It is trite law that the burden is on the accused to prove that the publication falls within the exceptions. (Vide A.I.R. 1966 S.C. 97) and Ramakrishnan v. Subbrama Sastrigal Ramakrishnan v. Subbrama Sastrigal 1986 K.L.T. 1361. The accused examined three witnesses. D.W.1 is a correspondent of the newspaper. D.W.2 is the Manager of the hospital. D.W.3 is the Assistant Labour Officer. An attempt was made through D.W.1 to show that he conducted an enquiry before publishing. But, his evidence is not satisfactory to prove, at least by the preponderance of probability, that an enquiry is in a reasonable manner has been made conducted to know the truth or the imputations. No endeavour has been made by D.W.1, to collect any material to justify the allegations. D.W.1 has said that the letter to the editor in question was written by one Karunakaran. According to the complainant, no such person is in existence. No attempt is made by the accused to examine the said Karunakaran. No endeavour has been made by D.W.1, to collect any material to justify the allegations. D.W.1 has said that the letter to the editor in question was written by one Karunakaran. According to the complainant, no such person is in existence. No attempt is made by the accused to examine the said Karunakaran. The other two defence witnesses were not examined for the purpose of showing that the accused conducted pre-publication enquiry. It has, therefore, to be held that the defence has failed to show that due care and attention had been adopted by the accused before publishing the imputations. 9. This takes me to the next question, whether the imputations can be justified by the First Exception. D.Ws.2 and 3 were examined, according to the counsel for the accused, to prove that aspect. He contended that it is sufficient if it is proved that the imputations are substantially true. There is no dispute that if the imputations were true the publication was for public good. It is not necessary that the truth of the imputation should be proved literally. It is sufficient to show that the imputation is true in substance or is substantially true. The doctrine of fair comment is based on the hypothesis that the publication is broadly true in fact and is not made to satisfy any personal vendetta. “The defence of fair comment requires that the material fact or facts on which the comment or criticism is based shall be truly stated and be a matter of public interest, the comment on fact or facts should be fair within the wide limits which the law allows”. (Vide Halsbury's Laws of England - 3rd Edition, Vol. 24, Page 70), Courts in India have gone to the extent of saying that an exaggeration will not by itself disentitle the accused from this defence. ( Vide Murlidhar v. Narayandas Vide Murlidhar v. Narayandas A.I.R. 1914 Sind. 85, Surajimal Mehta The following observations made by the Division Bench in Purushotam v. State Purushotam v. State A.I.R. 1961 M.P. 205 can profitably be quoted in this context.” The statement of facts need only be substantially correct and need not be microscopically or photographically true; nor can the prosecutor fasten himself on to an inaccuracy in the detail unless that detail itself is such as to make substantial difference to the case. 10. 10. So the question is whether the three imputations are at least substantially true. Neither D.W.2 nor D.W.3, was asked anything which connects the three imputations. D.W.2 being the manager of the hospital in question did not naturally, oblige the accused in regard to the matters put to him. D.W.3, the Assistant Labour Officer, was only asked about some of the instances of non-compliance with the statutory provisions of certain labour law. None of the answers given by those two witnesses has any bearing on the three irnputations mentioned above. Thus the accused has failed to establish that the imputations were at least substantially true. 11. Since the defence has failed to show that the imputation would fall within any one of the exceptions in Sec.499 of the Penal Code, the accused cannot escape from conviction of the offence. The learned Magistrate has erred in considering the aforesaid points. The order of acquittal cannot, therefore, be sustained. Hence, I set aside the order of acquittal and convict the accused for the offence under Sec.500 of the Penal Code. He is sentenced to pay a fine of Rs.200 in default of payment of which he shall suffer simple imprisonment for one week. Appeal is thus allowed. B.S. ----- Appeal allowed.