MANJULA VIJAYA SHETTY v. SHARADA — 1990 DIGILAW 542 (KAR)

N. D. V. BHATT, J. ( 1 ) THIS criminal petition is preferred against the order dated 7-10-1988 passed by the iii additional c. j. m. , bclgaum in No. P. c. 39/1988 (c. c. No. 1858/1988 ). The facts, relevant for the disposal of this petition briefly stated, are as under: ( 2 ) THE instant respondent-Smt. Sharada presented a complaint against the instant petitioners-Smt. Manjula vijaya shetty and Sri b. Ananda shctty for an offence punishable under Section 499 r/w Section 34, l. p. c. on the allegations made in the complaint. It appears that the complaint was presented before the prl. C. j. and c. j. m. , bclgaum and the c. j. m. , belgaum by his order dated 23-9-1988 made over the complaint to the iii addl. C. j. m. , belgaum for further proceedings according to law. The complainant was directed to appear before the court of the iii additional c. j. m. , bclgaum on 26-9-1988. It appears that on 26-9-1988, the complainant was called out, but was not present and the learned c. j. m. chose to direct that the same be called on 30-9-1988. ( 3 ) IT is seen that the additional c. j. m. , bclgaum recorded the sworn statement of Smt. Sharada on 30-9-1988. It is further seen that he recorded the sworn statement of one rama narayana shetty on 1-10-1988 and the matter was posted for orders. Thereafter, he passed an order on 7-10-1988 as under:"complainant has examined herself and one witness in support of her case. Both of them have deposed to the facts as stated in the complaint. They have also produced documents in support of their case. The learned counsel for the complainant has relied on the decision reported in AIR 1970 Mysore p. 34 for issue process against a-2 also. In view of the sworn statement made by p. ws. 1 and 2 and the documents produced by them and in view of the decision reported in AIR 1970 Mysore p. 34, I am of the opinion that a prima facie case is made out against both the accused under sections 499 and 500 of 1pc. Hence register the case under sections 499 and 500, IPC against both the accused and issue s. s. to them by 31-10- ". Hence register the case under sections 499 and 500, IPC against both the accused and issue s. s. to them by 31-10- ". ( 4 ) BEING aggrieved by the same, the accused have prei'erred the instant petition. ( 5 ) I have heard the learned advocates on either side. ( 6 ) SRI g s. Visweswara, the learned Advocate for the petitioners has challenged the order under revision on two counts. In the first place, it was argued by him that the learned magistrate has recorded the statements of the complainant and her witness even before taking cognizance of the offence in question. In this connection, the learned Advocate has relied on two decisions of this court, viz. , in revanappa and another v s. n. raglnmath, 1982 (2) kar. Lj. P. 250 and in state by a. Mahadeva v papireddy, 1990 (1) kar. Lj. Sh. N. 71 : ILR 1988 kar. 666. It was also argued by the learned Advocate for the petitioners that the allegations made in the complaint even if accepted in toto are covered by explanation 9 to Section 499, i. p,c. And therefore, the same would not constitute an offence. It was therefore argued by him that the complaint ought to have dismissed by the learned additional c. j. . m, holding that the same does not disclose any offence. The learned Advocate on the other side, Sri b. l. acharya, has supported the judgment of the learned additional c j. m ( 7 ) THE point for consideration is as to whether the order in question is not correct. ( 8 ) IT will have to be seen in the first instance as to whether the precedurc followed by the trial court is not correct as contended by the learned Advocate for the petitioners. In the decision in revanappa and another v s. n. raghunath, 1982 (2) kar, lj. 250, it is pointed out that where on a private complaint the magistrate straightaway proceeded to examine the complainant and his witnesses and thereafter came to the conclusion that it was a fit case to take cognizance of the offence against the accused, it is opposed to the mandatory provision of law. It is also pointed ou! 250, it is pointed out that where on a private complaint the magistrate straightaway proceeded to examine the complainant and his witnesses and thereafter came to the conclusion that it was a fit case to take cognizance of the offence against the accused, it is opposed to the mandatory provision of law. It is also pointed ou! In the same case that where there is no indication whether in fact the magistrate has applied his mind to the relevant facts narrated in the application and whether it is a fit case wherein he could pass an order under Section 94, cr. P. c. , the order suffers from vagueness and it is liable to be set aside. In the decision in state by a. Matiadeva v papireddy, 1990 (1) kar. Lj. Sh. N. 71 : ILR 1988 kar. P. 666, it is pointed out that cognizance of the offence can be taken only once and not twice in a case; and that the cognizance contemplated by sections 190 and 200 must precede the act of the magistrate in recording the sworn statements of the complainant and his witnesses. It is also pointed out that the law contemplates the stage of taking cognizance of an offence and if the complaint itself docs not make out any allegation, the magistrate can dismiss the complaint at that stage itself and thus avoid recording the sworn statements of the complainant and his witnesses. ( 9 ) IT is needless to say that the proposition reflected in the afore said two decisions are pointed out here in above, flows from the language of Section 200, Cr. P. C. Section 200, Cr. ( 9 ) IT is needless to say that the proposition reflected in the afore said two decisions are pointed out here in above, flows from the language of Section 200, Cr. P. C. Section 200, Cr. P. C. reads as under:"a magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing, and shall be signed by the complainant and the witnesses, and also by the magistrate: provided that, when the complaint is made in writing, the magistrate need not examine the complainant and the witncsses- (a) if a public service acting or purporting to act in the discharge of his official duties or a court has made the complaint; or (b) if the magistrate makes over the case for inquiry or trial to another magistrate under Section 192: provided further that if the magistrate makes over the case to another magistrate under Section 192 after examining the complainant and the witnesses, the latter magistrate need not re-examine them. "a perspicacious perusal of the Provisions reflected in Section 200, cr. P. c. would indeed go to show that cognizance will have to be taken first and examination on oath of the complainant and his witnesses will have to follow only thereafter. ( 10 ) IN fact, this aspect should not detain this court long, having regard to the pronouncement of the hon'blc Supreme Court in the decision in h. s. bains, director, small saving-cnm-depiity secretary, finance, punjab, chandigarh v the state, union territory of chandigarh, 1981 (1) scr p. 935. In the said case, it is pointed out that where the magistrate, on receiving a complaint orders investigation under Section 156 (3) and receives a report under Section 173 to the effect that no offence was disclosed against the accused, the magistrate might either (i) decide that there is no sufficient ground for proceeding further and drop action or (ii) he may take cognizance of the offence under Section 190 (l) (b) and issue process without being bound in any manner by the conclusion of the police, or (iii) he may take cognizance of the offence under Section 190 (l) (a) on the basis of the original complainant and his witnesses under Section 200. It is further pointed out that if he adopts the third alternative, he may hold or direct an enquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process as the case may be. ( 11 ) IT is, therefore, clear from what is stated hercinabove that taking cognizance of the offence will have to precede taking action under Section 200 and the subsequent sections. However, the more important point for the consideration of this court is to see as to whether cognizance of the case was taken by the magistrate before recording the sworn statements of the complainant and his witness. The learned Advocate for the petitioners contended that there is nothing to show that the magistrate had taken cognizance of the case before recording the sworn statements of the complainant and his witness. At this juncture, it is necessary to bear in mind the correct meaning of the expression "taking cognizance". In the decision in darshan singh ram kishan v state of maharashtra, 1972 (1) scr 571 the Supreme Court has, among other things, observed as under:"as has often been held taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when magistrate first takes judicial notice of an offence. This is the position whether the magistrate takes coginzance of an offence on a complaint or on a police report or upon information of a person other than a police officer. "the same idea is further elaborated in the decision of this court in d. p. sharma v c. r. gowda, 1982 (2) kar. L. c. 358. Among other things, this court in the said case has observed as under:"the expression 'taking cognizance' is not defined in the Code of Criminal Procedure in its broad and literal sense, it means 'taking notice of an offence' and would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purpose. Before it can be said that any magistrate has taken cognizance of any offence under Section 190, cr. Before it can be said that any magistrate has taken cognizance of any offence under Section 190, cr. P. c. he must have applied his mind to the offence for the purpose of proceeding in a particular way as indicated in the subsequent Provisions of chapter xlv. When the magistrate applies his mind not for the above purpose but for taking action of some other kind, eg. , ordering investigation under Section 156 (3) or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence; (vide AIR 1951 SC 207 ). Before a magistrate can be said to have taken cognizance of an offence, he must have not only applied his mind to the contents of the complaint or the police report or the -information presented before him, but must have done so for the purpose of proceeding under the Provisions subseqent to Section 190 for bringing the offender to trial. Obviously, it is only when a magistrate applies his mind for the purpose of proceeding under Section 200 and subsequent sections of chapter xv of the code or under Section 204 of chapter xvi of the code that it can be positively stated that he has applied his mind and, therefore, has taken cognizance. Cognizance, therefore, takes place at a point when a magistrate first takes judicial notice of an offence. Cognizance of an offence is a step towards the exercise of jurisdiction. " ( 12 ) ON a perusal of the observations made by the Supreme Court in the decisions referred to hereinabove as also by this court on an earlier occassion, it becomes clear that the question as to whether the additional c. j. m. , has taken cognizance of a case or not is clearly a question of fact. It is, therefore, required to be seen as to whether the magistrate in the instant case can be said to have taken cognizance of the offence in question before recording the sworn statements of the complainant and his witness. It is, therefore, required to be seen as to whether the magistrate in the instant case can be said to have taken cognizance of the offence in question before recording the sworn statements of the complainant and his witness. In this connection, it would be indeed worthwhile to go through the order sheet to see the modus operandi adopted by the learned additional c. j. m. as pointed out earlier, though the additional c. j. m. , chose to examine the sworn statements of the complainant on 30-9-1988, he deferred the examination of the other witness till the next date, that is to say, till 1-10-1988. The chain of events indicated hereinabove, if appreciated together would indeed go to show that the magistrate did apply his mind to the allegations made in the complaint and that therefore, he thought in terms of recording the sworn statements of the complainant and his witness. In this connection, the observation made by this court in d. p. sharma's case would indeed provide assistance to reach a correct conclusion. In para 10 on page 360 of its judgment in the said case, this court has observed as under: "therefore, now we have to see in this case whether the magistrate before he recorded the sworn statement of the complainant, had taken cognizance of the offence. There is a note on the front page of the complaint itself that "the complaint is presented at 3 p. m. register it as p. c. and call on 6-2-1980". This endorsement clearly goes to show that the magistrate has applied his mind to the contents of the complaint and, therefore, he adjourned the case for recording the sworn statement of the complainant as required under Section 200. This endorsement coupled with the fact that the magistrate adjourned the case for recording the sworn statement of the complainant, leaves no doubt in our mind that the magistrate did apply his mind to the contents of the complaint and found that it was a fit case for taking cognizance and therefore, he adjourned the case for recording the sworn statement of the complainant. Therefore, the argument of Sri desai that there was no material to show that the magistrate took cognizance of the offence first before he recorded the statement on oath of the complainant, does not appeal to us in the least. Therefore, the argument of Sri desai that there was no material to show that the magistrate took cognizance of the offence first before he recorded the statement on oath of the complainant, does not appeal to us in the least. As already stated above, the said endorsement made by the magistrate coupled with the fact that he adjourned the case for recording the sworn statement of the complainant leaves no doubt in our mind that the magistrate applied his mind clearly to the allegations in the complaint and after finding that the allegations made in the complaint were sufficient enough to follow the next procedure, i. e. , recording of sworn statement, he adjourned the case and on the next date he recorded the sworn statement of the complainant. Therefore, we find that the magistrate has followed the procedure as enjoined on him by Section 200. Therefore, recording of sworn statement and the subsequent issue of process are perfectly legal and in accordance with law. " if ihc facts are tested by the aforesaid touch stone, I have no hesitation whatsoever in reaching a conclusion that the magistrate did take cognizance of the offence in question before recording the sworn statements of the complainant and her witness. It is needless to say that the decision in each case depends upon its own facts. The facts in the decision pressed into service by the learned Advocate for the petitioners and referred to earlier are clearly distinguishable. In this view of the matter, i do not find any merit in the submission made by the learned Advocate for the petitioners that the magistrate recorded the sworn statements of the complainant and his witness even before taking cognizance of the offence in question. ( 13 ) IF that be so, it will have to be next seen as to whether the learned magistrate has erred in issuing the process to the accused persons. As pointed out earlier, the learned magistrate while issuing the process to the accused has observed that he is of the opionion that a prima facie case was made out against both the accused persons unties sections 499 and 500 of IPC. , in view of the sworn statements of P. W. 1 and P. W. 2 and the documents produced by them and in the light of the decision reported in AIR 1970 Mysore p. 34. , in view of the sworn statements of P. W. 1 and P. W. 2 and the documents produced by them and in the light of the decision reported in AIR 1970 Mysore p. 34. Sri g. s. vishweswara, the learned Advocate for the petitioners contended that even if the allegations are accepted in toto, the same would not constitute an offence punishable under Section 500, IPC, in the context of exception-9 to Section 499, IPC. It was also contended by the learned Advocate for the petitioners that at any rate, the lawyer who discharges his duties on the basis of the instructions provided by the litigant cannot be mulct with a criminal liability at all. Pressing his submission on these lines, it was contended by the learned Advocate that the additional c. j. m. , has erred in issuing the process against the accused persons. ( 14 ) BEFORE considering the submissions made by the learned counsel in this behalf it is necessary to see as to what is the actual imputation made against the complainant in the reply notice. This is referred to in para-3 of the complaint. Among other things, it is alleged in para-3 that in the reply notice at page-3 thereof with an ulterior motive the accused persons have made serious allegation aganist the husband of accused No. 1 as well as the complainant. At this stage it would be indeed in fitness of things to cull out the portion of the reply notice referred to by the complainant in her complaint. Among other things, it is alleged in the reply notice as under:"as all of us are aware that any attempt on the part of a. person to keep his illegal relationship with a woman as a secret cannot last for over and as such the secret that your client was able to keep it for some time suddenly brought to light when the said sharada has come to the matrimonial house of my client and started residing there. When the cat is let out of the bag that is when the secret about your client's illegal intimacy is brought to light the said sharada who had come openly to reside in the matrimonial house of my client started asserting her right in the said matrimonial house and showed her supremacy over my client and your client was approving all her activities in the said house as a result of which my client was constrained to live like a servant as all my client's rights to be discharged in the matrimonial houe as a true wife has been curtailed. Besides showing the supremacy over my client the said sharada resorted to victimise my client in so many ways for which your client was exhibiting his approval which made her to illtreat my client more and more she has gone to the extent of doing away with my client with the ulterior motive of continuing her illegal relationship with your cient as he thought that my client would be an obstacle in the matter of your client continuing his illegal relationship with her. My client instructed me that the above mentioned sharada in persuance of her illegal object to do away with my client administered poisonous substance in the food which she gave it to my client as a restih or wyricyi my client was taken to the government hospital, belgaum where she was an inpatient for a week (i. e. , 12-8-1987 to 18-8-1987) and she was in a state of unconsciousness for 3 days. "in the complaint at para-4 it is stated that the allegations or imputations made in the reply notice are false and concocted. It is further stated that the accused were fully aware that the allegations or imputations made in the reply notice are false and concocted. In para-5 of the complaint it is stated as under:"the accused No. 1 has without any reasons and without any necessity gave instructions to her advocate-accused No. 2. The accused No. 2 without ascertaining the truth has made false allegations and such imputations written in the notice are also an improved version to harass the husband of accused No. 1. At the same time the imputations made, defame the complainant. It has affected her reputation as it is a reckless and serious allegation. The accused No. 2 without ascertaining the truth has made false allegations and such imputations written in the notice are also an improved version to harass the husband of accused No. 1. At the same time the imputations made, defame the complainant. It has affected her reputation as it is a reckless and serious allegation. The accused persons had the full knowledge that the writing or contents of the notice are false, frivolous and baseless. They were also aware that the contents are defamatory. The accused No. 2 being an Advocate could not have blindly written such imputations without any basis, hence both the accused persons, i. e. , client and her Advocate arc liable to be tried and punished for the offences under sections 499 and 500 of the IPC. They have done such an act with a common intention hence they have also committed an offence under Section 34 of IPC. " ( 15 ) IN the course of her sworn statement (when examined under Section 200, Cr. P. C.) the complainant has stated that the contents of the reply notice are false. She has also stated that accused No. 2 has not made any inquiry about this at belgaum. ( 16 ) THE two essential ingredients of defamation are:" (i) the making or publication of any imputation against any person. (ii) such imputation should have been made or published with the intention of harming or with the knowledge or with reasons to believe that the imputation will harm the reputation of such person. " if the aforesaid ingredients are established by the complainant against the accused, the latter is said to defame the complainant except in the cases excepted under Section 499, IPC. In other words once when the aforesaid ingredients are established by the complainant it is for the accused, if at all, to show that he is covered by any of the exceptions enumerated under Section 499, IPC. ( 17 ) IN the instant case, if the allegations made in the complaint and the sworn statement of the complainant and her witness with reference to the imputations contained in the reply notice alone are taken into consideration with out reference to any of the exceptions to Section 499, IPC, it appears difficult to differ with the view taken by the learned additional c. j. m. that a prima facie case is made out. The learned counsel, Sri visweswara, however, contended that an essential ingredient of the offence, namely, "publication" is missing in the instant case. Dilating on the same it was argued that the reply notice was sent to Sri a. j. patil, Advocate representing the husband of accused No. 1, in response to the notice issued by Sri patil on behalf of the husband of accused No. 1 and if Sri patil has read out the same to others, the accused persons cannot be said to have indulged in publication of the same. At this stage, it will suffice if it is stated that authorities are not wanting to the effect that sending a reply containing defamatory matter to the lawyer of a party on whose behalf notice was given by a lawyer would amount to publication of a defamatory matter of the footing that a lawyer cannot be identified with the party in such a case (vide - (1910)11 cr. Lj. 281 (283 ). Further it is necessary to note here that as far as the complainant is concerned she was not a party to the notice which was sent to accused No. 1. In that context, and having regard to what is stated hereinabove, at this stage, in relation to the issue of process it is not possible to agree with the submission made by Sri visweswara, learned counsel for the accused. However, it is not necessary at this stage to express a final view with reference to the decision referred to immediately hereinabove. ( 18 ) HOWEVER, it was argued that the case of the accused persons is covered by exception 9to Section 499, IPC. Section 499 of IPC reads as under:"it is not defamation to make an imputation on the character of another provided that the imputation be made good faith for the protection of the interest of the person making it or any other person for the public good. "a careful perusal of exception 9 would go to show that the essence of exception 9 to Section 499 of IPC is "good faith". The expression "good faith" is defined in Section 52 of IPC as follows: "nothing is said to be done or believed in good faith which is done or believed without due care and attention. "a careful perusal of exception 9 would go to show that the essence of exception 9 to Section 499 of IPC is "good faith". The expression "good faith" is defined in Section 52 of IPC as follows: "nothing is said to be done or believed in good faith which is done or believed without due care and attention. " the Supreme Court in the decision in chaman lal v State of Punjab, AIR 1970 SC 1372 (1374) has, among other things, pointed out as under:"in order to establish good faith and bona fides it has to be seen, first, the circumstances under which the letter was written or words were uttered; secondly, whether there was any malice; thirdly, whether the appellant made any enquiry before he made the allegations; fourthly, whether there are reasons to accept the version that he acted with care and caution and finally whehter there is preponderance of probability that the appellant acted in good faith. "". . . . . GOOD faith requried care and caution and prudence in the background of context and cirmcustances. The position of the person making the imputation will regulate the standard of care and caution. "a perusal of the observations made by the Supreme Court in the aforeasaid decision will go to show that the cumulative effect of various factors will have to be taken into consideration while reaching the conclusion as to whether the imputation is made in good faith or not. As pointed out in a decision of the division bench of this court in bhimanagouda mallangouda v malleshappa basappa and others, 1980 (1) kar. Lj. 123 it is well settled that whenever an exception is pleaded, be it an exception to Section 300, IPC or to Section 499, IPC in a case for an offence punishable under Section 500, IPC the burden is to be discharged by the accused who has set up a defence accordingly. In this view of the matter, it appears to me that a stage has not reached in this case to consider the applicability of exception 9 to Section 499 at all. ( 19 ) THE learned counsel for the petitioners, however, contended that there is apresumption in favour of the Advocate having acted in good faith and under instructions of his client for defamatory statements and that therefore, the additional cj. ( 19 ) THE learned counsel for the petitioners, however, contended that there is apresumption in favour of the Advocate having acted in good faith and under instructions of his client for defamatory statements and that therefore, the additional cj. m. at any rate has erred in issuing process against accused No. 2-lawyer for accused No. 1. In this connection, he has placed reliance on the following decisions, viz. , nirsu narayan sinha v king emperor, AIR 1926 Patna 499; m. k. parameswara kurup v n. Krishna pillai, AIR 1966 Kerala 264 and the decision in filomeno pereira v joao lourenco fernandes and others delivered by the judicial commissioner's court of goa, daman and diu, 1981 (1) crl. Lj. 117. In nirsu narayan's case, it is pointed out that the liability of a pleader charged with defamation in respect of words spoken or written in the performance of his professional duty depends on Section 499 and the court would presume good faith unless there is cogent proof to the contrary, (emphasis supplied ). In the said case the High Court of Patna on a consideraton of evidence on record took the view that there was no evidence to show any malice or improper motive and that therefore the conviction was set aside. In parameswara 's case decided by the Kerala high court the complaint was that the counter-statement at ex. P-10 filed by accused No. 1 in some proceeding in the sub-court, trivandrum certain allegations were made against the complainant which were false and per se defamatory, that similar defamatory imputations were made in the counter at ex. P-11 filed by accused nos. 2 to 4 in the same matter and in both, the petitioner (the lawyer) being their lawyer had attested the counter-statements before they were actually put into court. In the context of the said facts, in brief, the Kerala high court has pointed out that there is no allegation that the counter statement was in fact drafted or prepared by the petitioner and that no evidence has in fact been let to show that the petitioner had anything to do with the preparation of the counter. In para-3 therein the Kerala high court has observed, among other things, as under: "now even assuming that it was the lawyer who drafted the written statements there can be no offence against him. In para-3 therein the Kerala high court has observed, among other things, as under: "now even assuming that it was the lawyer who drafted the written statements there can be no offence against him. A counsel owes a duty to his client and he must carry out faithfully his client's instructions. If the client makes serious allegations against a party in a suit, it is the consel's duty to plead those allegations in the plaint or written statement or other pleadings. No doubt the counsel must perfom his duty with discretion, and clearly he should not plead what are obviously irrelevant, wanton, wild or reckless allegations. On the other hand, it msut be remembered that a counsel is not a judge in the case and it is not for him to decide whether the allegations made by his client are true or false. He is bound except in very exceptional circumstances to accept his client's words. If serious and untrue allegations are made he brings himself open to a prosecution for defamation, but he cannot be successfully prosecuted unless it is clearly shown that he had acted in bad faith or maliciously. The counsel can rely on exception 9 to Section 499, but he would lose that defence if he had abused his position and made allegations maliciously or for his own purposes. A court may presume that counsel who has signed the pleading has acted bona fide and without malice and no counsel, in my view, should be called upon to answer a complaint for defamation merely because he has signed a pleading which contains defamatory matter. If this is not the position, then no counsel can possibly discharge his duties to his client. If a counsel renders himself liable to prosecution every time he makes a serious allegations in a pleading on instructions from his client, it would be impossible for him to carry on his duties. All that the learned magistrate had before him in this case are the two counter statements containing the offending passages in the written statements, not drafted or prepared by the lawyer, but only attested by him and a mere statement of the complainant that enmity existed between him and the petitioner. No doubt some evidence has been adduced doubt the existence of malice, but the evidence is vague, unbelievable and unworthy of credit. No doubt some evidence has been adduced doubt the existence of malice, but the evidence is vague, unbelievable and unworthy of credit. I am, therefore, of opinion that no prima facie case of defamation has been made out. No facts were palced before the magistrate from which it could be inferred that the petitioner acted otherwise than in good faith. That being so, no charge could have been framed. Authority for this position could be had in the decision in muhammad taqi v m. s. ghani, AIR 1945 lah. 97. " in the decision in filomeno's case, judicial commissioner's court of goa, daman and diu has practically followed the observation of the Kerala high court in toto. It is necessary to note here that in parameshwara's case the matter was brought up in revision after the trial was commenced that is to say, after the charge was framed. However, it it seen that there was no evidence to show that the defamatory statement was actually drafted by the Advocate concerned. Having regard to the observation made by the Kerala high court, it appears that good faith was also not wanting. I hasten to point out here that the expression 'good faith' will have to be understood in the context of the meaning assigned to it in the Indian Penal Code as explained by the Supreme Court in the decision referred to hereinabove. Further in nirsu narayan's case it is seen that it is permissible for the complainant to prove that there was no good faith. In other words, the presumption of good faith can be dislodged by the complainant by adducing proper evidence. Further it should be noted here that in nirsu narayan's case, the observation was made by the Patna high court when it was requried to consider as to whether the conviction of the accused (advocate) was proper or not. In olhcrwords, the two courts, viz. , Patna and Kerala high courts were requried to consider this aspect not at the threshold, that is to say, before the trial commenced. I may also point out here that in the decision in munithayamma and another v muddobalappa, AIR 1955 Mysore 135 also it is pointed out that a member of the bar has no absolute privilege. , Patna and Kerala high courts were requried to consider this aspect not at the threshold, that is to say, before the trial commenced. I may also point out here that in the decision in munithayamma and another v muddobalappa, AIR 1955 Mysore 135 also it is pointed out that a member of the bar has no absolute privilege. However, it is pointed out that there is always a presumption in favour of an Advocate of his having acted good faith and under instructions for defamatory statements uttered or written by him and that no court should lake cognizance of a complaint and in such a case against an advocate. But this is subject to the other condition that there should be no allegation of malice or improper motive on the part of the Advocate in having made the defamatory statements imputed to him. ( 20 ) IN the instant case, as pointed out earlier it is asserted in the complaint that the accused were fully aware with the allegations or imputations made in the reply notice were false. It is further stated that the accused No. 2 without ascertaining the truth has made false allegations. It is also stated that such imputations in the notice are also improved version. In the context of these averments in the complaint it is too early to consider the applicability of exception 9 to Section 499, IPC. Whether the different observations in the aforesaid decisions are of any assistance to the accused, particularly accused No. 2 will have to be considered not at this stage but after the trial has commenced. In this connection, it would be indeed refreshing to cull out the observation made by the Hon'ble Supreme Court in balraj khanna and others v mod ram, AIR 1971 SC 1389 . In the said case, the Supreme Court had held as under: "in our opinion, the question of the application of the exceptions to Section 499, IPC does not arise at this stage. Rejection of the complaint by the magistrate on the second ground mentioned above cannot be sustained. It was also unnecessary for the high court to have considered this aspect and differed from the trial magistrate. Rejection of the complaint by the magistrate on the second ground mentioned above cannot be sustained. It was also unnecessary for the high court to have considered this aspect and differed from the trial magistrate. It is needless to state that the question of applicability of the exceptions to Section 499, IPC, as well as all other defences that may be available to the appellants will have to be gone into during the trial of the complaint. " ( 21 ) IN the context of the clear pronouncement of the Supreme Court as above, it isclear that the question as to whether the accused persons or for that matter any amongst them is covered by exception 9 to Section 499, IPC does not arise at all at this stage. In this view of the matter, it is also not necessary for this court to express the final view with reference to the decisions in nirsu narayan, m. k. parameswara and filomeno's cases. It will suffice if it is stated that these aspects do not arise for consideration at this stage in the light of the observations of the Supreme Court called out hereinabove. ( 22 ) FOR the reasons stated hereinabove, I am of the opinion that there is no meritin this revision petition and the same is liable to be dismissed. Accordingly, the revision petition is dismissed. --- *** --- .