Judgment.- This appeal has been filed against the order passed by the Additional First Class Magistrate of Vaikom acquitting all the accu;ed who were prosecuted for the offence of defamation punishable under sections 500 and 501 of the Indian Penal Code. The appellant was the Secretary of the Vechoor Coir Vyavasaya Co-operative Society Limited. The first accused was the Secretary of the Society from 1955 to 1958. He was suspended from service on 14th July, 1958 and subsequently dismissed. In 1960 his membership was also car celled as it was found that he was working in a way detrimental to the interests of the Society. Similarly accused 2 and 6 were also once members of the Society, but removed from the rolls. Accused 3, 4, 5 and 7 are members of the Society. The 8th accused is the printer and publisher of the Union Press at Vaikom. The case against these accused was that on 28th July, 1961 accused 1 to 7 along with another person by name Thankappan got printed in the eighth accused’s press a pamphlet with the caption “A revised edition of misappropriation,” which pamphlet it is stated contained false imputations against the appellants with intent to defame him or with the knowledge that it would harm his reputation. According to the appellant the pamphlet and particularly the portion specifically mentioned in paragraph 6 of the complaint were wholly false and unfounded. It was alleged that there was an enquiry into the conduct of the first accused as the Secretary of the Society, that the appellant was a member of the Committee and it was on the recommendation of the Committee that the first accused was removed from his office of Secretaryship and was also removed from the rolls of the Society and it was because of this that he got the pamphlet printed and published. Registered notices were issued by P.W.1 to all the accused, pointing out that the article was defamatory and that unless they tendered an unconditional apology action would be taken against him. One of the persons who was a signatory to the pamphlet expressed regret, but the others did not reply to the letter and so prosecution was launched against them. Registered notices were issued by P.W.1 to all the accused, pointing out that the article was defamatory and that unless they tendered an unconditional apology action would be taken against him. One of the persons who was a signatory to the pamphlet expressed regret, but the others did not reply to the letter and so prosecution was launched against them. The fact that the accused had prepared the pamphlet Exhibit P-10 and got it printed at the eighth accused’s press and had it published is amply proved by the prosecution and is admitted by the accused. It is also not disputed that the recitals in Exhibit P-10 are per se defamatory. The finding of the trial Court is also to the same effect. Therefore, unless the accused can bring themselves within any one of the Exceptions to section 499, Indian Penal Code they would be clearly guilty of the offence charged. The learned Magistrate on a consideration of the evidence found Exceptions 1, 9 and 10 applied to the case and found the accused not guilty and acquitted them. Learned counsel for the appellant challenges this finding and has argued that none of these exceptions would apply as the imputations were not proved to be true in fact and that it had not been proved to have been made in good faith for the protection of the person making it or for the public good. The defamatory statement which has given rise to this criminal prosecution contains among others the following important imputations against the appellant; firstly that the appellant as the Secretary of the Society is managing the coir business of the Society and without investing one pie has earned large sums of money for himself, the suggestion being that he had misappropriated the money belonging to the Society to enrich himself; secondly that persons from Alleppey, Athirampuzha and Shertalai were coming in search of the Society (meaning the complainant) to purchase milk powder, the insinuation being that the appellant was in the habit of selling the milk powder in black-market. It cannot be disputed that the burden is on the accused primarily to make out that his case would come under any one of the Exceptions to section 499 of the Penal Code. It cannot be disputed that the burden is on the accused primarily to make out that his case would come under any one of the Exceptions to section 499 of the Penal Code. Under section 105 of the Evidence Act the burden of proving the existence of circumstances hinging the case within any of the general exceptions of the Penal Code or within any special exception is upon the accused and the Court shall presume the absence of such circumstances. It may be that the burden cast on the accused in a criminal case under section 105 is not so onerous as the primary burden cast on the prosecution to prove the offence beyond reasonable doubt, but still proof there must be toclaim the benefit of the Exception. We have therefore to see how far the accused have succeeded in bringing their case within any of the Exceptions and particularly Exceptions 1, 9 and 10 as found by the learned Magistrate. Exception 1 reads: “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.” Exception 9 reads: “It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interest of the person making it, or of any other person, or for the public good.” Exception 10 reads: “It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.” I will now see whether the imputations contained in the pamphlet could be justified under any one of these exceptions. The learned Magistrate has in paragraphs 10, 11 and 12 in the very lengthy judgment considered the first imputation and has come to the conclusion that the defence has succeeded in showing that soaked husks were purchased by the complainant under the pretext that they were for the use of the Society. The learned Magistrate has in paragraphs 10, 11 and 12 in the very lengthy judgment considered the first imputation and has come to the conclusion that the defence has succeeded in showing that soaked husks were purchased by the complainant under the pretext that they were for the use of the Society. Assuming that there is evidence in support of this conclusion, which I shall show there is not, it does not show that any money belonging to the Society was utilised for the purchase of these husks or that any money belonging to the Society had been utilised to enrich himself. The learned Judge does not seem to have considered the question as to how even if the complainant had purchased these husks it can be stated that he had earned money without investing one pie as alleged in the pamphlet. The imputation can be justified only if the accused is able to prove that the husks were purchased with the money belonging to the Society and the complainant misappropriated the same and earned profits for himself. There is no suggestion that any money belonging to the Society had been utilised for the purchase of the husk and in fact the case is that these purchases had not been included in the account. So even on the findings of the learned Magistrate the allegations made in the notice cannot be justified as true and the accused cannot claim protection under Exception 1. Now considering the question regarding the material for this finding the learned Magistrate relies on the evidence of D.W.1 the Secretary of the Ullala Coir Vyavasaya Go-operative Society. The Pay Book maintained by the Society shows that on 14th July, 1961, 27th July, 1961 and 31st July, 1961 there were entries of sale of soaked husks to the Vechoor Coir Society of which the complainant was the Secretary. P.W.1 has denied the purchase of any husks to the Vechoor Society and the account of the Society does not show that any such purchases had been made, and that any money had been spent for such purchase. D.W.1 the Secretary of the Ullala Society does not say that husks were actually purchased by P.W.1. It may be that D.W.1 himself had effected sales to some otherprivate party and merely entered the name of some Co-operative Society as sales could be effected only to Societies. D.W.1 the Secretary of the Ullala Society does not say that husks were actually purchased by P.W.1. It may be that D.W.1 himself had effected sales to some otherprivate party and merely entered the name of some Co-operative Society as sales could be effected only to Societies. Merely because some entries are seen there, is not sufficient to prove that P.W.1 had in fact purchased it. Even if he had purchased it no money of the Vechoor Society had been spent for the purpose. There is also no evidence that P.W.1 was having any business in husks. The finding of the learned Magistrate that P.W.1 was running the business in a property owned by Thressia, the wife of P.W.1’s father’s brother is not based on any acceptable evidence, but is based purely on surmises and conjectures. So the truth of first imputation has not been proved. The next imputation made was that the milk powder supplied by the Unicef for free distribution to the school children was being sold by P.W.1 for cash in the black-market and that people were coming from different places to purchase this milk powder. No direct evidence of any such sales has been proved by the defence. The learned Magistrate finds the allegation proved mainly on the evidence of D.W. 3. He is a person working in a photo studio at Vaikom. He has given evidence that about eight months before the publication he had been to Vechoor to take aphotograph of the distribution of milk powder among the children, that it was P.W. 3 who arranged with him and that he had gone and taken the photo. D.W. 3 has given evidence that he was given four pounds of milk powder by P.W. 3. No attempt has been made to show that this milk powder given to D.W.3 even if it be true, was from the stock supplied to the Society or that the complainant had anything to do with it. The case of the defence was that in lieu of the charges for taking photo milk powder was given and the money shown for the photo had been taken by the complainant. Exhibit P-28 is a voucher produced for the receipt of the charges paid for taking the photo. The learned Magistrate has come to the conclusion that Exhibit P-28 was a subsequently got up document. Exhibit P-28 is a voucher produced for the receipt of the charges paid for taking the photo. The learned Magistrate has come to the conclusion that Exhibit P-28 was a subsequently got up document. D.W.3 was treated as hostile by the defence themselves and cross-examined. Beyond the mere statement of D.W.3 there is no evidence. P.W.3 has denied this. Another witness examined for this purpose is D.W.2, Prabhakaran. He was working in the bund under construction in the Thaneermukam kayal. He had an accidental fall as a result of which he sustained a fracture to the leg and so he started a tea shop by the side of the bund. He gave evidence that he used to purchase milk powder from the Society, but he has stated that he had not gone for the purchase himself. As he did not depose that he had purchased anything directly from P.W.1 this witness also was declared hostile and cross-examined It is on such undependable evidence that the learned Magistrate had come to the conclusion that P.W.1 had been black-marketing in milk powder. I have carefully gone through the evidence of all these witnesses and I have no hesitation in characterising them as thoroughly unreliable and worthless. The materials produced on record in my opinion have not enabled the respondents to discharge the burden which section 105 of the Evidence Act has cast upon them to establish the truth of the imputation. The learned Magistrate was probably under the impression that it would be enough for the accused to create a doubt as to the truth or otherwise of the imputations made. An argument was raised that in a case like this, where the accused has pleaded that he is protected under Exception 1 he need not prove the truth of the imputation and that it is enough if the accused is able to create a doubt that the statement may or may not be true and if that be so it could be considered that the accused has discharged the burden cast on him under section 105 of the Evidence Act. A similar contention was negatived by Harries, G.J., in the case in Lalmohan Singh v. The King1. His Lordship stated: “It is to be observed that Exception 1 requires that the allegation is true and if Mr. A similar contention was negatived by Harries, G.J., in the case in Lalmohan Singh v. The King1. His Lordship stated: “It is to be observed that Exception 1 requires that the allegation is true and if Mr. Dutt’s argument is accepted Exception 1 should read:”It is not defamation to impute anything which may or may not be true.“I do not think that the principle of the Allahabad Full Bench case can be made to apply in the present case. To say something of a person which holds him to contempt is defamatory. If what is said is true then that is defence. On the other hand if there is doubt as to whether it is true or not, there is no defence at all and as the matter tends to bring the person defamed into contempt it is defamatory under section 500, Penal Code.” I am in respectful agreement with this view and I have no hesitation in holding that unless the defence is able to prove that the allegation is true Exception 1 will not apply. doming to Exception 9 the imputation must have been made in good faith for the protection of the interest of the person making it or for public good. The word good faith is defined in section 52 of the Penal Code: “Nothing is said to be done or believed in ‘good faith ‘which is done or believed without due care and attention.” ‘Good faith’ therefore requires due care and attention, i.e., care and attention expected from a reasonable man. In the case of publication of a defamatory matter actual source of information on which the accused has acted ought to be considered. The accused have not taken the Court into confidence and stated on what material they chose to make the imputation. If they had not taken proper care but acted on gossip and the complainant is thereby defamed the accused cannot escape the consequence by relying on this exception. Exception 9 applies only to expressions of opinion regarding the character and not to assertions of fact. The latter can be justified only by truth. Comment must be on actual and not on imagined conduct and even if the accused persons genuinely believed the imputed conduct to bereal that would be no defence. Exception 9 applies only to expressions of opinion regarding the character and not to assertions of fact. The latter can be justified only by truth. Comment must be on actual and not on imagined conduct and even if the accused persons genuinely believed the imputed conduct to bereal that would be no defence. If the opinion or the imputation purports to be based on facts, then the person claiming the benefit of these exceptions must prove those facts and it is not enough for him to say that he believed those facts. When the allegations of fact, are, as in this case by themselves defamatory and those allegations are not proved to be true no defence of fair comment can possibly arise; for fair comment cannot justify a defamatory statement which is untrue in fact. The learned Magistrate has not considered this aspect of the matter. What he has stated is there is absolutely nothing in the prosecution evidence to show that the imputations were made in bad faith, i.e., not without due care and attention.‘The question of good faith is to be proved by the accused. The publication was clearly not made in good faith having regard to the flimsy materials upon which it was based and to the absence of any evidence that the accused made any enquiries before publication or had at their disposal or within their knowledge at that time any of the evidence which is now sought to be led in this case. If good faith is not established, it is not strictly necessary to consider if the public good was involved. But, it were, it is difficult to see how the publication is for public good. How Exception 10 would arise has not been stated by the learned Magistrate. The learned Magistrate was, therefore, in error in finding that Exceptions 1, 9 and 10 would apply in this case and in finding the accused not guilty of the offence charged. The order of acquittal has, therefore, to be set aside. I am fully aware of the principles to be borne in mind by a Court of appeal in interfering with orders of acquittal. To my mind this is pre-eminently a fit case for interference with the order in the interests of justice. In the result, the order of acquittal is set aside. I am fully aware of the principles to be borne in mind by a Court of appeal in interfering with orders of acquittal. To my mind this is pre-eminently a fit case for interference with the order in the interests of justice. In the result, the order of acquittal is set aside. Accused 1 to 7 are found guilty and convicted of the offence punishable under section 500 Indian Penal Code. I sentence the first accused to pay a fine of Rs. 200 in default to undergo simple imprisonment for two months and accused 2 to 7 to pay a fine of Rs. 50 each, in default to undergo simple imprisonment for two weeks. The 8th accused is found guilty and convicted of the offence under section 501, Indian Penal Code and he 18 sentenced to pay a fine of Rs.200 in default to undergo simple imprisonment for two months. The appeal is allowed. Time for payment of fine two months from this date. M.C.M. ----- Appeal allowed.