JUDGMENT
M.D. Kambli, J.
1. This revision petition is directed against the order dated 14th June, 1979, passed by the learned Sessions Judge, Sangli in Criminal Appeal No, 100 of 1978, whereby he dismissed the petitioner’s appeal and confirmed the order of conviction and sentence recorded by the Judicial Magistrate, First Class, Sangli, convicting the petitioner of an offence under section 500 of the Indian Penal Code and sentencing him to pay a fine of Rs. 1000/-.
2. The petitioner is an Editor, Printer and Publisher of the newspaper. weekly ‘Gajashkti’. Respondent No, 1, Raghunath Ramchandra Bhide, is an industrialist and is the Managing Director of one concern styled as M/s. Bhide & Sons Pvt. Ltd., Sangli, dealing in manufacturing of various kinds of machinery for more than two decades. The Company manufactures grinding mills, Cement Pipe machine, power looms and heavy casting, etc. The petitioner published three articles in the issues of weekly ‘Gajashakti’ dated 15-11-1975, 3-4-1976 and 10-4-1976. It appears that during the years 1975-76, some of the workers of this concern were members of an INTUC sponsored Union. D.W. D.K. Patil was the President of that Union.
3. Admittedly there were disputes between the workers and the management on demands such as wages, bonus etc. The complainant Raghunath Ramchandra Bhide is known as “mama” amongst his friends and relatives. The case of the complainant is that the imputations made in the said three articles were made with an intention to defame him. He has quoted in the complaint the imputations in the said articles which are defamatory and which are not according to him true. According to the complainant the petitioner-accused, while publishing these imputations did not take proper care and caution to verify the truth of these imputations and that due to these imputations made against him his reputation has been harmed in the public and misunderstanding has been created amongst the people about him. The complainant stated in his complaint that the word ‘mama’ referred in the article is used with reference to him.
4. So far as the first article dated 15-11-1975 (Exhibit 11) is concerned the complainant asserts that the following imputations, in particular, are defamatory of him. The article is captioned as “exploitation of workers in Bhide and Sons”. The imputations complained of are :—
a) Bhide family is enjoying on the exertion of poor people namely the workers. However, this capitalist does care for them.
b) Indiraji has proclaimed Emergency. Mr. Bhide is trying to find out how he could exploit the situation created by emergency. Mama abuses the workers and insults them. He abuses the leaders.
c) The workers have come to know that this mama has clothed himself with the skin of “Tiger”
d) Many mama in the world are sucking the blood of the workers, collecting black money and are doing anti national acts. This mama has lost all sense of humanity. This gentleman pays the workers at the rate of Rs. 6/- and takes for himself 82 paise above that amount. He however obtains the signatures of the workers on papers showing that the workers have received full amount. In this way this wolf is collecting Rs. 2000/- per month as black money.
5. So far as the article dated 3-4-1976 (Exhibit 12) is concerned, it is captioned as “Bhide & Sons suck blood of the workers.” The imputations which according to the complainant are defamatory, in particular, from this article are as follows :—
a) The wolf accustomed to the blood of Goats and villain accustomed to the company of women belong to the same group.
b) An industrialist having un-limited wealth and sucking the blood of the workers not caring for their labour, will be a victim of piles.
c) The factory of the Company was formerly a small building. However, now buildings after buildings have been constructed there. This mama thinks that all this has been achieved because of his (bad) intelligence. Being convinced that he himself is a eunuch he calls others eunuch-who will care for him. If such eunuch stands before the workers and gives them threats who will listen to him ? Has this man from Bhide family who have not put in any laborious work in their life will realise the value of the labour of the workers.
d) If the workers make complaint to the Labour Officer, the Labour Officer remains silent. What one should say about such Labour Officer “Chikurdekar” who does not look into the complaints of the workers are takes side of mama.
e) Bhide & Sons should give up the habit of collecting un-accounted money from the wages of the workers.
6. The third article is dated 10th April, 1976 and it is captioned “there should be public enquiry in regards the estate of Raghunath Ramchandra Bhide who behaves in unjust manner with the workers.” The complainant relies in particular on the following imputations from that article :—
a) This Bhide regards himself as a big gentleman.
b) Even though the workers are to be paid at the rates prescribed by the Minimum Wages Act, this gentleman pockets Rs. 10/- to Rs. 11/- per month while making payment to the workers every week and obtains their signatures on receipts showing that they have received the full amount. This amounts to the swallowing of butter applied on the head of the dead bodies.
c) Atlast this inhuman being has retrenched 60 temporary workers when those workers were not to be blamed but the blame lay at the door of this mama who collects black money.
d) The poor persons keep quiet so that they should be able to earn their livelihood. This mama gives threats to the old permanent workers so that they should resign.
(e) This mama employs particularly workers of his choice after effecting retrenchment of temporary workers. However, he does not pay them at double the rate. When the workers are in difficulty he gives them pay in advance and in lieu thereof he gets the work done from them day and night. The Labour Officer does not attend to the complaint of retrenchment of temporary workers. This is because he resides in the close vicinity of the residence of mama. As a matter of fact in these days of emergency the Government should expose the black deeds of this mama.
7. The complainant relies in particular on the above imputations in support of his grievance that the imputations are defamatory and are intended to cause harm to his reputation.
8. The petitioner pleaded not guilty to the charge framed against him for an offence under section 500 of the Indian Penal Code. His defence was that he had printed published and circulated the material in dispute in good faith as it related to a public question. According to him, he had no any grudge personally against the complainant. It is only in order to ventilate the complaints and grievances of the workers of the Company that he published the articles. The petitioner had also filed his written statement after the close of the evidence. The petitioner examined one witness by name D.K. Patil, who was the President of the Union of the workers at or about the time when the articles were to be published. In substance the petitioners sought protection under exception 3 to section 489 of the Indian Penal Code.
9. Both the courts below found that the imputations complained of were per se defamatory and that the petitioner had failed to prove that he had made these imputations on good faith. It was found by both the courts below that before making the imputations the petitioner had not shown due care and caution and that defeated his plea of good faith. The conviction and sentence recorded against the petitioner by the trial Magistrate was confirmed by the learned Additional Sessions Judge.
10. Mr. Pradhan, the learned Counsel for the petitioner, submitted that the petitioner had no any personal grudge or malice against the complainant; that the President of the Union and the workers came to him with their grievances and that relying on the information given by them he published the articles in question. It was also contended by Mr. Pradhan that the petitioner was protected by exception III to section 499 of the Indian penal Code and that the burden of proof that lay upon the petitioner had been satisfactorily discharged by him. On the contrary Mr. Gumaste, the learned counsel for the complainant submitted that the imputations which are to be found in the three articles in question are per se defamatory and that the burden of bringing his case within the exception III to section 439 of the Indian Penal Code lay upon the petitioner and that the petitioner had failed to discharge that burden. He also submitted that the two courts below having concurrently found that the petitioner had failed to establish good faith and to bring his case within exception III to Article 499 of the Indian Penal Code this Court sitting in revision would not be Justified in interfering with the concurrent finding recorded by the courts below.
11. The imputations in the three articles which according to the Complainant are defamatory have been set out above. It is clear that some of these imputations are per se defamatory. The petitioner, however, relies upon the third exception to section 499 of the Indian Penal Code. That exception provides :
“It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so for as his character appears in that conduct and no further.”
Now it is well settled that the burden that lies on the accused to bring his case within this and other exceptions provided to section 499 of the Indian Penal Code is not so heavy as the burden that lies on the prosecution. The prosecution has to prove its case beyond reasonable doubt. However, the accused is not required to discharge the burden that lids on him by leading evidence to prove his case beyond reasonable doubt. Where the accused is called upon to prove that his case falls under an exception, law treats the onus as discharged if he succeeds in proving his case by a preponderance of probability. As soon as the preponderance of probability is established the burden shifts to the prosecution which still has to discharge its original onus. In other words when an accused person pleads and Exception he must justify his plea, but the degree and character of proof which he is expected to furnish in -support of the plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case. The onus on the accused may well be compared to the onus on a party in civil proceedings. In a civil proceedings the Court which tries an issue makes its decision by adopting the test of probabilities. Similarly a Criminal Court has to hold the plea made by the accused proved unless the statute or law requires other wise, if a preponderance of probability is established by the evidence led by him, or by the material elicited in the cross-examination of the prosecution witnesses.
12. Now the question is whether the accused has discharged the burden that lay upon him. The term “Good faith” provides due care and attention on the part of the accused before making the impugned imputation. Section 52 of the Indian Penal Code does not defines the expression “Good faith”. It says that nothing is said to be done or believed in “good faith” which is done or believed without due care and attention. It is well settled that simple belief is not sufficient. The belief must be reasonable. There must be some reasonable ground or grounds for it. If a men takes upon himself a duty requiring skill or care and a question arises whether he has acted therein in good faith he must show not merely a good intention but such care and skill as the duty reasonably demands for its due discharge. As observed by the Supreme Court in Chaman Lal v. State of Punjab, , in order to establish good faith and bona fide it has to be seen first the circumstances under which the imputations were made; secondly whether there was any malice; thirdly whether the accused 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 whether there is preponderance of probability that the accused acted in good faith. Again as observed by the Supreme Court in Sukra Mahato v. Basudeo Kumar Mahto, A.I.R, 1971 S.C. 1576, in order to claim good faith in prosecution for defamation accused must show that before making alleged imputation he had made enquiry with due care and attention and that he was satisfied about the truth of that imputation. The emphasis is on enquiry, care and objective (not subjective) satisfaction. It would thus be seen that the accused cannot be said to have discharged the burden that lay upon him for bringing the case within the exceptions by merely saying that he acted on the information given by certain persons. The law requires that it is his duty to make enquiry about the truth of the imputations and to satisfy himself that the imputations are true.
13. While dealing with the approach that has to be adopted while ascertaining whether the accused has discharged the burden or not it must also be borne in mind that where a matter is of public interest, the Court ought not to weigh any comment on it in a fine scale. Some allowance must be made on even intemperate language provided however that the writer kept himself within the bounds of substantial truth and does not misrepresent or suppress facts, or establish is good faith by showing that he acted with due care and attention. It must also be borne in mind that a journalist is in no better position than an ordinary citizen. On the contrary because the articles published in the Newspapers are likely to be widely read and circulated the responsibility is more on the journalists to see that they had bestowed due care and attention before publishing the alleged defamatory imputations.
14. It is on the back-ground of this principle and propositions of law that we have to proceed to decide whether the petitioner has brought his case within the exception III to section 499 of the Indian Penal Code. According to the petitioner, admittedly there were some disputes between the management of the Company and the workers at the material time. The Union made some complaints against the Complainant, to the petitioner and in order to voice the grievances of the workers he had published those complaints. The intention was not to defame the complainant. It is also the case of the petitioners that he had made enquiries amongst the workers though he could not state their names. In Support of his defence the petitioner relies upon the evidence of D.K. Patil. It appears that he was the President of the Union of the workers in the Company. He stated in his deposition that in 1975-76, there were several complaints of workers. The nature of such complaints were that many times the workers were under paid. The workers did not receive good treatment. Signatures of workers were obtained on documents showing normal payment of wages though such normal wages were not paid. Mr. Patil stated that the workers made these complaints to him. Therefore he made some correspondence in that behalf with the Labour Officer, Collector of Sangli and the Police Officers. Mr. Patil claims to have written three letters to the District Magistrate. The documents purported to be the copies of these letters are produced at Exhibits 36, 37 and 38. He also claims that he wrote one letter on 5-4-1976 to Bhide and Sons. The document at Exhibit 39 purports to be the copy at that letter. Mr. Patil says that nothing came out of this correspondence. Once the Police Inspector visited the factory to enquire into their complaints regarding under-payment of wages. However on the day when the Police Inspector visited the office of the Company proper wages were paid. However, thereafter the previous practice was again resumed. Mr. Patil then contacted various Local News-papers but they did not publish such complaints because those were the days of emergency. He therefore met accused who was the Editor of weekly ‘Gajshakti’ and he informed him about the complaints of the workers and requested him to voice those complaints through his papers. Accordingly the complaints of representative nature were printed and published by the accused in his Newspaper. Mr. Patil stated that the articles published by the petitioner in his news-paper correspond to the complaints made by him.
15. In his cross-examination Mr. Patil admitted that he had no complaints in writing from the workers regarding their grievances. He also did not record the statements of those workers stated in the cross-examination that he had no knowledge if the workers of Bhide and Sons were paid basic wages by Rs. 40/- more than the wages paid to such workers at Sholapur. He had no knowledge if the workers of Bhide end Sons were paid more wages than any other workers working in Foundaries etc. at Sangli. He admitted that he never visited the Company when the workers were paid wages and their signatures were obtained on pay-sheets. It may be mentioned that Mr. Patil was serving as an Agricultural Officer in the District Central Co-operative Bank, Sangli. He was not serving in the Company of Bhide & Sons. So far as the letters said to have been addressed by him to the District Magistrate, Sangli, it was suggested on behalf of the complainant that the copies produced by him of these letters at Exhibits 36, 37 and 38 were not the copies of the letters addressed to the District Magistrate. The suggestion was that these copies were fabricated for the purpose of this case. It is pointed out on behalf of the complainant that Mr. Patil has not produced any document to show that the letters were intact addressed to the District Magistrate, Sangli on the days on which Mr. Patil claims that they were so addressed. So far as the copy of Exhibit 39 said to have been addressed to Bhide & Sons a suggestion on behalf of the complainant to Mr. Patil was that the copy did not correspond to the letter sent to Bhide & Sons. It was put to Mr. Patil that these letters were fabricated for the purpose of the present proceedings Mr. Patil denied that suggestion.
16. It is true that Patil says in his deposition that the articles published by the petitioner in his News-paper containing defamatory imputations were as per the complainant made by him. However, assuming that Patil had made the complaints which are published in the impugned articles, the question is whether the petitioner was justified in publishing those complaints without any further enquiry. Some of the defamatory imputations which are set out above are obviously serious in nature. It was, therefore, as rightly observed by the two courts below necessary for the petitioner to make enquiry in order to ascertain about the truth of these imputations. Mr. Patil after all was the President of the Union of the workers of the Company of which the complainant was the Managing Director. The question is whether the petitioner was justified in believing the complaints made by Patil without making any further enquiry in connection therewith. What the petitioner should have in the minimum was to obtain the complaints in writing. According to the petitioner, the workers had gone to him and had made complaints. It is now submitted for the petitioner that it was not possible for the petitioner to examine any of the workers in his defence because the workers have after all to work in the Company in order to earn their livelihood. However, the petitioner could have obtained the statements of the workers who had gone to him and who had made the complaints. Not only the petitioner has not examined any worker to show that the complaints of the type published in the newspapers were made to him but no attempt was made to record their statements also when they made complaints to him. It also appears that some of the workers were retrenched by the complainant. No attempt has been made to examine any of these workers. Reliance has been placed on behalf of the petitioner upon the letters said to have been addressed to the District Magistrate, the copies of which are produced at Exhibits 36, 37 and 38. It is not the case of the petitioner that he was shown these letters containing the complaints at the time when Patil and the workers had approached him. Assuming that the petitioner was apprised of the fact that the complaints were made against the management of the Company to the higher Authorities, namely the Labour Officer and District Magistrate, it was necessary for the petitioner to try to approach these authorities and to ascertain whether any enquiries were made into those complaints and with what result. It does not appear that any such enquiries were made with any of the Authorities.
17. Some of the imputations which are published in the three impugned articles have as pointed out above, caused serious aspersions on the character of the complainant. The complainant has been described as a wolf or a villain. It has been further alleged that the complainant and his family has acquired much wealth by sucking the blood of the workers and by making under payment to them and by obtaining from them the receipts showing that they were paid their normal wages. It has been asserted that even though it was the duty of the complainant to pay the wages according to the rates prescribed under the Minimum Wages Act, the complainant deducted Rs. 10/- to Rs. 11/- per week from the wages which were due to the workers. In view of the fact that serious aspersions have been made on the conduct and character of the complainant it was necessary for the petitioner to have made some independent inquiry before he published those imputations. It appears that not only any such enquiry was not made but even the complainant was not contacted to ascertain the truth of the complaints made against him. The defence in short is that Patil gave certain information to the petitioner and that petitioner published that information in order to ventilate the so called grievances of the workers. I do not think that the petitioner has shown due care and caution in publishing the imputations which have been complained of. The two courts below, therefore, were right, in my view, in holding that the petitioner has failed to bring this case within exception three to section 499 of the Indian Penal Code.
18. Now coming to the sentence, the petitioner has been sentenced to pay a fine of Rs. 1000/- in default to suffer simple imprisonment for a period of three months. The amount of Rs. 500/- has been ordered to be paid to the complainant under section 357 of the Criminal Procedure Code. It appears from the material on record that the petitioner had never met complainant personally. He was not personally interested in the establishment run by the complainant. It has not been shown that the petitioner has any personal grudge against the complainant. It appears that the petitioner made the imputations in question and published them because of his enthusiasm to support the cause of the workers. It is not unlikely that he was led to indulge in intemperate language while making these imputations because of the information that might have been conveyed to him by the interested persons. I think the ends of justice would meet if the sentence of fine is reduced and the petitioner is directed to pay a fine of Rs. 500/- only. In view of this reduction in the sentence of fine there has bean also to be corresponding reduction in the amount of compensation awarded to the complainant. I think the ends of justice would meet if compensation of Rs. 250/- only is awarded to the complainant, leaving him with the remedy of filing civil suit for damages for defamation if he is so advised.
19. In the result, this revision application is partly allowed. The order of conviction recorded against the petitioner for an offence under section 500 of the Indian Penal Code is confirmed. The sentence of fine is, however, reduced by directing that the petitioner shall pay a fine of Rs. 500/- only and by further directing that the amount of Rs. 250/- only shall be paid as compensation out of that fine.
20. Mr. Pradhan, learned Counsel for the petitioner, states that the petitioner has already paid the fine, as ordered by the courts below. The excess amount of fine paid shall, therefore, be refunded to the petitioner.
21. The rule is made absolute in the above terms.