The imputations made during cross-examination were found to be per se defamatory, and the accused's reliance on the Ninth Exception to Section 499 of the Indian Penal Code was rejected.

( 1 ) THE petitioner was the accused in C. C. 3227, of 1966 in the Court of the Additional First class Magistrate, Bangalore. The respondent herein filed a complaint against the petitioner accused for an offence under Section 500 of the Indian Penal Code.

( 2 ) THE facts leading to the complaint may be briefly stated as follows:--The complainant and the accused are both businessmen. The accused was involved in what is known as Gold Control order case wherein the complainant was examined as a witness in support of the prosecution. During the course of cross-examination of the complainant, learned Counsel Sri Chandra Kumar who appeared for the accused in that case put the five questions mentioned in the complaint. According to the complainant, those questions were put at the instance of the accused with a view to harm the complainant's reputation and standing in the business community of Bangalore and also with intent to lower his character. He further alleged that the imputations made by the accused against him are all absolutely false and were made deliberately to damage and harm the complainant's moral, social and business reputation and the imputations conveyed by those questions are per se defamatory. Therefore the accused is liable for punishment under Section 500 of the Indian Penal Code.

( 3 ) THE learned Magistrate, on the evidence adduced before him found the accused guilty of the offence and convicted him of the offence punishable under Section 500 of the Indian Penal Code and sentenced him to undergo simple imprisonment till the rising of the court and to pay a fine of Rs. 500 or in default of payment of fine, to undergo simple imprisonment for a further period of two months.

( 4 ) AGAINST the said order, the accused preferred an appeal in the Court of the II Additional district and Sessions Judge, Bangalore, challenging his conviction and sentence. The learned sessions Judge agreeing with the conclusion reached by the learned Magistrate, confirmed the conviction and sentence imposed on the accused and dismissed the appeal. It is the correctness and legality of this order that is challenged in this petition under Ss. 435 and 439 of the Code of criminal Procedure.

( 5 ) MR. Devaraju, the learned counsel for the petitioner submitted that the imputation made fell within the Ninth Exception to Section 499 of the Indian Penal Code and if so, there is no defamation. He also contended that the information conveyed to the Advocate by the accused were professional communications and their disclosure is not permissible under Section 126 of the Indian Evidence Act. The five questions that were put to the complainant were as follows: "1. In 1949-50 have you done the business of opium smuggling ? ans: No. 2. Is it a fact that you were involved in a opium smuggling case in 1949-50 and you were under remand for 15 days? ans: It is absolutely incorrect. 3. In 1949-50 you were not doing the business of smuggling the cloth from the running train at marwad? ans: No. 4. Was there not a case at that time regarding the smuggling in which you were involved? ans: I was a mere witness. 5. I put it to you that because there was a warrant against you, you came away to Bangalore from rajasthan? ans: It is not correct. "

From the above questions it is clear that the imputation made against the complainant was that he was doing the business of opium smuggling and that he was involved in a opium smuggling case in 1949-50: it is also clear that the imputation conveyed by the third question was that the complainant was doing the business of smuggling of cloth from, running train and from the fifth question, that he has come to Bangalore from Rajasthan because there was a warrant against him.

( 6 ) NOT much discussion is necessary to find that the imputation conveyed by these questions is per se defamatory.

( 7 ) THESE questions were put in open Court and made public. The Courts below were in my opinion, right in coming to the conclusion that the

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