The burden is on the accused to prove the truth of the imputations and that the imputation must be for the public good. Excessive publication would take the case out of the privilege conferred by the exception.

1. This is an appeal by special leave under S.417 (3) Crl. P. C., against the order of acquittal passed by the Munsiff-Magistrate of Pattambi on a private complaint filed by the appellant. His case was that the respondents got printed and published a leaflet Ext. P-1 containing false and baseless allegation against him with intention to harm his reputation and to lower him in the estimate of others and thereby his reputation had been considerably lowered and he had fallen in the estimate of his friends and the public in general and the accused have thereby committed an offence punishable under S.500 of the Penal Code.

Ext. P-1 is the printed copy of the leaflet. Among other things it is stated in Ext. P-1 that the appellant who is the manager of K. P. R. P. Secondary High School, Kongad has from the very beginning, been in the habit of withholding a portion of the salary due to the teachers and that even after the system of direct payment of the salary through the headmasters was introduced by the Government the manager wanted a certain amount from each of the teachers and had induced the Headmaster to deduct a portion of the amount from their salary.

2. The fact that the notice complained of was got printed and was published by the respondents has been amply proved by the prosecution and was, in fact, admitted by the defence not only in the reply which they sent through the lawyer to the notice sent by the appellant but in their statement under S.342 Crl.P.C. The learned Magistrate who tried the case found the allegation in Ext. P1 to be per se defamatory. That the pamphlet is on the face of it calculated to harm the reputation of pw.1 can admit of no doubt, for what the notice says is that the manager was misappropriating for himself a portion of the salary of the teachers and if the imputation is false it would be highly defamatory of the appellant. The learned Magistrate considered the evidence that was led regarding the plea of justification by truth and acquitted the accused on the ground that the imputations made by the accused were true and would come within exceptions 1 and 9 to S.499 of the Penal Code. The correctness of the conclusion arrived at by the learned Magistrate is challenged in this appeal.

3. To appreciate the scope of the exception it is necessary to read the relevant provisions. S.499 reads:

"Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person."

We are not concerned with the explanations. Then follow the exceptions. Exception 1 is in the following terms:

"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."

4. It cannot be disputed that the burden is on the accused to make out that their case would come under any one of the exceptions. In this connection I may refer to S.105 of the Evidence Act. It reads:

"When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code (XLV of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances."

5. What is the nature and degree of proof required on the part of the accused to bring the defamatory imputations