1. The complainant in C. C. No. 61 of 1970 on the file of the Additional First Class Magistrate, Tellicherry, is the petitioner before me. A complaint was filed under S.500 IPC. alleging that the respondents in a registered notice sent through their lawyer referred to the complainant as ZpAK kXn and also that he is a constant defaulter in paying rent. The learned Magistrate discharged the accused on the ground that no offence was made out. He found that the expression ZpAK kXn only indicated that he is the son of an unfortunate woman and therefore there was nothing defamatory in that statement. No finding was entered by the learned Magistrate on the second ground, namely, whether the reference in the notice that the complainant was a constant defaulter in paying rent constituted defamation.

2. Aggrieved by the order of discharge, the complainant took the matter before the Sessions Judge, Tellicherry, in Criminal R. P. No. 10 of 1971. The learned Sessions Judge dismissed the revision and refused to make a reference to this Court holding that the order of discharge was correct. It is against this that the present revision is filed.

3. The facts averred in the complaint relevant for purposes of this revision are that the complainant and the accused are residing separately in portions of the same house; the accused is residing in downstairs and the complainant is residing in the upstairs. The first accused is the sister of complainants father, and the second accused is the son of the first accused. This building has only one electric metre. Since the registration of the metre stood in the name of the father of the complainant, he was paying electric charges. As the accused refused to pay their share of electric charges a registered notice was sent by the complainant to which he received a reply. It will be useful to extract the exact words in the registered notice. The relevant portion of the notice reads thus:

It is this statement in Ext. P4 that affords the foundation for this case. It is said that the notice was read out by his counsel in the presence of persons present there and this notice has lowered him in the estimate of the public. The statements aforementioned were made in Ext. P4 deliberately to defame, him and they are per se defamatory.

4. The complainant examined 3 witnesses including himself and produced 8 documents. The learned Magistrate discharged the accused even without questioning them.

5. The contention of the learned counsel for the petitioner is that the Courts below have not approached the case in the proper perspective and that there has been a miscarriage of justice on account of non-appreciation of the ingredients of the offence of defamation and also on account of the fact that Ext. P4 was not properly construed. The trial Magistrate found that the statements in Ext. P-4 will not constitute defamation. He discussed the various meanings given to the word ZpAK in several dictionaries which were brought to his notice. I am giving below the various meanings given to the word ZpAK in the dictionaries brought to my notice.

6. In the Malayalam-English dictionary by Rev. H. Gundert, at page 487, the word is translated as an unfortunate woman. In the Sanskrit-Malayalam dictionary by Kanipayyoor Sankaran Namboodiripad, the word is translated to mean. In the Malayalam English Hindi dictionary published by Sreerama Vilasam Press and Publications (P) Ltd., the meanings given to the word are

. In the dictionary of High and Colloquial Malayalam English by Rev. B. Bailey, the word is translated as a wife not loved or liked by her husband, ugly woman. In the Sabdatharavali by Sreekanteswaram G. Padmanabha Pillai at page 1058, the word is said to mean. A passage from the epic "Ramayana" was also brought to my notice in which Manthara addresses Kaikeyi as , Here, Kaikeyi the affectionate wife of Dasaratha is referred to as From these translations it was contended by the learned counsel for the respondents that the only connotation for the word is either an unfortunate woman or an ugly woman or a woman who did not enjoy the love of her husband. These meanings, according to respondents counsel, do not spell out anything defamatory. It was this approach that both the trial Court and the learned Sessions Judge made to the facts of the case.

7. The learned counsel for the petitioner forcefully argued that Ext. P4 document has to be taken as a whole and the proper meaning of these expressions has to be appreciated against the background of the tenor of the notice read as a whole. He invited my attention to the latter portion in Ext. P4 which reads as follows:

This statement, according to counsel for the petitioner, clearly brings out the intention of the notice, that the accused or whoever was responsible for the notice made a clear distinction between the complainant and Achuthans other son by name Madanamohanan. The expression that Madanamohanan is the son of the legal wife of Achuthan and immediately in juxtaposition to that expression would clearly indicate that the notice intended to make out that the complainant was not the son of Achuthan by a legal wife.

Read thus, according to the learned counsel for the petitioner, the expression gains its real import. In this context, the learned counsel for the petitioner analysed the word and submitted that the word Zp: means bad, and the word Kw means the female organ. He brought to my notice the meaning given to the word Kw in the Malayalam English dictionary by Rev. H. Gundert at page 693. There the word Kw is translated as pudendummul; perinaeum. In the Malayalam dictionary by Sir Williams, at page 641, the word pudendum is referred to in the case of women. In the Shorter Oxford English Dictionary, at page 1615, the meaning of the pudendum is given as the privy parts; the external genital organ. In the Malayalam English dictionary of Gundert at page 693, the word pudendum is translated also as good fortune, love. Taken together, it is absolutely clear, according to him, that the real intention of the accused was to show that the complainant was the illegitimate child of Achuthan. If this intention is made out, then the statements in Ext. P4 are per se defamatory. If that be so, then he need not prove any damage to his reputation and it was for the accused to prove in a full-fledged trial whether his case comes within one or other Exceptions in S.499 IPC.

8. The learned counsel for the petitioner brought to my notice the decision reported in D.N. Sen v. R.K. Bhadra, (AIR. 1970 Calcutta 216). In that case, the scope of the definition of the term defamation was considered. The relevant passage necessary for this case is as follows:

"The classical definition of the term however has been given by Mr. Justice Cave in the case of Scott v. Sampson, ( (1882) 8 Q.B.D. 491) as a "false statement about a man to his discredit. Me concept of defamation is indeed a mixed concept partly subjective and partly objective. Upon ultimate analysis however, whether the impugned publication is defamatory or not is a question of fact and the same must abide a full fledged trial."

In C.C. Das v. Raghunath Singh, (AIR, 1959 Orissa 141) where some passage in a petition is alleged to be defamatory, it was held that the document should be read as a whole with a view to find out the main purport, and too much importance should not be attached to a few isolated passages here and there. This principle is pressed into service by the learned counsel for the petitioner to substantiate his contention that in every case where the impugned matter is contained in a document, it is necessary to take the document as a whole. I am in respectful agreement with the principles laid down in those cases. In cases of defamation where defamatory statements are contained in written matter, it will not be proper or fair to extract a particular portion from the document and try to understand its meaning divorced from the context of the entire written matter. The objected portion of the written matter will gain added significance and disclose the real intention of the maker of that statement only when the entire subject-matter is read and the intention clearly made out from the whole subject-matter.

9. On a reading of the reply notice Ext. P4, with specific reference to the latter portion where a distinction is made between the complainant and the other son of Achuthan, I am inclined to think that the Courts below erred in holding that an offence has not been made out. The findings of the Courts below are defective in the sense that this aspect of the case has not been properly discussed or appreciated by them. The Courts proceeded to find the meaning of the word ZpAK kXn detached from the other portion of the notice, which alone reflects the real intention of the notice. It is not permissible in law in cases like this to take one portion alone of the document which is the subject-matter under attack and consider it without reference to the whole matter which alone would help the Court to appreciate the real intention of the parties.

10. The learned counsel for the petitioner brought to my notice the passages from Gours Penal Code. In the 1962 Edition, IV volume, the learned author states that in cases of defamation where the expression which affords the subject-matter of defamation is ambiguous and is possible for a vulgar import and a technical import, the Court has to take the vulgar import and not the technical or legal sense of the expression. After taking this vulgar import, it should make the person who made it responsible to prove that what was intended was not the vulgar import, but the technical or legal import. In this case also, the expression ZpAK kXn can have different meanings. If Ext. P-4 is taken as a whole, we get a vulgar import for the expression. If that be so, the accused should have been brought to trial and asked to discharge their liability to substantiate their case that they meant something other than the vulgar import for the expression.

11. In this connection, the learned counsel for the petitioner brought to my notice the passage from "Ramayana", which has already been quoted above. Hera, KLaikeyi is referred as ZpAtK ~ It is contended that the word ZpAtK here meant onlyan unfortunate woman. It is useful to remember the context in) which Kaikeyi is addressed as ZpAtK ~ Sree Rama was to be the king and her son, Bharata, is not to be rewarded at all in any manner. It was in this context that she, the mother of Bharata, is referred as an unfortunate woman. This in fact highlights the distinction that I am seeking to indicate in this decision. It is the context that is important and not the actual words that are used. The learned Magistrate, in my opinion, should have at least questioned the accused giving them an opportunity to explain what they really meant by the expression used in Ext. P4. Even this has not been done. The opinion of the learned Magistrate cannot be a substitute for the real intention of the maker of the statement as disclosed in Ext. P4. The learned Sessions Judge also fell into the same error. I therefore hold that the statement in Ext. P4 taken as a whole would primafacie show that the accused intended to defame the complainant. Ext. P4 suggests that the petitioner is not the legitimate son of Achuthan. This can be per se defamatory.

12. The next paint urged by the learned counsel for the petitioner is that the statement that he is a person who habitually defaults in paying rent and he had earned a notoriety in this respect is also defamatory. He brought to my notice the decisions reported in Kuttysankaran Nair v. Kumaran Nair. (1563 KLT. 845) and Deepchand v. Sampathraj (AIR. 1970 Mysore 34). In the earlier case a Manager against whom an accusation was made that he habitually defaults in paying salaries to the teachers was held defamatory. In the latter case, a person was called a smuggler. This was held to be defamatory. On the strength of these two decisions, it is contended by the learned counsel for the petitioner that the reference in the notice Ext. P4 about the complainant having gained notoriety as a habitual defaulter in paying rent should be taken as prima facie defamatory for framing charges. The learned counsel for the respondents contended that pw 1 when be was cross-examined admitted that he had defaulted in paying rent control petitions against him for eviction on the ground that he had defaulted to pay rent and therefore this portion of Ext. P4 was substantiated by the admission of complainant himself. To this, the learned counsel for the petitioner Shri T. Karunakaran Nambiar raised an intelligent and clever argument. According to him, the accused can put forward his plea under one or the other Exceptions under S.499 I. P. C. only at a full-fledged trial and this cannot be done before framing charge. He contended that a reading of S.208, 252 and 256 of the Code of Criminal Procedure would indicate that an accused has a right to cross-examine the prosecution witness only after framing of the charge. It is only by the indulgence shown by the Court that he is enabled to cross-examine the prosecution witnesses before framing charge. This permission by the Court cannot be used to deny to the complainant what he in law is entitled to. That is proving a prima facie case before charge is framed. Therefore, the admission by pw.1 in cross-examination before framing charge of having defaulted to pay rent sometimes cannot be taken as a circumstance to substantiate the allegation by justification by truth. I am not impressed by this argument. Anyhow, pw.1 has admitted that he is a defaulter in paying rent and to that extent the averment in Ext, P4 is justified. I therefore find that the complainant is not entitled to say that a charge should have been framed on this ground also. However, from the evidence on record I do not find that the complainant has made out a prima facie case against the 1st accused.

13. It was contended before me that the revisional jurisdiction of this Court is very limited and therefore in revisions against discharge interference is called for only when the order sought to be revised is perverse or perfunctory. In support of this contention, the decision reported in Raghavan Pillai v. Gourikutty Amma (1959 KLT. 945) and Varkey George v. Vasu Pillai (1963 KLT. 538) were brought to my notice. While I am in respectful agreement with the principles laid down in these cases, I hold that the case on hand is different. There is as erroneous approach by the courts below so far as Ext. P4 is con-.cerned- The material parts of Ext p4 have been ignored by the Courts below and the order suffers from a serious infirmity on this account. I therefore hold that the revisional jurisdiction of this Court is available in a case like this.

I therefore set aside the order of discharge passed by the learned Additional First Class Magistrate, Tellicherry, in C. C. No. 61 of 1970 against the 2nd accused and the case is sent back for further enquiry into the complaint in accordance with law.