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Jejamma Vs. Sivanna - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1964CriLJ247
AppellantJejamma
RespondentSivanna
Excerpt:
.....by the unsuccessful plaintiff in a suit for malicious prosecution. the courts below dismissed vie suit on the ground that the plaintiff lies failed to prove that the complaint filed by the defendant 4n c......to prove that the complaint filed by the defendant 4n c. c. no. 700/1954 on the file of the second city magistrate, mvsome, was without reasonable and probable cause.2. the facts relevant for the decision of this appeal are: the plaintiff and defendant were neighbours residing in thaloor mutt street, mysore city, me relations between tliem were not cordial the plaintiff, a lady aged about 60 years lives with her daughter aged about 30 years. the defendant is a milk vendor. on 14-12-1963, the defendant preferred a criminal complaint against the plaintiff, and her daughter, charringg them with offences under sections 355 and 504 of the indian penal code. the defendant alleged in the complaint that at about 10 p.m. on 13-12-1953 stones fell on his house, that on opening; his door, he saw.....
Judgment:

G.K. Govinda Bhat, J.

1. This is an appeal by the unsuccessful plaintiff in a suit for malicious prosecution. The Courts below dismissed Vie suit on the ground that the plaintiff lies failed to prove that the complaint filed by the defendant 4n C. C. No. 700/1954 on the file of the Second City Magistrate, Mvsome, was without reasonable and probable cause.

2. The facts relevant for the decision of this appeal are: The plaintiff and defendant were neighbours residing In Thaloor Mutt Street, Mysore City, me relations between tliem were not cordial The plaintiff, a lady aged about 60 years lives with her daughter aged about 30 years. The defendant is a milk vendor. On 14-12-1963, the defendant preferred a criminal complaint against the plaintiff, and her daughter, charringg them with offences Under Sections 355 and 504 of the Indian Penal Code. The defendant alleged in the complaint that at about 10 P.M. on 13-12-1953 stones fell on his house, that on opening; his door, he saw both the plaintiff and her daughter standing and abusing and that when the defendant protected, both H plaintiff and her daughter took out their shoes and advanced threatening to beat him with their shoes. Immediately after the alleged occurrence, the defendant plaintiff lodged a complaint in the Mysore City Police Station which was rejected Subsequently, he filed a complaint before the City Mysore, Mysore, charringg plaintiff and her daughter with offences Under Sections 355 and 504 of the Indian Penal Code. The defendant alleged in the complaint that at about 10 P.M. on 13-12-1953 stones fell on his house, that on opening his door, he saw both the plaintiff and her daughter standing and abusing and that when the defendant protested, both the plaintiff and her daughter took out their shoes and advanced thereateinght to beat him with their shoes. Immediately after the alleged occurrence, the defendant plaintiff lodged a compliantly in the mysore city police Station which was rejected Subseguently, he filed a complaint before the city Mysore Mysore charring the plaintiff and her daughter with offences Under Section 355 and 504 I.P.C.

The learned Magistrate, after obtaining a report tram the police, proceeded only against the plaintiff who was the first accused. The defendant was examined before Me learned Magistrate. Even in his examination-in-cement did not state that the plaintiff ever threatened to beat mm with shoes. The relevant portion of his evidence markeo Exhibits P-9 (a), (b) and (d) reads thus:

I know A-1. She resides in my neighboring cause. About months back at about 1U-ju p.m. A-2 apusea me after calling me out of my house. Then A-1 was not present.

A-1 was also present at the time of occurrence.

She was behind A-2. She also abused. I have repeated A-1 as she has been joining her daughter in abusing me'. By order dated 16-5-1954 made Under Section 253 (1) Of the Code of Criminal procedure the learned Magistrate discharged the plaintiff.

Against the said order, the defendant preferred Revision Petition No. 6 of 1S54 before the District Magistrate, Mysore, which was ultimately dismissed. On 9-4-1955 me plaintiff brought the suit claiming damages of us. luaus for malicious prosecution. The learned appellate Judge and also the trial Judge entertained erroneous vies of the law relating to malicious prosecution and that has vittateu their finding. The learned appellate Judge commences we discussion in his judgment with the following observations.It is an undisputed fact that in cases of this type the 'burden is very nervy on the plaintiff to establish mat complaint was filed against moor and that this was without reasonable or probable cause....

While there is no doubt that the burden is on trio plaintiff to prove lack of reasonable and procure cause, there is no rule of law) that the burden Is very heavy as imagined by the learned Appellate Judge. He further Deserve that barring the sworn testimony of the plaintiff, there is no other material to prove that the complaint tiled of the defendant was without reasonable or problem cause. He altogether ignored the complaint Emits I and the evidence of the defendant marked Exhibits P-9(a), (b) and (d) referred to above. The complaint filed by the defendant charged the plaintiff with two' separate oftenest: (a) the offence of criminal force with intent to dishonor the defendant punish-able Under Section 355 I.P.C. (b) intentional insult witan Intent to provoke breach of the peace punishable Under Section 504 I.P.C. But in his evidence before the criminal Court he did not utter word against the plaintiff of net having committed the offence Under Section 355, IPC The Courts below proceeded on the view that the plaintiff is not entitled to a decree if there is reasons Die and pro Dabble cause for filing the complaint. The learned Munsitf observes as follows:

From a perusal of the copy of the order Exhibit p-2 in C.C. No. 700 of 1954 it is clear that though the incident might not have happened in the manner alleged in the complaint petition, there was probable and reasonable) cause for the defendant to prefer a complaint petition against the plaintiff.

3. Where a plaintiff is charged with more tannins offence1 in one complaint, it is sufficient to show that nears was no reasonable and probable cause for some of charges in the complaint, though there may have been sacral cause for others. The law on this question is stated in Haisbury's Laws of England, (3rd Edn) volume 25, page 385 (Para 711) as follows:

If the plaintiff was indicted on more than one charge, It is sufficient for the plaintiff to show that there was no reasonable and pro Davie cause for some of the citrates tile Indictment, though there may have been such cause for ethers. If the Indictment contained only one charge, it is in general sufficient for the plaintiff to show that there was no reasonable and probable cause for part of the charge. Prof. Winfield in his text book of the Law of forts at page 651 states:If there be several; charges in an indictment, the rule as to reasonable and probable cause applies to all of them.

The classical definition of reasonable' and probable cause contained In the judgment of Hawkins J. in Hicks v. Faulkner (1881) 8 QBD 167 at p. 171 approved by the House 01 Lords in Herniman w Smith, reported in 1938 AC 305 Is as follows:

I should-define reasonable and probable cause to De an honest belief in the guilt of the accused eased upon a full conviction, founded upon reasonable heroines, of the existence of a state of circumstances, which, assuming them to be true would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.

This distinction between the subjective and the objective elements in the definition is made clear by Lord uenman, C. J., in Turner v. Ambler reported In (1847) 10 Q8 im at p. 260 in the following words:.the reasonable and probable cause for Instituting the prosecution must appear, not only to De Reducible in point of law from the farts, but to have existed in the defendant's mind at the time of his proceeding.

Lord Atkin said in Herniman's case:

If there is any evidence of a lack of honest once In the guilt of the accused on the part of the prosecutor, the fact whether he honestly believed or not is a disputed, but essential fact, on which the tide is to draw his conclusion, and is a question for the jury.

It thus appears that lack of honest betted destroys the defence of reasonable and probable cause, when the defendant himself did not support in his evidence the charge he find laid in the complaint, it is sufficient to mold that there was lack of honest belief in him that the plain tm committed that offence, in such circumstances, it cannot ca said that the defendant commenced the prosecution with an honest belief of the plaintiffs guilt.

4. There was ill will between the parties, me defendant did not rest what the police rejected his complaint; lie did not stop when the Magistrate ordered the aischarge of the plaintiff. He pursued the matter further on revision tetore the District Magistrate. The motive of the defendant In making the accusation cannot be said as vindication of justice. Therefore, the Courts below were in error m Dismissing the plaintiff's suit.

5. The question then is as to what damages Sonia be awarded. The plaintiff has claimed Rs. 100/- for expenses incurred in the criminal proceedings, and Rs. Ony for injury to her reputation. The Courts below nave cdsaiioweo the claim on the ground that the receipts for payment of fees to the lawyers were not produced, it is not dispute that the plaintiff was defended by a Header and the plaintiff has sworn that she has spent Rs. 100/- which sum cannot be regarded as excessive. Some damages have to do awarded for thespians' and suffering which the plaintiff had to endure as a result of the malicious prosecution. A sum of Rs. 100/- on this account win not be unreasowroising all circumstances into consideration, was the Was compensation payable to the plaintiff at a sum of Rs. 200/-.

6. For the above reasons, this appeal is allowed and the decree of the Court below is set aside, the paining will be entitled to a decree for Rs. 2007- (Rupees ms hundred) for damages and full costs in all the Courts.


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