Tudball and Muhammad Rafiq, JJ.
1. This appeal arises out a suit for damages for malicious and false prosecution. The facts as found by the court below may be briefly stated as follows;--The defendant respondent, Qurban Ahmad, preferred a complaint of offences under sections 504 and 506 of the Indian Penal Code, and Section 107 of the Code of Criminal Procedure, against the plaintiff appellant. The complaint was filed in the court of the Joint Magistrate, who transferred it to the court of a Benoh of Honorary Magistrates for trial of the offence under Section 504 of the Indian Penal Code. A date was fixed and summons was issued to the present appellant, who was one of several accused. On the date fixed Qurban Ahmad and his witnesses appeared, but the latter apparently were unwilling to give evidence on his behalf and he wanted a further adjournment. The court ordered him to pay the expenses of the whiteness who had appeared within an hour. He failed to do so, and so the complaint was dismissed. There Qurban Ahmad allowed the criminal matter to rest. The plaintiff appellant then brought the present; suit for damages. The lower appellate court found on the evidence that the complaint preferred by Qurban Ahmad was false and malicious. It assessed the damages at Rs. 140, and it gave the plaintiff a decree for that amount. The defendant appealed to this Court), and, the case coming before a learned Judge, the appeal was allowed. The Court placed reliance upon the case of Nalliappa Goundan v. Kailappa Goundan (1909) I.L.R. 34 Mad. 59, and hold that there had been no prosecution, that the lower appellate court Finding upon the evidence was a very halting conclusion - and that its finding was not sufficiently distinct and certain. It allowed the appeal and dismissed the suit. Before us it is pleaded with considerable force that there clearly had been a prosecution of the plaintiff; that this Court is bound by the finding of the lower appellate court on the actual facts that that prosecution was false and malicious, We think that the facts of this case clearly constitute prosecution, for the accused person was actually summoned into court and appeared to answer the charge. We do not think the case quoted is at all applicable to the circumstances of the present case, and it certainly is not in accord with the case of Bishun Persad Narain Singh v. Phulman Singh (1914) 19 C.W.N. 935 or the case of Ahmedbhai v. Framji Edulji (1903) I.L.R. 28 Bom. 226. It was no fault of the present appellant that the Bench of Honorary Magistrates dismissed the complaint without hearing the evidence. The defendant Qurban Ahmad had done all that it was possible for him to do to prosecute the present plaintiff and the latter was actually dragged into court. We have examined the judgment of the lower appellate court, and though it has used the expression, ' I am inclined to think that the criminal complaint was not true,' an examination of the judgment as a whole shows that the lowest appellate court was on the evidence, convinced that the prosecution was false and malicious.. It points to certain strong circumstances and it distinctly says: 'Under such circumstances it can be safely inferred that the complaint was false, and ended by saying therefor decide the second issue against the defendant respondent. We think that there was a clear. finding by the court blow that the prosecution was false and' malicious That finding is binding upon us as there is no certificate to the effect that there is no evidence to support it. We are also band by the finding as to the extent of damages. We think that the appeal in this Court should have been dismiss-d, We, therefore allowed this appeal. We Set aside the decree of this Court and We restore the decree of the lower appellate court. The appellant will have his costs in all courts.