1. This Letters Patent appeal by the plaintiff in a suit for damages for malicious prosecution is from a judgment of Tare, J., in second appeal No. 243 of 1957 whereby reversing the decision of the Second Additional District Judge, Sagar, he dismissed the plaintiffs suit.
2. The plaintiff's case, stated quite broadly, was that he was a respectable citizen of Khurai and of the State and was also President of the All India Digamber Jain Parwar Sab^a and of Municipal Committee, Khorai; that the respondent Sharma was on inimical terms with him and bore malice against him for various reasons; that in order to disgrace him Sharma as President of the Municipal Committee lodged a report with Khurai police that a road roller belonging to the Municipal Committee Bad been stolen by him and was lying on his farm; that when the police declined to take any action on this report the said respondent directed the second respondent Shridhar Ghanshayam, an employee of the Municipal Committee, to lodge a complaint against him, his brother and an agent in respect of an offence under Sections 379 and 411 I. P. C; and that on the 17th July, 1952, the complaint was dismissed by the Second Class Magistrate, Khurai, and he and the other co-accused were all discharged.
The plaintiff proceeded to aver that the prosecution launched by the respondents was without reasonable and probable cause and was with malicious intention- that the respondent knew full well that the roller had been sent by the Municipal Committee to the plaintiff's brother Dhannalal for the repair of a road leading to the plaintiff's farm and after the completion of repair works it was lying idle; and that on 11th January, 1951, his agent Kishansingh had addressed a letter to the President that the roller was lying idle on the farm and seeking instructions as to where the roller should be delivered. Kishansingh had also added in the letter that even previously he had asked several' times the Municipal employees to nominate the place for the delivery of the roller but they failed to give any reply. On these allegations the plaintiff claimed damages to the extent of Rs. 3,901-8.
3. Both the defendant-respondents defied the plaintiff's claim and the allegations about malice and the prosecution having been instituted without reasonable and probable cause. The respondent Sharma pleaded that when the matter of loss of roller was brought to his notice by the other respondent he as the President of the Municipal Committee made a report to the police and, on the failure of the police to take any action, approved the filing of criminal complaint against the culprits; and that in doing so he acted bona fide and in the interest of the Municipal Committee. The other defendant also raised a similar plea.
4. The Civil Judge, Class II, Khurai, who tried the suit found that the prosecution of the appellant was not without any reasonable and probable cause and with malicious intention. He accordingly dismissed the plaintiffs suit. In appeal, the learned Additional District Judge found both want of reasonable and probable cause and malice established. He, therefore, gave to the plaintiff a decree for Rs. 3,908-8 made up of Rs. 101-8 on account of expenses incurred in defending himself in the criminal case and general damages of Rs. 2,300/- on account of mental worry and Rs. 1,500/- on account of loss of reputation.
In second appeal. Tare, J., took the view thatthe respondents had succeeded in establishing thatthe prosecution was with reasonable and probablecause and with the intention of carrying the lawinto effect and not with any malicious intention.On this finding the decision of the AdditionalDistrict Judge was set aside and the judgment ofthe trial Court dismissing the plaintiff's suit wasrestored.
5. There is no dispute that the criminal proceedings which were initiated on the complaint filed by the respondent Shridhar Ghanshyam on the instructions of the respondent Sharma were dismissed by the Court and the appellant and the other co-accused were discharged. In the lower Courts a faint suggestion was made that the respondent Sharma himself was not the prosecutor inasmuch as the complaint was filed actually by the other respondent.
The suggestion did not merit any consideration. As pointed out by the Privy Council in Gaya Prasad v. Bhagat Singh, ILR 30 All 526 (PC) in all cases of this kind the question as to who was the prosecutor must be answered upon the whole circumstances of the case and that any per-son actively instrumental in putting the criminal, law in motion would be a prosecutor, and such a person Cannot be allowed to escape liability because the prosecution was not directly initiated or con-ducted by him.
The respondents admitted that the filing of the complaint by Shridhar Ghanshyam was at the instance of the respondent Sharma and under his orders. The respondent Sharma was thus clearly the prosecutor and if it is found that he caused the complaint to be filed without reasonable and probable cause and with malice, then he would be clearly liable for damages.
6. Now the question of reasonable and probable cause depends on the facts as known to the defendant who initiated the prosecution; and when the facts upon which the prosecutor acted have been ascertained and when the facts operating on the prosecutor's mind at the time of the prosecution are known, the Court has to determine whether those facts afforded reasonable and probable cause for prosecuting the accused. If those facts did afford reasonable and probable cause, then the prosecution would be justified and it would not as a rule be necessary for an inquiry to be made into the prosecutor's belief. The state of belief of the prosecutor goes to malice, but not as a rule to reasonable and probable Cause.
This view is supported by the observations of Lord Goddard, C. J., in Tims v. John Lewis and Co. Ltd., 1951-1 All ER 814 and Denning, L. J., in Tempest v. Snowden, 1952-1 All ER 1. In the first case Lord Goddard pointed out that the question whether there was reasonable or probable cause is not to be determined subjectively, but that that is a question which objectively the Court has to decide on the evidence before it. In the other case Denning, L. J., said that the question of reasonable and probable cause had to be determined on the facts as known to the prosecutor and that the proposition that to have a reasonable and probable cause there must be an honest belief of the guilt of the accused cannot be regarded as a universal proposition applicable to ail cases.
The question, therefore, whether on certain facts found the inference about the want of reasonable and probable cause can be drawn is, according to the principles summarised in Sree Mee-nakshi Mill's Ltd. v. Commissioner of Income-tax, (S) AIR 1557 SC 49, a mixed question of law and fact. It is on those principles that the question whether the prosecution launched by the respondents was without reasonable and probable cause has to be determined.
7. Now the facts found by the learned Single Judge and the learned Additional District Judge, Sagar, are that the respondent Sharma was absconding for some time as he was wanted in a criminal case and that when he appeared in the town a report was made to him that a roller belonging to the Municipal Committee was not traceable. On 11th January, 1951, a letter was addressed by the plaintiff-appellant's agent Kishansingh to the President i.e. to Sharma soliciting instructions about the return of the roller and the place of its delivery.
On 15th January, 1951, the respondent Sharma made a report to the police and when the police refused to take any action a criminal complaint was filed by the respondent Shridhar Ghanshyam on 22nd February, 1951. The respondent Sharma was expected to make enquiries about the roller said to be untraceable and as to how the roller came in possession of the appellant when his agent informed him that it was lying on the farm and that it would be delivered at a place nominated by the municipal authorities, but he made no such enquiries.
In his evidence the respondent admitted that very often articles belonging to the Committee were lent without any charge being made and that he made no enquiries from the members or any Vice-President as to whether the plaintiff-appellant's brother had been granted permission to take the roller for use. He even admitted that he did not care to find out as to who took away the roller; that nobody told him that the appellant himself removed the roller; and that he did not bother to ascertain from Dhannalal anything about the removal of the roller.
The evidence of the defence witnesses also shows that no enquiry was made by anyone as to how and in what circumstances the roller could not be traced or came into possession of the appellant. It is also clear from the evidence that the records of the Municipal Committee were not properly kept and an application which Dhannalal had made for being allowed the use of the roller could not be traced. On these facts the learned Additional District Judge came to the conclusion that there was no reasonable and probable cause for the filing of the criminal complaint that the respondents did.
In that conclusion he was undoubtedly right. A road roller is not a thing which can be pocketed by anyone at any time. It cannot be removed from one place to another easily and without the aid of several persons. The circumstances in which the roller came to the appellant's farm must have been known to the municipal authorities. The respondent Sharma was absconding for some time and was not in the know of the events that took place at Khurai during his absence. It was, therefore, all the more necessary for him to have made due enquiries before rushing to the police to lodge a report against the appellant and then in persisting in filing a complaint when the police declined to take any action.
8. The learned Single Judge agreed with the finding of the Additional District Judge that the roller was removed by the appellant and his brother with the consent of Manekchand and the Junior Vice-president Laxmanprasad Choubey and that this consent relieved the appellant of the initial burden that lay on him to show absence of reasonable and probable cause. He further observed that this shifted on the respondents the burden of establishing the existence of reasonable' and probable cause and that according to the decision in Sitaram v. Dudharam, ILR 1953 Nag 529 : (AIR 1952 Nag 310) there would be a presumption of want of reasonable and probable cause by the very fact of discharge or acquittal. The learned Single Judge disagreed with the view of the first appellate Court that the respondent Sharma should have made enquiries as to how the roller came into the possession of the appellant. On, this point the learned Single Judge expressed thus:-
'I feel that the learned appellate Judge has set up a standard of conduct for the president of the municipal committee, which is neither practicable nor warranted by the provisions of the Act, the rules or the bye-laws. The scope of the enquiry can be summary and an ordinary man of prudence would make and nothing more. If the first appellant could not find any papers in the municipal record and if the fact of consent having been given to him was not prima facie established, he could, as a prudent man of ordinary diligence, infer that the removal was unauthorised. In addition, there was another factor that even if the loan be granted for a short period, the retention of the roller for more than 11 months was certainly unauthorised. In no case was the retention of the roller for more than 11 months justified even by the alleged grant of consent given by Laxmanprasad. If, therefore, under these circumstances the first appellant decided to launch a prosecution against the respondent, his action cannot be said to be without a reasonable and probable 'cause.'
With due respect to the learned Single Judge we are unable to agree-with this view. Any prudent man placed in the position in which the respondent Sharma was would have taken care to make full enquiries about the missing roller before moving a criminal Court against the appellant. The fact that the said respondent happened to be the Municipal President makes no difference at all in the exercise of prudence and care expected from a reasonable man.
The retention of the roller for a long period might have been unauthorized, but the retention by itself was no prima facie proof of the fact that it had been stolen by the appellant. The question as to whether on the report made to him and the facts of which he was aware the respondent Sharma was justified in his belief that the appellant had committed a theft is wholly immaterial. As we have endeavoured to point out earlier, the state of the prosecutor's belief goes to malice, but not as a rule to reasonable and probable cause.
In fact, if on the basis of the report not of theft but of the roller being untraceable and without any enquiry the respondent Sharma entertained a belief about the roller having been stolen by the appellant, that belief cannot be regarded as of a reasonable and sensible man. The conclusion reached by the Single Judge about the existence of reasonable and probable cause seems to us altogether non sequitur. It does not at all follow from the facts found.
9. As to the malice on the part of the respondents that is amply evident not only from the pleadings made by the said respondent Sharma but also by the evidence he gave. In his pleadings Sharma stated that the plaintiffs status could not be measured by his affluence and that a person who could use municipal property gratis had no reputation Which could be lost. In his evidence he admitted that there was considerable litigation between him and the appellant and that they were political rivals. He also admitted that he was instrumental in acquiring some lands belonging to the plaintiff. These circumstances coupled with the fact that the respondent Sharma formed a belief as to the appellant having committed a theft of the roller on no material whatsoever amply show malice on the part of the respondent in prosecuting the appellant.
10. Here it is necessary to refer to the decision in ILR (1953) Nag 529 : (AIR 1952 Nag 310) on which the learned Single Judge relied in support of the proposition that the production of the judgment in the criminal case acquitting the accused is sufficient to discharge the plaintiff's burden of proving want of reasonable and probable cause for the prosecution. With all respect to Deo, J., who laid down that proposition, we must say we do not agree with it. The reasoning of Deo, J., is that innocence is proved by proving acquittal in criminal proceedings where the prosecutor must know whether his accusation against the accused is true or false; and that if the accused is innocent it follows that the prosecutor must be telling a falsehood and there must be a want of reasonable and probable cause.
It appears to us trite to say that the fact that an accused has been acquitted in criminal proceedings does not necessarily imply that the accusation against the accused person was false to the knowledge of the prosecutor. Many prosecutions fail for technical reasons. As we have pointed out above, the question of reasonable and probable cause has to be determined upon facts as known to the prosecutor at the time of the launching of the prosecution. That being so, the fact that the prosecution ended in the acquittal of an accused can never come into the determination of the question of reasonable and probable cause.
11. Shri Mukerji, learned counsel for the respondents, urged that the plaintiff should not be given the damages which he had claimed and which were high. Learned counsel referred us to Mehtab v. Balaji, ILR (1946) Nag 358 : (AIR 1946 Nag 46) in which Sen, J., held that in a case of malicious prosecution the damages awarded are in the nature of a solatium to the plaintiff and are not intended as a punishment to the defendant or for enriching the plaintiff. This proposition laid down by Sen, J., was not accepted by a Division Bench of this Court in Manijeh v. S. P. Kotwal, ILR (1949) Nag 74: (AIR 1949 Nag 273).
The Division Bench took the view that a malicious prosecution is one of the torts in which vindictive damages are permissible. Here the trial Court did not record any finding about the quantum of damages. The learned Additional District Judge awarded Rs. 3,800/- as general damages on account of mental worry and loss of reputation in view of the social status of the plaintiff. The assessment of damages due to loss of reputation and worry on considerations such as social status of the plaintiff must always be to a certain extent arbitrary. The evidence as to the mental worry and loss of reputation caused to the plaintiff here is not very precise.
Shri Seth, learned counsel for the appellant, however, frankly stated before us that the plaintiff was utterly indifferent to the amount of damages and all he was interested in was the vindication of his position and stand that the prosecution launched by the respondents was malicious and without any basis. In these circumstances we are of the opinion that it would meet the ends of justice if the plaintiff-appellant is awarded Rs. 1,000/- as general damages and Rs. 101/8/- as damages for the expenses he had to incur in defending himself in the criminal case.
12. For these reasons the decision of the learned Single Judge is set aside and the plaintiff-appellant is given a decree for Rs. 1,101/8/- against both the respondents. The plaintiff shall have costs throughout. The respondents shall bear their own costs in all the Courts.