S. Barman, J.
1. In this second appeal, the defendant is the appellant from a decision of the learned Subordinate Judge, Balasore, confirming a decision of the learned Munsif of Bhadrak in a suit for damages filed by the plaintiffs-respondents for malicious prosecution.
2. The matter out of which this case arose was a criminal case filed by the defendant-complainant against the plaintiff-accused under Sections 392 and 323, Indian Penal Code. Plaintiff No. 1 was the uncle of plaintiff No. 2 and they were living jointly. They were the Sevayats of the famous deity Akhandaleswar at Aradi in the district of Balasore. It appears that since before the date of the incident there were both criminal and civil litigations between the defendant-complainant and the plaintiffs-accused with the result that feelings between the parties were embittered and the alleged animosity of the defendant-complainant against the plaintiffs-accused is stated to be the genesis of the criminal case in which the defendant was the complainant against the accused plaintiffs.
On 25-10-1951 the defendant-complainant lodged First Information Report recorded by the A. S. I. P. W. 2 in charge of the local police station alleging that while he was coming that day at 9 A. M, to Chandbali with a sum of Rs. 100/-received from one Naran Padhi to be delivered to one Maheswar Behera, he is alleged to have been robbed of the said amount by plaintiff No. 2 after which plaintiff No. 1 came and assaulted him. The Police however submitted Final Report in the case. The defendant, not being satisfied with the Police report, pursued the matter and filed a petition to the Magistrate and thereupon the accused persons were summoned. Plaintiff No. 2 was charged under Section 323, Indian Penal Code. In due course, the accused persons were tried and they were acquitted by the Sub-divisional Magistrate by an order made by him on 17-2-1953.
3. Upon the criminal case having failed, the plaintiffs-accused brought the suit against the defendant-complainant for malicious prosecution. The plaintiffs-accused claimed that they are respectable men in the locality being the worshippers and Sevayats of Lord Akhandaleswar, a renowned deity installed in village Aradi and having jajmans from all parts of the country. As for the back-ground of the criminal case it is stated that the defendant had some animosity towards plaintiffs as they had purchased certain property from one Laxmi Bewa in competition with the defendant-complainant.
It is also in evidence that the defendant-complainant had earlier filed several petitions against plaintiff No. 2 and also brought another criminal case against both the plaintiff-accused under Sections 323 and 379, Indian Penal Code and in all the Courts -- from the Court of the Magistrate right up to the High Court -- the defendant-complainant could not secure their conviction. It was in this back ground that in October 1951 the defendant-complainant is stated to have lodged the false First Information Renort before the Police alleging that the plaintiffs-accused had robbed and assaulted him as aforesaid.
The damages that the plaintiffs-accused prayed for in the plaint for loss of prestige and for mental agony were claimed to be Rs. 1,000/- and Rs. 920/4/- as costs of defending themselves in the Criminal case: but later on they gave up the claim of Rs. 920/4/- and sued for recovery of Rs. 1000/-.
4. The learned Munsif as the court of first instance decreed the suit in part for a sum of Rs. 456/- with full costs in favour of the plaintiffs-accused. The defendant-complainant appealed from the decision of the learned Munsif and the said appeal was dismissed by the learned Subordinate Judge. It is against this decision of thelearned Subordinate Judge that the defendant has filed the present appeal before this Court.
5. Mr. Harihar Mohapatra, learned counsel appearing for the defendant-appellant, contended that the plaintiffs-accused not having made a case of malice in the plaint and there having been no issue raised as to malice, their claim must fail. It is indeed true that no specific issue was raised before the trial court as to the alleged malice. An issue being issue No. 2 was however raised as to whether the plaintiffs-accused were entitled to damages for want of reasonable and probable cause in instituting the criminal case against the plaintiffs-accused.
The question arises whether the finding by the trial Court as to the presence or absence of malice under this issue would be sufficient for the purpose. The learned Counsel also contended that the onus of proof of malice which wag on the plaintiffs-accused had not been discharged by them and that there was no evidence adduced before the trial Court as to malice -- In this context, he drew my attention to the finding of the trial court On issue No. 2 where the learned Munsif found that the plaintiffs-accused were maliciously prosecuted although there was no specific issue raised as to malice.
Then again, the lower appellate Court, on appeal, also assumes that malice had been established. In this context my attention was drawn to the last paragraph of the lower appellate Court's judgment where the learned Subordinate Judge observed that the findings of the trial court were substantially correct and in the special circumstances of the case it may be accepted that there was no reasonable and probable cause for the institution of the case and on that basis the learned Judge held that there was malice which was satisfactorily established in view of the animosity that was existing between the parties as aforesaid.
In this connection, the learned counsel also drew my attention to the Criminal Court Judgment Ext. 6 by which the accused persons were acquitted of the charges. The learned Counsel further contended that the lower appellate Court was wrong in inferring absence of reasonable and probable cause from the mere fact of acquittal of the accused persons as their innocence had been established.
In this connection he sought to distinguish the decision of the Patna High Court in Darsan Pande v. Ghaghu Panda, AIR 1948 Pat 167, on which the lower appellate court relied for its finding that a presumption arose as to want of reasonable and probable cause from the innocence of the plaintiffs-accused. This decision supports the view that where the complaint filed by the defendant-complainant which initiated the prosecution was in respect of an offence which the defendant-complainant claimed to have seen the plaintiffs-accused committing and that the trial ended in acquittal, there will be a presumption in favour of the plaintiffs-accused that there was no reasonable and probable cause of the accusation and that it was for the defendant-complainant to rebut that presumption.
Mr, Mohapatra contended that mere innocence of the plaintiff-accused was not sufficient and that animosity was no evidence of malice. In support of his argument he drew my attention to paragraph 6 of the plaint where the plaintiffs-accused pleaded that the defendant complainant had falsely ('Mith-yare') and not maliciously filed the criminal case against them.
Furthermore, on the pleadings as it stood, no issue could be raised as to malice and in fact no issue was raised specifically on malice before the trial Court. I do not however accept this contention as tenable. In my view, there having been concurrent findings of both the Courts below that there was absence of reasonable and probable cause and that the plaintiffs-accused were prosecuted maliciously and that case ended in acquittal of the plaintiffs-accused was sufficient to hold the defendant-complainant liable for malicious prosecution. Besides, both these questions as to absence of reasonable and probable cause and malice are questions of fact and not of law.
6. An outstanding feature in the present case was the fact that the defendant himself, as the complainant is stated to have brought the charges against the plaintiffs-accused on facts within the personal knowledge, namely, that he was robbed of the money in his possession and assaulted by the plaintiff-accused. In this case the accusation against the plaintiffs-accused was in respect of offences under Sections 323 and 392, Indian Penal Code which, as the defendant-complainant complained, were directly committed against him on a certain date and at a certain time.
The question was whether or not the accusation was totally false. It was not a case where the complaint was based on information which the defendant believed to be true, The distinction between the two lines of cases, namely, -- one based on knowledge and the other on information, --has to be kept in view in deciding a suit for malicious prosecution. Where the complainant, as in the present case, had lodged the First Information Report with the Police that he himself had been robbed and assaulted by the plaintiffs-accused and when the Magistrate found that the charges had not been established, then certainly the court has to consider the case differently from a case where the complaint was based merely on information.
7. The term 'malice' means the presence of some improper and wrongful, motive -- that is to say, an intent to use the legal process in question for some other than its legally appointed and appropriate purposes (Salmond on Torts 12th Edition (595). Malice can be presumed from the facts as they transpire from the evidence at the trial. This High Court in Nityananda Mandhata v. Binayak Sahu (S) AIR 1955 Orissa 129, held that a mere absence of reasonable and probable cause does not justify, as a matter of law, the conclusion that the prosecution was malicious, though it is quite conceivable that the evidence which is sufficient to prove absence of reasonable and probable cause may also establish malice.
The evidence clearly showed that the plaintiffs-accused and the defendant-complainant were at logger heads and that the parties bore grudge against each other and the defendant-complainant had gone to the extent of implicating the plaintiffs-accused in a false case in which the latter were ultimately acquitted. On such facts, the High Court held that in launching the prosecution the defendant-complainant was actuated by malice.
In the present case before me as pleaded in paragraph 2 of the plaint, there were Civil and Criminal litigations between the parties. Although no specific issue as to malice was raised at the trial, it did not in any event prejudice the parties. On Issue No. 2 as to absence of reasonable andprobable cause the trial Court on evidence found as a fact that the defendant-complainant had acted maliciously. That in my view is sufficient finding of malice although no specific issue was raised.
Their Lordships of the Supreme Court in Nagubai Ammal v. B. Shama Rao, (S) AIR 1956 SC 593, held that the rule -- that evidence let in no issue on which the parties actually went to trial, should not be made the foundation for decision of another different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence, -- has no application to a case where the parties go to trial with the knowledge that a particular question is in issue, though no specific issue had been framed thereon and adduce evidence relating thereto.
In the present context although no specifier issue as to malice was raised in the pleadings of the plaintiffs-accused and no specific issue was directed to that question the defendant-complainant went to trial with full knowledge that the question of malice was in issue, had ample opportunities to adduce evidence thereon and fully availed himself of the same. In such circumstances, the absence of specific pleadings on the question was a mere irregularity which resulted in no prejudice to the defendant-complainant.
8. On the question that malice is only a question of fact and not of law, there are ample authorities which were cited before me by Mr. G.K. Misra, learned counsel appearing for the plaintiffs-accused. The Privy Council in Pestonji Muncherji Mody v. Queen Insurance Co., ILR 25 Bom 332, held that in India where the case is tried without a jury the question as regards both malice and the absence of reasonable and probable cause is really nothing but a question of fact and a question to be determined by one and the same person, namely, the Court.
The Madras High Court in Mushtoorappa v. Hanumanthappa, AIR 1947 Mad 236, following the Privy Council decision just cited above held that the question whether, in a suit for damages for malicious prosecution, there was malice or absence reasonable and probable cause on facts found by the lower courts, is not a question of law and cannot be gone into in Second appeal.
In a later decision of the Madras High Court Govinda Menon, J. in Chellu v. Municipal Council Palghat, (S) AIR 1955 Mad 562, held that if the finding regarding the absence of reasonable and probable cause and malice is based upon relevant and admissible evidence, then the question is one of fact and the High Court is precluded from going behind the conclusion of fact arrived at by the Courts below.
The Privy Council again in C. Sabhapathi v. G. Huntley, AIR 1935 PC 91, held that the finding of the learned Judges of first instance on the Question of malice is a finding in fact. The state of a man's mind is as much a fact as the state of his digestion. Their Lordships accordingly saw no reason for disturbing the finding of the Lower Court on the question of fact.
9. The question whether or not the Criminal Court judgment Ext. 6 was admissible in evidence for the purpose of deciding if the complainant bad reasonable and probable cause for making the complaint in the criminal case was strongly urged in course of the hearing of this appeal. Mr. G.K. Misra on behalf of the plaintiffs contended that in a Civil suit for damages for malicious prosecution, the judgment of the Criminal Court can be used only in proof of the fact that the Criminal proceedings terminated in favour of the plaintiffs-accused.
In support of the contention, he relied on a decision of the Madras High Court in P. Venkatapathi v. G. Balappa, AIR 1933 Mad 429, where it was held that the Civil Court cannot take into consideration the grounds upon which the acquittal was based. It lies upon the Civil Court itself to undertake an entirely independent enquiry before satisfying itself of the absence of reasonable and probable cause.
A criminal court judgment is not admissible in evidence except for the purpose of finding out whether or not the decision in the criminal case was in favour of the accused. Mr. Harihar Mohapatra however on behalf of the defendant-complainant while urging the contrary issue, relied on a passage in a decision of the Privy Council in Braja Sunder Deb v. Bamdeb Das, AIR 1944 PC 1(4).
It appears that their Lordships examined the record in the criminal proceedings from which they found that the witnesses never seemed to have been specifically challenged on the matter and further that it was not until the civil proceedings were heard that it was asserted that no money passed in connection with alleged charge under section 372 Indian Penal Code for selling or letting to hire of a girl under 18 years for prostitution or illicit intercourse.
The passage was relied on for the purpose of showing that the records in the criminal proceedings were not ignored altogether in the civil suit. The Calcutta High Court in Rai Jung Bahadur v. Rai Gudor Sahoy 1 Cal WN 537, held that in a suit for damages for malicious prosecution, the order of the Criminal Court acquitting the plaintiff is admissible in evidence.
Although the reasoning in the Criminal Court judgment and the conclusions drawn from them are not binding or conclusive yet the judgment may be looked into for the purpose of seeing what the circumstances were which resulted in the acquittal. Ordinarily absence of a reasonable and probable cause in instituting a proceeding which terminates in favour of the plaintiffs-accused would give rise to the inference of malice.
In my opinion, the Madras view as expressed in the decision cited above seems to be extreme. It is not that the judgment of the Criminal Court has to be ignored altogether but it should not be Telied upon as conclusive for deciding the civil suit for malicious prosecution. A Civil Court has to go into the matter on the evidence adduced before it in the civil suit independently of the view expressed by the Criminal Court.
The sense in which it is said that the Criminal Court Judgment is not admissible in evidence is that apart from the fact of the result of the Criminal Court judgment, namely, its termination in favour of the accused persons, the observations of the Criminal Court or the reasoning on which the order of acquittal is based is not to be accepted as conclusive.
Mr. Harihar Mohapatra while further pursuing his point, contended that in the two lines of cases, -- namely, cases where the complaint is based on personal knowledge of the complainant and cases where the complaint is based on information, --the nature of acquittal has to be kept in view, that is to say, whether it is- by way of giving benefit of doubt or whether it was based on weakness of evidence or lastly whether it was an acquittal on merits.
Mr. Mohapatra tried to distinguish all the cases where the plaintiffs succeeded as instances of acquittal on merits. In the context he referred to a decision of the Patna High Court in Taharat Karim v. Malik Abdul Khaliq, AIR 1938 Pat 529, where from the judgment it appears that it was referred to as a case of acquittal on merits and hence, according to the learned counsel, the plaintiffs succeeded in the suit for malicious prosecution.
Then he also referred to the said decision of the Patna High Court in AIR 1948 Pat 167, where on a finding of innocence of the accused, they as plaintiffs in a suit for malicious prosecution also succeeded in getting damages. Mr. Mohapatra then argued that in the present case before me it was not a case of acquittal on merits and according to him it was an acquittal based on weakness of evidence.
For determination of the question be invited my attention to the Criminal Court Judgment Ext, 6. As already discussed above, the Criminal Court Judgment is not wholly conclusive. In any event it is clear that the evidence of the witnesses was not acceptable to the learned Magistrate and the prosecution evidence was extremely weak. Besides, it appears from the judgments of the courts below that the alleged eye-witnesses had been disbelieved by them.
As to what precisely is meant by 'acquittal on merits' in strict sense, is not quite clear. I do not see why an acquittal on the ground of extreme weakness of the prosecution evidence, as in the present case, should not be treated as an acquittal on merits. It is indeed true that an acquittal by way of giving benefit of doubt in an acquittal not on merits. The present case however was not a case where benefit of doubt was given to the plaintiffs-accused in the criminal case. I am of opinion that in the present case the acquittal on the ground of extreme weakness of the prosecution evidence on the facts and in the circumstances of this particular case was an acquittal on merits.
Besides, the lower appellate Court in its judgment noticed that the criminal case was started against the plaintiff-accused at the direct instance of the defendant-complainant in spite of the fact that the police upon enquiry into the case not only submitted the final report but also directed a case under Section 211 Indian Penal Code against the defendant-complainant for making false charge whereupon the defendant-complainant filed a protest petition before the Sub-divisional Magistrate, Bhadrak, and it was on this protest petition that a charge-sheet was called for by the Sub-divisional Magistrate; but ultimately at the trial the plaintiffs-accused were found innocent of the charge and were 'acquitted honourably'.
The learned Munsif on appreciation of the evidence of the witnesses called before him at the trial also expressed that he had no doubt that the alleged occurrence was entirely false. I have carefully considered both the judgments of the Courts below and I am satisfied that both the lower courts proceeded on the basis that the plaintiffs-accused were found innocent of the charge and were acquitted honourably.
In view of this finding, assuming Mr. Mohapatra's contention as to the effect of acquittal on merits is correct, even then on his own propositionwe take the view that this was a case of the plaintiffs-accused's acquittal on merits and therefore the decisions of the Patna High Court cited above should be applicable to the present case also.
10. On the question of onus of proof in a case, as in the present case, where the complaint was made by the defendant-complainant on facts based on his personal knowledge as aforesaid, such burden of proof is different from a case where the complaint is based on information believed to be true. This aspect of the matter was discussed in an unreported decision of this Court in Niku Tarini v. Kapi Beroo, (Second Appeal No. 490 of 1950 D/- 11-1-1955, Panigrahi C. J. and Misra J.)
In this context, I fully agree with the view of Dhavle J. in AIR 1938 Pat 529, which was subsequently followed in AIR 1948 Pat 167. Where the complaint against the plaintiffs was in respect of an offence which the defendant claimed in a criminal proceeding to have seen them committing, as the complainant himself was robbed and assaulted as alleged by him, and the trial ended in acquittal on merits, there would be a presumption in favour of the plaintiffs that there was no probable and reasonable cause for the accusation.
In the present case, the accusation against the plaintiffs-accused was indeed based on personal knowledge of the defendant-complainant. The defendant-complainant's case however was not accepted by the Criminal Court and the plaintiffs-accused were acquitted. Besides, there was also a case instituted against the defendant-complainant under section 211 Indian Penal Code for making false charge against the plaintiffs-accused.
Incidentally, it has to be noticed that the Police initially had submitted Final Report for want of evidence in the case. But the defendant-complainant pursued the matter and made a petition to the Magistrate upon which the criminal proceedings were started and brought to trial. These facts are sufficient to show absence of reasonable and probable cause and presence of malice.
11. In this view of the matter, the contentions urged on behalf of the defendant-appellantare not acceptable. The decision of the courtsbelow is upheld. The result, therefore, is thatthis appeal fails and is dismissed with costs.