G. Balagangadharan, J.
1. Appellant was the defendant in a suit for malicious prosecution.
2. Plaintiff and defendant are doing business in adjacent rooms at Kilimanoor Junction. On 14-6-1963 the defendant preferred a complaint C. C. 125 of 1963 (Ext. P1) in the S. D. M. Court, Attingal against the plaintiff for the offences under Sections 114, 506(ii), 427 and 379, I. P. C. The substance of the complaint was that the previous night (13-6-1963) at about 9 o'clock, the plaintiff and others formed into an unlawful assembly armed with lethal weapons like choppars, sticks, daggers etc. trespassed on his property, destroyed the southern wall of his shop which touched the plaintiff's shop, in order to put a door, and cut off the rafters and at the approach of the defendant the plaintiff rushed at him with a dagger, that the defendant ran off and escaped and that he also intimidated him shouting abuses and threatening to lull him. The motive alleged was that the plaintiff was disappointed at the defendant's conduct in purchasing the property at a price higher than he was prepared to offer. The Magistrate took the complaint on file for offences under Sections 379, 427 and 306(ii) and issued a bailable warrant for the plaintiff--there was a prayer for warrant in the complaint. The plaintiff was granted bail by the police and later he appeared in court on 28-6-1963 and took bail. After four hearings, on 19-8-1963 the defendant filed an application Ext. D4 that as he had filed a Civil suit for damages and other reliefs in respect of the property and as his witnesses to the occurrence had turned hostile and he has no other witness the case might be closed at that stage. He also gave a deposition (Ext. D5) to that effect. The same day the Magistrate passed the order Ext, P2, discharged the plaintiff under Section 253(2), Criminal Procedure Code, finding that the complaint was groundless. Thereafter the plaintiff brought this suit for damages for malicious prosecution claiming Rs. 3,300/-made up of Rs. 300/- for obtaining bail and for defending the complaint, Rs. 1,000/- for mental and bodily suffering, Rs. 300/- for loss of business and Rs. 1,500/- for loss of reputation,
8. The defendant resisted the suit contending that there was reasonable and probable cause for the complaint, that he acted in good faith and was not actuated by malice or ill-will and that the plaintiff has suffered no damages.
4. Both the courts below held following Appukuttan v. Makkappan, 1965 Ker LT 1054, that if a man acts on his personal knowledge, then the fact that the complaint was a false one will raise a presumption that there was absence of reasonable and probable cause and that malice existed, unless it was shown that his memory was defective or that there was some valid ground for misapprehension. In this view they held that the burden of rebutting this presumption lay on the defendant and that as he had not discharged it, by giving any evidence, he was liable. On the quantum of damages the trial Court fixed Rs. 100/- towards defending the prosecution and Rs. 100/- on account of mental agony. It gave the plaintiff a decree for Rs. 200/-with interest at 6% per annum from date of suit and proportionate costs. This decree was confirmed by the lower appellate court which dismissed the appeal by the defendant, directing both sides to suffer the costs. The plaintiff had also filed a memorandum ofcross-objections, claiming Rs. 1000/- more towards damages and the full costs of the trial Court This was filed out of time and the court dismissed both the application to condone the delay and memorandum of cross-objections,
5. Defendant challenges the decree of the court below, while the plaintiff has filed a memorandum of cross-objections, making the same claim as before the lower appellate court.
6. The principal argument in support of the appeal was that the courts below erroneously assumed that because the complaint was laid on facts which occurred within the defendant's personal knowledge and the plaintiff was discharged finding the complaint to be groundless, there was a presumption in favour of the plaintiff, that the prosecution was without reasonable and probable cause and actuated by malice. Counsel for the appellant also said that the above view expressed in 1965 Ker LT 1054 on which the courts below have relied had not been shared by any other decision of this Court and should not therefore be followed or it should be reconsidered by a bench. But the question in the form in which it arose did not fall to be considered in any of the subsequent decisions quoted before me and no case was cited in which it was dissented from. It is also worth noting that in certain other courts a similar view had been taken. In Mohammad Daud Khan v. Jai Lal AIR 1929 All 265, it was held that after the decision in Lalbhaddar v. Sadri Sab, AIR 1926 PC 46, the plaintiff in an action for malicious prosecution had no longer to prove that he was innocent and that when that burden is removed from him, the evidence will have to be examined from a different point of view. The learned Judge proceeded to observe:
'When the plaintiff has been acquitted, there would be a presumption of want of reasonable and probable cause in an occurrence when there was no scope for surmise and the evidence was given by the defendant of what he actually saw. For what the defendant did not see himself, there may be a reasonable and probable cause of suspecting the plaintiffs complicity.... Unless the plaintiffis called upon to prove his innocence, the only way he can prove want of reasonable and probable cause would be by pointing out that the defendant alleged that he actually saw the plaintiff committing the offence and yet this was not believed by the criminal Court.'
In Vilayati Begam v. Nawal Kishore, AIR 1947 Oudh 116, it was held that,
'The amount and nature of evidence required to discharge the initial burden depends upon the facts and circumstances of each case. If a map acts on his own knowledge then the fact that the complaint was a false one will raise a presumption that there was absence of reasonable and probable causeand that malice existed, unless it is shown that his memory was defective or that there was some valid ground for a misapprehension.'
Appukuttaa v. Makkappan, 1965 Ker LT 1054, followed Taharat Karim v. Malik Abdul Khaliq, A. I. R. 1938 Pat 529, Darsan Pande v. Ghaghu Pande, AIR 1948 Pat 167, Nagendra Kumar v. Etwari Sahu, AIR 1958 Pat 829, and Gobind Chandra v. Upendra Padhi, AIR 1960 Orissa 29. A similar view has been taken in a later case Satdeo Prasad v. Ram Narayan, AIR 1969 Pat 102. The appellant's contention that 1965 Ker LT 1054 strikes a lone note or is at variance with the prevailing view in this court is therefore without merit.
7. It is however needless to pursue this enquiry as on evidence I am satisfied that the conclusion of the courts below is [right. That the plaintiff was prosecuted and that the prosecution ended in his favour admit of no doubt. The complaint charged the plaintiff with serious offences. The defendant had no reason to believe that the plaintiff would abscond and yet he sought and obtained a warrant for his arrest, while in the normal course a summons alone would have issued. When the case came up for evidence, the defendant gave none. An accused, even in such a grave offence as murder, could be convicted on the uncorroborated testimony of a single witness and yet the defendant shunned the witness box and did not swear in support of his complaint. In the complaint he had cited some witnesses and he had also stated that he would produce a further list of witnesses at the hearing of the case. But he did not produce any list and what we find is that on 19-8-1963 he filed the application Ext. D4 seeking to close the case at that stage. One of the grounds stated in Ext. D4 is that the witness to the occurrence had turned hostile--obviously the witness in the list filed with the complaint--and that he has no further witnesses, which is different from what he stated in the complaint. He gave no opportunity to the court to find out for itself whether any witness was in fact hostile. Yet another ground stated is that a mahazar had been prepared and that he had filed a suit for reliefs in respect of the property and for damages. It appears to me that this--the complaint and the preparation of a mahazar as a prelude to a civil action was the real motive and not the prosecution of the offender successfully in the criminal court. That being so malice stands proved. Apart from the above circumstances, there is the plaintiffs evidence that he was innocent and that the criminal prosecution was taken against him without any reasonable and probable cause. Yet the defendant has not called any witness--apart from examining himself--to show that there was at least some basis to his complaint. Counsel for the appellant however submitted that the mahazar Ext. D5 would lend some support to thecomplaint and establish his bona fides. But the value of the mahazar is little, for it had not been put in evidence in the criminal court and none has been examined in the suit to prove it And further a mahazar would not prove offences--if it would, one wonders why it was not proved in the criminal case and the prosecution continued. It also purports to have been prepared two weeks after the alleged incident. On a consideration of all circumstances including the evidence of the plaintiff and the absence of any credible evidence on the part of the defendant and the real object of the criminal case I am satisfied that the prosecution was launched without any reasonable and probable cause and that it was malicious.
8. The respondent's memorandum of cross-objections was dismissed by the court below, after dismissing the application for condoning the delay in filing it. There is absolutely no bona fides in the ground put forward for condoning delay and the dismissal of the memorandum by the court below was right.
9. In the result, the judgments and decrees of the courts below are confirmed and the appeal and memorandum of cross-objections are both dismissed with costs.