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T. Subramanya Bhatta Vs. A. Krishna Bhatta - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. No. 356 of 1972
Judge
Reported inAIR1978Ker111
AppellantT. Subramanya Bhatta
RespondentA. Krishna Bhatta
Appellant Advocate K. George Varghese,; Thomas V. Jocob and; P.S. Joseph
Respondent Advocate S. Easwara Iyer and; E. Subramani, Advs.
Cases ReferredChamu v. Velayanat Tharayil Chirutha
Excerpt:
civil - malicious prosecution - defendant filed false complaint against defendant knowing it to be false - plaintiff prosecuted and acquitted by trial court - defendant gave evidence in sessions court and tried to implicate plaintiff - plaintiff satisfactorily established ingredients of malicious prosecution - plaintiff entitled to damages. - motor vehicles act, 1988[c.a.no.59/1988] section 147 (1)(b)(i) [as amended in 1994]; [v.k. bali, cj, m.ramachandran & s. sirijagan, jj] third party risk gratuitous passengers - liability of insurance company held, gratuitous passengers in transport vehicles, including a motor cycle, can have coverage only when a comprehensive policy or extended policy as might be possible to be issued has been availed of by the owner of the vehicle. only in.....v.p. gopalan nambiyar, c.j.1. this is a plaintiff's appeal against the dismissal of his suit for damages for malicious prosecution. the plaintiff and defendant owned adjacent properties at aramanadka in karadka village, kasaragod taluk. some of the plaintiff's properties were in possession of the defendant's father shankara narayana bhatta on arwar (usufructuary mortgage) right. in o.s. no. 300 of 1949 of the munsiffs court, kasaragod the plaintiff had obtained a decree for redemption of the arwar. exts. a57 and a58 are certified copies of the plaint and written statement. o. s. no. 484 of 1949 was by the defendant's brother against his father (1st defendant) and the present plaintiff (2nd defendant). ext. a59 is the plaint and exts. a60 & a6l are the written statements therein. ext. b12.....
Judgment:

V.P. Gopalan Nambiyar, C.J.

1. This is a plaintiff's appeal against the dismissal of his suit for damages for malicious prosecution. The plaintiff and defendant owned adjacent properties at Aramanadka in Karadka village, Kasaragod Taluk. Some of the plaintiff's properties were in possession of the defendant's father Shankara Narayana Bhatta on arwar (usufructuary mortgage) right. In O.S. No. 300 of 1949 of the Munsiffs Court, Kasaragod the plaintiff had obtained a decree for redemption of the arwar. Exts. A57 and A58 are certified copies of the plaint and written statement. O. S. No. 484 of 1949 was by the defendant's brother against his father (1st defendant) and the present plaintiff (2nd defendant). Ext. A59 is the plaint and Exts. A60 & A6l are the written statements therein. Ext. B12 is the certified copy of the judgment in A S, No. 286 of 1957, Sub-Court, Kasaragod, against the judgment in the said suit O. S. 484 of 1949, and the order in R.I.A, 1091 of 1963 moved by the defendant's father to file a complaint against the plaintiff herein under Section 193, of the I. P. C. etc. The appeal and the R. I A., were dismissed. O. P. No. 43 of 1950, Munsiffs Court, Kasaragod, was filed by Shankara Narayana Bhatta, allegedly, at the in stance of the defendant and his brothers for sanction to prosecute the plaintiff. That was dismissed (Ext. A72).

An application for contempt was moved by the defendant in the High Court against the plaintiff and another, which was dismissed by Ext. B-9 order, C. C. No. 54 of 1961 before the I Class Magistrate's Court, Hosdrug, was filed by the plaintiff against the defendant and his brothers for threatening the plaintiff with dangerous weapons. C. C. No. 55 of 1961 was by the defendant and his brothers against the plaintiff apparently as a counter-blast to C. C. No. 54 of 1961. C. C. No. 54 of 1961 ended in a conviction of the defendant's brother Keshava Bhatta. (vide Ext. B-26). C. C. No. 55 of 1961 ended in the discharge of the accused (Ext. A75). On 2-8-1962 the defendant filed a complaint before the Adhur Police that at 6 p. m. the plaintiff and his tenants obstructed the defendant and wrongfully restrained him and attempted to murder him. This, it was alleged, was with full knowledge that the complaint implicating the plaintiff was false, was done maliciously, and without reasonable and probable cause. After protracted proceedings, the case was committed to the Sessions Court, and tried by the Assistant Sessions Judge, Tellicherry as Sessions Case No. 52 of 1964. The plaintiff and two others were acquitted on 27-1-1965. It is in respect of this prosecution that malice and absence of reasonable and probable cause is alleged and damages for malicious prosecution are claimed.

2. The defence was one of denial of malice and of reasonable and probable cause and of the very foundation of the action, namely, that the defendant was the prosecutor.

3. The learned Sub Judge, Kasaragod, in a very unsatisfactory judgment, which hardly does justice either to the facts disclosed, or the law involved, found, that the defendant was not actively participating in the prosecution of the plaintiff (para 31 of the judgment); that the plaintiff had not established either malice on the part of the defendant or absence of reasonable and probable cause (para 32); that the plaintiff was not entitled to any amount as damages for loss of reputation (paras 33 and 34); and that the plaintiff was not entitled to any amount as damages for malicious prosecution.

4. The ingredients to be proved by the plaintiff in an action for malicious prosecution are: (1) that he was prosecuted by the defendant; (2) that the prosecution terminated in favour of the plaintiff; (3) that the prosecution was malicious; and (4) that it was without reasonable and probable cause. We shall address ourselves to the first of these ingredients, whether the plaintiff had been prosecuted, and if so, whether the defendant was the prosecutor. Ext. A-1 dated 2-8-1962 is a certified copy of the First Information Report by the defendant in Crime No. 118 of 1962 on the file of the Adhur Police Station. On the said complaint an offence under Sections 341 and 307 of the I. P. C. read with Section 34 was registered as Case No. 118 of 1962 by the Sub-Inspector, Adhur. The Magistrate converted the Preliminary Register Case into a Calendar Case to be enquired into by himself, charging the accused under Sections 341, and 324 read with Sections 511 and 34 (Ext. A-3). Against that, the State preferred Criminal Revision No. 29 of 1962 to the Sessions Judge, Tellicherry, which was allowed and the case was directed to be proceeded with as a Sessions Case. The defendant preferred criminal revision 24 of 1962 which was dismissed on 21-6-1963 by the Sessions Judge (vide Ext. A4).

Against the order, in the State's revision, the plaintiff preferred Criminal R. P. No. 323 of 1963 to the High Court which was dismissed (vide Ext. B7). In the said revision, the defendant filed an application to implead himself. (Ext. A5), in the course of which it was stated in paragraph 2 that he is the de-facto complainant, and had moved in revision before the Sessions Judge. The petition was dismissed with the observation that the petitioner's advocate may assist the Public Prosecutor and can be heard. Ext. A-80 is the certified copy of the judgment in S C 52 of 1964, Asst. Sessions Court, Kasaragod, which will show that the Criminal Case ended in the acquittal of the plaintiff. Ext. A81 is the certified copy of the deposition of the defendant in the Sessions Case. Exts. A1 and A80--not to mention the others--show that there was a complaint which resulted in a criminal prosecution of the plaintiff and ended in his acquittal. But could it be said that the defendant was the prosecutor ?

The judicial decisions on this aspect of the question have been exhaustively surveyed, by Vaidialingam J. of this Court (as he then was) in Kunhutty Sahib v. Veeramkutty (1959 Ker LJ 1172) : (AIR 1960 Ker. 264) and by Krishna Iyer J. of this Court (as he then was) in two decisions, viz., Chamu v. Valayanat Tharavil Chirutha (1970 Ker. LJ 1023), and Kunhammad v. Kunheen (1971 Ker LT 798). It seems enough to trace briefly the evolution of the law. In an early decision (1903) of the Madras High Court in Narasinga Row v. Muthaya Pillai (I. L. R. (1903) 26 Mad 362), it was observed by a Division Bench that if the defendant merely filed a complaint before the Police and the Police, after investigation, thought fit to prosecute the plaintiff (in the action for malicious prosecution), it could not be said that the defendant was a prosecutor; nor could he be held responsible for the action of the police; and no action can lie against him for malicious prosecution. This decision was considered by the Privy Council five years later in Gaya Prasad v. Bharat Singh (ILR (1908) 30 All 525 (PC)) and it was observed;

'The principle here laid down is sound enough if properly understood, and its application to the particular case was no doubt justified; but in the opinion of their Lordships, it is not of universal application. In India, the Police have special powers in regard to the investigation of criminal charges, and it depends very much on the result of their investigation whether or not further proceedings are taken against the person accused. If, therefore, a complainant does not go beyond giving what he believes to be correct information to the Police, and the Police without further interference on his part (except giving such honest assistance as they may require), think fit to prosecute, it would be improper to make him responsible in damages for the failure of the prosecution. But if the charge is false to the knowledge of the complainant; if he misleads the Police by bringing suborned witnesses to support it; if he influences the Police to assist him in sending an innocent man for trial before the Magistrate -- it would be equally improper to allow him to escape liability because the prosecution has not, technically, been conducted by him. The question in all cases of this kind must be --Who was the prosecutor? -- and the answer must depend upon the whole circumstances of the case. The setting of the law in motion is not the criterion; the conduct of the complainant before and after making the charge, must also be taken into consideration. Nor is it enough to say the prosecution was instituted, and conducted by the Police. That again is a question of fact. Theoretically all prosecutions are conducted in the name and on behalf of the Crown, but in practice this duty is often left in the hands of the person immediately aggrieved by the offence, who pro hac vice represents the Crown.'

X X X XThe charge was a false one to the knowledge of the respondents, and they must abide the consequences of their misconduct.'

X X X XIn the opinion of their Lordships, it would be a scandal if the remedy provided by this form of action were not available to innocent persons aggrieved by such unfounded charges ...............'

Subsequent to the Privy Council decision, a Division Bench of the Madras High Court itself held in 1919, in Periya Goundan v Kuppa Goundan (I, L. R. 42 Mad. 880) : (AIR 1919 Mad 229 (2)) that the earlier Division Bench ruling in I. L. R. (1903) 26 Mad. 362 could no longer be sustained. It referred to the three ways in which a person desirous of setting the criminal law in motion against another, in respect of an act amounting to a cognizable offence, may proceed to act. These three ways were: (1) by presenting a complaint to a Magistrate having jurisdiction to take action under Chapter XVII of the Cr. P. C.; (2) by giving information to an officer in charge of a Police Station to take action under Chapter XIV; and (3) by giving information to the village headman (in case of all non-bailable and certain other offences), for being forwarded under Section 45 of the Cr. P. C. to the nearest Magistrate and to the Officer in charge of the Police Station. It was observed, after analysing these modes, that in each case, if any false information was given, the prosecution arose out of the said information, and it made no difference whether the person led astray in the first instance is the police officer or the magistrate. This latter Division Bench ruling of the Madras High Court was followed by another Division Bench in Shanmuga Udayar v. Kandasami Asary (1920) 12 Mad LW 170) : (AIR 1920 Mad 789). In Balbhaddar v. Badri Sah (AIR 1926 PC 46) it was observed by the Privy Council;

'But giving information to the authorities which naturally leads to prosecution is just the same thing. And if that is done and trouble caused an action will He.'

The principles laid down in the above decisions have been elaborately noticed in 1959 Ker LJ 1172: (AIR I960 Ker 264).

5. In Chamu v. Valayanat Tharayil Chirutha (1970 Ker LJ 1023) Krishna Iyer J. stated that the Civil Court can, and has a duty to, decide the issues independently of the judgment of the criminal court, while recording its findings on the essential elements to be made out in a suit for malicious prosecution. The learned Judge stressed that, properly speaking, the judgment of the criminal court is evidence merely to show that the person prosecuted is 'out of the criminal woods'; that it was conclusive that the prosecution had terminated in favour of the plaintiff; and that this was the only use to which the judgment of the criminal court can be put. As regards the findings and the reasonings of the criminal court, those were mere opinion evidence, and the Civil Court had to reach its findings on the evidence produced before it. The learned Judge referred to an earlier decision of a learned Judge of this Court in Sekharan Nair v. Krishnan Nair (1967 Ker LJ 967) where the learned Judge had examined the judgment of the criminal court and concluded that the acquittal was based on the benefit of doubt. This was after a fairly close study of the evidence of the criminal case as disclosed by the judgment. Krishna Iyer J. pointed out that this was against the mandate of Section 43 of the Indian Evidence Act, and that the correct view of the law on this aspect of the matter had been taken in Venkatapathi v. Balappa (AIR 1933 Mad. 429), following earlier precedents. We are inclined to agree with this view of the scope and purpose for which alone the judgment in the criminal case can be looked into as evidence in a suit for damages for malicious prosecution. We need not express our final and concluded opinion as, in this case, our conclusions can well be rested on material de hors the judgment of the criminal Court. The learned Judge further examined the effect of the acquittal by the criminal Court, and stated that it cannot be regarded as a sure index of innocence, but only as the expression of a reasonable apprehension that by convicting, the Court runs the risk of punishing the innocent. The learned Judge referred to the decision of Mathew, J. in J, Spadigam v. State of Kerala (1969 Ker LJ 760) explaining how, despite acquittal by a criminal Court, a delinquent officer may still be punished, and noticed that a number of decisions had taken a contrary view. It is not necessary for us to enter into these thickets of judicial controversy or to express our view on the question, as, on the facts of this case, we are satisfied that there was a criminal prosecution of the plaintiff, followed by an acquittal and a termination of the criminal proceedings in his favour, which are sufficient to establish a part of the first, and the second, of the ingredients in an action for malicious prosecution.

6. To resume our discussion on the question as to who is a prosecutor, Krishna Iyer, J., in 1970 Ker LJ 1023, after referring to many of the cases, observed '

'I am not too sure whether a party who gives false information to the police but thereafter takes no interest and renders no assistance in the course of the investigation or in the conduct of the case can be said to be a prosecutor. (True it is that even one who is screened off from view by the formal presence on the record of the State as prosecutor may be the real prosecutor provided the organisers, sub rosa, the criminal action or rather he ropes in the accused by information and assistance. They also serve as prosecutors who only pull strings and operate from behind, if the project is the outcome at their active contribution. But something more than merely laying information, be it true or false, is necessary to make him an active instrument and it is only if he is actively instrumental in getting the law in motion can he be designated the prosecutor. In a ruling reported in AIR 1953 Orissa 56, the learned Judge, Mohapatra, J., observed that the mere giving of information 'even though it was false, to the police cannot give cause of action to the plaintiff in a suit for malicious prosecution if he (the defendant) is not proved to be the real prosecutor by establishing that he was taking active interest in the prosecution and that he was primarily and directly responsible for the prosecution.' Vaidialingam, J. observed, with reference to this decision, that the proposition so stated was too broadly expressed. In AIR 1966 Andh Pra 292 Maoohar pershad, J. took the view ;

'I am not prepared to agree with the contention of the learned counsel that merely if it is shown that the complainant had made a false complaint he would be made liable for damage. In order to make him liable apart from that fact, the further facts namely that he assisted the police in sending an innocent man for trial and that he misled the police by bringing suborned witnesses have to be proved.

While I am inclined to agree with thelatter view, I do not wish to pronouncedefinitely on the conflict as, perhaps, itis not necessary for an effective disposalof this case.' (Para 12)

7. In Kunhahammed Haji v. Kunheen (1971 Ker LT 798), the same Judge (Krishna Iyer, J.) had to consider the question whether and when a witness can be said to be a prosecutor. We leave out that part of the discussion as unnecessary for the purposes of this case, and would quote only the following passage :

'..... I have said all this only to emphasise that the Court has vigilently to scrutinise whether the requirements of the law that only the real prosecutor,--not every one who has lent a helping hand in the project or and supported it at some stage -- can be used and even he, only if the prosecution has been launched with an oblique motive and without reasonable and probable cause, have been clearly made out. Either is insufficient without the other.' (Para 4)

8. We would have thought it unnecessary to multiply citation of authorities on the question as to who is the real prosecutor. But we feel it our duty to take note of the following statement of the position in Winfield on Tort Seventh Edition (1963) by J. A. Jolowicz, M.A., and T. Ellis Lewis, B.A., LL. B., Ph. D, where, at page 706 occurs the following:

'A prosecutor has been described as 'a man actively instrumental in putting the law in force'.'

X X X XSimilarly, if a man does no more than tell the story of his loss to a judicial officer, such as a Magistrate, leaving him to determine whether the facts amount to a felony, he does not maliciously procure the Magistrate to issue his warrant for arrest. Much less can perversion of such a story by the clerk who frames the warrant into a charge of felony be imputed to the complainant. But where the story told is known by the teller to be false, the Judicial Committee has held in an Indian appeal that the teller is liable. The peculiar frequency of such lying charges in India was a special ground for this decision, but its general reasonableness adds to its persuasive authority here.' (underlining ours).

The reference is to the decision in Gaya Prasad v. Bharat Singh (ILR (1908) 30 All 525 (PC)). We wish to dissociate ourselves from the stigmatisation of our country involved in the passage underlined. We refrain from comment on the said passage as we happily note that the same does not find repetition in the latest (1975) edition of the Book, by W. V. H. Rogers (see pages 478, 479).

9. On the facts, we have little difficulty in holding that the defendant was the prosecutor even judged by the rigorous standard of active association with the prosecution. He had filed Ext. A-1 complaint. He was not quiescent thereafter. He moved the Sessions Judge in revision against Ext. A-3 order treating the case as a crime case; he sought to get himself impleaded in the criminal revision before the High Court and to intervene in the hearing; and examined himself as a witness in the Sessions trial. These, in our view, are sufficient to make out that he was the real prosecutor in this case.

10. On the liberal view, the defendant satisfies the test of being the prosecutor. In Gaya Prasad v. Bharat Singh (ILR (1908) 30 All 525 (PC)), the passage we have quoted earlier enumerated the categories of cases where it should be unjust to allow a person to escape liability because the prosecution has not, technically, been conducted by him; and the first of these categories is : 'if the charge is false to the knowledge of the complainant', (underlining ours). It was this ground of decision which provoked the comment from Winfield in his 1963 Edition of Torts, with the slant in which, we have dissociated, but the general reasonableness of which, was commended by the author himself, as adding to its persuasive authority even in English soil. For reasons which we will presently show, we are of the opinion, that this requirement stands satisfied in this case. The complaint was in respect of incidents that took place on the evening of 2-8-1962. The plaintiff's case was that he was in Ernakulam on that date and that with the knowledge of his absence from Karadka, the defendant had falsely implicated him in the criminal complaint. To show his absence in Ernakulam from 31-7-1962 to 2-8-1962, the plaintiff had examined P. W. 6, the Proprietor of the Modern Hotel, Ernakulam, where he was staying, and summoned Ext. X-1 Lodger's Register of the Hotel. Ext. A-79 dated 2-8-1962 is a Bill for payment of Rs. 4/- for room rent and Rs. 4.63 for food expenses. There was also the evidence of P. W. 7, an Advocate of this Court (Shri R. Krishna Swami) to the effect that the plaintiff had executed Ext. X-2 vakalath on the evening of 2-8-1962 in Advocate Shri T. S. Venkiteswara Iyer's office in Ernakulam. There was further, the evidence of P. W. 5, Dr. Paul, who had met the plaintiff when he boarded the train at Cannanore on the morning of the 3rd, to proceed to take charge as Veterinary Surgeon at Kumbla (next stattion after Kasaragod). The plaintiff was also travelling by the same train. In addition to these, there is the evidence of the plaintiff himself as P. W. 1, that he was in Ernakulam from 31-7-1962 to the night of 2-8-1962. We have scanned the evidence carefully, and in detail, and we are of the view that the evidence is acceptable and has been discarded by the learned Judge on flimsy and frivolous grounds. We may briefly refer to the evidence, Ext. X-l is the Lodger's Register of the Modern Hotel, Ernakulam, a Hotel of repute and standing in this city. P. W. 6 is the Proprietor of the Hotel. Entry 434 in the Register shows that the plaintiff was in Room. No. 5 in the Hotel from 8.15 p-m. on 31-7-1962 and left at 8 p.m. on 2-8-1962 (vide X-1 (a)). We see no ground at all either to discard the evidence of P. W. 6 or the entry in Ext. X-l. We think the reasons given by the learned Judge for discarding these are quite unsubstantial, and indeed, frivolous. The learned Judge discarded Ext. A-79 on account of its late production when the trial of the suit had advanced to a great extent, and on the ground that the cashier who wrote and signed the bill had not been examined. The reasons do not appeal to us. We see that many other documents were marked on the plaintiff's side even after Ext. A-79 -- plaintiff's documents go up to Ext. A-92. P. W. 6 had deposed to the Cashier's signature, and had stated that the bill was written up in his presence. We are inclined to accept Ext. A-79. Even in its absence, we think the links have been clearly forged to establish the plaintiff's presence at Ernakulam on the evening of 2-8-1962. The entry in Ext. X-l is that the plaintiff occupied Room No. 5 in the Modern Hotel, Ernakulam, from 8.15 p.m. on 31-7-1962 to 8 p.m. on 2-8-1962. The learned Judge has made a point that the name of the plaintiff is T. Subramania Bhatta whereas the entry in Ext. X-l (Ext. X-l (a)) shows the name as T. Subramania Bhat (the last two letters being omitted). We do not wish to take the Judge seriously in this part of his reasoning.

Equally trivial, and unworthy of notice appear the points made about the letter 'T' being written in a different ink, and showing some corrections, or about P. W. 1 not having personally seen the register being written up, or the entries in the relevant columns therein being filled up. These betray either a lamentable lack of practicability and common-sense to human conduct and the regulation of human affairs, or a wilfully perverse approach, neither of which can do credit to the learned Judge. The learned Judge's conclusion in para 8 that it cannot be found that Ext. X-1 (a) relates to the plaintiff, and that at any rate the entries are not properly proved, is very unsatisfactory and unacceptable. The learned Judge made a point that P. W. 6 had been acquainted with the plaintiff for the last 8 or 9 years, and that whenever the plaintiff was in Ernakulam he used to stay in P. W. 6's hotel. From this, the learned Judge inferred that P. W. 6 was interested in the plaintiff-a rather strange comment to be made of a hotel proprietor in relation to his regular customer ! We would expect our Judges of the subordinate judiciary to betray a better sense of appreciation of evidence and a better awareness to the conditions of this work-a-day world. A point is made that serial No. 421 in Ext. X-l, who occupied Room No. 10 left the Hotel on 29-7-1962 at 3 p.m. and that in the entry relating to serial No. 424, the same room is found to be occupied by another person at 9.35 a.m. on the same day. A few such so called discrepancies have been picked out and mentioned by the learned Judge in para 9, apparently to discredit Ext. X-l. We have examined these. We only wish to repeat that these exhibit the lack of a human and practical approach on the part of the Judge, unless they are to be taken as a determined attempt to close his mind to the truth. We see no ground to discard the evidence of P. W. 6 as interested, or the entries in Ext. X-l as unacceptable.

11. Equally clear and strong is the evidence afforded by Ext. X-2 and of P. W. 7, namely, Advocate Shri R. Krishna Swamy of this Court. His evidence was that Ext. X-2 vakalath in C. R. P. No. 465 of 1962 of this Court, was executed by the plaintiff on the evening of 2-8-1962 in his presence in the office of Shri T.S. Venkiteswara Iyer, a well-known and leading Advocate of this Court. We see no ground at all to reject the evidence of P. W. 7 on the grounds stated by the learned Judge, that Shri Venkiteswara Iyer and the attestors to the vakalath have not been examined, that Shri Venkiteswara Iyer's accounts had not been produced, or that P. W. 7 himself was not maintaining accounts as required by the Bar Council Rules, or that Ext. X-2 though executed on 2-8-1962 was produced in Court only on 18-9-1962, and stamps thereon were affixed only on 14-9-1962. It has distressed us to observe that the learned Judge chose to discard the evidence of P. W. 7 and that afforded by Ext. X-2 on highly superficial and unsupportable grounds. We have no hesitation to accept the evidence of P. Ws. 6 and 7 and that afforded by Exts. X-l and X-2.

12. The evidence of P. W. 5, Dr. Paul, a Veterinary Surgeon, who joined duty at Kumbla Veterinary Hospital on 3-8-1962 is the third link in the chain of the plaintiff's evidence as to his absence at Ernakulam from 31-7-1962 to 2-8-1962. P. W. 5's evidence is that on 3-8-1962 he met the plaintiff on the train between Cannanore and Kasaragod. The time was between 8 a.m. and 10 a.m. Ext. X-4 Register proves that P. W. 5 joined duty at Kumbla on 3-6-1962. The learned Judge commented that he travelled with the plaintiff only from Cannanore to Kasaragod, and that if the plaintiff had examined someone who travelled with him from Ernakulam on the night of 2-8-1962 that would have been helpful to find the plaintiff's presence in Ernakulam at the time of the incident. He thus dismissed the evidence of P. W. 5 as not conclusive enough to show that the plaintiff was in Ernakulam on the date of the incident. We believe we shall be doing no disservice to the learned Judge, if we comment that bis approach marks a total and callous disregard of the relevance of the facts proved. Was the testimony of P. W. 5 acceptable If he met the plaintiff in the train between Cannanore and Kasaragod on the morning of 3-8-1962, between 8 and 10 .a.m., was it consistent with the defendant's case of the plaintiff's presence in Karadka on 2-8-1962 evening at the time of Ext. A-1, or with the plaintiff's case that he had left Ernakulam by the night train on 2-8-1962 to Kasaragod Exts. X-1, X-2 and X-4, read with the evidence of P. Ws. 1, 5, 6 and 7 forge the links in the chain of the plaintiff's case regarding his absence in Ernakulam from 31-7-1962 to 2-8-1962. The learned Judge was wrong in rejecting this evidence. We accept the same. On the evidence thus discussed, we are of the opinion that it has been satisfactorily established that at the time of the offence complained of in Ext. A-l, the plaintiff was in Ernakulam. We have no doubt that the complaint was filed with knowledge of the plaintiff's absence, and falsely implicating him in the offence.

Thus, in our view, on the principle of the Privy Council decision in ILR (1908) 30 All 525 (PC) there is enough to find that the defendant is the real prosecutor. The facts noticed are sufficient, in our view, to establish absence of any reasonable and probable cause. The defendant should not have implicated the plaintiff in Ext. A-1 complaint with knowledge, which we are sure he had, of the plaintiff's absence in Ernakulam at the relevant time. Malice, we think, is sufficiently proved, by the strained relationship between the parties and the long record of litigations, civil and criminal, waged between them, which we have referred to at the outset of this judgment. (Vide Exts. A-1, A-4, A-5, B-26, A-57, A-58, A-59, A-60, A-61, B-12, A-72, B-9, A-75 etc.). We think all the essential ingredients of an action for malicious prosecution have been made out, and we hold accordingly.

13. The reference in this case to the Full Bench was occasioned as it was felt that there was a conflict of judicial decisions on the question of burden of proof in regard to the absence of reasonable and probable cause in an action for malicious prosecution The Division Bench which made the reference referred to the ruling in Appukuttan v. Makkappan (1965 Ker LT 1054) and to Chamu v. Velayanat Tharayil Chirutha (1970 Ker LJ 1023), as decisions where, inter alia, this conflict is reflected. We have felt it unnecessary to enter into this academic region, as, on the facts of the present case, we have little difficulty to hold that the absence of reasonable and probable cause has been satisfactorily established.

14. We would therefore allow the appeal, and set aside the judgment of the learned Judge. We would have straightway granted a decree to the plaintiff. But there is difficulty, as the learned Judge, in view of his findings against the plaintiff on the ingredients of the action, has chosen not to discuss or find the quantum of damages to which the plaintiff would be entitled. For the purpose of assessing damages, to which the plaintiff is entitled, we are constrained to send the matter back to the learned Judge.

15. In the result, we allow this appeal and set aside the judgment of the learned Judge. We hold that the plaintiff has satisfactorily established the ingredients to be proved for an action for malicious prosecution. But we remit the proceedings back to the learned Judge to assess and to enter his findings on the quantum of damages to which the plaintiff would be entitled. The remand is for the limited purpose and no more. The plaintiff-appellant would be entitled to his costs, and also to a refund of the Court-fee paid on the Memorandum of Appeal.

16. There is a Memorandum of cross-objections by the defendant against the denial of compensatory costs. There is no merit or substance in the same which we dismiss with costs.


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