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Govindji J. Khona Vs. K. Damodaran and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. No. 1 of 1964
Judge
Reported inAIR1970Ker229
AppellantGovindji J. Khona
RespondentK. Damodaran and ors.
Appellant Advocate T.M. Krishnan Nambiar,; T.V. Ramakrishnan,; K.R. Kurup
Respondent Advocate T.N. Subramania Iyer,; K.V. Narayanaswamy,; K.N.V. Raman
DispositionAppeal dismissed
Cases ReferredRavenga v. Mackintosh
Excerpt:
civil - malicious proceedings - four condition must be fulfilled by plaintiff for initiating malicious proceedings against defendant - firstly he was prosecuted by defendant - secondly prosecution ended in plaintiff favour - thirdly defendant acted without reasonable and probable cause - fourthly defendant was actuated by malice. - - it is quite improper that you are simply carrying on pointless correspondence with the brokers, leaving the principals out when you know full well our limitations. d33 letter were endorsed by the appellant to sippy and chetty and that they were sending exts. his outward register has not been produced to show that he really sent a letter like ext. in it he clearly stated that all the 356 bales contained hubli jaidar. the best evidence in this connection.....narayana pillai, j.1. the appellant, govindji j. khona, partner in messrs. govindji jevat & co., bombay, sued the respondents, the 1st respondent being k. damodaran, an industrialist at cannanore and the 2nd respondent, the cannanore spinning & weaving mills ltd., in the sub-ordinate judge's court, ernakulam for that the 1st respondent acting as the managing agent of the 2nd respondent falsely and maliciously and without any reasonable or probable cause prosecuted the appellant and 2 other persons, sippy and krishna shetty, upon a charge of having conspired together and cheated him of a large sum of money. the learned subordinate judge dismissed with costs the suit which was for recovery of rs. 1,50,000.2. the complex facts of which this story is made up are as follows: the appellant is a.....
Judgment:

Narayana Pillai, J.

1. The appellant, Govindji J. Khona, Partner in Messrs. Govindji Jevat & Co., Bombay, sued the Respondents, the 1st Respondent being K. Damodaran, an industrialist at Cannanore and the 2nd Respondent, The Cannanore Spinning & Weaving Mills Ltd., in the Sub-ordinate Judge's Court, Ernakulam for that the 1st Respondent acting as the Managing agent of the 2nd Respondent falsely and maliciously and without any reasonable or probable cause prosecuted the appellant and 2 other persons, Sippy and Krishna Shetty, upon a charge of having conspired together and cheated him of a large sum of money. The learned Subordinate Judge dismissed with costs the suit which was for recovery of Rs. 1,50,000.

2. The complex facts of which this story is made up are as follows: The appellant is a dealer in cotton, doing business at Bombay. Krishna Chetty and Sippy, describing themselves as commission agents at Coimba-tore, offered to sell to the Respondents certain varieties of cotton in which the appellant was dealing. On 24-5-1956, Chetty sent the letter, Ext. D2, to the Respondents inviting orders for cotton. Three types of cotton were offered for sale in that letter. One of them was Hubli Jaidar, equal to sample T. 3729.356 bales of cotton of that variety at R.s. 875/- per candy, were stated in the letter to be available for sale. It was added in Ext, D2 at the foot note, that Hubli Jaidar was 'an attractive quality in comparison to westerners.' On 27-5-1956, the Respondents sent a telegram to Chetty offering to purchase 356 bales of Hubli Jaidar equal to sample T. 3729. On receipt of it Chetty on 27-5-1956 itself sent the letter, Ext. D4, to the Respondents accepting the offer. He stated in it that he was contacting his principal at Bombay about the sale.

3. On 30-5-1956 Chetty sent the telegram, Ext. D5, informing the Respondents that on contacting his principal at Bombay, it was understood that the price per candy had to be raised from Rs. 875/- to Rs. 890/-. On receipt of it the Respondents sent the telegram, Ext. D6, to Chetty accepting the revised price contained in Ext. D5 regarding sale of 356 bales of Hubli Jaidar. On 30-5-1956 itself on receipt of Ext. D6 telegram, Sippy wrote the letter, Ext. D7, to the Respondents confirming on behalf of his Principal, the appellant, the sale of 356 bales of Jayadhar at Rs. 890/-, per candy. That letter was sent by Chetty on 31-5-1956 with his forwarding letter, Ext. D8, to the Respondents. It was stated in both Exts. D7 and D8 that the usual contract of the sellers would follow.

4. In due course the Respondents received through Sippy the triplicate forms, Exts. D9 to D11, of the memorandum of the contract duly signed on 4-6-1956 by the appellant. They had to be signed by the Respondents also. Thereafter, one or them was to be retained by the Respondents and the remaining two were to be sent to Sippy, one for being retained by him and the other for being sent by him to the appellant. In Exts. D9 to D11 the quality of the cotton was described as only 'Indian raw cotton' and not 'Hubli Jaidar'. On suspicion being roused that the supply may not be of Hubli Jaidar the Respondents inserted the words 'Hubli Jaidar' before the words 'Indian raw cotton' in the description of the cotton covered by the contract and after duly signing Exts. D10 and D11, sent them to Sippy with the covering letter, Ext. D13, dated 12-6-1956. In Exts. D9 to D11 the initial payment to be made was mentioned as 90 per cent. That was also altered by the Respondents as 80 per cent before they sent Exts. D10 and D11 to Sippy.

5. On receipt of Exts. D10, D11 and D13 Sippy sent the letter Ext. D14, on 14-6-1956 to the Respondents. In it he found fault with the Respondents for having made alterations in the contract and said that the contract was for sale by the sample, 3729, and not by description. According to him, his principal at Bombay always entered into transactions for sale only by sample and not by description. He requested the Respondents to confirm that the purchase was by sample and communicate it direct to the appellant. Copy of Ext. D14 was sent by Sippy to the appellant. On 18-6-1956, the Respondents sent the reply, Ext. D15, to Sippy informing him that they entered into the contract on the representation that the cotton to be supplied was Hubli Jaidar, that they wanted only Hubli Jaidar and that they were not prepared to make any alteration in the contract.

6. On 24-6-1956. Sippy sent the letter Ext. P 12, to the Respondents to persuade them to accept the contract for sale by sample and contact the principal at Bombay direct. That letter reads as follows:

'We are in receipt of your Regd. Letter dated 18-6-1956 and in reply we have to say that you are aware that both Krishna Chetty and ourselves are brokers and as such we propose and introduce business between Principal to Principal and what is finally agreed is embodied in the terms of the contract and a transaction stands confirmed only when both the contracting parties viz., The Seller and The Buyer sign the same. You say, that in all your dealings 'description' and 'station' have found a prominent place, whereas our information is that with this very Seller you have had several transactions, of course through some other brokers, where simply 'Indian Raw Cotton equal to our sample so and so' has been tendered and accepted by you and you have signed contracts embodying the above term.

In this case, you have approved the sample No. 3729 and sealed the same and we say that supply will be strictly equal to this. What is there in the name We have already clarified this thing in our letter dated 14-6-1956. The Seller has the option of supplying you any variety of cotton so long as the same is equal to the basic sample No. 3729. You know, when the sales are made on 'description and station', no basic samples are allowed to be sealed and deposited with the buyers. You have approved and made purchase on the basic sample No. 3729 and the supply will have to conform with this sample. In any case, we had suggested to you previously and also do so now, that you get in touch with the Sellers and if they are unwilling to sell on 'description' and 'station', the deal may be treated as cancelled.

We are very much pained at the contents of Para two of your letter under reply. You know brokers proffer 'solicited' or 'unsolicited' advice to their clients. You should have taken the same in the spirit in which it was given and considered the same as 'valuable and enlightening' and not termed the same as 'cheap insinuations'. We strongly protest at the choice of your language and the same does not speak highly of you.

It is quite improper that you are simply carrying on pointless correspondence with the brokers, leaving the principals out when you know full well our limitations. We understand that the cotton is ready for despatch and we advise you to write and thrash this out with the Sellers Messrs. Govindji Jevat and Co., Bombay immediately, but if you do not refer to them inside a week or ten days, we shall take it that you are agreeable to the supply as 'Indian Raw Cotton equal to Sample No. 3729 approved by you and now lying with you' and the Sellers will arrange to despatch the cotton and your unauthorised corrections in the contract will be ignored.'

According to the Respondents this letter was never sent to them.

7. On 25-6-1956, two invoices, Exts. D16 and D17, and on 6-7-1956, three invoices, Exts. D18 to D20, were sent to the Respondents by the appellant. They were followed by the demand drafts, Exts. D21 to D23, dated 9-7-1956, amounting in all to Rupees 88,800/-. The 106 bales of cotton covered by Exts. D16 and D17 were the first to arrive. They came by one steamer. The remaining 250 bales came by a separate steamer. The contract number given in Exts. D18 and D1S to D20 was C. C. T/ 124, the same number which Exts, D9 to D11 bore. Sample was mentioned in Exts. D16 to D20 as 3729 and the description of the goods as Indian Raw Cotton. There was no mention anywhere that the cotton sent was Hubli Jaidar.

8. A.s the Respondents got suspicious about the type of cotton contained in the bales they sent on 23-7-1956 the telegram, Ext. D25, to Sippy enquiring whether the bales contained Hubli Jaidar. On 24-7-1956, they also sent the letter, Ext. D. 26, to him for confirmation that the bales really contained cotton of the description Hubli Jaidar. They sent a copy of it to the appellant. According to him he did not receive that copy. On 25-7-1956 Sippy sent the reply, Ext. D27, to the Respondents confirming that all the 356 bales despatched contained Hubli Jaidar equal to the sample.

9. After receipt of Ext. D27 -- reply the respondents wrote the letter, Exts. D28, dated 26-7-1956, to Sippy requesting him to send his representative for attending weighment and passing. On 2-8-1956, Sippy sent the letter, Ext. D29, to the Respondents acknowledging receipt of Ext. D28 letter and agreeing to send his representative at the time of weighment and passing of all the 356 bales.

10. On weighment and passing of the 106 bales of cotton covered by Exts. D16 and D17 it was found that the cotton in them was really of the description Hubli Jaidar, although inferior in quality to the sealed basic sample but on weighment and passing of the remaining 250 bales it was found that they contained cotton of the quality 'Annagiri Laxmi' and 'Adoni Laxmi' and not 'Hubli Jaidar'. On the Respondents bringing it to the notice of Sippy and Chetty, who were present at the time they promised to communicate to him as to what should be done, before 30-8-1956. As no communication was received, the Respondents sent the letter, Ext. D33, on 31-8-1956 direct to the appellant complaining that the supply of cotlon was different from that contracted for. In that letter the Respondents also informed the appellant that they were willing to accept the 356 bales covered by Exts. D16 to D20. On 3-9-1956, the appellant sent the reply, Ext. D34, informing the Respondents that the contract was for sale by sample and not by description. On' the same day Sippy and Chetty also sent the letters, Exts. D35 and D36. to the Respondents. In them it was stated that copies of Ext. D33 letter were endorsed by the appellant to Sippy and Chetty and that they were sending Exts. D35 and D36 as replies to that letter. In Exts. D35 and D36 Sippy and Chetty said that both in class and quality all the bales of cotton supplied to the Respondents were superior to the basic sample given to them and that if there was any dispute about the quality the remedy of the Respondents was to avail of the provision in the contract for arbitration. .

11. After receipt of Exts. D35 and D36 the Respondents took legal advice from Sri K. V. Narayanaswamy, Advocate at Coimba-tore. Ext. D37 is the opinion recorded by him on 12-9-1956. He stated in it that both civil and criminal proceedings could be started. According to the appellant Ext. D37 is a record made or shaped to order after the launching of the criminal prosecution.

12. On 14-9-1956 the Respondents sent the letter, Ext. D39, to the appellant stating that if the price of the 250 Dales which did not contain Hubli Jaidar was not returned the appellant and Sippy would be prosecuted for cheating. On the same day a copy of it was sent to Sri K. V. Narayana-swamy with the forwarding letter, Ext. D38. In Ext. D-38 the receipt of Ext. D-37 was acknowledged and it was mentioned that Ext. D39 was prepared on the basis of the draft prepared by Sri K. V. Narayanaswamy. For Ext. D39 letter Sippy sent the reply, Ext. P19, dated 25-9-1956 to the Respondents. In that letter he stated that it was the Respondents who had tampered with the contents of contract by making corrections and alterations in them and that if they were prepared to cancel the contract at par for the 250 bales which did not contain Hubli Jaidar and give up the claims for interest and other charges he would persuade the appellant to take back the 250 bales. On 1-10-1956 the Respondents filed the complaint. Ext, P6, before the Sub-Divisional Magistrate, Tellicherry. The Magistrate forwarded the complaint to the police for investigation and report. For Ext. P19 letter the Respondents sent the reply, Ext. D54, on 7-10-1956 denying the allegations made in Ext. P19 and agreeing to consider the proposal made by Sippy regarding the taking back the 250 bales of cotton if it came from the appellant.

13. After investigation of Ext, P6 complaint the police laid a charge before the District Magistrate, Tellicherry on 30-3-1957 including in it only Section 420 I. P. C. On 30-7-1957 the Respondents applied for permission to appear and act in the case through an advocate under the control of the Assistant Public Prosecutor. In connection with the case the business premises of the appellant in Bombay were searched and he was arrested but released on bail the same day. On 28-5-1959 the Assistant Public Prosecutor filed the application, Ext. P5, supported by the 1st Respondent's affidavit, Ext. P4, for amending the charge so as to include in it Sections 34 and 109 of the Indian Penal Code also. The accused in that case were finally acquitted by the judgment, Ext. P18, giving them the benefit of doubt. From that judgment application for leave to appeal as also the appeal memorandum, Ext. P17, were filed in this court under Section 417, Criminal Procedure Code by the Respondents. The application for leave to appeal was granted and the appeal was admitted. The appeal was finally dismissed on 8-3-1960 by the judgment, Ext. P1.

14. On 10-6-1960 the present suit was instituted. In the plaint it was on 5 counts that damages were claimed. Rs. 25,000 was claimed as money spent for getting the appellant enlarged on bail and taking steps to defend himself in the District Magistrate's Court, Tellicherry. Rs. 10,000 was claimed as expenses incurred in connection with Ext. P-1 appeal. Rs. 25,000 was claimed as compensation for the mental shock, worry and pain consequent on the arrest of the appellant and the levelling of false charges against him. Rs. 15,000 was claimed as compensation for the mental pain connected with the filing of Ext. P1 appeal from Ext. P18 judgment. Rs. 75,000 was claimed as compensation for loss of reputation.

15. It is convenient to deal first with some of the important facts in dispute between the parties. One important fact in dispute is the sending of Ext. P12 letter by Sippy to the Respondents. The 1st Respondent who was examined as DW 1 deposed that no such letter was received by the Respondents. Sippy did not go into the box. His outward register has not been produced to show that he really sent a letter like Ext. P12 to the Respondents. It was stated in Ext. P 12 that the Respondents had approved sale by sample and that it was unnecessary to attach any importance to the name Hubli Jaidar. Sippy advised the Respondents to get into direct contact with the appellant and found fault with them for making unauthorised corrections in Exts. D10 and D11. He also mentioned in the letter that the corrections would be ignored and that if no reply was received in 10 days it would be taken that the Respondents were agreeable to the supply of Indian Raw Cotton equal to sample 3729. The previous correspondence, Exts, D2 to D8, and the alterations made in Exts. D10 and D11 by the Respondents show that they had not really approved sale by sample alone and that they attached great importance to the description as Hubli Jaidar of the cotton to be purchased by them. In Ext. D15 letter the Respondents had made it clear to Sippy that they wanted only cotton known as Hubli Jaidar and that they were not prepared to make any alteration in the contract. On receipt of the invoices wherein the sample was mentioned as 3729 and the description of the goods as Indian Raw Cotton the Respondents got suspicious and immediately sent Ext. D25 telegram. For that Sippy sent the reply Ext. D27. In it he clearly stated that all the 356 bales contained Hubli Jaidar. That would not have been the representation if he had sent Ext. P12 letter stating that no importance need be attached to the name and that the sale was really by sample. Similarly it was not likely that the Respondents who had throughout been insisting on the description of the cotton as Hubli Jaidar would have coolly submitted to the supply of cotton according to sample if they had really received Ext. P12 letter. Ext. P12 shows that a copy of it was sent by Sippy to the appellant. If really a copy had been sent it was not likely that the appellant would have consigned the goods to the Respondents before the expiry of the period of 10 days fixed in it. The 106 bales of cotton covered by Exts D16 and D17 were consigned on the next day after the date of Ext. P12. There is no doubt that Ext. P 12 letter was not really sent by Sippy to the Respondents.

16. According to the appellant he did not get a copy of Ext. D26, the letter sent by the Respondents to Sippy. Ext. D26 shows that a copy of it was sent by the Respondents to the appellant. In the invoices the description or cotton sent was not mentioned. It was then that the Respon-. dents sent Ext. P25 enquiring whether the bales really contained Hubli Jaidar. The letter also mentioned a telegram sent by the Respondents to Sippy on the previous day to confirm telegraphically whether the bales despatched were Hubli Jaidar. The appellant who was examined as PW 1 denied having seen a copy of Ext. D26. According to him in July 1956 be had gone on a pilgrimage. He put forward that version only to show that even if a copy of Ext. P 26 had reached his office he could not have seen it as he was away. There is no evidence about the exact day on which he went on pilgrimage and returned after that. There is also no evidence as to where he had gone on pilgrimage. He admitted that during his absence all his correspondence were being attended to by his Manager and that they used to be placed before him as soon as he returned. His version that a copy of Ext. D 26 did not reach him cannot be believed;

17. According to the appellant Ext. D 37, the recorded legal opinion, had really not been obtained by the Respondents before they filed the complaint, and it was really procured only after the launching of the prosecution to justify the action that had been taken. The best evidence in this connection would have been that of Sri K. V. Narayanaswamy himself. In fact, the appellant included him in his witness schedule. But during the trial of the case the appellant gave up the idea of examining him. He was appearing in the present suit for the Respondents. He knew that Ext. D37 was being used by the Respondents to resist the appellant's claim for damages. It was not likely that he would have continued to appear in the case for the Respondents if really Ext. D 37 was a record which was not prepared on the date it bore. The entry D 49 (a) in the Inward Register, Ext. D 49, of the Respondents shows that really on 14-9-1956 a communication dated 12-9-1956 was received by the Respondents from Sri K. V. Narayanaswamy and that it related to the contract for 356 bales of Hubli Jaidar. Ext. D 37 had really been received by the Respondents before they filed the complaint, Ext. P 6.

18. Suits for malicious prosecution are by now on a well-trodden path, It is a tort maliciously and without reasonable and probable cause to initiate against another criminal proceedings which terminate in his favour and which result in damage to his reputation, person, freedom or properly. In Black's Law Dictionary malicious prosecution is stated to be 'A judicial proceeding instituted against a person out of the prosecutor's malice and ill-will, with the intention of injuring him, without probable cause to sustain it, the process and proceedings being regular and formal, hut not justified by the facts. For this injury an action on the case lies, called the 'action of malicious prosecution'.' It is a remedy for misuse of legal procedure. In other words, the basis for the action is the abuse of the process of court by wrong-fully setting the law in motion. It is in-tended to discourage the use of the machi-nery of justice for improper purposes. The law relating to it has evolved from a compromise of two rules of law both of which are equally important. One is that all men have the freedom to bring criminals to justice. In that is involved the liberty of the citizen. The other is that in public good it is necessary that false accusations against innocent persons have to be prevented. In the harmonious blending of these two principles some restrictions have been made in making a successful claim for malicious prosecution. In Abrath v. North Eastern Rly. Co., (1883) 11 QBD 440 at p. 455 Bowen, L. J., said as follows:--

'This action is for malicious prosecution, and in an action for malicious prosecution the plaintiff has to prove, first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made; secondly, that there was a want of reasonable and probable cause for the prosecution, or, as it may be otherwise stated, that the circumstances of the case were such as to he in the eyes of the judge inconsistent with the existence of reasonable and probable cause; and, lastly, that the proceedings of which he complains were initiated in a malicious spirit, that is, from an indirect and improper motive, and not in furtherance of justice. All those three propositions the plaintiff has to make out, and if any step is necessary to make out any one of those three propositions, the burden of making good that step rests upon the plaintiff.'

It is now well established that the plaintiff in such a suit can succeed only on proof of the following points :--

(1) that he was prosecuted by the defendant;

(2) that the prosecution ended in the plaintiff's favour;

(3) that the defendant acted without reasonable and probable cause and

(4) that the defendant was actuated by malice.

All the above 4 requirements have to concur or unite. If any of them is found lacking the suit must fail. That is clear from the decisions in Bhalbaddar Singh v. Badri Sah, AIR 1926 PC 46; Braja Sunder Deb v. Bamdeb Das, AIR 1944 PC 1; Shubrati v. Shamsuddin, AIR 1928 All 337; Nagendra Nath v. Basanta Das, AIR 1930 Cal 392; Dhanjishaw Ratanji v. Bombay Municipality, AIR 1945 Bom 320; Ramnath v. Bashir-ud-Din, AIR 1953 Punj 213; Seshi Reddi v. Chandra Reddi, AIR 1957 Andh Pra 347; C. Ambalam v. S. Jagannatha, AIR 1959 Mad 89 and Poulose v. Pappipilla Amma, 1961 Ker LJ 1313.

19, As regards the first 2 requirements it is not necessary that the defendant himself should be a party to the criminal proceedings. It is sufficient if he actively instigated them. As regards the liability of such a person Street says as follows in his book on the Law of Torts (1955 Edition) at pages 411 and 412;

'The defendant must have been 'actively instrumental' in instigating the proceedings, If he merely states the facts as he believes them to a policeman or a magistrate, he is not responsible for any proceedings which might ensue as a result of action taken on his own initiative by such policeman or magistrate. Nor is he necessarily responsible even though he actually prosecutes--for instance, he will not be so responsible where a judge has bound him over to prosecute, unless it was the perjured evidence of the defendant before the judge which caused the latter to require him to prosecute. It is not enough if the defendant has done no more than complain to the proper authorities for the purpose of setting a prosecution in motion; the legal proceedings must have commenced. Charging the plaintiff will no doubt constitute setting the prosecution in motion. The legal adviser of a litigant may be deemed to be responsible for the prosecution where he does more than merely advise the litigant in good faith.'

20. With regard to the 3rd essential, as in the case of the other essentials the burden of proving the absence of reasonable and probable cause is cast on the plaintiff although it is a difficult task of proving a negative. The reason for it is given thus by Bowen, L, J. in (1883) 11 QBD 440:--In one sense that is the assertion of a negative, and we have been pressed with the proposition that when a negative is to be made out the onus of proof shifts. That is not so. If the assertion of a negative is an essential part of the plaintiffs case, the proof of the assertion - still rests upon the plaintiff. The terms 'negative' and affirmative' are after all relative and not absolute. In dealing with a question of negligence, that term may be considered either as negative or affirmative according to the definition adopted in measuring the duty which is neglected. Wherever a person asserts affirmatively as part of his case that a certain state of facts is present or is absent, or that a particular thing is insufficient for a particular purpose, that is an averment which is bound to prove positively.'

21. The Civil Court can go behind the findings of the Criminal Court and conduct an independent inquiry to ascertain whether there was reasonable and probable cause for launching the prosecution. Courts decide whether there was a reasonable and probable cause for launching the prosecution after ascertaining the facts upon which the defendant started the prosecution.

The elaborate and ill-embracing definition of absence of reasonable and probable cause was given as follows by Hawkins, ). in Hicks v. Faulkner, (1881) 8 QBD 167 at pp. 171 and 172:--

'Now I should define reasonable and probable cause to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. There must be: first an honest belief of the accuser in the guilt of the accused; secondly, such belief must be based on an honest conviction of the existence of the circumstances which led the accuser to that conclusion; thirdly, such secondly mentioned belief must be based upon reasonable grounds; by this I mean such grounds as would lead any fairly cautious man in the defendant's situation so to believe; fourthly, the circumstances so believed and relied on by the accuser must be such as amount to reasonable ground for belief in the guilt of the accused.'

This definition received the unanimous approval of the House of Lords in Herniman v. Smith, 1938 AC 305. If the facts prove that the defendant did not honestly believe in the guilt of the accused he cannot be said to have had reasonable and probable cause for launching the prosecution. In order to ascertain the state of the mind of the defendant about the 3rd essential namely absence of reasonable and probable cause the following questions were formulated by Cave, J. as the trial judge in (1883) 11 QBD 440.

(1) Did the defendants in prosecuting the plaintiff take reasonable care to inform themselves of the true state of the case?

(2) Did they honestly believe in the case which they laid before the magistrate? and the following questions by Talbot, J. as the trial judge in 1938 AC 305.

(1) Has it been proved that the defendant commenced and proceeded with the prosecution without any honest belief that the plaintiff was guilty of fraud?

(2) Has it been proved that the defendant failed or neglected to. take reasonable care to inform himself of the true facts before commencing or proceeding with the prosecution?

Cave, J. formulated the following question:--

Were the defendants actuated by any indirect motive in preferring the charge against the plaintiff? and Talbot, J. the following question:--

'Has it been proved that the defendant, in commencing or proceeding with the prosecution was actuated by other motives than a desire to bring to justice one whom he honestly believed to be guilty? also, but they pertain to the 4th essential namely malice and the necessity for answering it would arise only if the answer to the previous 2 questions are in the affirmative. The questions formulated by Cave, J. were approved and his decision was confirmed in (1883) 11 QBD 440. The House . of Lords took the view that the first two questions should not have been left to the jury by Talbot, J. but all the 3 questions taken by him from the questions formulated by Cave, J. were approved. The defendant before he launches the prosecution need not test the full strength or the defence. There need only be an honest belief on his part that there is a fit case to be tried and that a charge against the accused is warranted even though it turns out to be a mistaken belief.

In Dallison v. Caffery, (1965) 1 QBD 348 at p. 371 Diplock, L. J. said:

'The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause. Where that test is satisfied, the onus lies on the person who has been arrested or prosecuted to establish that his arrestor or prosecutor did not in fact believe what ex hypothesi he would have believed had he been reasonable.' The following propositions were laid down by the House of Lords in Glinski v. Melver, 1962-1 All ER 696:--

(a) The question whether the defendant honestly believed in the guilt of the accused does not necessarily arise in every action; it should not be put to the jury unless there is affirmative evidence of the want of such belief, or some contested evidence bearing directly on that belief;

(b) the duty of the defendant prosecutor before bringing the criminal charge, which is the subject of the action, was to have found out whether there was reasonable and probable cause for the prosecution, rather than whether there was a possible defence or whether the proposed accused was guilty. The defendant must have honestly believed before he launched a prosecution that the [proceedings were justified. If he launches a prosecution recklessly without any evidence at all it has to be taken that he had no reasonable and probable cause.

22. In Abbott v. Refuge Assurance Co. Ltd., (1901) 3 WLR 1240, Upjohn, L. J. said that a reasonable man would usually take the following steps before he launches a prosecution.

'(1) he or his advisers would take reasonable steps to inform himself of the true state of the case, ((1883) 11 QBD 440); (2) he or his advisors would finally consider the matter upon admissible evidence only, Meering v. Grahame-White Aviation Co Ltd., ((1919) 122 LT 44, C. A.); (3) in all but the plainest cases, he would lay the facts fully and fairly before counsel of standing and experience in the relevant branch of the law and receive the advice that a prosecution is justified,..... In addition, of course, the defendant must bona fide accept and act on the advice and, though that is part of a subjective test, it cannot be wholly removed from consideration at this stage.'

23. As regards taking legal advice Bay-ley, J. said in Ravenga v. Mackintosh, (1824) 2 B and C 693 = 107 ER 541.

'I accede to the proposition, that if a party lays all the facts of his case fully before counsel, and acts bona fide upon the opinion given by that counsel (however erroneous that opinion may be) he is not liable to an action of this description.' That much importance cannot be given to legal advice taken before launching the prosecution is clear from the following observations of Upjohn, L. J. in (1961) 3 WLR 1240: 'In so many cases counsel may disagree. A bold counsel might advise a prosecution; a more cautious one might take a contrary view; a third might advise making further inquiries before deciding upon a prosecution. Again, counsel may have to advise on a difficult question of law; it would be hard if a prosecutor acting on his advice was held to have acted without reasonable and probable cause, because after much conflict of judicial opinion, the advice of counsel is held to be wrong. Then there may be cases where a wise solicitor would take a second opinion, and so on.'

Nevertheless Upjohn, L. J. said as follows at p. 1258 in 1961-3 WLR 1240:--

'However, ultimately, one has to reach a conclusion upon two matters; first, did the defendants or their advisers make a proper inquiry as to the true state of affairs, and, secondly, if they did, then did counsel reach a reasonable opinion upon the whole matter; thirdly (though part of the subjective test), did they bona fide act on the advice.'

The factors which are ordinarily consideredin deciding whether there was reasonable and probable cause for launching the prosecution are whether the defendant had taken reasonable care to post himself with the true facts and whether he had acted in good faith on the advice of counsel. If advice of competent counsel has been taken before launching the prosecution it is difficult to establish lack of reasonable and probable cause. It is stated as follows at page 582 of the Eighth Edition of Winfield on Tort: 'In practice, however, if the prosecutor believes in the facts of the case and is advised by competent counsel before whom the facts are fairly laid that a prosecution is justified, it wilt be exceedingly difficult to establish lack of reasonable and probable cause. An opinion of counsel favourable to the prosecutor is not conclusive, but it is a potent factor to be taken into account when deciding whether to prosecute.'

24. At the commencement a prosecution may not be malicious. But it may become malicious at a later stage when the defendant had no reasonable and probable cause for-con-tinuing the prosecution. Thus if during the pendency of a criminal prosecution the defendant gets positive knowledge of the innocence of the accused from that moment onwards the continuance of the prosecution is malicious. Street says as follows at page 412 of his book on Law of Torts (1955 Edition):--

'Although the defendant has properly commenced proceedings, if, during their continuance, he learns of facts which do not justify him in carrying on with them, he is liable if he proceeds with the suit.' Anything which is an improper or an oblique motive for launching the prosecution is treated as malice. About malice Street in his book on the Law of Torts says as follows at page 415:-- 'The question is not whether the defendant was angry or inspired by hatred, but whether the defendant had a purpose other than bringing an offender to justice--there is malice, for instance, if he uses the prosecution as a means of blackmail or any other form of coercion. Where the motives of the defendant were mixed, the plaintiff will fail unless he establishes that the dominant purpose was something other than the vindication of the law.'

25. Malice has been kept separate from lack of reasonable and probable cause because 'however spiteful an accusation may be, the personal feelings of the accuser are really irrelevant to its probable truth' and 'malicious motives may co-exist with a genuine belief in the guilt of the accused'. A person actuated by malice may nevertheless have a justifiable cause for launching the prosecu-tion.

26. Want of reasonable and probable cause is an item to be taken into account in considering malice but from the presence of malice want of reasonable and probable cause cannot be inferred. It was observed as follows in 1962-1 All ER 696:

'though from want of probable cause malice may he and often is inferred, even from the most express malice, want of probable cause, of which honest belief is an ingredient, is not to be inferred.'

27. Some of the items of evidence usually relied upon for proving malice are haste, recklessness, omission to make due and proper inquiries, spirit of retaliation and longstanding enmity.

28. Of the 4 essentials to a successful action for malicious prosecution the first two namely that the appellant was prosecuted by the Respondents and was acquitted are not in debate. It is upon the third and fourth essentials that the controversy has arisen. As regards the 4th essential, malice, the argument of the learned counsel appearing for the appellant was that the prosecution was launched by the Respondents with the indirect motive of being in a better position to negotiate with the appellant with a criminal charge hanging over his head than he would be in negotiating as between persons on equal terms. The necessity for investigating the question of malice arises only if there is proof of lack of reasonable and probable cause.

29. We now return to the facts to find out the 3rd essential that is, whether the prosecution lacked reasonable and probable cause. The first subordinate point to be considered in that connection is whether the appellant made the Respondents believe that Sippy and Chetty were acting as the appellant's agents in the transaction. In Ext. D4 Chetty informed the Respondents that for despatch of the 356 bales of Hubli Jaidar for which they had placed an order with him he was contacting his principal at Bombay. Sippy's letter dated 30-5-1956 to the 2nd defendant, Ext. D7, shows that Sippy sent a copy of it to the appellant. In Ext, D8 Chetty informed the Respondents that he would send the contract form as soon as it was received from the principal. In Exts. D9 to D11 it was specifically stated that the sale by the appellant to the Respondents of the 356 bales was through Sippy. In Ext. D13 the Respondents informed Sippy that they had received the triplicate contract forms of Sippy's principal at Bombay. In Ext. D 14 Sippy informed the Respondents that his principal at Bombay was selling cotton only by sample and requested them to contact him direct. The principal at Bombay was described in that tetter as the appellant. The Respondents in their letter, Ext. D15, to Sippy treated the appellant as Sippy's principal. In the letter Ext. D33, sent by the appellant to the Respondents both Sippy and Chetty were described as the appellant's representatives. In these circumstances the Respondents must bona fide have believed that both Sippy and Chetty were the agents of the appellant.

30. The appellant Sippy and Chetty were acting in concert. Exhibits D2 to D6 show that from the beginning till the date of Ext. D6 the Respondents' communications were all with Chetty. Thereafter Sippy emerged at the scene. It was he who wrote Ext. D7 letter to the Respondents confirming on behalf of the appellant sale through Chetty of 356 bales of Jaidar. It was through Sippy that the appellant sent Exts. D9 to D11 to the Respondents. Exts. D34 to D36 also show that the appellant Sippy and Chetty acted in concert in the matter.

31. Exts. D2, D7, D9 to D14 and D24 to D27 deal with the negotiations connected with the contract, the clarifications made during the formation of the contract and the affirmation of the description of the cotton in the 356 bales being Hubli Jaidar. At every stage the Respondents were cautious and insistent on the sale being according to description and not merely by sample. In Ext. P12, Sippy is alleged to have asked the Respondents 'What is there in the name'. In Ext. D14 Sippy told the Respondents that they need only satisfy themselves about the spinning performance of the cotton and not unnecessarily trouble themselves with the name. The description by name of the cotton is not so unimportant as that.

32. Section 15(1) of the Cotton Control Order of 1955 passed by the Central Government under Section 3 of the Essential Commodities Act (10 of 1955) provides that all persons who hold either A or B class licence should submit to the appropriate authority an accurate return in form 'C' in respect of the stocks receipts and sales of each description of cotton. Form 'C' referred to there mentions 36 varieties of cotton. Of them 1 to 26 are Indian Cotton and the remainder foreign. The 16th variety mentioned there is Jaidar. Ext. D1 is the notification published by the Central Government fixing the maximum and minimum prices of cotton for the season 1955-56. In Section 3(g) of it Jaidar is described as follows:--

''Jayadhar' means cotton recognized as such and grown in the Dharwar, Belgaum, Bijapur, North and South Satara and Kolha-pur districts of Bombay State and the Mysore State, provided the areas in which the cotton has been grown have been protected under the Cotton Transport Act, 1923 (Act III of 1923), or any corresponding Act.' In Schedule 'A' of that notification the maximum and minimum prices of Jaidar are mentioned. The sample given by the appellant's agents to the Respondents was only about the fitness of the cotton. Each spinning factory has its own mixing formula and spinning programme. According to the mixing formula cotton of specified description and quality has to be mixed in certain specific proportions. One variety of cotton may be superior to another in quality and costlier in price. Nevertheless it may not be of any use to a factory if in its mixing formula and spinning programme it has no place. Therefore from the mere fact that the cotton supplied was of a quality superior to that contracted for it cannot be taken that the factory to which it was supplied stood to gain by the supply.

33. In the present case the evidence adduced shows that the Rsepondents agreed to purchase cotton from the appellant on the representation made that it would be Hubli Jayadhar equal to sample T 3729. The first letter sent to the Respondents is Ext, D2. Therein both description by name and sample were given. Description by name was also given in Exts. D4, D6, D7 and D8. Ext. D7 shows that when Sippy sent it to the Respondents he sent a copy of it to the appellant also. Therein it was specifically mentioned that the 356 bales to be supplied were Jayadhar. The appellant has no case that he did not receive a copy of that letter. At least when that was received he should have been aware that the representation made by his agent to the Respondents was to supply 356 bales of Jayadhar.

34. The appellant sent through Sippy the triplicate forms, Exts. D9 to D11, to the defendants duly signed by him. The quality of the cotton to be supplied was mentioned in them as only Indian Raw Cotton equal to sample No. 3729 although the representation made to the Respondents till then was that it would be of the particular variety Hubli Jayadhar. The Respondents sent back Exts. D10 and D11 duly signed by them. They were not satisfied with the description of the name of the cotton as only Indian Raw Cotton in Exts. D9 to D11. So they inserted the words 'Hubli Jayadhar' before the words 'Indian Raw Cotton' in Exts. D10 and D11 before they sent them to Sippy duly signed. Sippy on receipt of Exts. D10 and D11 from the Respondents sent Ext. D10 to. the appellant and retained Ext. D11 with him. Exts. D10 and D11 were recovered by the police after search of the premises of the appellant and Sippy. In Ext. D10 the words Hubli Jayadhar are seen to have been scored off but not in Ext. D11. The scoring off of those words may have been done either by Sippy or by the appellant. Anyway the Respondents were not aware of the striking off of those words and so they continued to be under the impression that the description of the cotton as Hubli Jayadhar was a term of the contract.

35. On receipt of Exts. D10 and D11 Sippy wrote the letter, Ext. D14, to the Respondents stating that he regretted to note that they had altered in the contract the description of the cotton. In that letter he requested the Respondents to confirm purchase by sample No. 3729 alone. The Respondents then sent the firm reply, Ext. D15, stating that they were insistent on supply of Hubli Jayadhar alone. In spite of that 250 bales despatched were not Hubli Jayadhar. Ext. D14 shows that when Sippy sent that letter to the Respondents he sent a copy of it to the appellant also. The appellant must at least on receiving copy of Ext. D14 have become aware that the correction in Ext. D10 was made by the Respondents and that they were insistent on sale by description by name. He must also have known that until then the corrections made by the Respondents had not been scored off by anybody.

36. Before taking delivery of the goods the Respondents informed Sippy by Ext. D26 letter. that the contract was to supply Hubli Tayadhar and requested him to confirm telegraphically whether the bales which had arrived were really Hubli Jayadhar. The reply received from Sippy was that all the 356 bales despatched contained Hubli Jayadhar.

37. After the Respondents took delivery of the first consignment of 106 bales Chetty sent the letter, Ext. D30, to the appellant requesting him to send the remaining 250 bales without delay. In that letter it was specifically stated that the sale of all the 356 bales to the Respondents was Hubli Jayadhar. Ext. D31 is the appellant's reply to it. He did not dispute in it that the sale to the Respondents was really Hubli Jayadhar.

38. After parting wilth large sums of money when the Respondents opened the bales they found that the cotton supplied was not of the description covered by the contract. When they wrote to the appellant claiming return of the money his reply, Ext. D34, was that the sale was only of Indian raw cotton equal to sample 3729. In the circumstances of the case it cannot be taken that the contract was for sale of cotton by sample alone. The contract was for sale of cotton by description as well as by sample. In such a case the bulk of the goods should correspond not only with the sample but also with the description. The Respondents had every reason to believe that the appellant and his agents had acted in concert and cheated him. They did not act in haste. As prudent and cautious persons they took legal advice also before filing the complaint. They placed all the facts before their legal adviser, got his recorded opinion, Ext. D37, and acted bona fide upon his opinion, which was not wrong. It cannot be said that the Respondents, when they filed the complaint acted without reasonable and probable cause. After the acquittal of the appellant by Ext. P18 judgment the Respondents filed Ext. P1 appeal before this court. That appeal was accepted after hearing and notice was issued to the Respondents. The acquittal of an accused by the trial court is only subject to the result of appeal if any. There is nothing wrong in testing the correctness of the decision of the trial court by appealing against it. In the circumstances of this case it cannot be said that the appeal was filed on unjustifiable grounds and without reasonable and probable cause. The learned Subordinate Judge rightly found that the Respondents were not liable for damages for malicious prosecution.

39. Hence this appeal is dismissed with costs.


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