M.S. Menon, J.
1. The first defendant in O. S. No. 124 of 1952 of the District Court of Anjikaimal, Ernakulam, is the appellant before us. The suit was for damages for malicious prosecution against the first defendant and the Union of India (2nd defendant) represented by the General Manager, Southern Railway.
2. The lower court held :
'In the result, there will be a decree against the first defendant for Rs. 23,875 with future interest and proportionate costs on the same. The first defendant shall bear his own costs. The claim against the second defendant is dismissed with costs.'
The decree in so far as it exonerates the second defendant from liability is not in controversy before us.
3. The plaintiffs case as against the first defendant is summarised as follows in the opening paragraph of the Judgment under appeal :
'The plaintiff was the Station Master (1) attached to the railway station of Chalakudy on 23-12-1949. The first defendant was then one of his assistants attached to the same station. On that date the 1st defendant was on duty from 2 p.m. for eight hours. From 6 a.m. till 2 p.m., plaintiff was on duty. On the same day at 8 p.m. the 1st defendant sent a telegram to the Railway Polico Inspector at the Cochin Harbour Railway station which ran as follows : 'Collections of date received from S. M. (1) P. V. Rama Iyer at 14 hours. Rs. 286-3-0 against Rs. 96-8-0 or Rs. 10-5-0 short. Same spent by S. M. (1) for private purposes, Investigate.' Copies of the telegram were sent also to District Operating Superintendent, Calicut, Chief Auditor, Trichinopoly and Travelling Auditor. Tri-chur.
In pursuance to this telegram the Travelling Auditor and the Sub-Inspector of Police came and made immediate enquiries in regard to the matter. Afterwards he received a communication dated 14-3-1950 from the District Operating Superintendent, Calicut directing the plaintiff to report to the Police inspector of the Cochin Harbour Police Station and when he appeared before the police, he was arrested and produced before the District Magistrate, Trichur. From there he was released on bail with the help of his relatives. Ultimately he was charged for the offences under Ss, 409 and 447 of the Indian Penal Code.
The learned First Class Magistrate discharged him with the remarks that there was absolutely no evidence to show that the accused had misappropriated any amount or that he had falsified of tampered with the records and also that the prosecution has failed to make out a prima facie case against the accused'. It is also alleged in the plaint that the criminal law was put in motion by the 1st defendant without any justification and maliciously with a view to injure the reputation of the plaintiff and to cause irreparable and serious harm and financial loss to the plaintiff.'
'Section 447' is a mistake for Section 477A of the Indian Penal Code.
4. The telegram of 23-12-1949 is Ext. K. and the judgment discharging the plaintiff under Section 253(1) of the Code of Criminal Procedure, 1898, is Ext. P.
5. Malicious prosecution has been defined as a prosecution that begins in malice, without probable cause to believe it can succeed, and which finally ends in failure. The four elements embodied in the definition and which must concur for the success of a plaintiff in a case like the one before us are :
(a) that the plaintiff was prosecuted by the defendant;
(b) that the prosecution ended in the plaintiffs favour;
(c) that the defendant acted without reasonable and probable cause;
(d) and that the defendant was actuated by malice.
According to the appellant only the second of the four requirements -- that the prosecution ended In the plaintiff's favour--has been established and the Writ should have been dismissed on that account.
6. The answer to the question as to whether a person was or was not the prosecutor in a given case will naturally depend on the entire circumstances of the case. As pointed out by the Privy Council in Caya Parshad v. Bhagat Singh, ILR 30 All 525 :
'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 Riving 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 he 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 mere 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.'
7. In Balbhaddar Singh v. Badri Sah, AIR 1926 PC 46 their Lordships said :
'In any country where, as in India, prosecution, is not private, an action for malicious prosecution in, the most literal sense of the word could not be raised against any private individual. 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 lie,'
8. In the light of the conclusion in paragraph 19 below, however, we propose to assume, without deciding, that the appellant was the prosecutor and that the first of the four requirements has been satisfied in this case.
9. As pointed out by Winfield, judicial attempts to define malice have not been completely successful and 'perhaps we arc nearer the mark if we suggest that malice exists unless the predominant wish of the accuser is to vindicate the law.' (Winfield on Tort, 6th Edition, page 757). On the evidence on record it will not be possible to say that the predominant motive of the first defendant was the vindication of the law and we have no hesitation in hold-ing that the. lower court was right in its conclusion that the existence of the fourth of the four elements has been established by the plaintiff.
10. In order to make out a cause of action, however, malice and want of reasonable and probable cause must concur. Either is insufficient without the other, and the important question for determination is whether the first defendant acted without reasonable and probable cause when he sent the telegram Ext. K. the letter Erf. L and gave the first information report, Ext. B.
11. In Braja Sunder Deb v. Bamdcb Das. AIR 1944 PC 1 the Privy Council stated the proposition as follows :
'In order to succeed in an action for malicious prosecution the plaintiff must in the first instance prove 'two things : (i) that defendant was malicious and (ii) that he acted without reasonable and probable cause.....But malice alone is not enough; there must also be shown to be absence of reasonable and probable cause. If, in the present case, the respondents honestly believed a criminal offence to have been committed and had reasonable cause for so doing, they are not liable in this action, and even though they were malicious they still would not be liable if they had reasonable and probable cause for believing in the appellant's guilt.'
12. The words 'reasonable' and 'probable' appear to he synonymous. 'The conjunction of these adjectives' says Winfield
'is a heritage from the redundancies in which the old pleaders delighted, and although it has been said that Reasonable cause is such as would operate on the mind of a discreet man while probable cause is such as would Operate in the mind of a reasonable man; this does not help us much, for it is difficult to picture a reasonable man who is not discreet.' (Tort, 6th Edn., page 753)
13. In Herniman v. Smith (1938) 1 All ER 1, Lord Atkin said that ho knew of no better definition of the words than that given by Hawkins, J., in Hicks v. Faulkner (1881), 8 QBD 167 :
'I shall 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 stale 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.'
14. Ext. 7 is the service book oE the plaintiff and even a casual perusal of the entries therein gives the picture of a railway servant allergic to decorum and duty and with affinities to misappropriation and profits on the sly. Short remittances of the cash received, the despatching of a cow and its calf in a wagon booked 'empty', the transporting of his father-in-law without a ticket and the purchase of broken tickets for 'defrauding the company for private gain' are some of the many incidents featured in that book.
15. The plaintiff was examined as Pw, 1 and his reply to pointed questions regarding the various punishments he had suffered, was only to say that he did not recollect any one of them. He admitted, however, that his service did come to an end by the voluntary resignation evidenced by Ext. 2 dated 80-7-1950 and that the reason for the said resignation was his de-promotion from the post of a Station Master to that of a clerk in the lower grade.
16. The record of the plaintiff as revealed by Ext. 7 must in its essential details have been familiar to the first defendant and that there was a shortage was clear from Exts. T, U (1) and W (1). In these circumstances we see 110 reason to hold that the first defendant's statements in Exts. I, and B to the effect that he was constrained to report the shortage 'as S. M. Sri Rama Iyer is in the habit of swindling with the cash during his duty for private emergencies' was not based on a reasonable deduction from antecedent conduct.
17. As stated in the American Restatement of the law of Torts :
'In determining whether a person has probable cause for initiating criminal proceedings upon the facts known or reasonably believed by him to exist, the character of the accused as it is known or should be known to the accuser by reputation or experience is a highly important factor. It may not be reasonable to believe, at least without thorough investigation, a statement that a highly reputable citizen was guilty of conduct which indicates depravity or perversion. On the other hand, similar information may well be enough to give probable cause for initiating criminal proceedings against a person of notoriously bad character' (Volume III, page 400)
18. 'The action for malicious prosecution' says Fleming :
'is dominated by the problem of maintaining a suitable adjustment between two social interests of high importance: the desire to safeguard the individual from being harassed by unjustifiable litigation and the policy of encouraging citizens to aid in the enforcement of the law.' (The Law of Torts, page 618)
One of the ways in which the balance is sought (o be maintained is by the casting of the burden of proof. A.s stated by Salmond:
'The burden of proving absence of reasonable and probable cause is on the plaintiff who thus undertakes the notoriously difficult task of proving a negative.' (Torts, 12th Edn. page 691) and Halsbury :'If facts existed which, if known to the defendant, would have constituted reasonable and probable cause, the burden of showing that they were oat known to him would lie on the plaintiff.' (Halsbury's Laws of England, 3rd Edn. Vol. 25. d. 362.)
19. The plaintiff has certainly not discharges the burden cast upon him to prove the absence of reasonable and probable cause for the conduct of the first defendant and it follows that the decree of the trial Court as against him has to be reversed and this appeal allowed. We decide accordingly.
20. In the circumstances of the case, however,we shall direct the parties to bear their respectivecosts both here and in the court below.