K.K. Sharma, J.
1. These are two appeals by the plaintiffs, one by Kedarnath plaintiff and the other by Kanhiya Lal plaintiff against the appellate judgment and decree of the learned District Judge, Jaipur District.
2. These two plaintiffs filed two separate suits and a third suit of similar nature was brought by one Rameshwar. In all the three suits Brahma-nand respondent was the sole defendant and they were for the recovery of damages for malicious prosecution and were brought in consequence of the acquittal of the plaintiffs by the Court of Sessions, Jaipur District in a case under Sections 454 and 380 of the Jaipur Penal Code.
The criminal proceedings were started on the report of the defendant respondent Brahmanandwho alleged that in his absence the plaintiffs along with a few others had broken open the lock of the shop in the tenancy of the defendant and had taken away certain movable property without his consent which had been locked up inside the shop by the defendant. The plainiffs' case is that they never broke open the lock of the defendant but that although he had occupied the shop as a tenant of Thakur Kalyanji of which the parties were pujaries, yet he had vacated it on the insistence of the plaintiffs and had taken out his movables from the shop and put them in a kothari of the temple.
3. The trial court believed the prosecution story and convicted the two plaintiffs Kanhaiyalal and Kedarnath and one Nathulal under Sections 454 and 380, J.P.C and sentenced each of them to three months' rigorous imprisonment and a fine of Rs. 50/- each. Rameshwar was convicted Under Section 454 read with Section 114, JPC and sentenced to two months' rigorous imprisonment and a fine of Rs. 50/-. One Jagdish was also prosecuted but he was acquitted.
4. The three plaintiffs and Nathulal went in appeal to the court of Sessions, Jaipur. Their appeal was successful and they were acquitted by the judgment dated 15-2-1947. A Government appeal was taken to the High Court but the judgment of the learned Sessions Judge was upheld by the judgment of the then High Court of Jaipur dated 13-4-1948.
5. After the above mentioned judgment of the then Jaipur High Court the three plaintiffs instituted three separate suits for damages for malicious prosecution in the court of the Civil Judge, Sambhar on 22-7-1948. These three suits were consolidated on the application of the three plaintiffs dated 10-8-1949 to which the defendant agreed and the evidence was recorded in the suit of Kanhaiyalal.
6. The plaintiffs' case was that the report of Brahmanand defendant was false and criminal proceedings were started maliciously and without reasonable and probable cause. The three plaintiffs said that they were entitled to damages. In Kanhaiyalal's suit a sum of Rs. 2500/- was claimed, and in Kedarnath's suit also the same amount was claimed. It is not necessary to mention what was claimed by Rameshwar because he has not come in appeal to this Court.
7. The case was afterwards transferred from the court of Civil Judge, Sambhar to the court of Civil Judge, Jaipur District who by his judgment dated 29-9-1951 held that the plaintiffs had failed to prove want of reasonable and probable cause. On this ground he dismissed all the three suits. The two appellants before me went in appeal against the judgment and decree of the learned Civil Judge but the learned District Judge, Jaipur District, who heard the two appeals, dismissed both of them by his judgment dated 31-5-1952 and upheld the decrees of the first court.
These two appellants have filed these two separate appeals against the said judgment and decree of the learned District Judge, Jaipur District. The Civil second appeal filed by Kanhaiyalal is No. 307 of 1952 and the appeal filed by Kedarnath is No. 325 of 1952. As both the appeals arise out of the same judgment of the learned District Judge, they are being disposed of by this single judgment.
8. I have heard Sri M. M. Tewari on behalf of the appellants and Sri B. L. Lohadia on behalf of the respondent. It has been argued by Sri Tewari that the lower courts were not justified inholding that the plaintiffs had failed to prove want of reasonable and probable cause on the part of the defendant. It was argued that the learned Sessions Judge as well as the then Jaipur High Court in their judgments found the prosecution case against the appellants to be improbable and the evidence for the prosecution was disbelieved.
The presumption of innocence is in favour of the appellants. It was a case in which the prosecution story was either false or true to the personal knowledge of the defendant and very slight evidence was required on behalf of the plaintiffs to prove in the circumstances of this case that the prosecution was without reasonable and probable cause and it was for the defendant to have established by unimpeachable evidence that the criminal case started by him was true or at any rate that he honestly believed in the guilt of the appellants. Certain rulings have been cited before me by the learned counsel for the appellants.
The most important of them are the following: Balbhaddarsingh v. Badri Sah, AIR 1926 PC 46; Braja Sunder Deb v. Bamdebdas, AIR 1944 PC 1; Herniman v. Smith, 1938 AC 305; Tempest v. Snowden, 1952-1 All ER I.
Learned counsel also cited the following rulings of Indian High Courts and Judicial Commissioner's Courts: Bhawani Shanker v. Raghubar Dayal, AIR 1937 All 417; Tahrat Karim v. Malik Abdul Khaliq, AIR 1938 Pat 529; Sitaram v. Dudharam, AIR 1952 Nag 310; Nitya Nanda Mandhata Patnik v. Bina-yak Sahu, (S) AIR 1955 Orissa 129; Uchosingh v. Nageshar Prasadsingh, AIR 1956 Pat 285; and Jethu Ravji v. Premji Ladha, AIR 1954 Kutch 39.
9. On behalf of the respondent it was argued by Sri Lohadia that it has been found as a fact by the lower courts that the plaintiffs' case was not proved and that there was no want of reasonable and probable cause on the part of the defendant in starting criminal proceedings against the plaintiffs. It was argued that on the evidence the lower courts were perfectly justified in holding that the plaintiffs failed to prove their case and it would not be justifiable for this Court to interfere with a concurrent finding of fact of the lower courts in second appeal.
It was argued that even if this Court were to go into evidence, the plaintiffs' evidence was discrepant on material points and from that evidence the plaintiffs failed to prove that the shop was vacated by the defendant voluntarily and placed in possession of the plaintiffs as Pujaris of temple Kalyanji and that the movable property of the defendant placed inside the shop during the tenancy of the defendant had been taken out by the defendant himself and placed in a Kothri inside the temple. It was argued that some of the witnesses have said that a list of the property was prepared when it was taken out while others have said that no list was prepared.
Some witnesses have said that the shop was voluntarily vacated by the defendant while others have said that pressure was put upon the defendant to vacate it (shop). Some witnesses have said that the defendant had himself placed his movable property in the Kothri inside the temple after vacating the shop while other witnesses have said that it was placed by the authorities of the temple. Jagdishchander witness has said that the defendant wanted that he should take his movable property from the Kothri of the temple but the plaintiffs refused saying that the property did not belong to the defendant but to the Thakurji. It was argued that the evidence of the defendant was superior to that of the plaintiffs and therefore the lower courtswere perfectly justified in preferring the evidence of the defendants to that of the plaintiffs.
10. I have considered the arguments of both the learned counsel. The earliest authority of the Privy Council which has been placed before me is that in the case of AIR 1926 PC 46 referred above. Till then there was some confusion in Indian Courts. Some took the view that the plaintiff had to prove in a suit for malicious prosecution that he was innocent of the charge upon which he was tried. Their Lordships said that this view was erroneous and summed up the following factors which were necessary to be proved in a suit for malicious prosecution:
1. The plaintiff has to prove that he was prosecuted by the defendant;
2. The proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating;
3. The prosecution was instituted against him without any reasonable and probable cause; and
4. It was due to a malicious intention of the defendant and not with a mere intention of carrying the law into effect.
In the case, before their Lordships a cognizable case was started on the report of the defendant. The first contention of the defendant was that he was not the real prosecutor. This objection was overruled and their Lordships said that in a 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 the prosecution is just the same thing, and if that is done and trouble is caused, an action will lie. Although I have not mentioned in the arguments advanced by the learned counsel for the defendant that he made an argument in this respect also but it may be noted here that some passing argument was made on this point as well and reply to that argument is to be found in the judgment of their Lordships of the Privy Council cited above.
It cannot therefore be said in the present case, provided other factors are satisfied, that no action for malicious prosecution lay against the defendant in this case on the ground that the defendant was not the prosecutor of the plaintiffs. It also goes without saying that the proceedings complained of terminated in favour of the plaintiffs. In view of my finding I am going to record on points Nos. 3 and 4 given above, it is not necessary to give any finding on the vexed question whether the criminal proceedings in question were from their nature capable of terminating in favour of the accused.
11. Coming to the question of malice and want of reasonable and probable cause, some courts have taken the view as if as soon as the plaintiff is acquitted in a criminal case the facts of which could be either true or false to his very knowledge, the burden goes to the defendant to prove that his case in criminal court was true. An observation has been made in the case of AIR 1938 Pat 529, referred to above, on which an argument has been founded by the learned counsel for the appellants that in a case of acquittal where the facts were true or false to the knowledge of the prosecutor, the presumption will be that there was no reasonable and probable cause for the prosecution,
Of course such an observation finds place in the said ruling of Patna High Court but it is not that that case was decided on this presumptionalone. Both the parties had led evidence and that evidence was examined. The two plaintiffs who went into the witness-box were not effectively cross-examined to discredit their claim of innocence and the evidence adduced for the defence was not such as to suggest that the plaintiffs might have been guilty in spite of their acquittal.
In that case the complaint against the plaintiff was not based on information given to the prosecutor by others, but on his own knowledge. On a reading of the entire evidence it was found that the plaintiffs were able to prove want of reasonable and probable cause. The observations occurring in that judgment, if I may say so with respect, appear to be only obiter dicta. It is clearly said in that very ruling that in an action for malicious prosecution the onus of establishing that the defendant had no reasonable or probable cause for the prosecution lies on the plaintiff.
In my opinion where two parties come to court with two positive cases the court has got to see as to which positive case is more believable. In such a case if fee court comes to the conclusion that the positive case of the plaintiff is less believable than the positive case of the defendant, whether the facts were true or false to the personal knowledge of the prosecutor should not come in the way of the court throwing out the suit for malicious prosecution.
Of course there are many cases where the plaintiff's case is negative and very slight evidence on the part of the plaintiff might do to shift the onus on to the defendant. In such a case after the plaintiff has denied on oath his participation in a particular crime the defendant has to prove by positive evidence that the plaintiff had committed the act complained of. There might be other cases in which the facts are not within the personal knowledge of the prosecutor and he has to rely upon the information given by others.
In those cases the court has got to see whether it is satisfied by the evidence that the defendant honestly believed in the guilt of the plaintiff when he started criminal proceedings. In such cases it would not be a conclusive factor whether the information given to the prosecutor by others was false or true. All that has got to be seen in such cases is whether the information conveyed to him was such which might have been honestly believed to be true.
Not a single case has been cited by Sri Tewari in which the plaintiff did not produce any evidence whatever to prove his case, where the facts complained of were such as might be true or false to the personal knowledge of the prosecutor. Evidence was produced by the plaintiffs in all the cases and it was examined in the circumstances of each case whether the plaintiffs' evidence established the want of reasonable and probable cause or not.
In another case AIR 1956 Pat 285, cited by Sri Tewari, the view taken was that in an action for malicious prosecution the initial burden of proving absence of reasonable and probable cause and existence of malice on the part of the defendant in launching the prosecution against the plaintiff rests on the plaintiff, but that burden may shift during the trial. The amount and nature of the evidence required to discharge the initial burden depends upon the facts and circumstances of each case.
Although in that case also the observations of Patna High Court in AIR 1938 Pat 529, cited above, were quoted and similar observations of Orissa High Court in (S) AIR 1955 Orissa 129, referred to above, were also quoted, yet the evidence of both the parties was examined. I may concede that incases where the facts giving rise to the criminal case may be true or false to the personal knowledge of the prosecutor, a heavier burden rests upon him to rebut the plaintiff's case than in a case where he received information through others.
But if the meaning of the learned Judges of Patna and Orissa High Courts is, as has been understood by Sri Tewari that in such a case the plaintiff may produce any worthless evidence, still the court has got to see if the defendant's evidence has established that the facts given by the prosecutor in the criminal case were true, I have most respectfully to disagree with their views. Mr. Tewari himself has referred to a ruling of Allahabad High Court in AIR 1937 All 417, referred to above. I respectfully agree with the view taken in that case.
It was held by Niamatullah J. that
'in an action for malicious prosecution the plaintiff has to prove that he was prosecuted by the defendant; and that the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating. The presumption of innocence of plaintiff on proof that the prosecution ended in his favour will not however entitle the plaintiff to succeed. He must further establish that there was no reasonable or probable cause for the defendant to prosecute him.'
It was observed that
'if the facts alleged by the defendant in the criminal case are such as, from their nature, were necessarily true or false to his knowledge, the plaintiff must establish that the defendant's story was false; and if he proves that the defendant's story was false he should be deemed to have proved that there was no reasonable and probable cause for the defendant to prosecute the plaintiff; but where the defendant's allegations were not true or false to his knowledge, for example, where the defendant prosecutes the plaintiff on information and belief, the plaintiff has to establish that the circumstances were such that a reasonable and prudent man would not have acted on the supposition that the plaintiff was guilty of the offence with which he was charged'.
As regards malice it was observed that
'in all cases the plaintiff should also prove malice on the defendant's part in the legal sense, i. e., indirect and improper motive, though in certain cases malice may be inferred from the absence of reasonable and probable cause.'
12. Bearing the above principles in mind, I have got to examine whether in the present case the facts were such as could be false or true to the personal knowledge of the defendant. The case of the defendant in the criminal court was not that in his presence the plaintiffs broke open his lock and took away his property against his will. His information was based on the information supplied by others.
Of course, if the plaintiffs had been successful in this case in proving that the defendant had himself vacated the shop, and took out his movable property from it and placed it in the temple it could have been said that the defendant acted without reasonable and probable cause. However the evidence of the plaintiff has not been believed by both the lower courts and I think there were good reasons for doing so. Some of the witnesses for the plaintiff said that the defendant has himself vacated the shop, taken out his movable property from it and placed in a kothri in the temple and put his lock thereon.
The evidence of Birdhichand shows that the defendant asked for the key of the kothri wherein his movable property had been placed after vacating the shop, but the plaintiffs did not hand it over to the defendant. If the evidence of those witnesses is true who have said that the defendant himself locked his movable property inside the kothri in the temple, there could be no question of his asking, for the key from the plaintiffs. In this connection the evidence of Sarwanlal one of the plaintiffs' witnesses, may be referred to, wherein he has said that the defendant himself took away the key after placing his movables inside the kothri' in the temple.
Some of the witnesses for the plaintiffs said that a list was prepared of the property when it was taken out of the shop. If the defendant himself' took out the property from the shop, I do not understand where was me necessity for preparing any list. Sarwanlal's evidence, however, definitely shows that no list was prepared when the movable property was taken by the defendant. Although some of the witnesses have said that the defendant voluntarily vacated the shop yet the evidence of Jagdishchander P. W. 5 shows that a good deal of pressure was put upon him and the shop was got vacated by the the plaintiffs and other Mukhias.
This witness has come forward to say that the defendant demanded the return of his movable property from the plaintiffs but they declined to hand it over and said that the property was not his but that of the temple. The plaintiffs say that they were not present when the shop was vacated and the movable property of the defendant was taken out of it. Sarwanlal however has clearly stated that all the nine Mukhias including the plaintiffs-appellants were present when the shop was got vacated and the property taken out of it.
The Court of first Instance before whom evidence was produced has very carefully considered the evidence produced and it has come to a definite finding that it was clear that the defendant's complaint was not false and without reasonable and probable cause. The learned court has very carefully and analytically examined the evidence of the witnesses and even if the lower appellate court had taken a contrary view I would have been compelled to say even in second appeal that there were no-adequate reasons for interfering with the finding of the first court. In this case however the finding of the first court has been accepted even by the lower appellate court and therefore I see absolutely no reason why I should interfere with the finding of fact.
13. I have not forgotten that the question of want of reasonable and probable cause is not altogether a question of fact. Certain facts are to be proved by evidence and inference has to be drawn from them whether they make out a case of want of reasonable or probable cause. In this case according to the court of first instance the plaintiffs had failed to prove that the shop was vacated by the defendant and the property taken out of it, as alleged by the plaintiffs. On that view the only question that would remain to be considered is whether the defendant when he made the report could entertain reasonable belief that the plaintiffs had committed any criminal offence: From the evidence of the defendant it is established as held by the court of first instance that in the absence of the defendant his lock over the shop in dispute was broken open by or under the authority of the plaintiffs and that they were present at that time.
The movable property of the defendant inside the shop was taken away by the plaintiffs or their agents in the absence of the defendant and put inside the temple. It is proved by the evidence of Jagdish Prasad himself who is a witness for the plaintiffs that when the defendant requested theplaintiffs to return the property, they gave a definite no and said that the property did not belong to him but it belonged to Thakurji.
That the property was inside the kothri of the temple and not inside the shop in dispute when the criminal case was brought is admitted by both the parties and it is the case of no party that although the property remained inside the shop yet the defendant made a false report that the property was in possession of the plaintiffs. Rameshwar plaintiff has himself admitted that the defendant's property was recovered from inside the temple by the police.
Looking to all this it cannot be said that the defendant had no reasonable ground for believing that the information given to him that the lock of the shop had been broken open by the plaintiffs and the movable property of the defendant had been taken away by them was true. It was held by their Lordships of the Privy Council in AIR 1944 PC 1, referred to above that
'however wrong headed a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be initiator of a malicious prosecution. But malice alone is not enough; there must also be shown to be absence of reasonable and probable cause.'
In that case a certain person had sent his daughter to the house of a big landlord.
The daughter remained in the harem of the landlord for about a month or so and thereafter she died. The defendants coming to know about it, lodged a report accusing the father of the girl and the landlord of selling and buying minor girl for the purpose of illicit intercourse. The landlord and the father of the girl were challaned under Sections 372 and 373 read with Section 114, I. P. C. The criminal court did not find the case of the prosecution established and consequently acquitted the accused, A suit for malicious prosecution was brought by the accused who had been acquitted.
The defence was that the girl had been given to the landlord for making her a Chauki Bai meaning thereby a secondary wife. Their Lordships observed that they did not think it established that the Raja did intend to do so, much less that the respondents had no reasonable or probable cause for thinking that no marriage of any kind was contemplated. It was observed
'It is true that the learned Subordinate Judge has found that Harikrishna intended to give his daughter to be a Chauki Bai, but this finding even if accepted, has no bearing upon the ultimate decision ................ The question would not be what he intended but what the respondents reasonably thought his intentions were. As it is, what the respondents thought of Harikrishna's action is not directly material. The material question is what was the respondents' reasonable belief as to the circumstances in which and the object with which appellants 2 and 3 took away the girl.'
In the case 1938 AC 305 cited above by the learned counsel for the appellants the same view was taken and this is the view taken in the case of 1952-1 All ER 1, cited by the learned counsel for the appellants.
14. I have no reason to differ with the finding given by the lower courts that in the circumstances of the present case it was not proved by the plaintiffs that the criminal case was brought by the defendant without reasonable and probable cause.
15. Both the appeals are dismissed. The defendant shall get his costs throughout from the plaintiffs.
16. Sri Tewari prays for leave to appeal to Division Bench. I do not find any reasons to accord leave. Leave is refused.