1. These are connected appeals directed against the decrees and judgments of the learned Subordinate Judge of Tirunelveli in O. S. Nos. 113 of 1950 and 25 of 1951.
2. The facts are: The first defendant in both these suits S.T. Sahib is a substantial landlord of Vadakarai village who was formerly trading in Ceylon and apparently after making his fortune there has come and settled in Tirunelveli District. He had taken on lease Mekkari, Pathavtdtkarai thurai Mutt and Kumarar Kovil lands. This S.T. Sahib was employing as his agent Muhammad Hussain Rowther for collecting the rents, sub-leasing etc., in respect of these lands. The Mekkarai lands are found to have been taken on lease by this Hussain Rowther under an authorization letter from S.T. Sahib at Tiruvaduthurai at the rate of Rs. 14,500/- per year and a preliminary agreement has been entered into on S.T. Sahib's behalf by this Hussain Howtiier. The lease deed relating to the transaction came into effect from 1-7-1947.
3. I shall now briefly describe the plaintiff in O. S. No. 113 of 1950, N. Hasan Ghani Sahib. This ' Hasan Ghani Sahib is a vakil of 26 years standing residing at Tenkasi. He pays a Beriz of Rs. 325. His practice seems to be purely on the criminal side. He is said to be a close associate of another person who has been constantly figuring in our Courts in sensational litigations viz,, M.D.T. Kumaraswami Mudaliar examined as P. W. 2 in O. S. 113 of 1950, and which association shows according to the appellant that birds of the same feather flock together. It is in evidence that this vakil was also personally involved in several criminal proceedings which may now be briefly narrated.
In C. C. No. 1305 of 1940 he was charge-sheeted along with two others under Section 430, I. P. C. and oh 15-11-1941 under Ex. A-5 this case seems to have been compounded with the permission of the Court. In 1944 one Masoodu Rowthar complained against him for mischief in C. C. No. 8 of 1944. In that case this vakil was a co-accused along with this S.T. Sahib. In 1948 he has figured as an accused in another, criminal, case along with two others. This is all admitted by this Ghani Sahib.
He was also the vakil for S.T. Sahib to whom he is also related by reason of a marriage alliance. But subsequently ill-feelings seem to have arisen between them by reason of this S.T. Sahib purchasing a share in immovable properties from the brother-in-law of this. Ghani Sahib and in which the latter seems to have been interested. Then this S.T. Sahib has given bis legal work to a Nadar advocate. It may be taken therefore as established that by the first part of 1948 feelings between this S.T. Sahib and the vakil Gbani Sahib were not good.
3 (a) The relationship between S.T. Sahib and his agent seemed to have been outwardly friendly and correct, though this agent has been harbouringapparently ill-feelings against his master. In fact this agent has through this very Ghani Sahib givena lawyer's notice to this S.T. Sahib on 24-5-1948 claiming that himself and S.T. Sahib were partners in four joint leases from 1942 to 1952 and that from which profits have been made, that this S.T. Sahib was not showing him accounts and attempting to defraud him and that therefore accounts should be rendered by S.T. Sahib and moneys given to this agent.
On the foot of this notice a suit O. S. 222 of 1952 has been filed in the District Munsif's Court, Tenkasi. I may complete this information by pointing out that S.T. Sahib contested this claim as wholly false and inspired. This suit was dismissed after an elaborate enquiry by the learned District Munsif, Tenkasi on 30-8-1954. There was an appeal in A. S. No. 57 of 1955, sub-court, Tirunelveli (originally A. S. No. 248 of 1954, District Court, Tirunelveli) and it was dismissed on 18-4-1955 with costs.
4. On 2-4-1948 at about 9 a.m. S.T. Sahib at his house at Vadakarai entrusted this Hussain Rowther with Rs. 6000 with directions to give the amount to the Rayasam of the Tiruvaduthurai Mutt and also entrusted at the same time Rs. 3000 directing Hussai Rowthar to pay that amount to the trustee of the Kumarakovil towards the lease of lands. This entrushnent of the amount of Rs. 9000 by S.T. Sahib to Hussain Rowthar is stated to have been witnessed by two persons Risavu Muhammad Rowthar and Mian Rowthar of whom Risavu Rowthar has been examined as D. W. 5 in O. S. 25 of 1951. Hussaim Rowthar travelled with this money from Vadakarai to Tenkasi in the bandy of S.T. Sahib driven by the bandyman Puthoorari.
5. In the evening Puthooran came hack with Risavu who had returned from Tenkasi in that bandy having gone there on business of his own. Hussain Rowthar had not returned by that bandy. The master S.T. Sahib learnt from them that Hussain Rowthar was staying in the house of Ghani Sahib, vakil Tenkasi, and that he would be returning on the next day.
6. On 3-4-1948 Subbiah Pillai, the Inspector of the Tiruvaduthurai Mutt came to S.T. Sahib's houseat Vadakarai and asked for the amount due to be paid to the Mutt and which the Mutt was requiring to be paid earlier as they had to pay the kist. This S.T. Sahib had agreed to oblige the Mutt. Thereupon this S.T. Sahib was surprised and told the Inspector that the money had already been sent through Hussain Rowthar and that he should go back and enquire Rayasam Subramania Pillai to whom the money had been directed to be given and would have been given by that time. The Inspector left the place.
7. On 4-4-1948 S.T. Sahib learnt that the money sent had not been received in the Mutt. As S.T. Sahib was asked to state as to when he would pay the amount, he contacted Muhammad Sherfuddin Rowthar, the son-in-law of Hussain Rowthar and told him that he had sent Rs. 9000 through his father-in-law for paying the rent to the Mutt and to Kumarar Kovil and that the Mutt Inspector Subiah Pillai had sent a letter stating that the sum of Rs. 6000 has not been paid and SherifuddinRowthar to go to Patha Vadakarai and find out hisfather-in-law Hussain Rowthar. This Sherifuddin Rowthar went to Tenkasi and made a search and came back and informed S.T. Sahib that his father-in-law was in the house of the vakil Ghani Sahib and that he would come with the money.
8. On 5-4-1948 Hussain Rowthar did not turnup and his son-in-law had received information thatHussain Rowthar had come to Vandalam Pottal and. therefore he went there to fetch Hussain Rowthar.S.T. Sahib was waiting in the village till the afternoon for Sherifuddin's return. Both of them didnot turn up.
9. Therefore, S.T. Sahib went to Tenkasi to ascertain from the trustee of Kumarar Kovil whether Rs. 3000 had been paid to the temple and learnt-that it had not been paid: He also further learnt that Hussain Rowthar had sold away his (T. Rowthar's) paddy at Pathavadakarai and that T.C. Iswaran Pillai had been informed of it. Therefore he went to Pudukkudi Mutt, met the Inspector and informed him that Hussain Rowthar was keeping the amount without paying the Mutt or himself. The Inspector- thereupon went and asked T.C. Iswaraii Pillai of Ranchi. Iswaran Pillai gave the information that it was true that paddy had been sold for Rs. 2000 but that he knew nofhing about the sum of Rs. 9000. These persons promised S.T. Sahib that they would send for Hussain Rowthar, enquire and settle the matter.
10. Therefore, this S.T. Sahib on 6-4-1948 went to the Superintendent of the Tirunelveli Mutt to grant him two weeks' time for paying the amount due to be paid to the Mutt and went to Illanchi Iswaram Pillai and made enquiries on the evening of 7-4-194S and learnt that Hussain Rowthar had come and left the place and the matter could not be settled amicably.
11. This unfortunate S.T. Sahib thereupon fell seriously ill on 8-4-1948 and had to undergo treatment and all that he could do was to make enquiries of Sherifuddin and. Iswaran Pillai and learn from them that Hussain Rowthar had admitted to them that he had taken the sum of Rs. 9000. S.T. Sahib became fit to move about only on 24-5-1948.
11 (a) In the interval S.T. Sahib learnt from D2 and D3 who had been in the house of Ghani Sahib when Hussain Rowthar came there on 21-4-48 and that when Hussain told the vakil that he had brought Rs. 9000 to be paid to the Mutt and temple, the vakil advised him to retain the amount as he complained that monies were due to him from S.T. Sahib and that when Hussain said what would happen to him if he did so the Vakil told him that he would look after him if he were prosecuted and that the vakil was handed over the money by Hussain apparently for safe custody and that the vakil further advised Hussain to go and sell the paddy in Pathavadakarai.
12. On 24-5-48 S.T. Sahib appeared at the Tenkasi police station and gave a complaint in which he set out all the salient facts. This complaint has been registered as the first information report and as crime No. 72 of 1948 of the Tenkasi police station.
13. In this complaint S.T. Sahib cited as accused Hussain Rowthar, the vakil Hassan Ghani and the son-in-law of Hussain Rowthar viz. Peria Mohammad Rowthr, who is the plaintiff in O. S. No.25 of 1951 and who went with Hussain Rowthar to the house of Ghani Sahib as the persons who had defrauded him of his money and caused trouble and loss to him.
14. the complainant cited as his witnesses ten persons as the persons who knew the matters constituting the contents of his compiaint.
15. the case was investigated by Sri K. Ramaswami. Inspector of Police and in the first instance a charge-sheet was laid on 16-8-1948 against Hussain Rowthar alone under Section 408, I. P. C. in C. C. No. 584 of 1948, Sub-Magistrate's Court, Tenkasi. The witnesses cited in the charge-sheet included all the persons whose names have been mentioned in the F. I. R. and others totalling in all 20 witnesses.
16. Then this S.T. Sahib after obtaining legal advice of a vakil by name Mr. Narasimhachari petitioned the higher authorities to look into the accusation against Ghani Sahib and Peria Mohammad Rowthar. The higher police officers looked into the matter and a supplementary charge-sheet was filed on 21-1-1949 challenging these two persons also.
The charge against Hussain Rowthar was that he as the agent employed under P. W. S.T. Sahib on 2-4-1948 at about 9 a.m. at Vadakarai in the house of S.T. Sahib was entrusted with a sum of, Rs. 9000 to be paid to the Tiruvaduthurai Mutt in a sum of Rs. 6000 and Kumarar Kovil in a sum of Rs. 3000 being the lease amounts due to them and that instead of paying the amounts had misappropriated the same and had committed criminal breach of trust. The charge against Ghani Sahib and Peria Mohammad Rowthar was that on their instigation Hussain Rowthar committed criminal breach of trust and that they had thereby abetted the commission of the offence of criminal breach of trust.
17. This case was enquired into by Janab Muhammad Hussain, B. A. who was the Additional First Class Magistrate then and who it is now stated has been dismissed from service for corruption. The prosecution was conducted by the Assistant Public Prosecutor and accused were defended by Sri Rama Doss vakil Tirunelveli Sri T.R. Ramachandra Iyer and Sri. T.R. Sankarasubbier. vakil Tonkasi. This Magistrate disposed of the case on 30-12-1949. He came to the conclusion that there was a prima facie case against Hussain Rowthar of having committed the offence,
'that there was no evidence worth considering to show that at the instance of accused 2 Ghani Sahib breach of trust was committed, although the alleged conversation between accused 2 and accused 1 might acquire a sinister significance by the subsequent conduct of accused 1 in going to Kooniyur on the next day (3-4-1948) and telling P. Ws. 6 and 7 that he had not got the money to be paid to them and that it is possible for accused 2 being lawyer of good status and rank to give advice to accused 1 in this matter without intending to be dishonest about it, that the evidence tendered against accused 3 stands more or less in the same level and that be unhesitatingly found that no case against accused 2, and 3 had been made out which if unrebutted would warrant their conviction.'
Therefore he discharged Ghani Sahib . and Peria Mohammad Rowthar under Section 253 (1), Cr. P. C. andnot, be it noted, under Section 253 (2) that he considered the charge to be groundless, and framed a charge against Hussain Rowthar under Section 409, I. P. C, the learned Magistrate after allowing further cross-examination, of the P. Ws. and hearing the defence came to the conclusion
'that there was overwhelming evidence about the cntrustrnent of Rs. 9000 by S.T. Sahib to Hussain Rowthar as his agent and that the evidence of Rao Sahib Iswaran Pillai and others showed that Hussain Rowthar had admitted the embezzlement and that there was no material on which the defence can plausibly base a theory that this case was conducted by the accuseds enemies and that therefore he had no hesitation on a consideration of all the evidence in finding that the prosecution case has been proved to the hilt.' .
Therefore he convicted Hussain Rowthar under Section 409, I. P. C. and remarked as follows:
'It is to be observed that this accused has by his conduct in going to accused's house brought an odium to the fair name of accused 2, who, as the records indicate has been holding good reputation as able lawyer and a law abiding citizen. Under Section 409, I. P. C., I sentence accused 1 to undergo rigorous imprisonment for 9 months and to pay a fine of Rs. 700 and in default to suffer rigocous imprisonment for further period of two months. Out of the fines collected a sum of Rs. 500 will be paid to P. W. 1 as compensation under S; 545, Cr. P. C.'
17(a) There was an appeal therefrom and this appeal was heard by Sri K.S. Venkataraman, I. C. S. in C. A. No. 1 of 1950. The appellant Hussain wa3 represented by a cohort of lawyers Messrs. S. P, Rajendram T.M. Subramaniam S. Jayapal and the P.P. appeared for the State. The learned S.J. repelling the contention that the appellant as a partner was en tided to retain the amount because as a matter of law too there can be a criminal breach of trust by a partner under some circumstances -- vide Tagannalh v. Emp., AIR 1932 Bom 57 (A); Satyanarayanamurthi v. Manikyala Rao : AIR1940Mad265 Allah Rakha v. Liakat Hossain AIR 1940 Cal 571 (C), confirmed the conviction and sentence with the comment that the learned Magistrate should have written a more detailed Judgment.
There was a revision to the High Court and thiswas disposed of by Somasundaram J. in Cr. R. C.383 of 1950. The leader of the Madras CriminalBar Sri 'K.S. Jayarama Iyer appeared for HussainSahib assisted by Sri V.V. Radhakrishnan and theState was represented by the Public Prosecutor andthe respondent by Messrs. Basi Reddi and in S.Sethu. The conviction and sentence were set asideon the ground that
'more convincing evidence was necessary to prove that Hussain Rowthar was in possession and that he was entrusted with the money by S.T. Sahib and that such evidencing was lacking in this case and that therefore the prosecution had cot made out Its case.' This was on 19-7-1951. -
18. In the meanwhile these two suits had been filed by Ghani Sahib and Peria Mohammad Rowthar for damages for malicious prosecution. In O. S. No. 113 of 1950 Ghani Sahib seeks to recover Rs, 10,000/- and in O. S. 25 of 1951 (originally filed as O. S, 260 of 1950, District Munsifs Court, Tenkasi) Peria Muhammad Rowthar seeks to recover Rs. 2000. The learned Subordinate Judge decreed the plaintiff in O. S. No. 113 of 1950 damages Rs. 5,500 and the plaintiff in O. S. No. 25 of 1951 damages Rs. 650, recoverable only from S.T. Sahib, the other defendants 2 to 4, informants of S.T. Sahib and his witnesses in the criminal case were dismissed out of the suits. Hence these appeals by the defeated S.T. Sahib.
Let us' first examine the essentials for action for malicious prosecution..
19. the action for damages for malicious prosecution is part of the common Law of England. In India the law on the subject is exactly the same as the law in England and the U. S. A.
For a comparative study of malicious legal proceedings under the three systems see Ch 22 p. 850 and foil of Clerk and Lindsell on Torts Eleventh edn., (1954) Ch XXV p. 849 and foll. of Anaud and Sastri Law of Torts (1952) and Restatement of the Law of Torts as adopted and promulgated by the American Law Institute at Washington D.C., Vol. III, Ch 29 p. 379 and foil.
20. The foundation of the action lies in abuse of the process of the Court by wrongfully setting the law in motion and it is designated to discourage the perversion of the machinery of the justice for an improper purpose. The gist of the action as 34 Am Jur p. 703 puts it is the putting of legal process in force, regularly for the mere purpose of vexation or injury, or as 38 Corpus Juris puts it the gist of the action is that plaintiff has been improperly made the subject of legal process resulting in his damage (p. 383).
21. Professor Winfield in his Well-known work on Law of Torts narrates the long history of this tort taking us back to the old writ of conspiracy--de odio et atia--which was in existence as early as Edward I's reign and how its progress towards its modern equivalent had to make way slowly between two competing principles, viz., the freedom of action that every man should have in bringing criminals to justice and the necessity for checking lying accusations of innocent people. (4th edn., (1948), PP. 610-611).
Thus malicious prosecution a very ancient action, regarded as a remedy is a distinctive action ex delicto for the recovery of damage to person, property or reputation shown to have proximately resulted from a previous civil or criminal proceeding which was commenced or continued without probable cause but with malice and which has terminated unsuccessfully, 38 C. J., p. 383.'
22. It was only in 1698 that this action for damages for malicious prosecution was placed on a firm basis in Savile v. Roberts, (1698) 1 Ld. Raym. 374: 12 Mod Rep 208 (G), and Professor Winfleld concludes this historical exposition by pointing out that even then it has become so much hedged about with restrictions and the burden of proof upon the plaintiff is so heavy that no honest prosecutor is ever likely to be deterred by it from doing his duty, and it is notable how rarely an action is brought at all much less a successful one, for this tort. Therefore to cite 34 Am. Jur. 705 again it is frequently said that the action for malicious prosecution is not favoured in law but a better way of expressing the idea is, to say that the action should be properly guarded and its true principles strictly adhered to since public policy favours the exposure of a crime which a recovery against a prosecutor obviously tends to discourage. Harper on Torts, Ch 16 p. 581: It is highly desirable that those reasonably suspected of crime be subjected to the process of criminal law for the protection of society. It is necessary that the citizen be accorded immunity for bona fide efforts to bring anti-social members of society to the bar of justice. Again it is necessary that one individual be free to protect his own personal rights by resort; to the Courts without the threat of a counter suit for damages in the event he is unsuccessful. All the restricts resulting from these various interests and principles of social policy are reflected in the usual formula for the tort of malicious prosecution that the plaintiff must show (a) that proceedings had been instituted against him, (b) for an offence which was groundless as evidenced by the successful termination of the proceedings in his favour, and (c) which were instituted against him by the defendant without probable cause and from malicious motives.
23. In a suit for damages for malicious prosecution the plaintiff has to prove as laid down by their Lordships of Privy Council in Mohammad Amin v. Jogendra Kumar, AIR 1947 PC 108 (E to I) (1) that the defendant has prosecuted the plaintiff, i.e., instituted criminal proceedings or certain other proceedings reflecting upon the plaintiff's honour or character; (2) that the prosecution has ended in favour of the plaintiff; (3) that the defendant has prosecuted without reasonable and probable cause, (4) that the defendant in prosecuting was actuated by malice, i.e., an indirect and improper motive; and (5) that the plaintiff when the proceedings are other than criminal proceedings has suffered special damage, unless the proceedings are such as from their very nature are calculated to injure the credit or honour of the plaintiff. To sum up in the language of 34 Am Jur 703, a malicious prosecution is one that is begun in malice without probable cause to believe it can succeed and finally ends in failure. If any one of these elements is lacking the result is fatal to the action. (Indian) Anand and Sastri Law of Torts p. 850; Ramaswami Iyer, the Law of Torts, Fourth edn., p. 317; Venkatesa lyer, Law of Torts, p. 498; (English) Clerk and Lindsell on Torts, 11th edn., p. 582; Salmond on Torts, 11th edn., p. 789; Underhill's Law of Torts, 15th edn., p. 276 et seg; (American) RcstatPinent oF the Law -- Torts, Vol. III, Section 653, p. 382; 34 Am. Jur., Malicious Prosecution, S. I, p. 703 and foil.; 38 Corpus Juris, p. 386, Section 3.
24. The term 'prosecution' will normally mean criminal proceedings in general. Rut for. The purpose of the tort of malicious prosecution, it includes all criminal proceedings to which any oral obloquy is attached. The word 'prosecution' in the phrase 'malicious prosecution' is not to be taken in the restricted sense in which it is used in the Code of Criminal Procedure. It is not essential that the original proceeding should have been of such a nature as to render a person against whom it ,is taken liable to be arrested, fined or imprisoned. Thus, proceedings under Section 476 of the Code of Criminal Procedure an3 proceedings under Section 13 of the Legal Practitioners Act would constitute a prosecution within the meaning of the law of tort. The prosecution must however as pointed out in Pollock on Torts, Fourteenth edn., at p. 249, have been for an offence of which aconviction would carry reprobation impairing the party's fair, name. It is not enough that the proceedings were penal in form as is the case' under many administrative statutes; Wiffen v. Bailey and Romford Urban Council, (1915) 1 KB 600 (J); Sriramulu Naidu v. Kolandaivelu Mudaliar, 37 Ind Cas 374; AIR 1918 Mad 990 (K).
25. In order to entitle a plaintiff to succeed is a suit for damages for malicious prosecution, the first essential to be established by him is that there was prosecution of the plaintiff by the defendant. A prosecutor has been described as a man actively instrumental in putting the law in force. A person would be a prosecutor where he files the complaint himself or has it filed through the instrumentality of an agent or a counsel. A private person at whose instance and report the prosecution is launched by the police is a prosecutor within the meaning of the present context: Gaya Prasad v. Bhagat, ILR 30 All 525 (L). But the case would be otherwise, where the defendant merely gave an account of his honest suspicion about the plaintiff to the police, who without any further activity on his part had started a case against the plaintiff. Thus a mere informant cannot he a prosecutor. There is a sharp distinction between giving information and making. complaint upon which prosecution is based. The question whether the defendant was the real prosecutor or informant is to be determined by his conduct before and during the trial. Periya Goundan v. Kuppa Goundan, ILR 42 Mad 880 : AIR 1919 Mad 229 (M); Manikam v. Munuswami, 29 M LJ 694: AIR 1916 Mad 666 (N): Rajagopala v. Spencer &.Co. Ltd., 12 Mad LW 87: AIR 1920 Mad 712 (O); Shanmugha v. Kandaswami, 12 Mad LW 170: AIR 1920 Mad 789 (P). To render one liable for malicious prosecution it must appear that he was the proximate and efficient cause of putting the law in motion; some affirmative action in connection with the prosecution must be shown. Therefore witnesses cannot be sued for damages: Fakir Mohammed v. Fakir Muhomed Nanji, AIR 1932 Sind 23 (Q); 12 Mad LW 170: AIR 1920 Mad 789 (P). For the purpose of a suit for damages for malicious prosecution, the prosecution cannot be said to have commenced unless and until a process has been issued for the plaintiff to appear: Sheik Meeran v. Ratnavelu, ILR 37 Mad 181: AIR 1915 Mad 128 (R); Arunachala v. Chinna Muniswami, 1926 MWN 527 (S); Vattappa Kone v. Muthu Karuppan Servai : AIR1941Mad538 Sanjivi v. Koneri, ILR 49 Mad 315: AIR 1926 Mad 521 (U). Their Lordships of the Privy Council in 51 CWN 723: AIR 1947 PC. 108 (E to I), have laid down a different test, viz., whether criminal proceedings have reached a stage at which damage to the plaintiff results: See also (Indian) Afiand and Sastri Law of Torts, p. 850; Ramaswami Iyer Law of Torts, Fourth edn., p. 819: K.G. Kale, the Law of Malicious Prosecution (1930), p. 8; Miner Defamation and Malicious Prosecution (1954), Part II, Ch. II, p. 202 and foll. Venkatesa Iyer, Law of Torts (1935). Ch. XXI. p. 498 and foll. D.N. Guha, Defamation and Malicious Prosecution, p. 101 and foll; (English) Clerk and Lindsell on Torts, 11th edn., p. 8521 Sa1mond on Torts, 11th edn., p. 740. (American) 34 Am. Jur. S. 22-26, pp. 715 and foll.; Restatement of the Law, Vol. III, Ch. 29, Section 654, p. 389; 38 Corpus Juris, Section 22, p. 894 and loll.
26. In order to succeed in a suit for maliciousprosecution, the second essential is that the plaintiff must establish that his prosecution by the defendant ended in his favour. The reason for this proposition is that if in the proceeding complained of the decision was against the plaintiff and was unreversed, it would not be consistent with the principles on which the law is administered, for another Court, not being the Court of Appeal, to hold that the decision was come to without reasonable and probable cause, The word 'ended' is the operative word. If the plaintiff was convicted, and the conviction was quashed on appeal, he can still sue as the proceedings ended in his favour. Where the plaintiff is convicted of an offence similar to, but less grave than the offenco with which he was charged by the defendant, the defendant: may still be liable for malicious prosecution of the graver offence. A prosecution may end favourably not only by acquittal but also end favourably by discharge, discontinuance of the proceedings excepting where it is due to the impossibility or impracticability of bringing the accused to trial or dismissal of the complaint; (Indian) Anand and Sastri, Law of Torts (1952), p. 857; Ramaswami Iyer. The Law of Torts, 4th edn., p. 320; Venkatesa Iyer, the Law of Torts, p. 501; Mitter Defamation and Malicious Prosecution, p. 223; K, G. Kale, the Law of Malicious Prosecution, p. 27; (English; Clerk . and Lindsell on Torts, Ilth edn., p. 858; Salmond on Torts, 11th edn., p. 747; (American) 34 Am. Jur, Section 27, p. 718 and foll; Restatement of the Law, Vol. III, Ch. 29, Section 658, Topic 2; 38 Corpus Juris, Malicious Prosecution, Section 47-48.
27. the plaintiff must show that the defendant prosecuted him without, reasonable and probable cause. It is when he has led some evidence to this effect that the defendant can be called upon to show the existence of such a cause. The onus lies heavily upon the plaintiff: Srinivasa Tathachariar v. Thiruvenkatachariar : AIR1932Mad601 . This rule may appear to require the plaintiff to prove a negative, viz., that the defendant had not reasonable and probable cause for the prosecution. But in the words of Bowen, L.J., 'if the assertion of a negative is an essential part of the plaintiff's case, the proof of the assertion still rests upon the plaintiff'. (Quartz Hill Gold Mining Co. v. Eyre, (1883) 11 QBD 674 (W)). When the plaintiff has produced evidence which it unrebutted would entitle him to succeed, the onus shifts to the defendant to establish the contrary, that is, the presence of reasonable and probable cause. To sum up as has been set out in Halsbury's Laws of England (Hailsham edn.). Vol. XXII, Part I, p. 21, the plaintiff in proving the absence of reasonable and probable cause has to prove a negative and in general need only give slight evidence of such absence.
28. 'Reasonable and probable cause' means simply reasonable cause, the word probable, being used with its original meaning of 'probable' and hence 'reliable'. The conjunction of the adjectives 'reasonable' and 'probable' is a heritage from the redundancies in which the old pleaders delighted. Salmond observes that probable is synonymous with reasonable and means a good cause and that probabilis causa was not unknown to classical Latin. The American case law as well as American text books speak only of probable cause and do not make use of the phrase 'probable and. reasonable cause'. We naturally follow the English practice.
29. In a suit for malicious prosecution the important question is whether the facts as known to the defendant or reasonably believed'in by. him at the material time, constituted a reasonable cause for the prosecution.
30. the following extracts from the standard text books on the Law of Torts will be helpful.
Salmond on Torts, 11th edn., p. 742, has the following to say:
'Reasonable and probable cause means a genuine belief, based on. reasonable grounds, that the proceedings are justified.'
In Hicks v. Faulkner. (1878) S QBD 167 . (X), Hawkins, J., aa said:
'I should define reasonable and probable cause to be an honest belief in the guilt of the accused, based upon a full conviction, founded on reasonable grounds, of the- existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accused, to the conclusion that the person charged was probably guilty of the crime imputed.''
In Ramaswamy Iyer's Law of Torts, pp. 321-326 it is stated:
'The issue is one of fact in the ordinary sense that it is a conclusion to be drawn from the circumstances. It is a question of law in England in the sense that it is for the Judge and not for the jury to decide. Where it is shown that the defendant did not believe in the plaintiff's guilt, there is no reasonable and probable cause for him and he cannot be heard to say that the real facts which were unknown to him would make out the plaintiffs guilt. In such a case the defendant's conduct is conclusive evidence not merely of absence of reasonable and probable cause, but also of malice. Where it does not appear that the defendant had no belief in the plaintiff's guilt, the plaintiff must show that the defendant's conduct was unreasonable in the circumstances. Recklessness, haste, failure to make enquiries or test his information or grounds of suspicion would be evidence of such conduct. On the other hand, the fact that he placed his information fairly before his lawyers and acted on legal advice would be evidence of the contrary. The existence of mere grounds of suspicion would not be reasonable cause. The plaintiff is bound to give some evidence which will prima facie suggest absence of reasonable and probable cause; if he does, the onus may then be shifted to the defendant to rebut it. Whether mere proof of the plaintiff's innocence would be such evidence would depend on the facts of each case,'
But as pointed out in Clerk and Lindsell on Torts, 11th edn., p. 864:
'A man is not bound before instituting proceedings to see that be has such evidence as will be legally sufficient to secure a conviction. In Dawson v. Vansandau, (1863) 11 WR 516 (Y), the defendant had preferred a charge of conspiracy against the plaintiff on the evidence of an alleged accomplice, and it was. held tbat he might well have reasonable and probable cause. An accomplice or tainted witness may give evidence sufficient to make out a prima facie, case and warrant the preferring of a criminal charge, though it might not be sufficient evidence upon which to convict'. Neither is it necessary that the defendant should act only on legal evidence and inquire into every thing at first hand. It is sufficient if he proceeds on such information as a prudent and cautious man may reasonably accept in the ordinary affairs of life; and it is for the plaintiff to satisfy the jury that there was a want of proper care in testing that information.
It is not justifiable to commence a prosecution on mere suspicion.....'
34 American Jurisprudence, pp. 731-732 (S, 47), defines probable cause as follows:--
'Many definitions of the term 'probable cause' as used in actions for malicious prosecution, differing more or less in their language, are to be found in the decisions. Thus, for instance, probable, cause, for a criminal prosecution has been defined as a reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious, or as some Courts put it, a prudent man in the belief that the party is guilty of the offence with which he is charged as the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the offence for which he was prosecuted, and as such facts and circumstances as, when communicated to the generality of men of ordinary and impartial 'minds, are sufficient to raise in them a belief or real, grave suspicion of the guilt of the person. With reference to civil actions, probable cause has been said to be such, reason supported by facts and circumstances as will warrant a cautious man in . The belief that his action and the means taken in prosecuting it are legally just and proper. 'Probable cause' in this connection, does not mean sufficient cause; and the question in the action is not whether there was in fact a sufficient cause for the prosecution or proceeding complained of, since the acquittal or failure of the proceeding shows that there was not. A definition sufficiently exact to meet satisfactorily every possible test would be difficult, if not impossible, to furnish for the complete legal idea expressed by the term 'probable cause' is not to be gathered from a mere definition. However, notwithstanding the different wordings of the many judicial definitions before referred to, there seems to be sufficient substantial agreement among them to warrant the statement trial the standard of conduct for beginning or continuing any proceeding, whether civil or criminal, is that of a reasonable or ordinarily prudent man placed in the same situation as the defendant. That is, if a reasonable man would have believed and acted under- the circumstances as the-defendant did, there would be probable cause; otherwise not. It is to be noted that the conduct of the defendant is to be weighed in view of what appeared to him at the time of instituting the prior proceeding, not in the light of subsequently appearing-facts.'
Restatement of the Law, Torts, Vol. III, Section 662, defines probable cause as follows:--
'One who initiates criminal proceedings against another has probable cause for so doing if he
(a) reasonably believes that the person accused has acted or failed to act in a particular manner; and
(b) (i) correctly-believes that such acts or omissions constitute at common law or under an existing statute file offence charged against the accused, or
(ii) mistakenly so believes in reliance on the advice of counsel under the conditions stated in Section 666.''
38 Corpus Juris sets out in Section 35 (pp. 405-406) the requisite knowledge of prosecutor as follows;
'The facts relied upon to constitute probable cause may be those which are within the personal knowledge of the prosecutor, or those of which he learns from proper information derived from others, or both. Probable cause is wanting where he acts on facts within his own knowledge which, to his knowledge, do not constitute a crime; or where notwithstanding the sufficiency of the facts on which he makes this accusation, he has knowledge of other facts which satisfactorily show accused's innocence, If he acts on information derived from others making an accusation, these facts to operate as a defence by way of probable cause must relate to the question of guilt. And the test of the sufficiency of the resulting knowledge is whether it would have justified a prudent, honest and strong suspicion of the guilt of accused. Obviously mere rumour or information of a vague and indefinite nature, or information which the party making the accusation knows to be false, or which does not tend to establish the guilt of accused, or a mere statement by third parties that they believe that accused had committed a crime, does not establish probable cause for a prosecution.' But as pointed out in the next section: 'The prosecutor is not bound to verify the correctness of each item of information, or to investigate the crime itself, or to institute an inquiry into the character and antecedents of accused before he attempts to set on foot a criminal prosecution, where he has information on which he is entitled to rely, or to act as a spy on accused for the purpose of ascertaining his defence, or to make inquiries from him or ask him for an explanation, it is sufficient that he acted with such caution, impartiality, and diligence as a reasonably prudent man would have used under the circumstances to ascertain the truth of his suspicions. However, when facts or circumstances put him upon inquiry, he will be charged with knowledge of such facts as he would have learned if he or his agent authorised to investigate had made a proper investigation into the circumstances of the case, including the character and identity of accused.'
31. In addition the following three well-known English decisions may be briefly referred to. In Herniman v. Smith, (1938) AC 305 (2), the House of Lords laid down;
'It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is reasonable and probable cause for a prosecution. Circumstances may exist in which it is right, before charging a man . with misconduct, to ask him for an explanation; but no general rule can be laid down, and where a person is satisfied, or has apparently sufficient evidence, that he has in fact been cheated, there is no obligation to call on the cheat and ask for an explanation, inasmuch as to ask for this may only have the effect' of causing material evidence to disappear or be manufactured.'
In Tims v. John Lewis & Co. Ltd., (1951)2 KB 459 (Z1), Lord Goddard, C. J., held:
'The question in an action for malicious prosecution whether there, was an absence of reasonable cause for the prosecution has not to be determined subjectively; it is a question which the Court has to determine objectively on the evidence before it; that is to say, the question is not what, on the evidence known to the prosecutor, he did in fact think, but what, as a reasonable person, he ought in the view of the Court, to have thought.'
In Tempest v. Snowden. (1952) 1 KB 130 at p. 139 (Z2), Denning, L.J., has observed:
'It is. sometimes said that, in order to have reasonable and probable cause there must be an honest belief in the guilt of the accused. But I do not think that should be regarded as a universal proposition applicable to all cases. It depends on the particular case. There are many justifiable prosecutions where the prosecutor has not himself formed any concluded belief as to the guilt of the accused. If he is a very fair-minded roan he may well say to himself 'The case is so black against the man that I feel I must prosecute, but I am not going to believe him to be guilty unless the Court finds him to be so.' Such a man would, I should have thought, have reasonable and probable cause for instituting a prosecution even though he did not affirmatively believe the man to be guilty. It is said sometimes that in order to have reasonable and probable cause there must be an honest belief that there was reasonable ground for prosecuting. This again is by means always necessary. Let me give another illustration. Take the case of a fair-minded man who is personally convinced that the man is guilty but does not him self think the evidence sufficient to justify a prosecution. His solicitor advises him that the evidence is sufficient. He may well say to himself 'I do not myself believe there is sufficient evidence, but' my solicitor says there is, so I feel justified in going on.' If the Judge afterwards takes the same view as the solicitor, then I should have thought that such a man would have reasonable and probable cause for instituting a prosecution, even though he did not himself affirmatively believe that there were reasonable grounds for it.'
(On this topic of absence or reasonable and probable cause the following (a) English and (b) Madras decisions may be usefully consulted: fa) Leibo v. D. Buckman Ltd., 1952 2 All ER 1057 (Z3), Abrath v. North Eastern Rly Co., (1883) 11 QBD 440 (Z4); Lister v. Ferryman, (1870) 4 HL 521 (Z5); (b) Lodd Govindass v. Arumuga : AIR1937Mad679 Chenna Reddy v. Venkataswami, 53 Ind Gas 70: 10 MLW 314: AIR 1920 Mad 252 (Z7); Vaidianadier v. Krishnaswami Iyer, ILR 36 Mad 375 (Z8); Mushtoorappa v. Hanumanthappa, AIR 1947 Mad 236 (Z9); Karuppanna v. Haughton, ILR 59 Mad 887: AIR 1936 Mad 547 (Z10); Nurse v. Rustomji, AIR 1924 Mad 565: 49 MLJ 353 (Z11); Albert Bonnan v. Imperial Tobacco Co., 57 MLJ 558: AIR 1929 PC 223 (Z12); Gopalkrishna v. Narayana, 34 MLJ 517: AIR 1919 Mad 1039 (Z13).)
32. We now come to malice which is the last ingredient in a suit for malicious prosecution, and that I the defendant was actuated by malice in prosecuting^ the plaintiff has also got to be proved by the plaintiff, Malice means the presence of some improper and wrongful motive --that is to say an intent to use the legal process in question for some other than its legally appointed and appropriate purpose. It means an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill will; it may be due to a desire to obtain a collateral advantage. The malice necessary to be established in a suit for malicious prosecution is not even malice in law such as may be assumed from the intentional doing of a wrongful act, but malice in fact -- malus animus -- indicating that the party was,actuated either by spite or ill will towards an individual, or by indirect or improper motives, though these may be wholly unconnected with any uncharitable feeling towards anybody. A prosecution is not malicious merely because it is inspired by anger. However wrong-headed a prosecutor may be, if he honestly thinks that accused has been guilty of a criminal offence he cannot be the initiator of a malicious prosecution, A malicious prosecution says Harper on Torts, p. 586, is one that is begun in malice and if there is no malice found to exist, in fact the action must fail.
33. Malice as stated already has to be proved as well as want of reasonable and probable cause in an action for malicious prosecution. No action-will lie for the institution of legal proceedings however destitute of reasonable and probable cause unless they are instituted maliciously: Abu Bucker Ebrahim v. Magan Lal (C. Javeri, AIR 1940 Mad 683 (Z14)- Braja Sunder Deb v. Bamdob Das . But if there is malice alone; that too. is not sufficient. There must be concurrence of malice and want of probable cause. A person actuated by trie plainest malice may nevertheless have a justifiable reason for prosecution. On the other hand substantiating of the accusation is not essential to exonerate the accuser from liability to an action, for he may have had good reason to make the charge, and yet be compelled to abandon the prosecution by the death or absence of witnesses, or the difficulty of producing adequate proof. The law therefore only renders him responsible where malice is combined with want of probable cause. It is also well settled law that the reputation of the plaintiff and the defendant will be relevant factors in deciding the existence or absence of probable cause.
34. Damages claimable in a suit for malicious prosecution, may be classed under two heads, namely, (1) solatium for injury to reputation and feeling of the plaintiff and his detention (if any) and consequent suffering and (2) legitimate expenses incurred by him in his defence: AIR 1924 Mad 565: 46 MLJ 353 (Zll); Punnalal v. Kasturichand, 1945 Mad WN 720: 58 Mad LW 613: AIR 1946 Mad 147 (Z12); Kanyalal v. Mahomad Idris, AIR 1938 Sind 11 (Z17); Narayana Mudali v. Peria Kalathi, AIR 1939 Mad 783 (Z18); Mehtab v. Krishna Rao, AIR 1946 Nag 46 , (719). Damages under the first head are variable. They may be aggravated or mitigated according to the circumstances of the case. Where both the plaintiff and the defendant were actuated by malicious motives, the Court would be justified in awarding only nominal damages. In a proper case exemplary damages may be awarded. Exemplary damages -- sometimes called by the rather unpleasant name of vindictive damages -- are consolatory rather than penal, resting upon the principle that where there is malice, the mental pain caused to the plaintiff must be taken note of and a solatium awarded for it the award of exemplary damages where the defendant has acted contumaciously has therefore a sanction behind it : AIR1946Mad147 Manijeh v. Sohrab .
35. Before closing this discussion of the principles governing legal proceedings for malicious prosecution, we must briefly allude to two topics, viz., where the prosecution is by the police on a complaint and where the complainant takes lawyer's advice before preferring the complaint; and secondly, the extent to which the criminal Court's judgment and depositions can be made use of in the suit for malicious prosecution. Taking legal advice after placing the lawyer full and fairly in possession of all relevant facts within defendant's knowledge and launching a prosecution on the legal advice sought and given will certainly be a circumstance pointing to the existence of a'reasonable and probable cause and absence of recklessness: AIR 1949 Nag 283 (Z 20); Sumat Prasad v. Ram Swarup : AIR1946All204 Daw Yon v. U Min Sin. AIR 1940 Rang 230 (222); Corea v. Peiris, (1909) AC 549 (Z23). American text book writers go further. Harper on Torts at p. 590, Section 270, 'If a person acts in good faith on the advice of counsel honestly and fairly obtained he makes a conclusive showing of probable cause.' (See the catena of decisions of U. S. A. at the foot of p. 590). Again at p. 587, 'the advice of counsel honestly requested and obtained and relied upon in good faith is a negation of malice. If the defendant shows that he acted on the advice of counsel after a full and fair presentation of facts he has provided evidence tending to show good faith or to rebut the inference of malice arising from a want of probable cause.' the soundness of the advice however or even the bad faith of the attorney can have no bearing upon the defendant's want of malice. It has already been pointed out that a private person at whose instance and report a prosecution is launched by the. police is prosecutor within the meaning of the present context and that the case would be otherwise if the defendant was merely an informant and was not the proximate and efficient cause of putting the law in motion. But even in the case of the former, Herniman v. Smith, (1936) 2 All ER 1377 (Z24) affirmed in (1938) AC 305 (Z), is authority for the proposition. that the fact that the defendant placed his information before the police may be evidence of reasonable and probable cause. This, if I may say so with respect, is sound common sense. The police is an impartial agency constituted by the State for investigation into offences and the booking of offenders and bringing them to justice, on their being satisfied by their enquiries that the case is truthful and merits prosecution. Therefore, if such an agency after enquiry prosecuted the offender, it would certainly be a factor in favour of the complainant having reasonable and probable cause: Hirday Narain Dhaon v. Har Prasad, (Z25). But it would be otherwise only if. there had been no investigation by the police whatsoever and if the police merely acted as a conduit pipe for the complainant and the complainant controlled the prosecution and the conduct of the case. The fact that the Court might throw out the case would not negative reasonable and probable cause because the standard from which the complainant's accusation should be tested is the subjective test and the standard from which the case put forward by the police prosecution has to be tested is whether the prosecutor, viz., the Crown or State, after enquiry considered whether there was a presentable and acceptable case to be put forward before the Court and the standard by which proceedings in Court get terminated is the objective test, whether the prosecution had established its case beyond reasonable doubt. Remember the off-quoted words of Darling, J., in the trial of Steince Morrison (Notable trials series) 'It is the characteristic of our administration of criminal justice that we do not seek to avenge a crime; we do not seek upon the balance of probabilities to say: some one must be held responsible for this; we only seek to find out by our methods our strict rules of evidence whether the accused person is proved to be guilty.' It is the duty of the criminal Court to borrow Lord Kenyon's homely phrase, if the scales of justice hang anything like even to throw into them some grains of mercy and till the scales in favour of the accused. Turning to the extent of the use which could be made of the criminal Court's judgment and the depositions in the suit, it is now well settled law that so far as the judgment of the criminal Court is concerned, the only use to which it can be put to is to prove that the prosecution had terminated in favour of the plaintiff: Venkatapathi v. Balappa, AIR 1933 Mad 429 (Z26). The 'ridings of the criminal Court or the reasoning thereof on which the judgment is based, is no evidence it all in a civil case between the parties and is not admissible excepting in those exceptional cases where the circumstances which resulted in the acquittal of the plaintiff became relevant, i.e., the corruption of the Magistrate. That is so even with the judgment of the appellate Court or the revisional Court which reverses the order of the lower Court. The civil Court in a suit for malicious prosecution has to base its findings on the evidence produced before itself as the whole question of malicious prosecution is opened anew, and the absence of reasonable and probable cause and malice become points at issue before it and these issues have to be decided on the evidence produced before it: Kutumba Rao v. Venkatramayya : AIR1951Mad344 . In regard to the deposition? recorded in the criminal Court, they can be made use of as substantive evidence in the suit if the parties agree to treat those depositions as evidence in the suit or they are admissible under S, 33 of the Evidence Act. Otherwise, those depositions can be made use of only under the provisions of Sections 157 and 158 of the Evidence Act.
36. Bearing these principles in mind if we examine the facts of the case in O. S. 113 of 1950, we find that the plaintiff who has proved the first two requirements, viz., that S.T. Sahib prosecuted the plaintiff and that the prosecution ended in his favour has completely failed to discharge the burden of showing that the first defendant had no reasonable and probable cause in launching the prosecution in C. C. No. 584 of 1948 and that the first defendant was actuated by malice in doing so. On the other hand the evidence shows that the first defendant had reasonable and probable cause for being actively instrumental for putting the law in motion and that in doing so he was not actuated by malice. Here are my reasons.
37. That the first defendant could not have been, actuated by malice, viz., any feeling of hatred, animosity or ill will towards this plaintiff Ghani Sahib is evident from the following circumstances. The first defendant and this plaintiff are related through marriage alliance. The plaintiff has been attending to the legal work of this first defendant. The plaintiff and the first defendant have figured as co-accused even in a criminal case. It is quite true that their relationship seemed to have cooled down on account of the fact that the first defendant had purchased as undivided share of this plaintiff's brother-in-law's property and the first defendant seems to have entrusted his legal work also to another Nadar advocate. But the evidence also shows that to oblige apparently this plaintiff the first defendant has re-conveyed the share purchased by him. In regard to his giving the work to another Nadar advocate, there might be other considerations like the fact that the plaintiff himself was figuring in many criminal litigations as a party might be considered to make him not exactly a desirable vakil by the first defendant because parties in engaging vakils are not influenced so much by personal equation as their standing and ability to win cases for them. There is no evidence therefore that at the material time when this complaint was filed before the police the first defendant was actuated by any feeling of hatred, animosity or ill will towards this plaintiff.
38. the complaint against this Ghani Sahib has not been made recklessly or on mere suspicion or for deriving any collateral advantage. In this case the evidence clearly shows two things, viz., that a sum of Rs. 9,000 had been entrusted to Hussain Rowther by this S.T. Sahib and that that sum had not been utilised for paying the lease amounts due to the Mutt and the Kumarar Kovil. It has already been shown how this was sought to be proved as the first information report filed in this case shows, by the testimony of defendants 2 and 5 and the cartman and the various enquiries made by S.T. Sahib and the admissions made by Hussain Rowthar, narrated in the complaint. The plea of Hussain Rowthar himself was that as a partner with S.T. Sahib he was entitled to retain the amount and this formed the subject-matter of a suit also O. S. 222 of 1952 and the appeal A. S. 57 of 1955. Both the trial Magistrate and the Sessions Judge convicted Hussain Rowthar for an offence under Section 409, I.P.C. In revisinn the conviction and sentence were set aside on the objective standard here that more convincing evidence should have been forthcoming.' Nothing was placed before the learned trial Judge in this suit to come to a different conclusion, viz., that there was no entrustment as alleged by S.T. Sahib. On the other hand, S.T. Sahib has placed adequate evidence to prove this entrustment. The plaintiff did not disprove this entrustment and could not even have sought to disprove this entrustment because his case was not that there was no entrustment but that he knew nothing and was not consulted by Hussain Rowthar and he did not instigate him. Therefore, it maybe taken as safely established that S.T. Sahib entrusted Rs. 9,000 to hussain Rowthar and that the latter committed criminal breach of trust relating thereto.
39. Having come to that conclusion, we have got to see whether the information relating to the instigation by this plaintiff Ghani Sahib collected by this first defendant furnished reasonable and probable cause for the first defendant to preier a complaint against this Ghani Sahib also before the police. That Hussain Rowthar went to the house ot this plaintiff in the bandy of S.T. Sahib is prayed by the evidence of Risavu Rowthar and defendants 2 and 3 who happened lo be present in the house of this plaintiff on business of their own. That Hussain Rowthar must nave gone to the house of this plaintiff is proved by the registered notice issued preparatory to the suit filed by this Hussain Rowthar. It will be noticed dial the advice given by this plaintiff was that when he (Hussain Rowthar) was saying that moneys were due to him from S.T. Sahib why should he not keep the sum of Rs. 9,000 himself and also sell the paddy in Patha Vadakarai. The enquiries of S.T. Sahib which are set out in the complaint show that the paddy belonging to him at Patha Vadagarai was so sold by Hussain Rowthar. This evidence could not he shaken by the plaintiff. The bandyman had no motive to falsely implicate this plaintiff at that stage. In fact this handyman subsequently filed a complaint against this S.T. Sahib and the fourth defendant for alleged slippering and in this case this plaintiff Ghani Sahib was the vakil for that bandyinan. This case was subsequently thrown out. This handyman has been examined by the Circle Inspector long before that assault case and inasmuch as he has supported S.T. Sahib has been cited a prosecution witness in the charge-sheet. But later on be has not been examined as a witness in the criminal case. In regard to Risavu also he has no motive to falsely testify against this Ghani Sahib. The evidence of defendants 2 and 3 was sought to be shaken on the ground that on account of close interest between them and S.T. Sahib they conspired against this Ghani Sahib. But the learned Subordinate judge has found against this theory of conspiracy and in fact threw out the case of the plaintiff against them for damages. In the result. S.T. Sahib had the best of grounds for believing that his agent entrusted with Rs. 9,000 had gone to the house of this plaintiff and had failed to return and decamped with the money and sold the paddy at Patha Vadagarai on account of what had happened in the house of this Ghani Sahib.
40. This Ghani Sabib was also known to this S.T. Sahib as a mischief-monger who had figured in several criminal cases previously and his past history was consistent with his interfering with other people's affairs and he was not a person of much property either. There can he no doubt that there are black-sheep in the mofussil Bar who foment litigation and got well to do men embroiled in order to obtain fit pickings. The case for this S.T. Sahib is that this Ghani Sahib is one such person and a close associate of M.D.T. Kumaraswami Muttaliar to whom reference has already been made and In regard to which it is (Tie contention of this S.T. Sahib that this Ghani Sahib was a person fomenting litigation in order to make easy money.
41. But this S.T. Sahib on receiving this information has not rushed on mere suspicion to the police. On the other hand he has made enquiries and satisfied himself that Ilussain Howthar has not paid the money to the Mutt and the temple and secondly that he has sold away the paddy belonging to him all Pallia Vadagarai. Then he has tried to avoid going to Court by trying to settle the matter with Hussain Rowthar by seeking the intervention of Rao Sahib Iswaram Pillai who is now dead and son-in-law of this Hussain Rowthar, Sherfuddin. But these efforts have failed because Hussain. Rowthar has already made up his mind on the instigation of this Ghani Sahib to retain the money and file a suit putting forward the plea that large sums ot money were due to him by S, T. Sabib by way of partnership profits in four joint leases. Therefore after admitting to Iswaram Pillai and others that the sum of Rs. 9,000 was with him he has declined to reimburse the same to S.T. Sahib. Then when this S.T. Sahib was contemplating as to what action he should take and he could not further move in the matter owing to his illness he has received specific information of what happened in the house of Ghani Sahib through defendants 2 and 3 which has been reproduced above and which information he had no reason to doubt whatsoever.
42. In this connection the following observations in (1870) 4 HL 521 (Z5) at p. 531 are apposite:
'But what is now to be decided is this, how far this gentleman, having (his information conveyed to him, may be said to have reasonably and discreetly trusted his informant. Because I apprehend that you are to have regard to every shade of difference between the amount of credit to be given to one person and to another, according to the character of the informant. Information given by one person of whom the party knows nothing, would be regarded very differently from information given by one whom be knows to be a sensible and trust-worthy person. And the question whether or riot a reasonable man would or would not act upon the information must depend in a great degree upon the opinion to be formed of the position and circumstances of the informant, and of the amount of credit which may be due under those circumstances to the person who thus conveyed the information.' Then it was only when he was in possession of all this information this S.T. Sahib has gone to the Tenkasi police and it cannot be gainsaid that this complaint to the police states all the available information and there has been no suppression of any fact' known to this S.T. Sahib.
43. On this information furnished to them the Tenkasi Police Circle Inspector has made a detailed investigation and has also preferred a charge-sheet against Hussain Rowthar. On finding this, S, T. Sahib has taken legal advice of one Mr. Narasimhachari and that gentleman had advised him that on the evidence available and set out in the charge-sheet itself there was sufficient evidence for charging this Ghani Sahib also. On that evidence S.T. Sahib has petitioned the District Superintendent of Police and the latter had heard Mr. Narasimhachari and has brought to bear his own mind upon the evidence collected. Thereupon satisfied that there was sufficient evidence to charge this Ghani Sahib also, he has directed a charge-sheet to be filed against him alsoand this has been done. I have already set out the case-law and the extracts from leading text-book writers in support of the proposition urged by the learned advocate Mr. Rajah Ayyar that the trial Judge failed to see that after the complaint was given the police made enquiries, examined a number of witnesses and it was only then that a charge-sheet had been laid and that in such circumstances malice is negatived and reasonable and probable cause made out. I entirely agree with this contention. This cannot be got over by the ludicrous suggestion made by the learned Subordinate Judge that the appellant should have taken the further precaution of confronting Ghani Sahib and asking him about it before complaining to the police. I have already reproduced the case-law on the subject and shown that this alleged requirement is both unsound and unsustainable. It was not the duty of this appellant in the circumstances to verify the accuracy of every piece of information and it must be held that this S.T. Sahib has acted reasonably and within proper limits in complaining to the police authorities, who alter due enquiry and satisfying themselves as to the probabilities of the case, challenged this Ghani Sahib and which All go to show that the complainant had both reasonable and probable cause and was not actuated by malice.
44. the learned Subordinate Judge has made a point that because this S.T. Sahib had engaged a vakil to assist the prosecution in the conduct ot the case, he must have malice or vindictiveness on his part and a desire to make out by hook or crook a case against this Ghani Sahib where it did not exist. I am afraid I cannot agree with this similarly unacceptable deduction. I have already reproduced that this case was conducted before the Magistrate by the Asst. Police Prosecutor and the accused were defended by no less than three advocates. It would appear however that permission had been obtained from the Magistrate for the advocate Mr. Narasimhachari to assist the Assistant Public Prosecutor. This is permissible under the Madras Criminal Rules of Practice. In fact in all complicated cases of fact and law the complainants feel that the inexperienced Assistant Public Prosecutors may not be able to properly present their case against the most experinced and forceful defence lawyers engaged by the accused who naturally would go in for the best-buy for their money, such assistance is furnished with the permission of Court. In this very case when Hussain Rowthar filed a revision in the High Court he had secured the services of Mr. K.S. Jayarama Ayyar and therefore the respondent had taken the permission of the Court and assisted the Public Prosecutor by engaging Sri Bast Reddi and M.S. Sethu. In fact in this High Court every day such permission is asked for and granted. It does not mean that because such assistance is given the party would be able to establish unfounded things not borne out by the evidence on record. It will also be remembered that this Is a case of criminal breach of trust and the complainant by engaging a lawyer to assist the Prosecutor also would seek to press for compensation. Therefore, looked at from any point of view I am unable to deduce anything sinister from the engagement of Mr. Narasimhachari. The learned advocate Mr. Rajah Ayyar was right in contending that this was a step which was proper and legitimate and the point sought to be made against the first defendant in this Court was unsound.
45. In the result, the plaintiff not having shown that the first defendant was actuated by malice and had no reasonable and probable cause to preler the complaint and the first defendant having been successful in showing that he was not actuated by malice and that he had reasonable and probable cause to file the complaint against this Ghani Sahib, the decree and judgment of the lower Court in O. S. 113 of 1950 awarding damages cannot be supported. They are set aside and the issues are all found in favour of the first defendant and against the plaintiff and the suit O. S. 113 of 1950 is dismissed wilh costs and the appeal A. S. 240 06 1953 is allowed with costs.
46. Turning to the case against Pichai alias Peria Mohammad Rowthar, the plaintiff in O. S. 25 of 1951, nothing has been shown by this S.T. Sahib beyond the mere fact that he (S.T. Sahib was informed by defendants 2 and 3 that Hussain Rowthar came to the vakil's house on 2-4-1948 accompanied by his son-in-law Pichai Kowthar. It cannot be deduced, as S.T. Sahib did, by reason of what the vakil Ghani Sahib subsequently told Hussain Rowthar that this Pichai must have also instigated Hussain Rowthar and therefore S.T. Sahib had reasonable and probable cause to prefer the complaint against this Pichai. It was only a case of mere suspicion and conjecture. There was no other information on which this S.T. Sahib could have acted as he had in the case of Ghani Sahib. In the case of this Pichai there is also the factor of a vendetta between himself and the fourth defendant. There is also the additional fact that S.T. Sahib by implicating Pichai would seek to derive a collateral advantage of bringing pressure on his father-in-law Hussain Sahib and make him come to terms. There seems to be also a land dispute between himself and this S.T. Sahib. This ill-feeling may no doubt be a double-edged weapon and furnish a reason for suspecting that this Pichai must have instigated Hussain Rowthar. But all these would not make out that 5. T. Sahib had reasonable and probnble cause and the evidence shows that in regard to this Pichai, S.T. Sahib was actuated by malice. The fact that complainant obtained the opinion of counsel as to the propriety of instituting a prosecution will not excuse the defendant if the charge was in fact unreasonable and improbable. For as Heath, J., said in Hewlett v. Cruchley, 33 (English & Empire) Diyes' 512(571): 1873 128 ER 696 (Z28). it would be a most pernicious practice if we were to introduce the principle that a man by obtaining the opinion of counsel by applying to a weak man or an ignorant man might shelter his malice in bringing an unfounded prosecution. Similarly if the charge is unfounded 'to the knowledge of the complainant he cannot escape liability because the prosecution has not technically been conducted by him. In such a case he would be deemed pro hac vice to have represented the Crown or State, 29 MLJ 694: 1915 MWN 911: AIR 1916 Mad 666 (N); Venkatappayya v. Ramakrishnamma : AIR1932Mad53 . Therefore the Magistrate himself should have discharged this Pichai not under Section 253 (I) but under Section 252 (2) of the Code of Criminal Procedure, as groundless. Consequently the learned Subordinate judge was right in holding that S.T. Sahib had no reasonable and probable cause in preferring the complaint against this Pichai and that he was actuated by malice in recklessly, pressing his case against this Pichai also. The award of damages is appropriate and the quantum is not disputed before me as excessive.
47. Therefore, A. S. No. 908 of 1853 has got to be dismissed and is hereby dismissed with costs.