Alfred Henry Lionel Leach, C.J.
1. The appellants appeal from a decree passed by the Original Side of this Court awarding the respondent damages for malicious prosecution. The first appellant carries on business in edible oils in Bombay and has a branch office in Madras. The Madras branch was opened in the month of January, 1933 and the respondent was placed in charge of it. At the end of August, 1933, the respondent's services were dispensed with and on the 22nd October, 1933, the second appellant became the manager of the Madras branch. On the 31st October, 1933, the second appellant received a visit from one Subramaniam Chetty and a broker named Murthi. It is common ground that Murthi had acted as the broker in transactions with the first appellant's Madras branch during the period the respondent was in charge of it. Murthi represented to the second appellant that Subramaniam Chetty was a big merchant carrying on business in Mambalam, Madras, and on the strength of his recommendation the second appellant agreed to sell to Subramaniam Chetty 75 cases of edible oils at the price Rs. 14-8-0 per case, payment to be made in three days' time. The contract having been entered into the goods were delivered to Subramaniam Chetty. He did not pay for them on the day arranged and has never paid for them. On the 5th November; 1933, the second appellant met Murthi and told him that Subramaniam Chetty had defaulted. Murthi then said that Subramaniam would be coming to pay the amount in the course of that day or the next. Subramaniam Chetty did not appear that day or the next day and the second appellant was unable to trace his whereabouts, but as the result of inquiries he ascertained that the respondent was doing business in vegetable oils and that the cases which had been sold to Subramaniam Chetty had been removed to a small godown in Thathamuthiappan Street, Madras, which had been rented by the respondent and Murthi. As default had been made in payment, the second appellant grew anxious and it is his case that he asked Murthi to accompany him to Mambalam to show him where Subramaniam Chetty lived. Murthi put him off by various pretexts and he never found Subramaniam Chetty. On the 10th November, 1933, the second appellant in the name of the first appellant wrote a letter to the officer in charge of the Law College Police Station, Madras, setting out substantially these facts. The letter concluded with the following paragraph:
Under these circumstances, we are obliged to infer and believe that all these three persons have colluded together with the sole object of defrauding us of the cost of the goods and thus cheat us from the very beginning. Now we find on further inquiry that the said godown is empty the said 75 cases having been despatched to some destination. As the parties have done a criminal act we request yon to apprehend and book them for the offence committed and also make enquiries both at Salt Cottaurs, Madras Beach, and Egmore Stations, to the stations to which the cases have been despatched and stop delivery of the same.
2. On receipt of this letter the police searched for Subramaniam Chetty, Murthi and the respondent, and on the 11th November arrested them, charging them with cheating under Sections 415 and 420 of the Indian Penal Code. The magisterial proceedings continued until the 10th July, 1934 when the three accused were discharged. On the 9th May, 1935, ten months later, the respondent filed the suit out of which this appeal arises. The case was tried by Gentle, J., who held that the respondent had proved his case and was entitled to the sum of Rs. 1,500 as damages.
3. In the course of his evidence the respondent stated that he had bought the 75 cases from Subramaniam Chetty at the price of Rs. 14-10-0 per case, two annas more than Subramaniam had paid. He also stated that he had re-sold 50 of the cases at Rs. 13-8-0 per case on the 4th November, 1933 and the balance, except two cases, at the price of Rs. 14-6-0. He alleged that the goods were sold minus their cases and that he was able to dispose of the cases at twelve annas each. This statement rests entirely on his own evidence which is not of a convincing nature. The transactions which the respondent had entered into in respect of these goods were not known to the appellants when the letter of complaint was written to the police. All that was known was that the goods had been removed immediately to the godown which the respondent and Murthi had rented and that the goods had disappeared. It also transpired during the course of the suit that this godown had only been rented by the respondent and Murthi on the 1st November, 1933, the day after the sale to Subramaniam Chetty.
4. In order to succeed in an action for malicious prosecution the plaintiff has to prove : (1) Absence of reasonable and probable cause for the prosecution, and (2) malice on the part' of the person who launched the proceedings. In deciding whether there is absence of reasonable and probable cause for the prosecution the Court can only have regard to the facts known at the time of the presentation of the complaint. The* learned Judge held that the fact that the goods had been removed to the godown rented by the respondent and Murthi and had been disposed of from there did not constitute sufficient reason for proceeding against the respondent. Consequently he found that the respondent had proved that there was absence of reasonable and probable cause for the prosecution. Dealing with the question of malice the learned Judge said:
The plaintiff in addition must, as I have pointed out earlier, also show that there was malice. This does not mean ill-will, spite or hatred, but a wrong motive. The second defendant having failed to receive payment and being unable to find the purchaser of his master's goods, was disturbed. He obviously thought his conduct would incur his employer's displeasure and when it was ascertained that the goods which had been sold were delivered at the plaintiff's godown, his only thought was to be able to have the plaintiff together with others in the custody of the police in the hope perhaps that this would appease his employer. Not having made any enquiry at all and recklessly making the charge he did he could not have bona fide come to the conclusion that there was reasonable and probable cause for the prosecution. If he had not the information bona fide to come to that conclusion, in my view, it shows that he was guilty of malice.
5. I concur in the finding of the learned Judge that the respondent did prove want of reasonable and probable cause for the prosecution. Knowledge that the goods had been removed to a godown rented by the respondent and Murthi and had disappeared was not sufficient to justify the complaint against the respondent. But I am unable to concur in the finding of the learned Judge that the respondent has established malice and I do not accept the conclusion that the second appellant was actuated in his complaint against the respondent by the thought that if he preferred the complaint and got him arrested it would appease his employer. Malice may be implied when there is absence of reasonable and probable cause, but it does not necessarily follow from the fact that proceedings have been launched without reasonable and probable cause that the person launching them did in fact act maliciously. Whether malice should be implied will be depending on the circumstances. It would be a proper inference if it is shown that the defendant acted recklessly. The position is stated in the well-known judgment of Hawkins, J., in Hicks v. Faulkner (1878) 8 Q.B.D. 167, in which Huddleston B concurred. Hawkins, J., said:
The malice necessary to be established is not even malice in law such as may be assumed from the intentional doing of a wrongful act see Bromage v. Prosser (1825) 4 B & C. 247 4, per Bayley J., 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. In order to arrive at a conclusion on the question, the jury are to take into consideration all the circumstances of the case, and to form their own opinion upon them uninfluenced by any opinion of the Judge unless that opinion accords with their own view. If among the circumstances it appears to the jury that there was no reasonable ground for the prosecution, they may - though by no means bound to do so - well think that it must have been dictated by some sinister motive on the part of the person who instituted it. Absence of reasonable cause, to be evidence of malice, must be absence of such cause in the opinion of the jury themselves, and I do not think they could be properly told to consider the opinion of the Judge upon that point if it differed from their own - as it possibly might, and in some Gases probably would - as evidence for their consideration in determining whether there was malice or not. In no case, however, will their finding relieve the judge of the duty of determining for himself the question of reasonable cause as an essential element in the case. Want of reasonable cause is for the Judge alone to determine, upon the facts found, for the jury; as evidence of malice it is a question wholly for the jury, who, even if they should think there was want of probable cause, might nevertheless think that the defendant acted honestly and without ill-will, or any other motive or desire than to do what he bona fide believed to be right in the interests of justice in which case they ought not, in my opinion, to find the existence of malice : Mitchell v. Jenkins (1833) 5 B. & Ad. 588 : E.R. 908, Turner v. Ambler (1847) 10 Q.B. 252 at 254 : 116 E.R. 98, and Lister v. Perryman (1870) L.R. 4 H.L. 521, 538, per Lord Westbury.
6. What the Court has to decide is whether the facts here justify the inference that the respondent was actuated by malice in the sense here indicated. It is not disputed that if the second appellant were actuated by malice, his employer, the first appellant, would also be liable.
7. I am of opinion that the evidence on the record does not justify the Court holding that malice on the part of the second appellant has been proved. I go further. In my opinion the evidence points to the conclusion that the second appellant honestly thought that his employer had been defrauded. The goods were sold on the 31st October, 1933, on the condition that the money would be paid within three days. It was not then paid and in spite of what Murthi had said in the interval it had not been paid by the 10th November when the letter of complaint was written. The second appellant had traced the goods to a godown which the broker and the respondent had rented and from there they had disappeared. The second appellant is not a lawyer but a layman and I can understand that in the circumstances mentioned he formed the honest conclusion that the respondent was implicated in a fraud. The question is not whether a fraud had been committed but whether the second appellant believed that it had. I consider that there is indication that he honestly held that opinion. The respondent not having proved malice the fact that he has shown the absence of reasonable and probable cause does not help him. He must succeed on both points and having failed on one his suit must be dismissed.
8. The appeal will be allowed and the suit dismissed with costs in favour of the appellants both here and below.