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Bharat Commerce and Industries Ltd. Vs. Surendra Nath Shukla and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 41 of 1962
Judge
Reported inAIR1966Cal388
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 33; ;Air Corporations Act, 1953 - Sections 17(4) and 22; ;Indian Penal Code (IPC) - Section 420
AppellantBharat Commerce and Industries Ltd.
RespondentSurendra Nath Shukla and ors.
DispositionAppeal allowed
Cases Referred(Surendra Nath Shukla v. Indian Airlines Corporation
Excerpt:
- masud, j.1. this is an appeal against the judgment and decree of datta, j., delivered on 20th april, 1961 whereby he has granted a decree for rs. 14,685 with interest at the rate of 6 per cent against the appellant in a suit for malicious prosecution.2. the plaintiff-respondent surendra nath shukla was appointed as a clearing clerk on a salary of rs. 125 per month by bharat airways ltd., having its registered office at no. 8, royal exchange place, calcutta sometime in 1948. in or about 10th january, 1950 the name of the said bharat airways ltd. has been changed to m/s. bharat commerce and industries ltd. (the appellant), but the registered office of the appellant retained the same address. the respondent, m/s. birla bros. ltd., which was the managing agent of the said bharat airways ltd;.....
Judgment:

Masud, J.

1. This is an appeal against the judgment and decree of Datta, J., delivered on 20th April, 1961 whereby he has granted a decree for Rs. 14,685 with interest at the rate of 6 per cent against the appellant in a suit for malicious prosecution.

2. The plaintiff-respondent Surendra Nath Shukla was appointed as a Clearing Clerk on a salary of Rs. 125 per month by Bharat Airways Ltd., having its registered office at No. 8, Royal Exchange Place, Calcutta sometime in 1948. In or about 10th January, 1950 the name of the said Bharat Airways Ltd. has been changed to M/s. Bharat Commerce and Industries Ltd. (the appellant), but the registered office of the appellant retained the same address. The respondent, M/s. Birla Bros. Ltd., which was the managing agent of the said Bharat Airways Ltd; continued as managing agent of the appellant after the said change of name. The respondent, Indian Airlines Corporation, a body corporate, constituted under Section 3, Air Corporations Act, 1953 was impleaded, inasmuch as under the said Act it took over, on or about Aug. 10, 1953, Bharat Airways Ltd. as one of the companies expressly mentioned in Section 2(v) of the Air Corporations Act. The said Surendra Nath Shukla was first posted at the Head Office of Bharat Airways Ltd. at No. 4, Chittaranjan Avenue, Calcutta and was thereafter transferred to its Dum Dum Office in 1949. Bharat Airways Ltd. used to indent and purchase various aeroplane parts and other accessories connected with aeroplanes from foreign countries, At the material Lime, i.e. in 1951 and 1952 the said Surendra Nath Shukla was working in the clearing Department of the office of Bharat Airways Ltd. and his duty was, inter alia, to clear the consignments of the said goods on payment of heights, custom charges, etc. and to deliver the same after such clearance to the Stores Department of Bharat Airways Ltd. In pursuance of the said duty Mr. Shukla used to clear the consignments of Bharat Airways Ltd., with the money advanced to him from time to time by the latter. According to Mr. Shukla, there were occasions when he had to meet the expenses by advancing money himself for the aforesaid purposes subject to future adjustment with Bharat Airways Ltd. On September 24, 1952 Mr. Shukla admitted in writing after adjustment of accounts upto 31st July, 1952 that a sum of Rs. 4,762-14 is payable by him to Bharat Airways Ltd. On 22nd December, 1952 he applied for leave on the ground that he was suffering from cold and fever. On 26th December, 1952 be wrote a letter demanding bis salary for the month of November, 1952 and threatened that he would take recourse to legal proceeding unless his salary was remitted within three days. On the same date, that is, 26th December, 1952 he wrote a letter stating that a sum of Rupees 28,857 was due to him as he paid the same out of his own pocket for clearing goods of Bharat Airways Ltd. On 27th December, 1952 he again applied for leave for a month from 29-12-52 to 29-1-53 and informed the company that he would intimate his address if be would go out for a change. On 31st December, 1952 Bharat Airways Ltd. filed a petition to the Deputy Com. missioner of Police, Detective Department alleging that Mr. Shukla committed offence of criminal breach of trust and cheating in respect of a sum of Rs. 4,881/18/3p. under Section 408 and also under Section 420 of the Indian Penal Code respectively. On the same day the company post-ad a registered letter stating that it could not sanction leave as no medical certificate was sent. The company, however, withdrew the letter from the post office on the same date. On 2nd January, 1953 the company replied to the plaintiff's letter dated 26th December, 1952 denying that any money was due from the company to Mr. Shukla. On the same date the appellant dispensed with the services of Mr. Shukla from the date of his absence, i.e. 22-12-52, on the ground that he has committed breach of trust and cheating in respect of Rs. 4,381/13/3p. On 29th January, 1953 Mr. Shukla made another application for leave and towards the end of February, 1953, according to Mr. Shnkla, he received the said letter of dismissal dated 2-1-53 when he was at Benares. On 26th February, 1953 Shri Shukla appeared before the Calcutta Police Court for obtaining bail. On 28th May, 1953 the Air Corporations Act, 1953 came into force and the undertaking of Bharat Airways Ltd. was taken over by Indian Airlines Corporation. In the Criminal Case. No. G. R. 716 of 1953 (State v. S. N. Shukla) the plaintiff was acquitted of the charge under Section 408 but convicted under Section 420. On 29th March, 1954 a Division Bench of the Calcutta High Court acquitted the plaintiff of the charge against him under Section 420. On 4th May, 1954 the plaintiff wrote to Indian Airlines Corporation to reinstate him in service but he got no response from the said Corporation. On 6th February, 1956 the plaintiff instituted Suit No. 366 of 1957 (Surendra Nath Shukla v. Indian Airlines Corporation and Anr.) in this Court challenging the order of dismissal. On 14th May, 1956 he filed the present suit for malicious prosecution. On 23rd March, 1961 Mr. Shukla's First suit for wrongful dismissal was dismissed with costs by Datta, J. but on 20th April, 1961 the same learned Judge, in the present suit for malicious prosecution, granted a decree for Rs. 14,685 against the present appellant, Bharat Commerce and Industries Ltd. Mr. Shukla thereafter appealed against the judgment of Datta, J. dated 23rd March, 1961 but the said appeal was dismissed by a Division Bench of this Court on June 1, 1965. The present appeal was filed on 15th February, 1962 against the judgment and decree of Datta, J. dated 20th April, 1961.

3. Mr. B. K. Ghosli, learned counsel for the appellant has contended that the decree in favour of Mr. Shukla should be set aside on the following grounds:

(a) On the facts and circumstances of the case, there were sufficient materials to hold that the appellant had reasonable and probable cause to lodge a complaint on 31-12-52 against Mr. Shukla under Sections 408 and 420 of the Indian Penal Code.

(b) Both on facts and in law the appellant company was not actuated by any matter in lodging the said complaint.

(c) Mr. Shukla might have grievance against Bharat Airways Ltd, but had no cause of action against the present appellant and, as such, the suit should not have been decreed against the appellant company.

4. Mr. A. K. Das, learned counsel for the respondent, Surendra Nath Shukla has made various submissions in support of the decree in favour of his client, He has referred us to the oral and documentary evidences adduced in this suit and also in the other suit No. 366 of 1957, to show that there were no materials before the appellant company on 31-12-52 to commence criminal proceedings against his client. According to him, Mr. Shukla as a clearing clerk of Bharat Airways Ltd. was allowed to draw money from the cashier for the purpose of clearing consignments of aeroplane parts and other accessories at Dum Dum on payment of freights, custom charges, etc. After the consignment notes and other relevant papers for a particular consignment arrived at the Head Office, it was the normal duty of Shri Shukla to collect the said papers and, on the basis thereof, to prepare a requisition for an approximate amount required to clear the consignments. These requisitions used to be submitted to the Chief Store Keeper or the Deputy Chief Store Keeper, whose duty it was to satisfy himself that the amount requisitioned would be necessary to clear the consignment. On being satisfied, the Chief Store Keeper or the Deputy Chief Store Keeper used to recommend payment to the Superintendent of Stores at Dum Dum or in his absence to the Superintendent of Administration. In the absence of both of them the Chief Store Keeper used to pass the necessary payment order on the requisition. With this payment order, Mr. Shukla would go to the cashier at Dum Dum office for receiving payment and the cashier would make the necessary payment. Thus, Mr. Shukla was entrusted with various sums of money by Bharat Airways Ltd. for clearing consignments and the said company used to receive the bills from Mr. Shukla in respect of expenditures incurred through him. It was the duty of the company to Keep an account of money paid to him on requisition and of Mr. Shukla to keep an account of the money spent by him. It was therefore a question of adjustment of accounts There might at best be a question of civil liability of Mr. Shnkla but there was no question of any dishonest intention on the part of Mr. Shukla and the company should not have rushed to the criminal court without being convinced of the correctness of the allegations against him.

5. Mr. Das has then argued that even the statement of account on which the company has relied upon, is intrinsically incorrect and accordingly the alleged admission of Rs. 4,762-14 by Mr. Shukla on 24th September, 1952 on the basis of such statement of account would be fictitious and, as such, no question of cheating or criminal breach of trust in respect of Rupees 4,762-14 or Rs. 4,881-13-3p. would arise. He has referred to annexure 'E' at page 469 of the paper book to show that a sum of Rs. 381-0-9p. has been credited in June, 1952. According to tile company, Mr. Shukla admitted in writing (Ext. 1) his liability for Rs. 4,762-14 as on 31stJuly, 1952 and as Mr. Shukla submitted a bill for Rs. 381/0/9P after September 1952, the company, by the letter of dismissal dated 2nd January, 1953, informed Mr. Shukla that he had committed criminal breach of trust in respect of Rs. 4,381-13-3p. According to Mr. Shukla, after September, 1952 he paid a sum of Rupees 381-0-9p. in cash. Thus, deducting the said sum of Rs. 381-0-9p. from the admitted sum of Rs. 4,762-14 he was made liable for the balance, i.e. Rs. 4,381-13-3p, But according to Ext. 'E' at page 469 of the paper book Rs. 381-0-9p. has already been credited in June, 1952. Therefore, Mr. Das wanted to hold that this sum of Rupees 381-0-9p. having been paid after September. 1952 could not be credited as early as June, 1952. Mr. Das, therefore, has concluded that the statement of account cannot be relied upon. Mr. Das has next contended that according to Ext. 'E' a total sum of Rs. 29,400 has been debited to Mr. Shukla from January, 1952 to 31st July, 1952 and the amount credited during the said period was Rs. 29,448-2-0 deducting the said Rs. 29,400 from Rs. 29,448-2-0 the balance would be a sum amounting to Rs. 48-2- only Thus, on 31st July, 1952 according to this state merit of account which the company has tendered, a sum of Rs. 48-2 was payable by the company to Mr. Shukla so far as 1952 account was concerned. He has, therefore, argued that Mr. Shukla's admission of his liability for the sum of Rs. 4762-14 on 24th September. 1952 cannot be correct and this conclusion is supported by Mr. Shukla's evidence that the said admission in writing was only made for the purpose of auditing and at the desire of the company's officers. Mr. Das has also contended that under proviso to Section 222(2) of the Code of Criminal Procedure the criminal breach of trust or dishonest misappropriation of money must relate to a period of one year between the first and last of such misappropriation. The appellant has been charged under Section 408 I. P. C. for having committed criminal breach of trust in respect of Rs. 4,381-13-3p. during 29-12-51 to 28-12-52. According to Ext. 'E' at page 468 of the paper book a sum of Rs. 5,602-13-3p. was shown as the debit balance of 1951 carried over to the statement of debits made to Mr. Shukla from January, 1952 to August, 1952. This amount of Rs. 5,802-13-3p. being the amount payable by Mr. Shukla in respect of a period during 1951 which is the period beyond one year from the last date of misappropriation, cannot be taken into consideration. If this sum is excluded from the statement of debits made to Mr. Shukla from January, 1952 to August, 1952 in accordance with the said proviso to Section 222(2) of the Code of Criminal Procedure, a sum of Rupees 251-14-0 being the balance sum after deducting Rs. 29,448-2-0 from RS. 29,700 is only to be accounted for by Mr. Shukla on 2-1-53, when his services were dispensed with. Thus, there is no foundation or basis of the charge framed against Mr. Shukla for criminal misappropriation or cheating in respect of Rs. 4,381-13-3p. He has also referred us to the fact that the original books of account which were lying with the company have not been produced either before the Police Court or at the hearing of this suit.

6. From all these facts, Mr. Das contended that the company had no reasonable and probable cause for lodging the complaint to the Deputy Commissioner of Police, Detective Department on 31-12-52 and that the company has, therefore, acted with malice in setting the law in motion. According to him, the plaintiff in a suit for malicious prosecution is only to prove a prima facie case and this onus has been discharged by his client. He has also argued that if on a charge for a particular amount the liability for lesser amount is proved, it cannot be held that, for the purpose of a suit for malicious prosecution, the prosecutor has a reasonable and probable cause in initiating prosecution.

7. In our opinion, the whole approach of Mr. Das is erroneous. In a suit for malicious prosecution, the plaintiff must prove (1) that the defendant prosecuted him, and (2) that the prosecution ended in the plaintiff's favour, and (3) that the prosecution lacked reasonable and probable cause, and (4) that the defendant acted maliciously. In the instant case, admittedly there was a prosecution and an acquittal, The only question that we shall have to find out on the facts and circumstances of this case is whether the prosecution under Sections 408 and 420 I. P. C. lacked reasonable and probable cause and whether Bharat Airways Ltd. acted maliciously. In the past, 'malice' was identified with 'lack of reasonable and probable cause' and often malice was inferred from lack of reasonable and probable cause and vice versa. But the present state of law seems to be that the concept of malice is to be kept distinct from the concept of lack of reasonable and probable cause. Ordinarily, malice denotes spite or hatred against an individual but it is often difficult to infer spite or hatred from the conduct of a person. It is said that the devil does not know the mind of man. Therefore, the ordinary meaning of malice cannot be determined by any subjective standard. Clarke and Lindsell have rightly said in their book on Law of Tort, 11th Edition. Article 1444 at page 870:

'The term 'malice in this form of action is not to be considered in the sense of spite or hatred against an individual, but of malice animus and as denoting that the party is actuated by an improper motive. The proper motive for prosecution is of course a desire to secure an end to justice.'

Professor Winfield has also made similar observations in his book on the Law of Torts (3rd Edition) at page 604:

'Judicial attempts to define malice have not been completely successful. 'Some other motive than a desire to bring to justice a person whom he (the accuser) honestly believes to be guilty', seems to overlook the fact that motives are often mixed. Moreover anger is not malice; indeed, it is one of the motives on which the law relies in order to secure the prosecution of criminals, and yet anger is much more akin to revenge than to any desire to uphold the law, perhaps we are nearer the mark if we suggest that malice exists unless the pre-dominant wish of the accuser is to vindicate law.'

Thus, in order to give an objective meaning to the term, 'malice', it should be found out whether the accuser has commenced prosecution for vindication of justice e.g., for redress of a public wrong. If he is actuated by these considerations, he cannot be said to have any malice. But if his object to prosecute is to be vindictive or to malign him before the public or is guided by purely personal considerations he should be held to have malice in the matter. Similarly, the lack of reasonable and probable cause should be also understood objectively. Reasonable and probable cause does not connote the subjective attitude of the accuser. If the accuser thinks that it is reasonable to prosecute, that fact by itself cannot lead to the conclusion that judicially speaking, he has reasonable and probable cause for the prosecution. The term 'reasonable' shows that the causes must conform to the standards of a reasonable and prudent man and the term 'probable' shows that the causes may result in the proof of the guilt. Therefore, a reasonable and probable cause can only mean that the grounds for the plaintiffs guilt are reasonable according to a reasonable and prudent man and that there are materials which might result in the conviction of the accused. It can never be said that the reasonable and probable causes are grounds which must inevitably result in conviction. If acquittal means that the prosecution has been commenced without any reasonable and probable ground, then it would not have been necessary to say that apart from or in addition to the acquittal the plaintiff, in a suit for malicious prosecution, must prove that the defendant lacks reasonable and probable cause in prosecuting the plaintiff. A man may be acquitted and yet there may be a reasonable and probable cause for prosecution. This analysis of the legal position shows that the probative value of the evidence or the legal conclusions on the evidence cannot be very relevant in determining whether the accuser has a reasonable and probable cause in prosecuting the plaintiff. It is not necessary that in order to come to the conclusion that the accuser has a reasonable and probable cause, the evidence adduced must be commensurate with the conviction of the accused. In a criminal trial, benefit of doubt often plays an important part. If some part of the evidence leans to a conclusion that a man is guilty and if another part of the evidence in the same case indicates that the man may not be guilty, or if two possible views of a conflicting nature can be spelt out from the entire facts of the case, the accused gets benefit of doubt. Therefore, the only relevant and material time when a reasonable and probable cause for prosecution has to be found out is the time when the criminal proceeding is commenced or set in motion. It is only from this point of view that the evaluation of the evidence in a suit for malicious prosecution should be made. Mr. Dass whole approach is that as the guilt of the plaintiff was not proved, or insufficient or contradictory evidence was adduced during the hearing of the criminal case, there cannot be a reasonable and probable cause for the prosecution. He has not made any distinction between 'malice and reasonable and probable cause and has contended that as there was lack of reasonable and probable cause, there must have been malice. He has referredus to that part of the plaintiff's evidence where he has deposed that in or about November, 1952 he has been unjustly superseded by a junior man who was a nominee of Mr. Kejriwal, an important officer of the Company. But apart from that uncorroborated oral evidence there is nothing to show that Bharat Airways Ltd. had an animus against him. It is true that the same set of facts may lead to the conclusion that there is malice as well as lack of reasonable and probable cause. It is also true that in some cases the existence of malice may be a relevant consideration to determine lack of reasonable and probable cause and vice verse. But as stated earlier, the two concepts cannot be held to be identical. In this connection, attention may be drawn to the following observations of Mr. Winfield at page 662 in the same book:

'At one time malice was not always kept distinct from lack of reasonable and probable cause but a cogent reason for separating them is that, however spiteful an accusation may be, the personal feelings of the accuser are really irrelevant to its probable truth. The probability or improbability of X having stolen my purse remains the same however much I may dislike X. And it has long been law that malice and lack of reasonable and probable cause must be separately proved. Malice may, however, be inferred from want of probable cause, but it cannot be established by that alone.'

With these observations, the oral and documentary evidence may now be examined. (After examining the oral and documentary evidence his Lordship went on to hold.)

It should be remembered that we are not deciding in this appeal the guilt or innocence of Mr. Shukla in the context of the criminal charges levelled against him; nor are we enjoined to assess the evidence of the criminal case in its applicability to Section 222(2) of the Code of Criminal Procedure, except in an indirect way. In this connection we should remember the following observations of Mr. Winfield in his book at p. 608:

'If there is an honest belief that the accusation is true, then even though the belief is mistaken, the charge may still be reasonable and probable. Nor under the facts upon which the prosecution was founded be such as would be admissible as evidence to establish the guilt of the accused. 'The distinction between the facts to establish actual guilt and those required to establish a bona fide belief in guilt should never be lost sight of in considering such cases. But this does not entitle a man, not making an accusation, to shut his eyes to facts which would make any reasonable person infer that the accused party's conduct was not criminal.'

We should, therefore, try to find out whether the appellant commenced the prosecution without any honest belief of the plaintiff's guilt and whether it failed or neglected to take reasonable care to inform itself of the true facts before commencing or proceeding with the prosecution.

8. In our opinion, on 31-12-52 when the appellant filed the petition to the Deputy Commissioner of Police, Detective Department, there are sufficient materials to show mat it had reasonable and probable cause to set the criminallaw in motion. The following facts may he taken into consideration:

(a) Mr. Shukla admitted in writing on 24-9-52 that he has checked his accounts and a sum of Rs. 4,762-14-0 was outstanding against him as on 3lst July, 1952. After crediting a sum of Rs. 381-0-9 which Mr. Shukla paid to the company after September, 1952 the, company have found him liable for the sum of Rupees 4,381-13-3p.

(b) The said sum was entrusted with him for carrying out his duties as clearing clerk.

(c) Repeated requests were made by important officers of the company to settle his dues but he refused to do the same.

(d) On 29-12-51 he submitted a requisition for Rs. 1,000 for clearing two consignments, Nos. 40413 and 57786 and was paid the same on 31-12-51 (pages 125 and 156 of paper book)

(e) On 7-1-52 he withdrew a further sum of Rs. 4,000 by submitting a requisition in which he again included the same two consignments, Nos. 40413 and 57786 but curiously enough omitted to mention these numbers but instead, mentioned the corresponding Shipment Nos. A734 and 732 (p. 156 of Paper Book).

(f) On 8-2-52 at about 9-30 P. M. he informed the Chief Store Keeper, M. K. Parlikar at Dum Dum by letter that he had cleared consignments Nos. 40413 and 57786 Shipment Nos. A734 and 732 and deposited them in the head office, Stores (Ex. 6 pp. 493 P. B.)

(g) On 9-2-52 he followed a curious procedure. He avoided the Dum Dum Office and contrary to the usual procedure submitted another requisition for Rs. 4,000 directly at the Head Office against the same consignments Nos. 40413 and 5778 and once again received the sum of Rs. 4,000 for which he granted a receipt. There was no consignment bearing No. 5778, which was clearly a hasty mistake denoting consignment No. 57786 (Ex. 7 pp. 194 Paper Book).

(h) Since 22-12-52 he started absenting himself by making application for leave for a week on the alleged ground of illness, and yet in answers to Qs. 117 and 118, he stated that he refused to work under one Ram Gopal Jalan, a junior employee in November, 1952.

(i) He left Calcutta without giving his address outside Calcutta although he promised to do so in his leave application dated 27-12-1952 (vide Ex. J).

(j) On 26-12-52 he demanded his salary for the month of November and threatened to commence legal proceedings unless the salary was remitted within 3 days (vide Ex. 2).

(k) On 26-12-52 Mr. Shukla wrote a letter making a false claim of Rs. 28,857 against the company without furnishing any particular and stating that his dues will be 'much more' (vide Exts. 3 and 4 pages 490 and 491 Paper Book).

(l) On 27-12-52 he again applied for a leave for one month on alleged medical advice but without any medical certificate (Ex. J at p. 485 of P. B.). In fact he never rejoined.

9. All these facts took place prior to 31-12-52 when the appellant filed a petition to the Deputy Commissioner of Police. Detective Department, on the ground that Mr. Shukla committed criminal breach of trust and cheating forthe sum of Rs. 4,381-13-3p. In our opinion, these materials are sufficient to prompt a reasonable man to inform the police authorities. These facts have not only been substantiated by documents but also have been corroborated on material points by one or the other important officers of the company. (After further examining oral and documentary evidence his Lordship went on to hold.)

It also confirmed the fact that after an adjustment of all his bills a sum of Rs. 4762-14-0 remained unaccounted for in September, 1952.

10. Thus, from the oral and the documentary evidence it is clear that prior to the petition of complaint sent by the Bharal Airways Ltd, to the Deputy Commissioner of Police, Detective Department Calcutta on 31-12-1952 the following outstanding facts are found:

1. The appellant was not regularly submitting his account in respect of the money he used to receive from the company to meet the expenses for clearance of company's goods. He was not submitting the bill regularly as a result of which no adjustment could be made.

2. In 1952, a scrutiny was made of the various payments he received as advances and the bills which he had submitted for the expenditures incurred by him.

3. On 24-9-1952 he admitted in writing that a sum of Rs. 1,762-14- was due and payable by him in respect of his account as on 31-7-1952. He admitted there that he had checked his accounts and all the entries had been found correct.

4. After adjustment of payment by Mr Shukla a sum of Rs. 4,381-13-3p. was due and payable by him.

5. Between 21-0-1952 and 31-12-1952 be had not written any letter denying his liability to the company on the basis that his admission on 21-9-1952 was made at the dictation of the company, or for the purpose of auditing.

6. Nor he had produced any statement of account either from his own note book or some other records to show that far from his paying any money to the company, the company owed him a sum of Rs. 28,000 and odd,

7. On the, contrary, without making out a straight case, Mr. Shukla absented himself from duly from 22-12-1952 on the alleged ground of illness and remained scared although his leave applications were neither replied to nor granted. These are in our opinion, reasonable and probable grounds for Bharal Airways Ltd. getting suspicions and setting the criminal law in motion. We, therefore, cannot agree with the finding of ihe learned trial Judge that there was no reasonable and probable cause for commencing criminal proceeding, in this connection Mr. B. K. Ghosh, learned counsel for the appellant, has rightly drawn our attention to Niaz Mohammad v. Alfred Morris, (1948) 52 Cal WN 494 at p. 498 in support of the proposition that, in a suit for malicious prosecution, the conviction by original Criminal Court, although set aside on appeal, is prima facie evidence to prove the existence of reasonable and probable cause for prosecution. There are certainly some exceptions to this rule, but on the whole, the evidence before us convinces us that Bharat Airways Ltd. had reasonable and probable cause in making a complaint. Reference may be made to the following passage in Halsbury's Laws of England (Hailsham Edition) Vol. 22 p. 12: 'But, it seems the conviction, though reversed, might be evidence on which the Judge might find that there was reasonable and probable cause for the prosecution.'

In this connection, reference may also be made to Herniman v. Smith; 1938 AC 305 where Lord Atkin at p. 319 has made the following observations:

''No doubt circumstances may exist in which it is right before charging a man with misconduct to ask him for an explanation. But certainly there could be no general rule laid down, and whether a man is satisfied, or has apparently sufficient evidence, that in fact he has been cheated, there is no obligation to call on the cheat and ask for an explanation which may only have the effect of causing material evidence to disappear or be manufactured. 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 a reasonable and probable cause for prosecution'.

Similar observations were made in Glinski v. Melver, 1962 AC 726 where the principles underlying a suit for malicious prosecution have been very clearly discussed. Lord Denning has made the following observations at page 758:

'In the first place, the word guilty is apt to be misleading. It suggests that, in order to have reasonable and probable cause, a man who brings a prosecution, be he a police officer or a private individual, must, at his peril, believe in the guilt of the accused. That he must be sure of it, as a jury must, before they convict. Whereas in truth he is only to be satisfied that there is a proper case to lay before the court, or in the words of Lord Mansfield, that there is a probable cause' to bring the (accused) to a fair and impartial trial, see Johnstone v. Sutton, (1785) 1 Term Rep 493, 547. 'After all, he cannot judge whether the witnesses are telling the truth. He cannot know what defences the accused may set up. Guilt or innocence is for the tribunal and not for him'.

11. We may now discuss the question of malice. The learned trial Judge has not accepted the evidence of Mr. Shukla to the effect that his refusal to accept his supersession by Ramgo-pal Jalan, a nominee of Mr. Kejriwal, is the real motive of the company for the prosecution against him. He has, however, come to the conclusion that there is malice on the part of officers of the company inasmuch as there was a total want of reasonable and probable cause for prosecuting Mr. Shukla. According to him, the prosecution was not set in motion with a desire to secure the ends of justice, but with some indirect motive. It is not clear, in our opinion, from his judgment what is the indirect motive. As stated earlier, although 'malice' and want of reasonable and probable cause' are interrelated, they do not have an identical connotation, Malice may follow from the fact that the accuser has no reasonable and probable cause inprosecuting the plaintiff, but the converse is not true. Further, a party may be actuated by personal consideration or improper motive, that is a motive other than that of securing justice, yet there may be reasonable and probable ground for prosecution. The proposition has been correctly stated in Johnstone v. Sutton, (1786) 1 TR 510 :

'From the most express malice, the want of probable cause cannot be implied.'

This position is also stated by Clerk and Lindsell on Torts, 12th Edition p. 1725 where it is stated:

'As already stated, if reasonable and probable cause is found the question of malice or no malice is irrelevant. Even though a prosecutor is actuated by the most express malice, nevertheless, is not liable so long as there is reasonable and probable cause for prosecution.'

In our opinion, Mr. Shukla has not been able to prove malice in this case. The learned counsel for the respondent has not referred us to any observation of the learned Magistrate or by the Division Bench of the High Court that there is any improper motive or wilful suppression of correct facts on the part of the officers of the Bharat Airways Ltd. in lodging a complaint against Mr. Shukla. In this connection, our attention has been drawn by Mr. Ghosh to Broja Reddy v. Perumal Reddy, (1903) ILR 26 Mad 506. The learned Judges in that case have very rightly stated at p. 508:

'We think that the true principle is, as stated by Pollock at p. 605 at his Treatise on the Law of Torts, 6th Edition that the action will lie if the plaintiff was ultimately acquitted on appeal by reason of the original conviction having proceeded on evidence known by the complainant to be false or on the wilful suppression by him of material information.'

12. Mr. Das also referred to certain decision on malicious prosecution which may now be briefly discussed. The first case he has cited is Baboo Gunnesh Dutt Singh v. Mugneeram Chowdry, (1872) 17 Suth WR 283 in support of the proposition that in a suit for malicious prosecution the plaintiff is to prove that the criminal proceeding was altogether groundless or has to give a prima facie evidence of it calling for an answer. In that case, the plaintiff did not give evidence himself but although he called witnesses for the purposes of showing malice on the part of the defendant, he called none for the purpose of establishing his own innocence or of disproving the charge against him. Under these circumstances, their Lordships concurred with the judgment of the High Court which was substantially based upon the ground that in their opinion no proof had been given--not even prima facie proof. In the instant case, although the plaintiff did give evidence, there were sufficient materials placed before the court by the defendant to hold that there was no want of reasonable and probable cause for the institution of the prosecution. The next case, Rabindra Nath Das v. Jogendra Chandra Deb : AIR1928Cal691 has been cited to establish the proposition that a prosecution though in the outset not malicious, may nevertheless Become malicious subsequently, if the prosecutor having acquired positive knowledge of the innocence of the accused perseveres in the prosecution with the intention of procuring a conviction of the accused. In that case, before the witnesses were called, papers were produced by the plaintiff to show that the prosecution has been initiated on false grounds. In the instant oase, the plaintiff far from giving any explanation virtually made himself scarce since 22-12-1952 and absented himself from office. In the decision in the Town Municipality of Jambusar v. Girja Sanke Narsiram, (1906) ILR 30 Bom 37, it was held in the facts and circumstances of that case that although the commencement of prosecution took place bona fide, there was nothing to show that the defendant took active steps in continuing prosecution even after the plaintiff made payments of municipal taxes in breach of which the plaintiff was prosecuted. Thus, the case was decided upon its own facts. Further in the instant case, no case has been made out that the appellant Company should have withdrawn the prosecution at a subsequent stage The principle enunciated in Surendra Nath Sahu v. Budhu Bhusan Panja : AIR1944Cal64 does not help Mr. Das's client at all. In that decision, Khondkar. I. held that in a suit for malicious prosecution, the initial onus is on the plaintiff but such onus is not a stationary burden; or in other words, if the plaintiff has given such evidence as, if not answered, entitles him to succeed, the burden of proof is shifted fo the defendant. Applying this principle in the instant case, the defendant should be held to have adduced sufficient evidence from which it can be inferred that the appellant company has prosecuted Mr. Shukla without any malice and for reasonable and probable cause. Dhanji Shaw Rattanji v. Bombay Municipality, AIR 1945 Bom 320 has discussed in detail the principles underlying a suit for malicious prosecution. There can not be any dispute as to the general principles enunciated in that decision, Bhagwati, J. at p. 328 has, inter alia, made the following observations:

'The absence of reasonable and probable cause and malice must however unite in order to produce liability. So long as legal process is honestly used for its proper purpose, mere negligence or want of sound judgment in the use of it creates no liability, and conversely, if there are reasonable grounds for the proceeding (for example the probable guilt of an accused person) no impropriety of motive on the part of the person instituting these proceedings is in itself any ground of liability.'

Applying these very principles in the facts of the instant case, we are convinced that there was reasonable and probable cause of the prosecution, and such prosecution has not been commenced maliciously. Principles decided in M.J. Powell v. A.H. Heart, (1913) 18 Ind Cas 925 (All) are also of no assistance to Mr. Das's client. In that case, it was held that if a person alleges certain facts for which there is reasonable and probable cause and also alleges certain other facts for which there is no reasonable and probable cause, the court would be entitled to award damages in respect of the charges for which there is no reasonable andprobable cause. Apart from the fact that the, answer to the question whether there was reasonable and probable cause would depend upon the peculiar facts and circumstances of a particular case, the learned Judges in that case at page 926 have stated;

'We do not think it would be correct to make a party liable in damages merely because they alleged certain facts which are found to be correct but which did not constitute an offence under the particular section of the Code alleged.'

The only other important case cited by Mr. Das is Leibo v. D. Buckmen Ltd. 1952-2 All ER 1057 in support of the proposition that in case a charge in respect of a higher amount has been framed but lesser amount is proved, it must be held that there is no reasonable and probable cause in starting the criminal proceeding. In our opinion, no such general proposition has been laid down in that decision. In that case, it was found that the charge of stealing pound 27.3s. was maliciously preferred although the defendant honestly believed that the plaintiff was guilty as to 7 pounds 15s. only and, accordingly, it was held that there was no reasonable and probable cause. But Denning, L. J. has made the following observation at page 1071:

'The question may perhaps resolve itself into one of degree. Where there is a charge ol theft of 20 s. and reasonable and probable cause is shown as regards 19 s. of it, it may well be that the prosecutor, when sued for malicious prosecution, is entitled to succeed, because he was in substance justified in making the charge even though he did show maliciously. But the contrary must surely be the case if the figures are reversed and reasonable and probable cause is shown as to 1 s. only out of the 20 s.'

Even applying this principle in the instant case, at best it can be stated that out of the admitted sum of Rs. 4,762-14-0 Bharat Airways Ltd. has not been able to account for a sum of Rupees 381-0-9p. The sum of Rs. 4,381-13-3p. remained unaccounted for prior to 31st December, 1952 when the criminal proceedings were set in motion.

13. We, therefore, conclude that in view of our findings, namely, the defendant had reasonable and probable cause in commencing the criminal proceeding and there was no malice in such prosecution, the principles decided in the cases cited by Mr. Das have no application.

14. Mr. B. K. Ghosh, learned counsel for the appellant has also contended that Mr. Shukla was an employee of Bharat Airways Ltd. and the criminal proceeding was set out in motion by Bharat Airways Ltd. He has therefore wanted us to hold that the appellant company cannot be made liable for damages for malicious prosecution. It is submitted on behalf of the plaintiff that on or about 10th January, 1956 the name of Bharat Airways Ltd. was changed to the name of Bharat Commerce and Industries Ltd. and that it was merely a change of name under Section 23(8) of the Companies Act, 1913 and nothing else. It is true that such change of name shall not affect any rights or obligations of the company and any legal proceedings which could nave been continued or commenced by or against thecompany in its former name may be continued by or against the company in its new name. In paragraph 2 of the plaint, it is stated that M/s. Bharat Commerce and Industries Ltd. is the same company as the said Bharat Airways Ltd. except merely the said change of name. This statement has been admitted by M/s. Bharat Commerce and Industries Ltd. in pragraph 1 of their written statement. But as we have already held on the merits of the case that Bharat Airways Ltd. has reasonable and probable cause in commencing criminal proceedings against Mr. Shukla and that there was no malice in doing the same, it becomes academical to determine the liability of the appellant from this aspect of the matter. In this connection, it may he remembered that on 6th February, 1956 Surendra Nath Shukla instituted in this Court the said suit No. 366 of 1957 (Surendra Nath Shukla v. Indian Airlines Corporation) for a declaration that the order of dismissal is a nullity and also for damages for wrongful dismissal. The said suit was dismissed by Datta, J. on 23rd March, 1961 holding, inter alia, that the dismissal of Mr. Shukla was wrongful but no relief could be granted as the suit was barred by limitation. Mr. Shukla appealed against the said judgment and decree of Datta, J. and in the said appeal, judgment was delivered by P. B. Mukharji, J. to which I was also a party, dismissing the same. We held that the plaintiff in that ease (the respondent herein) could not make the defendant Bharat Commerce and Industries Ltd. (the appellant herein) liable. In any event, this case need not be disposed of upon this point, as we have held on the merits that the plaintiff has no cause of action against the defendant.

15. Mr. Das has also argued, alternatively, that under the Air Corporations Act, 1953 the respondent, Indian Airlines Corporation, in any event, will be liable. According to him, the cause of action commenceed on 31-12-52 when Bharat Airways Ltd. filed a petition to the Deputy Commissioner of Police, Detective Department He has contended that the Air Corporations Act. 1953 came into force on 28-5-53 when the cause of action was pending and, as such, under Section 17(4) of the Air Corporations Act, the rights and liabilities of Bharat Airways Ltd. have been taken over by the Indian Airlines Corporation. There were many difficulties in accepting this contention. Datta J. in answer to Issue No. 4 in the suit under this appeal has held that the Indian Airlines Corporation is not liable for damages. No appeal or cross-objection has been filed against such finding of the trial Judge by Mr. Shukla. It is true that under Order 41, Rule 33 of the Code of Civil Procedure such a relief against Indian Airlines Corporation could be given if Indian Airlines Corporation could be made otherwise liable. But. even if we could grant him relief under Order 41 Rule 33, in out view, Indian Airlines Corporation cannot be made liable for another ground. The cause of action for a suit for malicious prosecution arose in this case on 29-3-54 when the High Court acquitted Mr. Shukla of the charge under Section 420 I. P. C. The Air Corporations Act of 1953 came into force on 28-5-53 and on or about 10th August, 1953 the undertaking of Bharat Airways Ltd. wastaken over by Indian Airlines Corporation. Thus, on the appointed date, i. e,, on 28-5-53 there was no question of any cause of action subsisting against Bharat Airways Ltd. and, therefore, there could not be any liability against the Indian Airlines Corportion. Further, Bharat Airways Ltd. has not supplied particulars in respect of the liabilities in suit to the Indian Airlines Corporation under Section 22 of the Air Corporations Act 1953. The particulars that were supplied are marked Exs. Nos. 02, 03, 04 at page 896 of the paper book. Mr. Tara Chand Gupta and Mr. Ananta Prosad Singh gave evidence that particulars regarding the cause of action or liability in respect of Surendra Nath Shukla have not been supplied (Tara Chand Gupta vide Q. 22; Ananta Prosad Singh vide Q. 17). No cross-examination of Tara Chand Gupta and Ananta Prosad Singh regarding the eorrectness of the particulars supplied was made on behalf of Bharat Commerce and Industries Ltd. or for Surendra Nath Shukla. In the circumstances, Indian Airlines Corporation cannot be made liable. This conclusion is arrived at by us, apart from the finding of facts we have arrived at against the appellant on the merits of this case.

16. For the reasons stated above, the appeal is allowed with costs and the judgment and decree of the court below set aside. Certified for 2 counsel. There will be one set of costs for the appearing respondents.

Sinha, J.

17. I agree.


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