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Alexander Brault Vs. Indrakrishna Kaul - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1933Cal706,147Ind.Cas.455
AppellantAlexander Brault
Respondentindrakrishna Kaul
Cases ReferredMusa Yakub Mody v. Manilal Ajitrai
- .....the spot indicated by the defendant in his letter. on 11th november, the plaintiff sent a second lamp to replace the first. in december the defendant ordered certain accessories for the lamp. on 2nd march 1930, nearly four months after the receipt of the second lamp, he wrote, saying that this one also leaked and thatby closely examining the container, it appears that the bronze metal had been patched up neatly in the place where it has started leaking again. the lamp is lit only for a few hours and i have been filling and lighting up personally, so that the defect is entirely due to the supply of a patched up containerand asking for a new lamp. the second lamp has been produced in court by the defendant. the spot indicated by him, where he alleges that the old leak had been patched.....

Lort-Williams, J.

1. The plaintiff claims damages for malicious prosecution. He is a French subject, aged 76, and for 44 years has carried on business in Calcutta and is of unblemished reputation. Inter alia, he is sole agent for the sale in British India of certain petrol lamps known as 'Tito Landi' which he imports from Paris and of which he has sold more than 30,000. By a letter, dated 14th October 1929 the defendant, who is engineer to the Jharia Water Board, ordered one such Lampe de Grand Luxe, Art Bronze, as illustrated in plaintiff's catalogue and priced at Rs. 42, to be sent V.P.P., and this was sent the following day. On 30th October the defendant wrote, complaining that the petrol container of the lamp leaked, owing to a minute hole in the body of the container, where the metal was too thin and asking that another lamp should be sent in its place. The plaintiff asked that the lamp should be sent to him for inspection, and, on 5th November, the defendant sent back the lamp having first marked with chalk the place where the alleged hole was situate and described the spot as being 'directly the under the knob of the extinguisher.' He also sent a rough sketch, which showed the spot, at a point in the ornamental lines on the upper part of the body of the container. This lamp has been produced in Court by the plaintiff. The leak has been repaired and it coincides exactly with the spot indicated by the defendant in his letter. On 11th November, the plaintiff sent a second lamp to replace the first. In December the defendant ordered certain accessories for the lamp. On 2nd March 1930, nearly four months after the receipt of the second lamp, he wrote, saying that this one also leaked and that

by closely examining the container, it appears that the bronze metal had been Patched up neatly in the place where it has started leaking again. The lamp is lit only for a few hours and I have been filling and lighting up personally, so that the defect is entirely due to the supply of a patched up container

and asking for a new lamp. The second lamp has been produced in Court by the defendant. The spot indicated by him, where he alleges that the old leak had been patched up, is in a different place altogether from the spot shown in his sketch, being situated near the bottom of the body of the container. No one, who examined the container closely, as he alleges that he did, and who exercised any reasonable care in such examination could possibly have been under the impression that the two spots were the same and I do not believe the defendant when he alleges that he was under this impression. By his letter dated 5th March plaintiff refused, and, in my opinion, reasonably, to replace the lamp, in view of the lapse of time. On 30th April the defendant's pleader, one Gouriram, wrote saying that the plaintiff had sent the second lamp purporting to be a new one' whereas it was the first lamp 'patched up and revarnished,' that his client had paid for 'a first class new lamp' whereas the one sent was 'not new and serviceable,' and that his client had been cheated, and threatened to take legal proceedings both civil and criminal.

2. The plaintiff replied in a courteous letter dated 5th May. Pour months later, on 9th September 1930, the defendant instituted criminal proceedings against the plaintiff at Dhanbad whereby he was charged with cheating under Sections 417 and 420, I.P.C. Process was served upon the plaintiff at his office in Calcutta. The trial took place upon 19th and 30th January and 6th and 17th February 1931 when the Magistrate dismissed the complaint and acquitted the plaintiff. The plaintiff incurred expenses in defending himself to the extent of Rs. 2,000 and, in my opinion, these were reasonably incurred. His books have been disclosed in confirmation of these payments. The defence is a denial that the defendant acted falsely or maliciously or without reasonable or probable cause, and a plea to the jurisdiction. The following issues were raised: 1. Jurisdiction. 2. Seasonable or probable cause. 3. Malice. 4. Damages. So far as the facts are concerned, this is, in my opinion, an undefended case. I can find neither excuse nor palliation of the outrageous course adopted by the defendant. In the witness box, he persisted in the charge that the second lamp sent was the first one patched up, though he had to admit that the alleged patch in the second lamp was nowhere near the spot indicated in his letter as the place where the first lamp had leaked. In fact far from expressing contrition for his offences, he aggravated them and recklessly charged the plaintiff with fabricating evidence by faking the lamp which he produced in Court with a repair spot in order to deceive the Court. That there was no ground for so serious an accusation is proved sufficiently by the defendant's own sketch, and his counsel wisely refrained from making any such suggestion in cross-examination. With regard to the criminal charge, all that he could say was that he was under the impression that he had been cheated and was so advised by his pleader. Before instituting proceedings, he made no inquiry about the plaintiff's position or reputation in the business world, but he had previous dealings with him and believed him to be honest. In fact, the plaintiff has nothing to do with the sale of the lamps or with correspondence which is attended to entirely by the witness Mrs. Percy on the plaintiff's behalf. The defendant admitted that, if he had got his money back, he would have been quite satisfied and would have dropped the proceedings. Although he thought he had been cheated, he waited four months before instituting criminal proceedings, his explanation being that he waited until his work made it convenient, and then excused the delay by stating to the Magistrate that correspondence was going on, though all correspondence had ceased in May. He says that he carefully considered his position before he took proceedings.

3. I am satisfied, upon the evidence, that the defendant never had any honest impression or belief that he had been cheated or that the plaintiff had cheated him, that he acted as he did simply out of spite and vexation, because he could not get his own way about the supply of a third lamp, and that he instituted the criminal proceedings solely for the purpose of bringing pressure to bear upon the plaintiff and without taking either reasonable or any care to inform himself about the true facts. In so acting, I am of opinion that the defendant was actuated by malice and that he had no reasonable or probable cause for instituting the proceedings. Further, I hold that the Court has jurisdiction to try this case. Leave was given under Clause 12 of the Letters Patent, and the cause of action arose partly within jurisdiction. In Read v. Brown (1888) 22 QBD 128 Lord Esher agreed with the definition of cause of action' given in Cooke v. Gill (1873) 8 CP 107 namely:

Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.

4. Thus, the fact that the plaintiff suffered the damage, which has been alleged, must be proved: Engineering Supplies, Ltd. v. Dkandhania & Co. : AIR1931Cal659 . Even general damage is an essential part of the causa of action though inferred by law, and therefore unnecessary to be proved (Mayne on Damages, 10th Edn., 142). Both special an general damage occurred in Calcutta, the plaintiff's reputation suffered and the costs were incurred by him in Calcutta. Here also she summons was served upon him, and most, if not all, of the facts which go to show that the defendant had no reasonable or probable cause and that he acted with malice took place within the jurisdiction. For example, the alleged fraudulent patching up of the lamp took place there. It is true that it is not necessary to prove service of the summons in order to establish a suit for malicious prosecution, but the service was part of the proceedings upon which the present suit is founded and is part of the foundation for the claim for both special and general damages. 'Cause of action' means that bundle of essential facts which it is necessary for a plaintiff to prove, and a person is responsible not merely for starting a prosecution but also for continuing it: Musa Yakub Mody v. Manilal Ajitrai (1904) 29 Bom 368. There remains the question of general damages. The injury, which the defendant has done to the plaintiff's character and reputation, both in his life and in his business, cannot be calculated with any degree of precision. It is impossible to trace the damage which may ensue when a charge of fraud has once been made against a business man. Even though he may have bean acquitted and his character has bean vindicated, there are many who will apply the maxim that there is no smoke without fire. The conduct of the defendant would justify exemplary damages. He is a Master of Engineering of Liverpool University and an Associate Member of the Institute of Civil Engineers, and therefore presumably a man of some education. Yet he does not seem even now to have any conception of the gravity of the offence which he has committed or of the wrong that he has done. His pleader is equally to blame for the advice which the defendant alleges that he gave and of which he ought to be ashamed. I trust that, far from being paid for this advice, he will be made to pay for it.

5. The abuse of this section of the Penal Code amounts to a public scandal. It is used constantly by creditors as a means of collecting civil debts and by spiteful persons for the purpose of working off grudges and harassing and annoying their neighbours. If it is considered that the section cannot be dispensed with, then safeguards ought to be provided by law which will avoid this abuse of the process of the Court. I assess the damages at Rs. 6,000 including special damages. There will be judgment for this sum with costs on scale No. 2, including all reserved costs.

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