G.N. Das, J.
1. This appeal is on behalf of the defendant in a suit for recovery of damages for malicious prosecution. The plaintiff's allegation is that he acted as the defendant's pleader in Money Execution Case No. 101 of 1942 and withdrew certain gums of money from Court and paid to the defendant his share of the moneys so withdrawn, oa a receipt given by the defendant. The defendant however lodged a complaint before the Magistrate at Serampore alleging that the plaintiff and two other persons had forged a vakalatnama, and on the strength of the forged vakalatnama had withdrawn moneys from Court and had misappropriated the same. The Magistrate thereupon took cognizance of the matter and sent the matter for enquiry to the munsif at Serampore. The munsif issued a notice on the plaintiff, and after an enquiry made by him, submitted a report. On perusal of the report, the Magistrate dismissed the complaint under Section 203, Criminal P. C. The plaintiff claimed damages for a sum of Rs. 503-11.6 for loss of reputation and expenses incurred by the plaintiff in defending the criminal proceedings started by the defendant. The plaintiff alleged that there was no reasonable and probable cause for initiation of the criminal proceedings, and that these proceedings were actuated by malice. The defence was a denial of the material allegations made in the plaint. It was stated that there was no malice or want of reasonable and probable cause. The defendant alleged that he had a bona fide belief that he had not been paid his proper share in the money withdrawn is the aforesaid money execution case; before initiating the proceedings before the Magistrate, he had sent a pleader's letter to the plaintiff enquiring as to who was responsible for the forged vakalatnama and withdrawing moneys and not paying him his proper share.
2. The trial Court found that there was prosecution of the plaintiff, that there was want of reasonable and probable cause for filing the complaint before the Magistrate; that these proceedings were actuated by malice; and that the plaintiff was a leading practitioner and had suffered loss in reputation and had incurred certain costs. The trial Court, therefore, passed a decree for Rs. 503-11-6 with full costs.
3. An appeal was taken by the defendant. The lower appellate Court has varied the decree of the trial Court by reducing the amount decreed, by Rs. 200. The lower appellate Court has maintained the decree of costs passed by the trial Court; it has directed that the parties should bear their costs in the appellate Court. Against the decision of the lower appellate Court, the defendant has preferred this appeal.
4. Mr. Sen appearing for the defendant has contended that, (1) there was no prosecution of the plaintiff; and (2) the order for costs made by the lower appellate Court awarding full costs of the trial Court was not justified.
5. Mr. Sen develops the first point on two grounds. In the first place, he contends that the complaint was filed against the plaintiff and two other persons alleging a conspiracy on the part of the persons named in the petition of complaint. The offence alleged included an offence under Section 468 and Section 408, Penal Code, but no sanction was taken as required under Section 196 (A) (2), Criminal P. C., to the initiation of the proceedings; the complaint, therefore, would not have resulted in any event in a conviction of the plaintiff and his alleged associates; there was thus no valid complaint in the eye of the law, and as such, there was no prosecution.
6. In my opinion, the fact that the prosecution, if any, of the plaintiff by the defendant may fail does not absolve the defendant of his liability for damages in a suit for malicious prosecution if the other requisite elements are found to be present. In my opinion, the defendant cannot escape liability merely on the ground that she step-taken by him was erroneous in law. If, in fact, the processes of the criminal Court are set in motion, and the criminal Court takes cognisance of the matter, the bare fact that the processes may be void on some ground or other does not disentitle the plaintiff from claiming damages for malicious prosecution. In my opinion, in such a case as the present the conduct of the complainant (defendant in the civil action) is more reprehensible than the conduct of one who initiates criminal proceeding which is not void in law. In this connection, reference may be made to Parli v. Read, 30 Kamsas 534 where it was pointed out that the plaintiff can succeed whether the indictment is good or bad, because, in either case the plaintiff is equally subject to the disgrace of the initiation of the criminal proceedings and is put to expenses for clearing up his character in the criminal proceedings.
7. There is another answer to this part of the appellant's contention. It is true that the petition of complaint disclosed a charge of conspiracy and sanction under Section 196 (A) (2), Criminal P.C. was necessary to the initiation of the proceedings. In the present, case, however, the Court did take cognisance of the matter. It may be that the criminal Court might have issued process not on a charge of conspiracy, but on other charges which the petition of complaint disclosed. It cannot, therefore, be said that the entire proceedings before the criminal Court were void and of no legal effect. This branch of the appellant's contention must, therefore, be overruled.
8. The second branch of the appellant's contention is based on the ground that in point of fact, no process was issued by the criminal Court. The petition of complaint was dismissed under Section 203, Criminal P. C. It is, therefore, suggested that criminal Court prosecution, did not commence in the facts of this case. In support of this proposition, reliance is placed upon the decision in Golapjan v. Bholanath, 38 Cal 880: (11 I. C. 311) as also on the case of Mohammed Amin v. Jogendra Kumar, 49 C. W. N. 282 It is true that these cases sup-port the wide proposition contended for on behalf of the appellant that if the complaint is dismissed under Section 203. Criminal P. C. and no process is issued, the proceedings must be deemed not to have commenced at all and an action for malicious prosecution cannot be sustained. The decision in Mohamed Amin's case, (49 C. W. N. 282) went on appeal to the Judicial Committee of the Privy Council, and the decision of this Court was reversed: the decision of the Privy Council is reported in 51 C. W. N. 723: (A. I. R. (34) 1947 P. C. 108). The decision of this Court in Golapjan's case, (38 Cal. 880: 11 I. C. 311) was expressly overruled by the Judicial Committee in the case last cited.
9. The question whether a prosecution which can found an action for damages for malicious prosecution commences with the mere filing of a petition of complaint before the criminal Court has been considered in a number of cases both in this country and abroad. In the case of Rex v. Wallace, (1797) 1 East P. C. 136, it was broadly laid down that the lodging of, information before the Magistrate commences a prosecution which may, if unsuccessful, give rise to a suit for damages for malicious prosecution, It may be noted that the action for malicious prosecution is not founded on statute. The word 'prosecution' which is said to be one of the elements for sustaining an action for malicious prosecution has not the same technical meaning which is to be found in the Criminal Procedure Code. The question whether in a particular case there has been a prosecution or not depends on the facts of that particular case. In the case of Mohamad Amin v. Jogendra Kumar Banerjee, 51 C. W. N. 723 : (A. I. R. (34) 1947 P. C. 108), the Judicial Committee stated that the test is not whether the criminal proceedings have reached a stage at which they may be certainly described as a prosecution, but the test is whether the criminal proceedings have reached a stage at which damages to the plaintiff may result. The mere filing of a false complaint which may fail is not per se such a prosecution.
10. In the case before the Judicial Committee in Mohamad Amim v. Jogendra Kumar Banerjee, 51 C. W. N. 723 : (A. I. R. (34) 1947, P. C. 108) the facts were that on a petition of complaint filed by the defendant, the Magistrate directed an enquiry to be made. The enquiry was made not by a police officer, but by a Magistrate, and thereupon the petition of complaint was dismissed. Gentle, J. delivering the judgment of the trial Court felt himself bound by the decision in Golapjan's case, (38 cal, 880: 11 I. C. 311) which was a decision of a Judge sitting singly on the Original Side of this Court On appeal from that decision, Darby-shire, C. J. and Lodge, J. dissented from the view taken by Mookerjee and Beachcroft, JJ. in Bishun Pergash v. Phulman Singh, 19 C. W. N. 935: (A. I. R. (2) 1915 Cal. 79), and affirmed the view taken in Golapjan's case: (38 Cal 880: 11 I. C. 311). The learned Chief Justice points out that when the matter is at enquiry stage, either before a police officer or a Magistrate, ordinarily, the person complained against has no locus standi to appear, and to lead evidence with a view to exculpate himself. Their Lordships, therefore, observed that when proceedings were at that stage, no prosecution could be deemed to have taken place. This view was overruled by the Judicial Committee on appeal from the judgment of this Court. I may point out that in an action for malicious prosecution, the plaintiff can claim damages, either on the ground of loss of reputation, or damage to person and property. Vide Savile v. Roberts, (1898) 1 Ld. Raym 374.
11. Unquestionably in the facts of the present case, the effect of the initiation of the criminal proceedings by the defendant against the plaintiff on whom a notice was served to appear at the enquiry stage before the munsif resulted in such damages. The Courts below were, therefore, right in holding that there was a prosecution which entitled the plaintiff to recover damages in the suit. The first contention raised by Mr. Sen must, therefore, be overruled.
12. The second contention refers to the order for costs made by the lower appellate Court. In my opinion, though the proper order for costs would have been to direct the defendant to pay proportionate costs both in the trial Court and in the lower appellate Court, it is not suggested that the order for costs actually made exceeds the amount of costs which would have been payable if an order of proportionate costs in both the Courts had been passed. The second contention must also fail.
13 In the result, this appeal fails and must be dismissed with costs.