1. The plaintiff in this case claims Its. 5100 as damages for malicious prosecution. The circumstances are as follows : The plaintiff is a pleader of 19 years standing. He originally practised in the District of Jessore, but since 1928 he has been practising in Calcutta. To obtain his annual license under the Legal Practitioners' Act he has to apply to one of the Courts that grant such licenses, and in fact he is in the habit of obtaining this license from the Calcutta Small Cause Court, and he is shown on that Court's roll of practitioners. He does not however practise in the Small Cause Court. His evidence is that he practises exclusively before the income-tax authorities who, until the pujahs of 1937, had their offices in Hare Street, but now have their offices in Government place. In addition to his professional license he has to obtain a municipal license under Section 175, Calcutta Municipal Act of 1928. The license is an annual one, and as a pleader the plaintiff is required by the Act to pay a yearly fee of Rs. 25. The financial year of the Corporation as every one knows begins on 1st April, and terminates on 31st March following. The penalty for failing to take out a Municipal license is provided by Section 492, Municipal Act, which enacts that if any person exercises on or after the first day of July in any year any profession, trade or calling referred to in chap, XII without having the license prescribed by that chapter, he shall be punished with fine which may extend to three times the amount payable in respect of such license. On 14th March 1936, the plaintiff paid for and obtained his license in respect of the year 1935-1936. In the license he is described as 'carrying on business at No. 3, Bankshall Street.'
2. In spite of this, however, the Corporation License Inspector instituted proceedings against him on 13th June 1930 for having practised without a license during the period concerned. A summons was issued, and before the day fixed in the summons for appearance the plaintiff filed a petition before the Magistrate in which he stated that he had already paid for his license and held a receipt for it. He gave his private address as 28/3, Jamapukur Lane, Calcutta and described himself as 'a pleader practising in the income-tax offices.' In para. 3 of the petition he stated that he was enrolled in the Small Cause Court, but practised exclusively in the Police Court, and he added that the license receipt gave as the address of the plaintiff No. 3, Bankshall Street. When the case came up on 25th August 1936, the License Inspector, H. C. Sen, who is defendant 2 in this suit, admitted that the licence fee had been paid and the plaintiff was accordingly discharged.
3. The plaintiff's story is that at the termination of the proceedings he had an altercation with defendant 2, in the course of which he remarked that this was the sort of thing 'that happened under what he described as ' this Swarajist Corporation.' According to the plaintiff defendant 2 indicated that the 'Swarajist Corporation' would make the plaintiff regret the observations he had made. I find it difficult to accept the plaintiff's evidence as to this altercation. The Corporation has been Swarajist since 1923, if by that is meant that since that date it has been presided over by the Mayor of Calcutta assisted by the Chief Executive Officer and his subordinates instead of having a Chairman nominated by Government as was the case prior to that date. The Chairman of the Corporation prior to 1923 was invariably, as far as I know, a member of the Indian Civil Service. The taunt that the Corporation is a Swarajist Corporation seems to me to be somewhat out of date in 1930. I may also add that the letter of demand which the plaintiff wrote to the Corporation before the present proceedings were initiated, contains no reference to the altercation. This is of considerable importance because save for this altercation there is no incident alleged or suggested which could have aroused the anger of the license authorities. The fact that summons was taken out although the license had already been paid appears to have been due to the fact that the responsibility for collecting license fees and prosecuting defaulters is allocated among a considerable body of License Inspectors.
4. Up to the year 1935-36 license fees had been collected from the plaintiff without trouble by the Inspector who was responsible for collecting license fees from pleaders practising in the Income-tax offices in Hare Street. Apparently, in the assessment which took place early in 1936, the License Inspector responsible for the fees of Small Cause Court practitioners looked at the roll of legal practitioners maintained in that Court, and found the plaintiff's name on it, and a demand was accordingly made for the license fee which the plaintiff paid, as I have said, on 14th March 1936. Meanwhile no correction had been made in the assessment list of the income-tax office practitioners, with the result that the plaintiff was shown as a defaulter in that list, and proceedings were started against him. On 30th March 1937, the plaintiff paid his license fee in respect of the year 1930-37. The plaintiff said that both this fee and the one for the preceding year were collected from him at his residence by a Corporation official. The evidence given by the Corporation officials and the form of the two licenses would certainly lead one to suppose that the licenses were obtained direct from the Corporation office by the plaintiff or some one acting upon his behalf. There is however no particular reason why, if this was so, the plaintiff should set up the story about the official calling at his residence, and the question where the money was actually paid, is of no importance in the case.
5. The next incident which is common ground is that on 25th June 1937 defendant 2 filed a complaint before the Municipal Magistrate charging the plaintiff, whose address was given as 17, Guru Prosad Chowdhury Lane, with 'carrying on the profession of a pleader at 1, Hare Street without a license during the year 1936-37.' A summons was issued and came back with an endorsement indicating that it had been served on the plaintiff. The bailiff alleged to have served the summons was at a later stage examined by the Magistrate who thereupon, as the plaintiff did not appear, issued a warrant for the plaintiff's arrest. The plaintiff was arrested on 21st April 1938 and furnished bail. When the case came up for disposal the plaintiff produced his license and was discharged. The Magistrate called upon the License Inspector concerned, Dhirendra Nath Banerjee, for an explanation which was furnished, and accepted by the Magistrate. This suit was instituted on 20th July 1938, the date of the plaintiff's discharge being 7th May 1938.
6. Two points of law are submitted by Mr. S.R. Das on behalf of the defendants. He first submits that this is not a case in which an action for malicious prosecution can lie, and for this he relies on (1915) 1 KB 600 Wiffen v. Bailey and Romford Urban District Council. In that ease a complaint had been made under Section 95, Public Health Act, against the occupier of a house for non-compliance with a notice stating that a nuisance existed at the house arising from the want of cleansing of certain rooms, and requiring him to abate the same by stripping the paper off the walls, and doing other repairs. The Justices dismissed the complaint and awarded costs to the plaintiff. The plaintiff thereupon instituted proceedings for malicious prosecution and was awarded 250 by way of damages. Horridge J., as Judge of first instance ruled that the complaint was a proceeding involving damage to the plaintiff's fair fame within the first three heads of damage stated by Lord Holt C. J., in the old case in 1 L D RAYM 374 Savile v. Roberts. The Court of appeal set aside the verdict of the jury, holding that the ruling of Horridge J., to which I have referred, was erroneous. Buckley L. J., in his judgment quoting Lord Holt, observes:
There are three sorts of damage, any one of which is sufficient to support this action. First, damage to a man's fame, as if the matter whereof he is 'accused be scandalous. Secondly, damage to his person, as where a man is put in danger to lose his life, limb or liberty. Thirdly, damage to his property, as where he is forced to expend money in necessary charges to acquit himself of the crime of 'which he is accused.
7. Admittedly there was no danger to life, limb or liberty in the case I am considering, because failure to take out a license when practising a profession is punishable with fine only. In (1915) 1 KB 600 Wiffen v. Bailey and Romford Urban District Council the plaintiff had been awarded costs against the complainant, but he had his costs as between solicitor and client which amounted to more than the sum awarded. It was held that this did not bring the case within the third head of damage mentioned by Lord Holt. In the present case the plaintiff has given some evidence that he engaged a pleader and paid him a fee. Accepting the story that he did so, in my opinion, the circumstances were not such as would justify such a course. If there had been witnesses to be cross-examined, it might have been different, but as it was the plaintiff, who himself is a professional man, had a complete answer to the charge in the form of the license granted by the Corporation. I am also inclined to think that in the present case the matter of which the plaintiff was accused cannot be described as scandalous. Taking (1915) 1 KB 600 Wiffen v. Bailey and Romford Urban District Council as a guide, in my opinion, the commission of an offence under the Public Health Act involving an alleged nuisance would, by most people, be regarded as more culpable than a practising profession without having taken out a municipal license. I agree that it is nowhere laid down that it is an answer to an action for malicious prosecution to show simply that the offence, which was the subject-matter of the prosecution, is punishable with fine only, yet I should be inclined to hold on the authority of the English case that the plaintiff has no cause of action. However I do not expressly decide so, as I consider the plaintiff fails on another ground.
8. Another point is made by Mr. Das to the effect that it can hardly be said there was no reasonable and probable cause in this case because having regard to the admitted facts the plaintiff's case was clearly covered by Section 492. Section 534 of the Act limits the period in which proceedings may be brought against persons for offences under the Act, to three months. Sub-section (2) of Section 534 provides that failure to take out a license under this Act shall be deemed for the purpose of Sub-section (1) to be a continuing offence until the expiration of the period for which the license is required to be taken out. In my opinion, on the true construction of Section 492 the plaintiff was guilty of an offence by practising on and after 1st July 193G, and that was an offence continuing certainly upto 30th March when he paid the fee, and I think upto 31st March when the period for which the license required to be taken out expired.
9. However, there are various other considerations to be taken into account. Generally, speaking, it is not open for a defendant in an action for malicious prosecution to question the correctness of the plaintiff's acquittal, and secondly this point has never been taken by the Corporation or any of their officers, who have throughout agreed with the plaintiff in this, that if he paid his professional license at any time during the Municipal year 1936-37 he could not thereafter be charged with having committed the offence mentioned in S.492 in respect of that year. This again is a point I expressly decline to decide. That leaves me to deal with the facts, and the question I have to decide is whether the Corporation had reasonable and probable cause for the prosecution, and whether if they had no reasonable and probable cause the defendants or either of them were actuated by malice. Now, it is obvious that a repetition in successive years of the prosecution of a man who has already paid his licence fee for not having paid it ought to be impossible, and I have come to the conclusion that there is a considerable lack of co-ordination in the corporation's license department. It appears that when the earlier prosecution terminated, although the matter was brought to the notice of the corporation authorities, the only material entry made in the books was by showing the plaintiff's assessment at the income-tax office as cancelled in the defaulter's list, that is to say, a list compiled after the expiry of the year. Apparently when the new assessment is made the demand entry of last year is used which, in this case, had not been corrected. The consequence is that for the second year in succession the plaintiff's name appeared upon two lists for the same ward, which appears to be inexcusable. I should be inclined to hold that the corporation cannot rely on entries or the absence of entries in their books or the absence of corrections in their books which are due solely to their own failure to maintain proper supervision. This is not one of those cases where a reckless though honest inference is drawn from facts furnished by a third party, and the eases which deal with that state of things appear to me not to cover circumstances like these, where the defendant corporation is responsible itself for the reason of the error that has been made. In this case, however, the question of reasonable and probable cause is to a large extent bound up with the issue of malice. Of course, if any corporation official who was responsible for the prosecution knew that the plaintiff had paid his license fee there was no reasonable and probable cause, and equally there must have been malice.
10. Now, although the plaintiff has spoken to an altercation with defendant 2, I have not accepted his story, and even if I did accept it, I should equally accept defendant 2's evidence that when he instituted the proceedings the plaintiff's name meant nothing to him. He says he was responsible for forty thousand prosecutions a year, and it appears from the written complaint in this case that it was not signed by him, but by the Licence Inspector, the other witness, Dhirendra Nath Banerjee. I see no reason why when he filed the petition of complaint before the Magistrate the proceedings of the previous year should have occurred to his mind. With regard to Dhirendra Nath Banerjee no reason for malice on his part is alleged, and the only possible theory on which malice can be attributed to him is that defendant 2 in his anger at the plain-tiff's tone enlisted sympathy of his fellow official; but I have pointed out the difficulties about accepting the plaintiff's version on this part of the story, and if it is not accepted there is no reason to attribute malice to Dhirendra Nath Banerjee. It is true that the fate of the first prosecution was directly brought to his notice and he made a report thereon, and he admits that he realised that the person who had paid the licence fee as being on the small causes court assessment was the same person as was on the income-tax assessment. But I cannot find it proved that this fact was present in his mind when he signed the petition of complaint, which formed the basis of the second set of proceedings. ,
11. It is admitted that Dhirendra Nath Banerjee on one occasion met the plaintiff at the Income-tax Office. According to the plaintiff that was after he had paid the income-tax fee, and on Dhirendra's questioning about it, he says, he explained, the payment had already been made. Dhirendra said that in the ordinary course of his routine he went to the Income-tax Office towards the end of the financial year and asked the plaintiff if he had paid his tax, and he said that the plaintiff gave him no reply -a course of conduct which appears strange to me-but which Dhiren says is not uncommon. If Dhiren was a party to a plot to have the plaintiff improperly prosecuted, I think it most unlikely that he would have approached him. If he had wanted to find out whether or not he had paid through the Small Cause Court he would have consulted the appropriate records, and I do not see what motive he could have after the close of the year for putting the plaintiff on his guard by asking him if he had paid. The plaintiff, having regard to what had happened in the previous year, might very well have called up by-stander and explained that for the second time in two years doubts were being thrown upon his having paid his licence fee punctually. I may also add that the plaintiff's version of the conversation between himself and Dhirendra Nath Banerjee finds no place in the letter of demand written to the corporation. In these circumstances I am of opinion that the plaintiff has failed to prove malice against the other defendant, and it is an essential part of his cause of action.
12. The plaintiff also attaches some importance to the course of the proceedings before the municipal Magistrate. The summons was returned endorsed as having been served upon the plaintiff, but the plaintiff swears that he was never served, and it is suggested that the service was what is generally called suppressed. The bailiff and the alleged identifier have not been called, and it is stated that the bailiff is no longer serving the municipal Magistrate's Court. One knows that identification by a by-stander, as is usual in cases like this, is of very little value, and Court peons are often careless in the discharge of this particular duty. Further, the address given in the summons is not the plaintiff's present address. In these circumstances I am fully prepared to accept the plaintiff's statement that the summons was not served upon him, for I do not think that if it had been served he would have endeavoured to aggravate his grievances by courting arrest. At the same time I do not feel justified in coming to a conclusion that the alleged service was a sham and that the fact that the plaintiff did not receive notice of the proceedings against him can be attributed to the defendant corporation or to the corporation servants. I have some sympathy with the plaintiff, and I think that the corporation should certainly take steps to overhaul the organisation of their licence department, but that does not entitle me to give him any relief when, in my opinion, he has not established his claim. The suit is dismissed with one set of costs. As it is an unimportant and simple case I certify for one counsel.