Judgment :- 1. This appeal has been filed by the plaintiff in O.S. No. 111 of 1969 a suit claiming damages for malicious prosecution. The plain till was an elected member of the Chetttkurichi Panchayat. The first defendant was the President of the same Panchayat. Both of them contested for the Presidentship and the votes secured by either of them were the same, so that a lot had to be cast for choosing the President, and as a result of the casting of the lot, the first defendant became the President. The relationship between the plaintiff and the first defendant was far from cordial since then. The Panchayat had to co-opt a woman member. The first defendants nominee was one Ramalakshmi Ammal, the wife of the second defendant, who was the village Munsif, while the plaintiff and others supported the co-option of one Sarojini Ammal. The Sub Collector did not approve of the nomination of Ramalakshmi Ammal and, therefore, Sarojini Ammal was co-opted. The result was that the plaintiff and six other members who supported him constituted a majority. They moved the Sub Collector for passing a resolution of no-confidence alleging certain irregularities against him. The meetings of the Panchayat were held on 21st December 1965 and 27th July 1966. But, the President kept the panchayat Board office locked, with the result that the plaintiff and the other members supporting him could not attend the meetings. There was a third meeting to be held on 31st August 1966. The plaintiff and his supporters were anxious to attend the meeting, as otherwise they would lose their membership by reason of continued absence for three consecutive meetings. They had sent a petition on 30th August 1966 marked as Ex. A-9, requiring the presence of the Sub-Collector and the Panchayat Extension officer at the said meeting. We are not concerned with what happened at the meeting on that day. However, when the plaintiff and his six supporters went to the Panchayat Board to attend the meeting, the first defendant and one Thannasi were inside the office. According to the plaintiff they were armed with stick and knife, and required the plaintiff and others to get out. The plaintiff and his friend protested and they were beaten and driven out by Thannasi. The plaintiff preferred a complaint marked as Ex. According to the plaintiff they were armed with stick and knife, and required the plaintiff and others to get out. The plaintiff and his friend protested and they were beaten and driven out by Thannasi. The plaintiff preferred a complaint marked as Ex. B-2 at the Arupukottai Police station at 11 a.m. The first defendant, in alleged collusion with the second defendant and others, made a complaint to the second defendant as the village munsif alleging that the plaintiff and the six other members had broken open into the office of the Panchayat Board and committed theft of the records and cash of Rs. 75 kept by him. The first defendant was not satisfied with the action taken by the police on such complaint by merely ‘referring’ the case, and he, therefore, preferred a complaint before the Additional First Class Magistrate, Virudhunagar, who convicted the plaintiff, However, on appeal preferred by the plaintiff, he was acquitted, and the acquittal was confirmed by this court. The plaintiff, therefore, came forward with the present suit claiming damages of Rs. 16000, for malicious prosecution consisting of Rs. 12000 for mental agony and shock, and Rs. 4000 for expenses incurred in the criminal case. Defendants 2 to 6 had figured as witnesses in the said prosecution. 2. The first defendant in his written statement contended that the plaintiff and other members had actually broken open the Panchayat office and had committed theft of the records and cash of Rs. 75and that he as the President of the Panchayat had to make a complaint when the Panchayat records had been lost and damage caused to the Panchayat. There was, he stated, no malicious intention in making the complaint and taking further proceedings. 3. Defendants 2 to 6 in their written statement denied that they had conspired with the first defendant in preferring a false complaint against the plaintiff and stated that they had only given evidence with reference to matters within their knowledge before the Additional First Class Magistrate, Virudhunagar, who believed and accepted their evidence. All the defendants claimed that the were not liable for any financial loss, mental agony and shock. While the first defendant claimed that the suit was bad for want of notice under S 170, the second defendant contended that the suit was bad for want of notice under S. 80, C.P. Code. All the defendants claimed that the were not liable for any financial loss, mental agony and shock. While the first defendant claimed that the suit was bad for want of notice under S 170, the second defendant contended that the suit was bad for want of notice under S. 80, C.P. Code. The first defendant relied also on S. 171 of the Panchayat Act in defence. 4. The learned Subordinate Judge framed several issues arising out of the pleadings. He held that malice was writ large in the conduct of the first defendant in making a false complaint of house-breaking and theft as against the plaintiff and that the prosecution was without reasonable and probable cause. He found that the plaintiff had no cause of action against the other defendants who had only given evidence in the criminal case and that, therefore, defendants 2 to 6 were not liable for any damages. He, however, dismissed the suit as against the first defendant also holding that having regard to the duties and obligations which the first defendant had as President of Panchayat Board, the complaint given by him to the village Munsif and the subsequent complaint before the Additional First Class magistrate were in his official capacity so as to fall within the scope of S. 170 of the Tamil Nadu Panchayat Act, 1958. Accordingly, the suit was held to be not maintainable as against the first defendant for want of notice under S. 170 of the Panchayat Act. As regards quantum of damages he found that a sum of Rs. 1000 for mental agony and shock, and Rs. 1500 for expenses of the litigation totalling in all Rs. 2500 would be the appropriate amount if damages had to be awarded. Against this dismissal of the suit against all the defendants the plaintiff had come forward with the present appeal. 5. The appeal falls into two parts: (1) as against the first defendant who actually launched the prosecution against the plaintiff, and (2) against the other defendants, who gave the evidence. The question is whether there is any cause of action against defendants 2 to 6. As pointed out by the learned Subordinate Judge the mere fact that certain persons had given evidence on behalf of the prosecution does not make them liable for damages. The question is whether there is any cause of action against defendants 2 to 6. As pointed out by the learned Subordinate Judge the mere fact that certain persons had given evidence on behalf of the prosecution does not make them liable for damages. The complaint had been given only by the first defendant, and the second defendant had acted only in his capacity as the village munsif in forwarding the complaint to the police. Defendants 3 to 6 had given only evidence in the criminal case. They cannot be laid to have launched any prosecution against the plaintiff. Therefore, the learned Subordinate Judge rightly held that they were not liable for any damages as such. 6. This leaves for consideration only the case against the first defendant. As already-pointed out, the plaintiff gave a complaint at Arupukottai police station at about 11 a.m. The first defendant gave his complaint much later to the village Munsif. Subsequently, the same was forwarded by the village munsif at about 12-30 p.m. and it reached the Arupukottai police station at 4-45 p m. The learned counsel for the respondents did not dispute the fact that though the Additional First Class Magistrate, Virud hunagar, convicted the plaintiff, the plaintiff was acquitted in the appeal, and the acquittal was confirmed by this Court. The court below has found that the prosecution was actuated by malice. The following are the words used by the learned Subordinate Judge in paragraph 10 of his Judgment in giving this finding— “It will be clear that the first defendant in making his complaint to the village munsif in the first instance and later before the Additional First Class Magistrate, Virudhunagar, was not prompted by any desire to vindicate public justice and was solely guided by spite and ill-will to cause harassment and injury to the plaintiff. Malice is writ large in the conduct of the first defendant in making a false complaint of housebreaking and theft as against the plaintiff: In the result, I find on issue No. I that the prosecution in C.C. No. 237 of 1966 was without reasonable and probable cause. On issue No. 2. I find that the prosecution was instituted with malice”. 7. It may be mentioned that the first defendant has not filed any cross-objections and did not also contest this finding of the learned Subordinate Judge before me. 8. On issue No. 2. I find that the prosecution was instituted with malice”. 7. It may be mentioned that the first defendant has not filed any cross-objections and did not also contest this finding of the learned Subordinate Judge before me. 8. Thus, on the basis that the plaintiff has otherwise established his case for malicious prosecution, the question that arises for consideration is whether the present suit fails by reason of the provisions of the Tamil Nadu Panchayat Act, 1958. Two provisions are relied on in this connection by the respondents. The first is S. 171, running, to the extent relevant, as follows— “171. No Suit or other legal proceeding shall be brought against the Chairman, Commissioner, Presidentin respect of any act done or purporting to be done under this Act, if such act was done, or such neglect or default occurred in good faith; but any such proceeding shall, so far as it is maintainable in a court, be brought against the Panchayat Union Council or the Panchayat except in the case of suits brought under S. 173.” 9. S. 173 refers to the liability of the President and others for loss, waste or misapplication of the Panchayat property. This is not such a case. In order to attract S. 171, the act complained of must have been done or purported to have been done in good faith; when once it is found that there was no good faith and that the whole prosecution was engineered out of malicious motive, there is no protection afforded by S. 171 of the Act. This view is supported by a decision of this court in Chidambara Mudaliar v. Arunachala Mudaliar 1962 2 M.L.J. 538.=75 L.W. 665. In that case the provision under consideration was S. 108 of the Madras Village Panchayat Act, 1950, which runs in terms identical with S. 171 of the 1958 Act. This court pointed out that the protection under S. 108 of the 1950 Act, from legal proceedings did not cover acts which though purporting to be done in exercise of official power, were committed with mala fides. 10. The matter now requires to be examined only in the light of S. 170 of the Act, running so far as it is material as follows— “170 (1). 10. The matter now requires to be examined only in the light of S. 170 of the Act, running so far as it is material as follows— “170 (1). Subject to the provisions of S. 171, no suit or other legal proceeding shall be brought against any panchayat or its president in respect of any act done or purporting to be done under this Act until the expiration of two months next after notice in writing, stating the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of residence of the intended plaintiff has been left at the office of the Panchayat and if the proceeding is intended to be brought against any such president also delivered to him or left at his place of residence.” The provision is similar to S. 80, C.P. Code. The contention on behalf of the appellant was that in the present case the complaint given by the first defendant was not any ‘act done or purporting to done’ under the statute. He contended that the act nowhere contemplated a false complaint being given by the President, and merely because the first defendant put on the cloak of his president ship in giving the complaint it did not mean that he was entitled to notice under S. 170. The learned counsel for the respondents vehemently argued that the question of motive in what the first defendant did as the President of the Panchayat was irrelevant at any rate, at the stage of notice, and that so long as He had given the complaint in his capacity as the President, the provisions of S. 170 would be attracted. His point was that S. 170 merely required a notice to be given and that, therefore, no injustice was likely to result by reason of this requirement of a notice being enforced in a case like this. 11. Numerous cases have arisen under the provisions of S. 80, C.P. Code, S. 19, Crl. P.C. and the parallel provisions of the Panchayats Act. The learned counsel for the plaintiff drew my attention to several decisions. It is enough for my purpose to refer to a few of the highest authority and also to a decision of Ismail, J. which has considered most of them. 12. S. 197, Crl. P.C. and the parallel provisions of the Panchayats Act. The learned counsel for the plaintiff drew my attention to several decisions. It is enough for my purpose to refer to a few of the highest authority and also to a decision of Ismail, J. which has considered most of them. 12. S. 197, Crl. P.C. provides for the sanction of the appropriate authority when any person who was a Judge within the meaning of S. 19, I.P.C. or when any Magistrate, or when any public servant who was not removable from his office save by or with the sanction of a provincial Government or some higher authority, was accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. No court was to take cognisance of such offence except with the previous sanction of the appropriate authority. The words ‘while acting or purporting to act in the discharge of his official duty’ are more or less similar to S. 170 of the Act extracted already. 13. In Horiram Singh v. Emperor 1939 F.C.R. 159.=30 L.W. 95 (F.C.) the Federal Court considered the necessity for sanction under S. 170 of the Government of India Act, 1935, similar in terms to S. 197(1), Crl. P.C. The facts in that case were that a sub Assistant Surgeon was charged under S. 409, I.P.C. with having dishonestly removed certain medicines from a hospital, which was under his charge, to his own residence and under S. 477-A, I.P.C. with having failed to enter them in the stock book. The sanction of the Government had not been obtained for the prosecution u nder S. 270 of the Government of India Act and the point for decision was whether it was necessary. It was held that the charge under S. 477-A required sanctton as ‘the official capacity is involved in the very act complained of as amounting to a crime” but that no sanction was required for a charge under S. 409, because ‘the official capacity is material only in connection with the ‘entrustment’ and does not necessarily enter into the later act of misappropriation or conversion, which is the act complained of.” In the course of his judgment, Varadachariar, J. discussed the scope of S. 197(1), Crl. P.C. and after observing that the decisions on that section were not uniform, proceeded to group them into three categories, viz., (1) those which had held that sanction was necessary when the act complained of attached to the official character of the person doing it; (2) those which had held that it was necessary in all cases in which the official character of the person gave him an opportunity for the co mmission of the crime, and (3) those which had held it necessary when the offence was committed while the accused was actually enaged in the performance of official duties. The learned Judge expressed his agreement with the first of the three views. 14. The need for sanction under S. 197, Crl. P.C, was raised in H.R.E. Gill v. The King 1948 L.R. 75 I.A. 41. There, the accused was charged under S. 161 with taking bribes and under S. 120-B with conspiracy. On the question whether sanction was necessary under S. 197(1), it was held by the Privy Council that there was no difference in scope between that Section and S. 270 of the Government of India Act, 1935, and while approving the statement of the law by Varadachariar, J. in Horiram Singh v. Emperor 1939 F.C.R. 159, - L.W. 95 (F.C.) the Privy Council observed as follows— “A public servant can only be said to actor to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.” It was held accordingly that as the receipt of the bribe with which the accused was charged could not be justified as done by virtue of his office, no sanction was necessary. This view of the Privy Council was followed by it in Albert West Meads v. King 1948 L.R. 75 I.A. 185=61 L.W. 502, and re-affirmed in Phanindra Chandra v. King 1949 L.R. 76 I.A. 10, and adopted by the Supreme Court in R. W. Mathams v. State of West Bengal 1955 1 S.C.R. 216. 15. This view of the Privy Council was followed by it in Albert West Meads v. King 1948 L.R. 75 I.A. 185=61 L.W. 502, and re-affirmed in Phanindra Chandra v. King 1949 L.R. 76 I.A. 10, and adopted by the Supreme Court in R. W. Mathams v. State of West Bengal 1955 1 S.C.R. 216. 15. In a criminal prosecution against a Sub-Divisional Officer in the Public Works Department, in charge of certain wooks wherein he was alleged to have paid amount to fictitious persons as wages and misappropriated them, charges were framed under S. 465 I.P.C. for forging the thumb-impression and under S. 409, I.P. C. for criminal misappropriation. The need for prosecution under S. 197 was examined by Venkatarama Aiyar, J. in Amrik Singh v. State of Pepsu 1654 1 S.C.R. 1302. Speaking for the Supreme Court at page 1307, he thus summed up— “It is not every offence committed by a public servant that requires sanction for prosecution under S. 197(1), Crl. P.C., nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution”. On the facts of that case, the Supreme Court held at page 1310 as follows— “The accused does claim to have paid the amount to Parma, and the an acquittance roll records the payment, and there is in acknowledgement thereof a thumb-impression as against his name. If what appears on the face of the roll is true— and whether it is true or not is a matter relevant at the stage of sanction —then the acts with which the appellant is shared fall within the scope of his duties, and can be justified by him as done by virtue of his office Clearly, therefore, sanction was required under Sec. 197(1) of the Crl. P.C before the appellant could be prosecuted under S. 409, and the absence of such sanction is fatal to the maintainability of the prosecution, (underlining mine) In a case arising under the Madras Village Panchayats Act, 1950, the Supreme Court in Arulsami v. State of Madras 1967 1 S.C.R. 201#1511967 Crl. L.J. 665, had considered the necessity for sanction under S. 197 on the following facts: The President of the Panchayat Board was found to have encashed certain National Plan Savings Certificates wrongfully, and therefore, he was found guilty of an offence punishable under S. 409, I.P.C. The accused relied on S. 106 of the Madras Village Panchayats Act, 1950, for showing that sanction was necessary before he was proceeded with. After reviewing the authorities, the Supreme Court held that the sanction of the State Government was not necessary for prosecution under S. 409, on the ground that the act of criminal misappropriation was not committed by the accused while he was acting or purporting to act in discharge of his official duty and that the offence had no direct connection with the duties of the appellant as a public servant, and the official status only furnished him with an occasion or an opportunity of committing the offence. 16. Ismail, J. in Maniam Palaniswami Gounder v. Karuppa Gounder 1972 1 M.L.J. 43=88 L.W. 159 was dealing with a case where the President of the Panchayat Board had sent a complaint of theft of audit vouchers, muster rolls and other records of the Panchayat Board premises by certain persons. The complaint was dropped by the Police as false and the persons proceeded against filed a suit for damages without giving a prior notice as required by S. 170 of the Act with which I am now concerned. It was held that the notice under S. 170 was necessary for instituting the suit. The principle deducted from the authorities was set out as follows at page 48;— “From these decisions it is clear that the test is whether a public servant, if challenged, can reasonably claim that what he did was in virtue of his office. In this particular case, I have already referred to the status of the respondent as the President of the Panchayat being also the Executive authority under S 40(2) of the Act, and his duties and obligations with reference to Ss. 33 and 173 of the Act. In this particular case, I have already referred to the status of the respondent as the President of the Panchayat being also the Executive authority under S 40(2) of the Act, and his duties and obligations with reference to Ss. 33 and 173 of the Act. Having regard to these duties and obligations which the Executive Authority and the President of the Panchayat have under the provisions of the Act, the complaint given by him on 26th December 1963, was certainly in his official capacity, and, therefore, will fall within the scope of S 170 of the Act.” 17. In all these cases the question is whether the person concerned acted or purported to act in his official Capacity. The word ‘purport’ means ‘intended to seem’ (to do). (See Concise Oxford Dictionary and Kotireddi v. Subbiah 40. Mad. 792. What was his intention at the time when the complaint was given? Did he act in his official capacity? The truth or otherwise of the complaint has not to be considered at that stage. If the facts show at the threshold of the enquiry that a person has committed an offence, which is unrelated to his office, then sanction would be unnecessary. The Privy Council has given instances of a Judge receiving a bribe or a doctor picking the pocket of a patient as acts unrelated to the office. But, where a police officer searches the premises of a person with a forged warrant, it is taken to be an act requiring notice. The test propounded was: could the public servant, if challenged, reasonably (or prima facie) claim that what he did was in virtue of his office. If so, then sanction would be needed. If he could not and if the offence fell outside his duties on a prima facie consideration, then no notice would be necessary. In the present case examined in this light it is true that his duties do not comprehend concoction of complaints. But, we have to put ourselves back at the time when the complaint was given. At that stage the President could state that he gave the complaint by virtue of his office. He complained of something alleged to have been done in the Panchayat Office. The truth or otherwise of the complaint at that stage is irrelevant. But, we have to put ourselves back at the time when the complaint was given. At that stage the President could state that he gave the complaint by virtue of his office. He complained of something alleged to have been done in the Panchayat Office. The truth or otherwise of the complaint at that stage is irrelevant. Even the motive behind the complaint is irrelevant because that would have to be gone into only subsequently. This is not something which is unrelated to his office. Mr. T.R. Mani contended that as in the decision in Maniam Palanisami v. Karuppa Gounder 1972 1 M.L.J. 43=85 L.W. 159 if there was real theft, but if the person suspected in the complaint had been falsely implicated, then the position would perhaps be different. According to him in this case, there was no theft at all, and, therefore, that decision would not apply. The line between the cases requiring sanction and not needing sanction is somewhat thin. Giving a complaint, if the facts were true, would be within the scope of the Presidents duties. Whether the facts were true or not is beside the point. Viewed in this light, the conclusion of the court below that notice was necessary cannot be said to be wrong. As rightly pointed out by the learned counsel for the respondents, the President in this case is not immune from being proceeded against. The only requirement on the basis of which the present suit fails is that he was not given the statutory notice. It is indeed unfortunate that the first defendant is getting away with a concocted complaint. But, it cannot be helped. It is unnecessary, in this view, to go into the quantum of damages. 18. The appeal is accordingly dismissed. But, there will be no order as to costs.