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2002 DIGILAW 482 (MAD)

R. Chinnathambi and another v. K. K. Palanisami

2002-06-19

A.RAMAMURTHI

body2002
JUDGMENT: The unsuccessful defendants in both the Courts below are the appellants. 2. The case in brief is as follows: The plaintiff is a responsible Government servant and working in the Commercial Tax Department and had put in 18 years of service. The 1st defendant is the paternal uncle of the 2nd defendant and they are pangalis. One Ramakrishnan (since deceased), brother of the 1st defendant was the 1st defendant in O.S. No.473 of 1978 on the file of Principal Sub Court, Salem. After the death of Ramakrishnan, the defendants took up the cudgels against the said pangalis and gave false complaint and on the basis of which Sessions Case No.88 of 1981 was filed against him on the file of Additional Sessions Court, Salem. He had to face charges under Sec.307 of Indian Penal Code along with other accused. After full trial, he was acquitted by an order dated 4.9.1982. He was put to mental stress and there was loss of reputation also as he had faced false charges. The defendants had no reasonable or probable cause to compel the plaintiff to face the false charge. The defendants also gave evidence in the sessions case and their evidence was rejected. There was malice on the part of the defendants. The plaintiff spent considerable amount to get anticipatory bail from this Court and also paid fees to the counsel and therefore, claimed a sum of Rs.20,000 by way of damages. Defendants 1 and 2 resisted the suit and contended that the plaintiff is not entitled to claim any damages. No false case was given against the plaintiff. It is true that the plaintiff was involved in a sessions case and ultimately after trial, he was acquitted; but it does not mean that a false case was put up against him out of malice or without any reasonable and proper cause. The defendants also gave evidence in the sessions case. An occurrence took place on 3.8.1980 and therefore, the 1st defendant was forced to give a complaint against the plaintiff and others to Hasthampatti Police. In fact, the case was prosecuted by the State and not by the 1st defendant. The suit is liable to be dismissed. The defendants also gave evidence in the sessions case. An occurrence took place on 3.8.1980 and therefore, the 1st defendant was forced to give a complaint against the plaintiff and others to Hasthampatti Police. In fact, the case was prosecuted by the State and not by the 1st defendant. The suit is liable to be dismissed. The trial Court framed 2 issues and on behalf of the plaintiff, P.W.1 was examined and Exs.A-1 to A-10 were marked and on the side of the defendants, D.Ws.1 and 2 were examined and Exs.B-1 to B-3 were marked. The trial Court partly decreed the suit granting a sum of Rs.5,000 by way of damages with interest at 9% per annum and aggrieved against this, the defendants preferred A.S. No.48 of 1986 and the aggrieved plaintiff preferred A.S. No.121 of 1986 relating to the disallowed portion of the damages and both the appeals were heard together by the learned District Judge, Salem and the learned Judge after hearing the parties, allowed A.S. No.48 of 1986 in part and modified the decree for a sum of Rs.5,000 with subsequent interest and pro-cost against the 1st defendant only and dismissed the suit claim against the 2nd defendant and also dismissed A.S. No.121 of 1986. Aggrieved against this, the defendants have come forward with the present second appeal and the plaintiff also filed cross-objection. 3. At the time of admission of the second appeal, this Court framed the following substantial questions of law: (1) Whether the lower appellate Court is right in the view it took that the ingredients for sustaining the action for recovery of damages for malicious prosecution have been established? (2) Whether the quantum of damages awarded by the Courts below is correct? 4. Heard the learned counsel for the parties. 5. It is not in dispute that the plaintiff was employed in the Commercial Tax Department and had put in 18 years of service. The 1st defendant gave a complaint against the plaintiff and others and after investigation, charge sheet was filed in S.C. No.88 of 1981 by Hastampatti Police for an offence under Sec.307, Indian Penal Code. After trial, the case against the plaintiff ended in acquittal and thereafter only, the plaintiff has filed the suit claiming a sum of Rs.20,000 as damages for malicious prosecution. The trial Court decreed the suit granting a sum of Rs.5,000 as damages.6. After trial, the case against the plaintiff ended in acquittal and thereafter only, the plaintiff has filed the suit claiming a sum of Rs.20,000 as damages for malicious prosecution. The trial Court decreed the suit granting a sum of Rs.5,000 as damages.6. The learned counsel for the appellants/ defendants contended that the Courts below failed to see that it lies upon the Civil Court itself to undertake an entirely independent enquiry before satisfying itself of the absence of reasonable and probable cause. The Courts below ought to have followed the decision reported in Ramadoss v. Sanhasi Chettiar, (1958)1 M.L.J. 79 and held that the plaintiff has not established that the prosecution of the plaintiff was without reasonable and probable cause and that the 1st defendant was actuated by malice and that the plaintiff has suffered special damages. The Courts below also failed to note that the Criminal Court acquitted the accused only on the ground of benefit of doubt and not on the ground that the complaint is false. 7. It is admitted that a complaint was given by the 1st defendant against the plaintiff and ultimately, the plaintiff was acquitted. Under Sec.43 of the Evidence Act, the judgment of the criminal Court can be used only to establish the fact that an acquittal has taken place as a fact in issue in the subsequent civil suit. The Civil Court cannot take into consideration the grounds upon which the acquittal was based. It lies upon the Civil Court itself to undertake an entirely independent enquiry before satisfying itself of the absence of reasonable and probable cause. The ingredients to be satisfied in a case of malicious prosecution are: (1) the defendant must have prosecuted the plaintiff; (2) the prosecution must have ended in favour of the plaintiff; (3) The defendant must have prosecuted without reasonable and probable cause; (4) the defendant in prosecuting must have actuated by malice, and (5) the plaintiff, when the proceedings were other than criminal proceedings, must have suffered special damages. 8. The first ingredient in case of the nature is clearly proved. 8. The first ingredient in case of the nature is clearly proved. The 1st defendant caused a complaint to the Sub Inspector of Police, Hasthampatti Police Station at Salem stating that on 3.8.1980 at about 6.15 pm at Cherry Road at Komarasamipatti of Salem Town in front of the Mariamman temple, the plaintiff along with 14 others formed themselves into members of an unlawful assembly with a common object of causing hurt and attempting to commit murder of the 1st defendant and Vijayan due to temple dispute. Ex.B-1 is the certified copy of the complaint given by the 1st defendant. The 1st defendant gave evidence in the case stating that the plaintiff also came to the scene of occurrence and beat him. A reading of the entire evidence of D.W.1 before the Criminal Court indicates that he was present at the time of trial before that Court and he has sought for an adjournment on 20th August, 1992 on the ground that he was not doing well and filed an application and it was rejected. It is only under such circumstance, the lower appellate Court came to the conclusion that the 1st defendant has instituted the criminal proceedings and he was the proximate and effective cause to conduct the trial in the sessions case. 9. It is seen from the copy of the judgment that P.Ws.3 and 4 were examined in the case and they have not seen the occurrence. Only if the 1st defendant is able to establish that he had prosecuted the plaintiff with reasonable and probable cause, then only he can non suit the plaintiff. The oral evidence adduced by the parties has been clearly extracted by the lower appellate Court and ultimately came to the conclusion that the 1st defendant had prosecuted the plaintiff without reasonable and probable cause and only out of malice. The 1st defendant in the complaint given to the Police stated that the plaintiff did not come in the first instance armed with weapon to the scene place. But in the course of evidence, he has stated that the plaintiff came along with 60 or 70 persons armed with weapons. It is therefore clear that the evidence of D.W.1 was contradictory to the complaint given by him. D.W.2 had been examined to support the case of D.W.1. But in the course of evidence, he has stated that the plaintiff came along with 60 or 70 persons armed with weapons. It is therefore clear that the evidence of D.W.1 was contradictory to the complaint given by him. D.W.2 had been examined to support the case of D.W.1. In fact, D.W.2 was said to be an eye witness to the occurrence, but he was not examined on the prosecution side in the sessions case. The evidence of D.W.2 now indicates that no Police Constable was present at the time of the occurrence; but in the complaint given by the 1st defendant, it is stated that the police came there at the time of the occurrence and on seeing the police, the accused ran away and they were chased by the police. 10. Malice can only be inferred from the state of mind of the complainant. Even though the plaintiff could not have been present at the scene place, he has been falsely implicated in the sessions case in view of the pendency of the dispute before the Civil Court with regard to the temple. Where knowingly false allegations are made, then want of reasonable and probable cause is clearly established. P.W.1 admittedly moved this Court and got anticipatory bail and necessarily he should have spent considerable amount. He had also engaged a counsel to defend the sessions case. In view of the criminal case, his reputation would have been lowered in the eyes of the public and as such, the finding given by the Courts below that the plaintiff is entitled to claim damages is proper and correct. There is a concurrent finding by the Courts below that the plaintiff is entitled to get a sum of Rs.5,000 by way of damages and it cannot be said to be excessive. There is no reason to interfere in the said finding. 11. The learned counsel for the respondent/ plaintiff contended that the award of Rs.5,000 is low and the suit ought to have been decreed in entirety. The Courts below also failed to take into consideration the mental agony, loss of reputation, etc. The Courts below also erred in stating that the 2nd defendant was not liable in overlooking the fact the 2nd defendant was the real person behind the false case. The Courts below also failed to take into consideration the mental agony, loss of reputation, etc. The Courts below also erred in stating that the 2nd defendant was not liable in overlooking the fact the 2nd defendant was the real person behind the false case. The 2nd defendant is not the prosecutor of the person directly responsible for launching the prosecution against the plaintiff in the sessions case. He figured only as a witness in the sessions case and was examined as P.W.2. Simply because he gave evidence, he cannot be held liable for the damages. Hence, having regard to the facts and circumstances of the case, the Courts below had correctly appreciated the contentions of the parties and the award of Rs.5,000 is also a reasonable and proper one. 12. For the reasons stated above, the appeal as well as cross-objection fail and accordingly, both are dismissed. No costs.