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2012 DIGILAW 141 (KAR)

T. M. Amarnatha @ Amaranarayana v. Mallamma

2012-02-21

RAM MOHAN REDDY

body2012
Judgment : 1. This is plaintiff’s second appeal aggrieved by the judgment and decree dated 15.3.2010 of the Fast Track Court-I, Kolar, allowing R.A. 70/2008 and dismissing O.S. No. 23/2006 by reversing the judgment and decree dated 15.7.2008 decreeing the suit partly by directing defendants No. 2 to 9 jointly and severally to pay Rs. 48,000/-towards compensation to the plaintiff. 2. The appellant instituted the suit arraigning the respondents as defendants “for compensation” of Rs. 75,000/-for malicious prosecution, alleging that the 1st defendant lodged a complaint with Masthi Police Station on 3.5.1998 at 7.30 p.m. alleging that one Srinivas S/o Narasimhappa, Balajiga had committed the murder of one Venkateshappa S/o Muniramaiah of Thorahalli, Malur Taluk, in the land bearing Sy. No. 96/2, without mentioning the name of the plaintiff, which was registered in Crime No. 78/1998. During investigation, it is alleged that defendant No. 1 made a re-statement before the jurisdictional Police that the plaintiff/accused No. 4 and two others abetted the murder of Venkateshappa, the basis for prosecuting the plaintiff, by a charge sheet of offences punishable under Sections 302 and 109 read with Section 34 of IPC, in C.C. No. 323/1998, before the JMFC, Malur Taluk, although the plaintiff was in no way connected with the offence and there was no enmity between the family of the victim Venkateshappa and that of the Plaintiff. It is further asserted that the case when committed before the Sessions Judge at Kolar, the plaintiff was enlarged on bail and the proceeding registered as S.C. No. 174/1998 before the II Additional Sessions Judge at Kolar and thereafter, transferred to the Fast Track Court-I, Kolar. It is the further allegation of the plaintiff that due to the false statement and complaint lodged by the defendants, the plaintiff and family members underwent irreparable loss, mental agony and hardship, affecting their name, fame and reputation. According to the plaintiff, by judgment dated 12.9.2005, the Fast Track Court-I, acquitted the plaintiff, since the prosecution failed to prove beyond all reasonable doubt that he was involved in the crime that occurred on 3.5.1998 at 9 a.m. at Thorahalli. Hence, the suit to compensate the plaintiff for: (a) Loss of reputation Rs. 15,000/- (b) Incarceration in police and (c) Pecuniary loss incurred in defending the prosecution Rs. 25,000/- (d) Other miscellaneous expenses Rs. 10,000/-3. Hence, the suit to compensate the plaintiff for: (a) Loss of reputation Rs. 15,000/- (b) Incarceration in police and (c) Pecuniary loss incurred in defending the prosecution Rs. 25,000/- (d) Other miscellaneous expenses Rs. 10,000/-3. The suit was resisted by filing written statement of the defendants stating that the statements before the Police Wandering in courts Rs. 25,000/-Authorities were true and correct, while denying the other allegation. In addition, it was stated that the 1st defendant was the complainant in S.C. No. 174/1998, defendant No. 2 is the widow of deceased Venkateshappa, while defendant No. 3 is the son and defendants No. 4 to 9 are complainant witnesses. 4. After conclusion of trial, the trial Court recorded a finding that the re-statement of defendant No. 1 does not indicate any allegation against the plaintiff of having abetted accused No. 1 to commit the murder of Venkateshappa, while defendants No. 2 to 9 in their re-statement did speak of plaintiff having instigated accused Nos. 1 and 2 to commit the murder of the deceased about six months prior to the murder. Therefore the trial Court jumped to a conclusion that a false statement was made before the Police, by reason of which, the plaintiff was implicated and hence a presumption that it was natural for anybody accused or murder or instigating murder to lose fame, reputation and also financially, more so, in the case of a rustic Indian Village though plaintiff was not shown to have a bad reputation. In the circumstances the trial Court concluded that Rs. 48,000/-towards litigation expenses, transport expenses, loss of earnings etc., would be reasonably expended by the plaintiff and accordingly, by the judgment and decree directed payment of compensation. 5. The lower Appellate Court having re-appreciated the evidence and regard being had to the pleadings, more appropriately, the plaint averments at paragraph No. 2 that there was no enmity between the family of the victim Venkateshappa and that of the plaintiff, held that there was no malice in the prosecution so as to entitle the plaintiff to damages and accordingly, by the judgment and decree impugned reversed the finding of the trial Court to dismiss the suit. 6. 6. Learned counsel for the appellant submits that the re-statement by defendants No. 1 to 9 before the Police Authorities, during the course of investigation, by implicating the plaintiff as a abettor to the crime of murder, was in itself sufficient to establish malice, willful intent so as to cause injury to the reputation of the plaintiff and therefore, the lower Appellate Court was not justified in allowing the appeal and dismissing the suit. According to the learned counsel the Police Authorities having investigated into the complaint while the Fast Track Court, on the evidence, both oral and documentary, recorded a finding that the evidence was insufficient to prove the charge of abetting the murder, the defendants were guilty of malicious prosecution and the trial Court was justified in partly decreeing the suit. 7. Heard the learned Counsel, perused the pleadings and examined the Judgment and decree of the Courts below. It is no doubt true that the 1st defendant’s complaint over the commission of the offence of murder punishable under the India Penal Code, is the basis for the motion to the prosecution by the State. It is also true that during the course of investigation, the 1st defendant did make a re-statement without implicating the plaintiff as an abettor to the crime of murder, nevertheless, defendants No. 2 to 9 in their restatement did state that plaintiff amongst three others abetted the murder of Venkateshappa about six months prior to the crime. It is also true that after conclusion of the investigation, the Police Authorities filed a charge sheet, whereafter all the defendants were examined as witnesses for the prosecution. That prosecution indisputably was by the State, although the criminal process was initiated by the 1st defendant. It is also a matter of fact that there is neither pleading nor proof that apart from lodging the complaint and making a re-statement by the defendants, they took an active role in prosecuting the plaintiff. Yet again, it is true that the trial in the sessions case was adjourned on several dates of hearing, whereby the plaintiff was put to hardship. 8. It must be understood that when the State becomes the prosecutor, the complainant and other witnesses for the prosecution have no control over the prosecution and therefore, cannot be blamed for the delay and hardship caused to the plaintiff. 8. It must be understood that when the State becomes the prosecutor, the complainant and other witnesses for the prosecution have no control over the prosecution and therefore, cannot be blamed for the delay and hardship caused to the plaintiff. Neither the plaint averments nor the evidence both oral and documentary of the plaintiff discloses that the defendants, as a matter of fact, went beyond making a statement and re-statement before the Police as correct information. There is also nothing to establish that the defendants interfered with the Police in their investigation or that the defendants influenced the Police in their investigation. In fact, the pleadings and the evidence both oral and documentary placed by the plaintiff was far from establishing ‘injury’ as defined under Section 44 of IPC or that the defendants with willful intention, so as to constitute malice, lodged the complaint and made a re-statement before the Police. 9. It is useful to extract the observation of the Privy Council in Balghaddar Singh versus Badri Sah, (1908) 18 Mad LJ 394 (PC) which reads thus: “The Principle here laid down is sound enough if properly understood and its application to a particular case was, no doubt, justified, but in the opinion of their Lordships it is not of universal application. In India, the police has special powers in regard to the investigation of criminal charges, and it depends very much on the result of their investigation whether or not further proceedings are taken against the person accused. If therefore, a complaint does not go beyond giving what he believes to be correct information to the police and the police without further interference on his part (except giving such honest assistance as they may require) think fit to prosecute, it would be improper to make him responsible for damages for the failure of the prosecution. But if the charge is false to the knowledge of the complainant, it would be improper to make him responsible for damages for the failure of the prosecution. But if the charge is false to the knowledge to the complainant, if he misleads the police by bringing suborned witnesses to support it, if he influences the police to assist him in sending an innocent man for trial before the Magistrate it would be equally improper to allow him to escape liability because the prosecution has not technically been conducted by him. The question in all cases of this kind must be who was the prosecutor, and the answer must depend upon the whole circumstance of the case, the mere setting of the law in motion is not criterion; the conduct of the complaint before and after the making the charges must also be taken into consideration. Nor is it enough to say the prosecution was instituted and conducted by the police.” 10. The High Court of Andhra Pradesh in T.V. Lakshmojirao versus Somavarapu Venkatappaiaph, AIR 1966 AP 292 following the aforesaid opinion concluded that if a person does nothing beyond giving information to the police, which he considers true, an action for damages for malicious prosecution would not be maintainable against him. 11. The principles laid down in the aforesaid decision were followed by this Court in Veeresh versus Channaveerappa and Others, ILR1997 KAR 95,wherein facts though not identical, but similar to the facts of this case, by observing were that neither in the complaint nor in the deposition of the complainant, there was anything to suggest prior enmity between the victim and the plaintiff and no malice was pleaded nor in the testimony of the plaintiff and therefore, the complaint was not instituted with any malicious intention. This Court further observed that the merely because the evidence of the prosecution does not inspire confidence in the Court, does not mean that the prosecution was launched with a malicious intention on the part of the complainant, or that the complaint lodged was a false complaint, since the accused was acquitted on account of lack of evidence. In addition it was observed thus: If such acquittals result in filing of suits for damages for malicious prosecution, there will be as many suits as cases ending in acquittal of the accused. 12. In addition it was observed thus: If such acquittals result in filing of suits for damages for malicious prosecution, there will be as many suits as cases ending in acquittal of the accused. 12. Bearing in mind the principles laid down in Balghaddar Singh’s case and applying the same to the facts of this case, in the absence of relevant material constituting substantial legal evidence of the fact in issue that the charge abetting murder framed against the plaintiff in the criminal prosecution was false to the knowledge of the defendants, so as to make them responsible for damages on the failure of the prosecution and sending an innocent man for trial before the Magistrate, in the circumstances, the lower Appellate Court was fully justified in reversing the finding recorded by the trial Court that the plaintiff was subjected to malicious prosecution. In the result, since no substantial question of law arises for decision making, this appeal is dismissed.