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2013 DIGILAW 1071 (KER)

Joeseph George v. John

2013-12-03

N.K.BALAKRISHNAN

body2013
JUDGMENT : N.K. Balakrishnan, J. The defendant in a suit for malicious prosecution is the appellant. The suit was decreed by the trial court directing him to pay Rs.1 lakh to the plaintiff with interest at the rate of 6% per annum from the date of the suit till the date of payment. In the appeal, the appellate court confirmed the decree with regard to the compensation of Rs.75,000/- decreed in favour of the plaintiff as general damages but set aside the decree with regard to the special damages claimed by the plaintiff to the tune of Rs.25,000/-. As against the dismissal of the special damages of Rs.25,000/- the plaintiff had filed Cross Objection No.92/2009. 2. A complaint was given by the defendant to the police against the plaintiff and another alleging commission of offences under Sections 341, 342, 294(b) and 506(ii) r/w Section 34 of I.P.C. Based on the complaint, the police registered a crime as Crime No.88/1998. After investigation, the police filed a refer report. Hence, the defendant filed a protest complaint before the learned Magistrate as CMP No.4491/1998. On 25.11.1999 to which date, the case was posted for trial for recording the evidence of the complainant, he was absent and so, a petition was filed on his behalf for excusing his absence. That petition was allowed and the case was then adjourned to 28.1.2000. On that date also the complainant was absent stating that he had gone to Madras for treatment. Hence, again the case was posted to 25.2.2000. On that date a petition was filed along with a copy of the medical certificate but, the learned Magistrate was not inclined to accept the medical certificate produced and so, ultimately the accused were discharged under Section 245(2) of Cr.P.C. 3. It was contended by the plaintiff that the defendant had animosity towards him which arose in connection with the formation of a road through the plaintiff's property. There were various civil and criminal cases in which the plaintiff and the defendant were parties. It was contended that the complaint was filed by the defendant maliciously without any reasonable and probable cause and so the plaintiff sustained huge financial loss and other difficulties and thus the suit was filed claiming a total amount of Rs.1 lakh as compensation. 4. The defendant resisted the suit contending that he had no animosity towards the plaintiff. It was contended that the complaint was filed by the defendant maliciously without any reasonable and probable cause and so the plaintiff sustained huge financial loss and other difficulties and thus the suit was filed claiming a total amount of Rs.1 lakh as compensation. 4. The defendant resisted the suit contending that he had no animosity towards the plaintiff. The defendant was the President of the local panchayath. Since the plaintiff had closed the pathway passing through his property, the defendant as the President of the Panchayath had to intervene in the matter based on the request made by the public. Thereafter, cases were foisted by the plaintiff against the defendant. The defendant contended that the facts stated in the complaint (C.C.No.102/1999) are true and bonafide. But the police referred the case because of the pressure and influence exerted by the plaintiff and that was why the appellant had to file a protest complaint before the learned Magistrate. It was only because the defendant was hospitalized at Madras he could not appear in court to tender evidence in support of the allegations made by him in the complaint, the learned counsel submits. It was further stated that the complaint was not filed maliciously. All other allegations made in the plaint were also denied by the defendant. 5. The plaintiff and one witness were examined as PW1 and PW2 and Exts.A1 to A18 were marked. The defendant got himself examined as DW1 and two other witnesses were examined as DW2 and DW3. Besides, Exts.B1 to B11 were also marked. 6. The trial court, after analysing the evidence granted a decree to realise Rs.1 lakh. The counter claim was dismissed. The appellate court modified the decree to Rs.75,000/-. 7. Adv.Sri.P.B.Suresh Kumar, the learned Senior Counsel appearing for the defendant/appellant submits that the courts below failed to note that there was wordy altercation between the plaintiff and defendant on 4.12.1997. The incident took place in the lift. It is further contended that the dictum laid down by this Court in Philip v. Hindu Matha Dharma Paripalana Sabha [ 2003 (1) KLT 829 ] was not properly adverted to by the courts below. It is further contended that the courts below should not have been swayed by the evidence of PW2, the police constable who was extending protection to the plaintiff and as such, he was only an interested witness. It is further contended that the courts below should not have been swayed by the evidence of PW2, the police constable who was extending protection to the plaintiff and as such, he was only an interested witness. Even if there was slight inconsistency and discrepancy in the evidence given by the defendant and his witnesses, that is not sufficient to hold that the prosecution was actuated by malice. The very fact that a protest complaint was filed by the defendant and the learned Magistrate was inclined to take cognizance and issue process to the accused would show that the then learned Magistrate was convinced of the truthfulness of the allegations made in the complaint. It is further submitted that the courts below failed to comprehend that a medical certificate was produced by the defendant to apprise the learned Magistrate that the appellant herein was actually hospitalised and that was the reason why he could not appear in court to give evidence on the day to which the case stood posted for trial. 8. It is pointed out that the order of discharge passed by the learned Magistrate (Ext.A5) was not challenged by the appellant and so, that also would show that the appellant herein was not bonafide prosecuting the case and would probabilise the plea that there was no reasonable and probable cause for prosecuting the respondents herein, the learned senior counsel for the respondents submits. 9. The following substantial questions of law have been framed :- (i) Whether courts below are correct in law in decreeing the suit for damages for malicious prosecution after having found that 'the possibility of an alleged criminal overt act was available with respective parties'? (ii) Have not the courts below erred in awarding Rs.75,000/- by way of 'general damages' without independently assessing the quantum of damages payable under the distinct heads of claim ? 10. The plaintiff in a suit for malicious prosecution can succeed only on proof of the following points: (1) that he was prosecuted by the defendant; (2) that the prosecution ended in the plaintiff's favour; (3) that the defendants acted without reasonable and probable cause and (4) that the defendant was actuated by malice. 11. It is not in dispute that the plaintiff was prosecuted by the defendants. 11. It is not in dispute that the plaintiff was prosecuted by the defendants. Since the plaintiff was discharged under Section 245(2) of Cr.P.C. it has to be found that the prosecution ended in discharge of the plaintiff. Thus the first two ingredients stood satisfied. Then the remaining question is whether the plaintiff could show that the defendant acted without reasonable and probable cause and that the defendant was actuated by malice. 12. The alleged incident which was stated in the complaint took place on 04/12/1997 at about 4.15PM. The allegation was that while DW1, the complainant therein was returning from the court of JFCM-II, Pathanamthitta after receiving some records in CC 85/1996, the respondent herein (the accused in that case) got into the lift and from inside the lift the complainant was wrongfully restrained by the defendant (DW1) and threatened the defendant using obscene words. He whipped out a pistol from his waist and pointed it to the defendant and threatened him. Thus according to the complainant (defendant) the plaintiff wrongfully restrained the defendant and caused criminal intimidation. Now the pertinent question that falls for consideration is whether there was an incident as alleged by the defendant on the date and at or about the time stated in the complaint. 13. The learned senior counsel appearing for the appellant herein would submit that the courts below were persuaded to hold that there was no such incident because the police filed a report and also because the complainant did not appear before court to give evidence in support of the allegations in the complaint in order to sustain the charge levelled against the plaintiff. The order of discharge or acquittal passed by the criminal court cannot be a reason to hold that the complaint was filed without any reasonable or probable cause. 14. The decision in Abrath v. The North Eastern Railway Company [(1882-3) 11 Q.B.440 at 457] was followed by a Division Bench of this court in Govindji J. Khona v. Damodran and Others [ 1969 KLT 551 ] wherein it was held that, it is a difficult task of proving a negative fact, the burden of proving the absence of reasonable and probable cause, the third essential which the plaintiff in a suit for malicious prosecution is to prove. In Govindji's case it was held by the Division Bench that, the Civil Court can go behind the findings of the criminal court and conduct an independent inquiry to ascertain whether there was reasonable and probable cause for launching the prosecution. The court has to decide as to what is meant by reasonable and probable cause. The decision in Hawkins j. in Hicks v. Faulkner [(1881-82) VII Q.B.167 at 171 & 172] was referred to, where it was held : "Now I should define reasonable and probable cause to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably I lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. There must be: first, an honest belief of the accuser in the guilt of the accused; secondly, such belief must be passed on an honest conviction of the existence of the circumstances which led the accuser to that conclusion; thirdly, such secondly mentioned belief must be based upon reasonable grounds; by this I mean such grounds as would lead any fairly cautious man in the defendant's situation so to believe; fourthly, the circumstances so believed and relied on by the accuser must be such as amount to reasonable ground for belief in the guilt of the accused." This decision was also followed by the Division Bench in Govindji's case cited supra. Therefore, the question would be whether the defendant, in prosecuting the plaintiff, took reasonable care to inform himself all the true state of the case and whether he honestly believed that the case laid by him before the Magistrate to be true. If the evidence would show that the defendant commenced and proceeded with the prosecution without any honest belief that the plaintiff was guilty of the offence and if it had been proved that the defendant failed or neglected to take reasonable care to inform himself of the true facts before commencing or proceeding with the prosecution, then the court may be able to find that the defendant acted without reasonable and probable cause and that he was actuated by malice. It was held by the Division Bench in Govindji's case :- "Malice has been kept separate from lack of reasonable and probable cause because 'however spiteful an accusation may be, the personable feelings of the accuser are really irrelevant to its probable truth' and 'malicious motives mat coexist with a genuine belief in the guilt of the accused'. A person actuated by malice may nevertheless have a justifiable cause for launching the prosecution. Want of reasonable and probable cause is an item to be taken into account in considering malice but from the presence of malice want of reasonable and probable cause cannot be inferred. It was observed as follows in Glinski v. Mclver (1962) I All E.R.696: "though from want of probable cause malice may be and often is inferred, even from the most express malice, want of probable cause, of which honest belief is an ingredient, is not to be inferred." The fury of controversy revolves around the proof of the third and fourth essentials required for sustenance of the action for malicious prosecution. 15. In the case cited supra, the accused were acquitted by the trial court and thereafter the appellants in that case preferred appeal before the High Court challenging the order of acquittal. It was held that there was nothing wrong in testing the decision of the trial court by appealing against it and so it was held that it cannot be said that the appeal was filed by the defendant on unjustifiable ground and without reasonable and probable cause and so the dismissal of the suit for damages for malicious prosecution by the trial court was confirmed by this court. 16. The decision in Appukuttan v. Makkappan [ 1965 KLT 1054 ] has also been referred to in this case to fortify the contention that the onus of establishing that the defendant had no reasonable and probable cause for the prosecution undoubtedly lay on the plaintiff. 17. It is argued that since the appellant acted on his personal knowledge, the fact that the complaint was a false one will raise a presumption that there was absence of reasonable and probable cause, and, that malice existed, unless it is shown that his memory was defective, and, that there was some valid ground for misapprehension. 18. 17. It is argued that since the appellant acted on his personal knowledge, the fact that the complaint was a false one will raise a presumption that there was absence of reasonable and probable cause, and, that malice existed, unless it is shown that his memory was defective, and, that there was some valid ground for misapprehension. 18. There is no dispute regarding the proposal propounded by the learned senior counsel for the appellant that in a suit for malicious prosecution the civil court has to consider independently and come to a conclusion from the evidence before it that all the necessary desiderata including want of reasonable and probable cause for establishing a claim for malicious prosecution are present. Therefore, the plaintiff has to prove on the strength of his own evidence the absence of reasonable and probable cause on the part of the defendant in launching the prosecution and existence of malice on his part. The mere fact of discharge or acquittal of the accused is not sufficient to rouse a presumption that the prosecution was launched without any reasonable and probable cause so as to grant a decree for damages for malicious prosecution. The judgment of the criminal court acquitting or discharging of the plaintiff is not sufficient to discharge the burden of proving that there was no reasonable and probable cause for instituting a criminal complaint. 19. Even though absence of reasonable and probable cause is a negative assertion still the burden of proving it lies on the plaintiff who can prove it by showing that the alleged incident did not take place. The burden is on him to establish it and merely because it is a negative fact the burden does not shift to the defendant to show that the incident did take place. The plaintiff can prove that the incident did not take place, by examining himself on oath and also by producing other corroborating evidence. 20. The learned senior counsel for the respondent would submit that in this case the evidence was given on oath by the plaintiff (PW1) and it was fortified by PW2 an independent witness. The plaintiff can prove that the incident did not take place, by examining himself on oath and also by producing other corroborating evidence. 20. The learned senior counsel for the respondent would submit that in this case the evidence was given on oath by the plaintiff (PW1) and it was fortified by PW2 an independent witness. It is further submitted that the courts below have concurrently found, after a threadbare analysis of the evidence adduced in this case that no such incident as stated in the complaint did take place and as such that itself is sufficient to hold that the prosecution was launched without reasonable and probable cause. Since there is a concurrent finding of fact entered by the courts below, that finding cannot be upset by this court. It is further submitted that the courts below arrived at that conclusion based on an independent assessment and evidence and not influenced by the order of discharge passed by the learned Magistrate. Therefore, according to the learned senior counsel, since the findings were entered by the courts below on the basis of legal evidence unless there is perversity or non consideration of any vital aspect or any misreading of evidence, this court should be slow to interfere with the concurrent finding of fact. 21. It is further argued that the courts below have in fact, appreciated the evidence bearing in mind the legal aspect that the burden of proof by establishing that the prosecution was launched without reasonable and probable cause is on the plaintiff and as such it cannot be said that the courts below did not bear in mind the question of law involved in it pertaining to the burden of proof required to succeed in a suit for damages for malicious prosecution. The question for consideration is undoubtedly one of facts which would depend upon the appreciation of the oral evidence adduced in the case. This court should bear in mind that the trial court had the advantage of assessing the evidence correctly and properly observing the manner in which the witnesses deposed and their demeanour in court. The appreciation of the evidence done by the trial court was found to be acceptable to the lower appellate court. 22. This court should bear in mind that the trial court had the advantage of assessing the evidence correctly and properly observing the manner in which the witnesses deposed and their demeanour in court. The appreciation of the evidence done by the trial court was found to be acceptable to the lower appellate court. 22. It is argued on behalf of the appellant that the complaint which was filed by him before the learned Magistrate was forwarded to the police for investigation but the police did not conduct any investigation. It was referred by the police on the next day of receipt of the complaint itself, which would show that the plaintiff was so powerful that he could exert influence so as to refer the same. But that contention does not assume importance since aggrieved by the refer report filed by the police, the defendant filed a protest complaint but that was not prosecuted by him. It was stated that along with the plaintiff another person had also entered the lift but he could be identified as PW2 only after he was examined on behalf of the plaintiff. PW2 is the gun man/police constable. As per Ext.A10 judgment of this Court the plaintiff was given police protection. PW2 the police constable deputed for that purpose swore before court that no incident took place as alleged by the defendant. The statements alleged to have been given by the complainant and his witnesses before the learned Magistrate for the purpose of taking cognizance of the offence against the plaintiff/accused will not alter the position since what is germane for consideration is whether the prosecution was launched without any reasonable and probable cause. 23. Learned Senior Counsel appearing for the plaintiff/respondent would submit that the evidence given by the plaintiff would show that it was not all reasonable or probable to believe that the incident would have/could have occurred at the time and place as stated in the complaint. If so, it an be inferred that the allegations in the complaint were false. If those allegations were false, then certainly there would be no difficulty for the court to hold that the complaint was filed without any reasonable and probable cause. If so, it an be inferred that the allegations in the complaint were false. If those allegations were false, then certainly there would be no difficulty for the court to hold that the complaint was filed without any reasonable and probable cause. Learned Senior Counsel further submits that since the complaint was filed as if such an incident did take place and that he was the victim but if the evidence would show that there was no such incident at all then the defendant has to show as to how and why the prosecution was launched. 24. Though it was contended that immediately after the incident a complaint was given to the Superintendent of Police and also to other officers, no attempt was made by the defendant to prove that any such complaint was given. Ext.A3 complaint was given by him before the learned Magistrate after about two months of the incident. Of course, he contended that the delay occurred because he thought that the police would take action on his complaint. The defendant as DW1 deposed before the court as to how the incident did take place. The courts below referred to the evidence so given by DW1. 25. Learned Senior Counsel appearing for the respondent would submit that as far as the evidence regarding the incident, the oral testimony given by DW1 is controverted by PW1. Then what remains is the evidence given by PW2, the police constable. He was deputed from the AR Camp at Thiruvananthapuram. He had accompanied PW1 from Thiruvananthapuram while PW1 proceeded to JFCM-II, Pathanamthitta. The evidence would clearly show that PW2 had accompanied PW1 for giving protection to him. Though PW2 was the gun man/police constable, it cannot be said that he has got interest in supporting PW1. 26. The evidence would show that action was taken against the defendant by initiating prosecution for offence under Section 182 of Cr.P.C. alleging that he had furnished false complaint before the lawful authority. That was taken cognizance as S.T.No.1010/1996. In order to controvert the version given by DW1 that he had gone to JFCM-II court at Pathanamthitta, Ext.A13 was relied upon. It was stated that the defendant had gone there for collecting the records or certified copies of the orders/judgments in C.C.No.85/1996. That was taken cognizance as S.T.No.1010/1996. In order to controvert the version given by DW1 that he had gone to JFCM-II court at Pathanamthitta, Ext.A13 was relied upon. It was stated that the defendant had gone there for collecting the records or certified copies of the orders/judgments in C.C.No.85/1996. It was pointed out by the plaintiff that the records were collected by the defendant only on 5.12.1997 and not on 4.12.1997, the alleged date of the incident. It could have been argued that there was only a mistake in the number of the case. But no such explanation was given by the defendant. When the plaintiff ventured to produce records of the court to show that the averments made by the defendant that he had gone to that court on 4.12.1997 for collecting the records or copies of the judgments/orders in CC 85/1996 is incorrect then certainly, the defendant should have chosen to produce other records to show that he had collected records or copies from that court on 4.12.1997, pertaining to some other case. No such evidence was adduced. Therefore, the courts below were perfectly justified in holding that the case of the defendant that he had gone to the court on that date for the purpose as aforesaid remained unsubstantiated. 27. When DW1 was asked as to the entry in Ext.A3, that the records in Ext.A1 were obtained by him from court on 5.12.1997, it was stated that he does not know whether he had obtained such records on 5.12.1997. But in order to substantiate his allegation that he had gone to the court on 4.12.1997 for collecting records, even if it be some other records, he could have produced records pertaining to that day; i.e., 4.12.1997 or show the relevant entries of the date 4.12.1997. But no such attempt was made by the appellant. 28. Earlier, it was not stated by DW1 that PW2 was the person who was seen along with PW1. Whatever that be, evidence was given by PW2 that no such incident took place on the day and at the time as stated in Ext.A5 complaint. It was stated by PW2 - the Police constable that on 4.12.1997 he was deputed as the personal security officer of PW1 and that from 6.30 am till 7.00 pm he was with PW1. Whatever that be, evidence was given by PW2 that no such incident took place on the day and at the time as stated in Ext.A5 complaint. It was stated by PW2 - the Police constable that on 4.12.1997 he was deputed as the personal security officer of PW1 and that from 6.30 am till 7.00 pm he was with PW1. It was further stated by him that he along with PW1 returned from Pathanamthitta at 3.00 pm. He further states that he was with PW1 throughout, till the end of his duty. He has asserted that no such incident did take place on that day. It was stated that he reached his camp at 8.00 pm. He also states that there is a distance of about 5 km to the A.R. Camp and that he and PW1 did not enter the lift but he went upstairs and downstairs using the flight of steps and not by lift. 29. DW2 says that he had witnessed the incident. According to him, the incident took place at 4.15 pm on 4.12.1997 in the lift of that court. He says that he had also entered that lift and at that time PW1 and DW1 were there and thereafter three other persons also entered that lift. It was pointed out that DW2 and DW3, the witnesses examined on the side of the appellant were highly interested in supporting the case of the appellant herein. DW2 was the plaintiff in O.S. No.290/1993 with regard to the construction of a road or pathway. There was a criminal case against him as C.C. No.81/1996 for illegal construction of road and in that case he was actually convicted by the trial court. The proceedings under Section 107 of Cr.P.C. was also initiated against him. PW1 was on the opposite side. Therefore, it is evident that he was having serious grouse against PW1 (the respondent) herein. DW3 was also a person against whom there was a criminal case. That also was had in connection with the dispute between the appellant and the respondent herein. 30. According to DW3, the incident took place at 4.30 pm near Civil Station compound, on the way near the office of the Deputy Director of Prosecution. According to him, he was wrongfully restrained and abused. That also was had in connection with the dispute between the appellant and the respondent herein. 30. According to DW3, the incident took place at 4.30 pm near Civil Station compound, on the way near the office of the Deputy Director of Prosecution. According to him, he was wrongfully restrained and abused. In respect of that he had filed a complaint to the Police and on the next day he had filed complaint before the Magistrate also. It was stated that a case was registered against him as S.T. No.89/1998 for filing false complaint. According to him, he had gone to the court on that date for taking certified copies of the records. 31. The version given by DW2 is inconsistent with the version given by DW1. The court below found that DWs 1 to 3 were involved in cases filed against PW1 and there was serious animosity towards PW1. The courts below have pointed out so many contradictions in the evidence adduced on the side of the defendant/appellant to show that the case set up by the appellant is highly improbable, from which it can be certainly inferred that there was no reasonable and probable cause for filing the complaint. 32. It was pointed out by the trial court that while filing the written statement much care was taken by the defendant not to mention the date of the alleged offence as 4.12.1997 and that he had gone to the court for receipt of the records in C.C. 85/1996. Much was argued by the learned senior counsel appearing for the appellant that the refer report produced by the plaintiff would show that though the case was referred as false it shows that there was an incident of wordy altercation between the plaintiff and the defendant and if so, it cannot be said that there was no incident at all. 33. But the learned senior counsel for the respondent submits that the refer report was produced only to show that the case was referred as false. The fact that the respondent did not prosecute the matter, though a complaint was filed, will sufficiently show that the plaintiff had no bona fide intention or that he was actuated by malice in filing the complaint. The fact that the respondent did not prosecute the matter, though a complaint was filed, will sufficiently show that the plaintiff had no bona fide intention or that he was actuated by malice in filing the complaint. If, as a matter of fact, the accused therein happened to be discharged because the complainant was not given opportunity to adduce evidence, then certainly the defendant, who was the complainant therein, could have filed revision challenging the order of discharge passed by the learned Magistrate. That was not done. That itself would depict the malicious intention on the part of the defendant, for, if there was anything bona fide in the complaint filed by him, he could have certainly moved the Superior court for getting the order of discharge set aside. That would to a certain extent show the malicious intention on the part of the defendant. Be that as it may, the core of the issue is whether the prosecution was launched without any reasonable and probable cause. 34. The two courts have, after analysing the evidence, found that there was no possibility for any such incident to occur at the time and place as stated in the complaint filed by the defendant. It was held that it was not at all possible that such an incident could have occurred at about 4.15 pm on that date. DW3 was not shown as occurrence witness in the complaint filed by the defendant. Moreover, their evidence was found unworthy of acceptance. There is no reason to hold otherwise. 35. It was observed by the trial court that if the incident had taken place at 4.15 pm it was not at all possible for the appellant and PW2 the police constable to reach Poojapura at 7.00 pm on that day. Even otherwise the courts below could not find anything to doubt the credibility of PW2. His evidence could not be effectively controverted. If so, the reasonable inference to be drawn is that no such incident, as stated in the complaint, had taken place and hence, the finding entered by the courts below that the allegations in the complaint were false cannot be interfered with. If so, it must also be held that there was no reasonable and probable cause for launching the prosecution. 36. Then the other point that survives for consideration is whether the appellant was actuated by malice in filing such complaint. If so, it must also be held that there was no reasonable and probable cause for launching the prosecution. 36. Then the other point that survives for consideration is whether the appellant was actuated by malice in filing such complaint. There were so many complaints and cases between the parties. It is pointed out that since the plaintiff was under threat, he moved this court and obtained an order for police protection. The circumstances would clearly show that the defendant had malicious intention to prosecute the plaintiff. 37. There is no legal infirmity in the finding rendered by the courts below. The principles of law adumbrated on that point were properly considered by the courts below. The only other point that survives for consideration is whether the compensation awarded by the trial court, which was reduced by the appellate court to Rs.75,000/- needs any interference. The lower appellate court has given sufficient reasons to award only a sum of Rs.75,000/- as general damages. Rs.25,000/- claimed as special damages was disallowed by the lower appellate court for paucity of evidence. The compensation to the tune of Rs.75,000/- awarded as general damages does not require any interference. The cross objection challenging the denial of Rs.25,000/- being special damages, also requires no interference. In the result this Regular Second Appeal and the Cross Objection are dismissed. The parties are directed to suffer their respective costs.