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TMI Blog1970 (9) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... asked him not to take the bullocks to the kine-house. Vijay Nath did not agree to this. Damodar Das raised an alarm on which certain persons, who along with Damodar Das are plaintiffs in the suit reached there. They snatched the bullocks and beat Vijay Nath who received a number of injuries. Vijai Nath however did not go to the police station on account of fear. He filed a complaint in the court of the Judicial Magistrate, Dumariaganj. The Judicial Magistrate summoned the plaintiffs and ultimately the complaint filed by Vijay Nath was dismissed for default. According to the plaintiffs this complaint was absolutely false, malicious and without any reasonable and probable cause. No incident as alleged by Vijay Nath, ever, took place and he was never beaten. Plaintiffs therefore claimed damages for their prosecution which was malicious and had been initiated without any reasonable and probable cause. 3. The defendant pleaded that the complaint filed by him was true and in no case it could be described as false or malicious. The plaintiff was therefore not entitled to the relief claimed by him. 4. Both the parties adduced evidence in support of their respectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the finding, recorded by the trial court about the quantum of damages, in case the plaintiffs succeeded in establishing their claim, was not questioned by either of the two parties. The lower appellate court observed that considering the nature of the complaint, allegations made therein were such which were either true or false to the personal knowledge of the complainant (defendant Vijay Nath). If the complaint was false, an inference that the same had been filed maliciously and without reasonable and probable cause would become inevitable. It also noticed that in this case plaintiff was required to prove a negative fact and he produced evidence in support of that case. His evidence consisted of denial of the fact that Damodar Das's cattle ever grazed Vijay Nath's sugar cane crop or that those cattle were being taken to kine-house, and were rescued by the plaintiffs after indulging in a Marpit. The appellate Court then proceeded to consider the evidence produced on behalf of the defendant. He pointed out some contradictions in the statements of defendant's witnesses and also noticed certain circumstances. It held that the oral testimony was not reliable. The expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to appraise the evidence produced by the parties and to take a view different from that taken by the trial Court. The appellate Court was fully competent to arrive at its own conclusions. According to him the appellate court has recorded a finding of fact that the complaint filed by the defendant was malicious and without reasonable or probable cause and that finding cannot be interfered with in a second appeal. The finding, recorded by the lower appellate court is not vitiated because of placing any wrong burden of proof on any party. He also urged that in this case both the parties adduced evidence in support of the facts mentioned in the complaint. The lower appellate court believed the evidence produced by the plaintiffs and disbelieved that produced by defendant. It came to the conclusion that the complaint filed by the defendant was malicious and without any reasonable or probable cause. In the circumstances the question of burden of proof became immaterial and of an academic interest only. The decree passed by the lower appellate court was not vitiated by any error of law. 11. I find no force in the first argument raised on behalf of the defendant-appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the evidence of witnesses and where the issues involved are comparatively simple. While making these observations their Lordships did not lay down any rule of law that the appellate court cannot interfere with the findings recorded by the trial court which findings are based on appraisement of oral evidence. It cannot therefore be said that in a case where the appellate court which appraises the oral evidence and comes to its own finding which is contrary to a finding recorded by the trial court it commits an error of law. 14. In the case of Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh, reported in [1950]1SCR781 , their Lordships of the Supreme Court observed:-- Where the question for consideration for the appellate court is undoubtedly one of fact the decision which depends upon appreciation of the oral evidence adduced in the case, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in the Court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff was prosecuted by the defendant. (2) That the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating. (3) that the prosecution was instituted against him without any reasonable or probable cause. (4) That it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect. In that case, Balbhaddar Singh plaintiff was accused of having participated in a murder and it was alleged that the prosecution had been initiated at the in stance of Badri Shah. In this connection the Privy Council observed as follows:-- ......... but in their Lordships opinion the Subordinate Judge has a little left out of view that this is not a case which must be determined on a balance of probabilities. The question is not: Did the appellant commit the murder? or Did Badri Shah invent the murder against them? The two queries exhaust the possibilities of the situation. The question is: Have the appellants proved that Badri Shah invented and instigated the whole proceedings for prosecution:............ The appellants must therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bable cause and malice are two separate ingredients both of which are to be proved in a suit for malicious prosecution and a plaintiff cannot be expected to succeed if he merely proves absence of reasonable and probable cause and not malice or vice versa. Absence of reasonable and probable cause in all cases does not necessarily lead to an inference of malice. But a total absence of reasonable cause may be relied upon as a piece of evidence for showing that defendant acted wrongfully or with evil motive in prosecuting the plaintiff. In the case before me, the defendant initiated criminal proceedings on the allegation that the incident of grazing of a sugar-cane field took place in his , presence. Further there was a Marpit in which the plaintiff assaulted him. If the plaintiff is able to prove that the incident of grazing and the Marpit did not take place and that the complaint against him was false, in the absence of any explanation from the defendant court of law would be justified in believing that there was no reasonable and probable cause and that the defendant was actuated by malice in initiating criminal prosecution. At any rate in such circumstances there would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable or probable cause. 23. In my opinion, the extreme position as urged by the learned counsel cannot be accepted. It is not possible to derive any advantage from the dictum laid down in various cases mentioned above, which relates to criminal prosecution and criminal proceedings. There is a fundamental difference in the extent of burden that lies on the prosecution to establish the ingredients of a crime and that which lies upon a plaintiff in a civil suit in establishing his case-No case has been cited by the learned counsel where the standard as stated in the criminal cases cited by him has been applied while appraising evidence in a suit for malicious prosecution. A complaint may be filed making such allegations which may be false but which may not be impossible. I see no justification why the plaintiff should be required to prove that the allegations made in the complaint were not only false but were also impossible. I am therefore of opinion that it is not necessary for the plaintiff to prove, not only that the incident in question did not take place but that it was impossible for it to have taken place. 24. Next question that arises for conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... den rolls over until again there is evidence which once more turns the scale. That being so the question of onus of proof is only a rule for deciding on whom the obligation of going further if he wishes to win rests. 26. According to this decision, if it is found that the plaintiff has given such evidence which if not answered would entitle him to succeed, the burden of eliciting facts which would explain the circumstances appearing in the plaintiff's evidence showing that the action was neither malicious or without reasonable or probable cause would be on the defendant. But before this stage is reached the evidence produced by the plaintiff has got to be scrutinised and the Court has got to decide whether that evidence is reliable or not and whether, if accepted, it leads to an inference of malice or absence of reasonable and probable cause on the part of the defendant, in initiating criminal prosecution. This case is no authority for the proposition that mere denial of the incident made by the plaintiff and his witnesses is sufficient to shift the burden of proving that the incident did take place in the manner alleged in the complaint, to the defendant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble and probable cause is a negative assertion, still the burden of proving it lies on the plaintiff- The plaintiff can prove absence of reasonable and probable cause as also the existence of malice, in a case where he is accused of having committed an offence in the presence of the complainant, by showing that the incident did not take place. But then the burden would be on him to establish this, and merely because it happens to be a negative fact, the burden does not shift to the defendant and he is not required to adduce evidence for showing that the incident did take place. The plaintiff can prove his case by examining himself on oath and by producing other corroborative evidence. If, on scrutiny, evidence produced by him is found to be reliable, he succeeds in showing that the incident did not take place and in making out a case that the proceedings initiated against him were malicious and without a reasonable and probable cause But, it will not be correct to say that irrespective of the worth of his evidence mere denial on his part or on the part of his witnesses would be enough to shift the burden on the defendant requiring him to prove that the incident did take place in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stablishing his case lies, who will fail. 31. There is nothing in the judgment under appeal to indicate that the lower appellate Court was of opinion that even if defendant's evidence was ruled out, plaintiff's evidence was such which could be relied upon and that acting upon such evidence it was recording a finding that the complaint made by the defendant was false to his knowledge. In the circumstances I think that the judgment and decree passed by the lower appellate Court cannot be upheld. 32. In the result the case will have to go back to the lower appellate Court for recording a finding, whether in the circumstances of the case the evidence produced on behalf of the plaintiff was reliable and on its basis a definite finding could be recorded that the incident as alleged in the complaint made by the defendant did not take place. In case it comes to the conclusion that the evidence is reliable and on its basis a finding should be recorded that the incident as alleged in the complaint did not take place, the plaintiff would succeed as defendant's evidence has already been held to be unreliable. If however the plaintiff's evidence is also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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