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TMI Blog2017 (2) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... Whereas, it is the contention of the defendant that on verification of the accounts and seeing debit entry in her account, she found that a sum of ₹ 2,25,000/- was withdrawn and her signature has been forged. She has given a complaint on genuine apprehension. That being the case, it is the duty of the plaintiff to establish that the pay slip infact was signed by the defendant and thereafter, the defendant has falsely given a complaint. Without establishing the same, it cannot be contended by the plaintiff that there is no probable and reasonable cause for lodging a complaint. When some amounts have been debited from one account, it is normal conduct of any human being to lodge a complaint to the lawful authorities to investigate the matter. The above complaint cannot be construed as a false complaint without any probable and reasonable cause and the same has been made with malicious intention. Merely because, the defendant has not got into the box, the same is not a ground to hold that the plaintiff case is true. Even drawing adverse inference against the defendant at the most this Court can hold that defence of the defendant is not true. Still the plaintiff is not reliev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ramya Krishnan as a lead heroine and Ms.Kutty Padmini Creative Director. 3. In the year 2009, the entire venture Kalasam all of a sudden halted either without the consent of the plaintiff or without her knowledge. Many issues have cropped up and the defendant herein along with her sister Mrs.Ramya Krishnan, ended Kalasam serial and started another serial called Thangam with the very same producer Visiontime Ramamurthy. The plaintiff herself was shocked and she was also thoroughly cheated. The plaintiff's mother who has also been cheated, went ahead for legal course. However, the plaintiff herein patiently waited since she thought that being friends, there could be an amicable settlement reached. Therefore, it is stated by the plaintiff that as per the prior agreement with the plaintiff, she is entitled to 50% of the total cost. Accordingly, the Visiontime Ramamurthy has sold 55,000 episodes and the plaintiff is entitled ₹ 30,00,000/- with accrued interest thereupon. However, the plaintiff has not moved the Court. But only wanted an amicable settlement. 4. As things stood thus, all of a sudden certain police officials attached to E.4 Abiramapuram Police Station ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpletely maligned her reputation in the eye of her clients and general public, cine industry and her reputation was also completely tarnished. Hence, this suit for damages for a sum of ₹ 50,00,000/-. 6. The brief contention of the written statement filed by the defendant : It is the contention of the defendant that the plaintiff having branched out from her mother expressed her desire to join hands with the defendant and her sister and proposed a joint venture. Thus, the plaintiff and the defendant started a partnership firm in the name of RDV Staarlight Works . The serial Kalasam did not end without the consent of the plaintiff. It was the firm along with the co-producer who decided to end the serial and it was a collective decision of which the plaintiff was also contributory and she is now making allegations by way of after thought to suit her convenience. When the accounts of the firm were scrutinized, there was an unauthorised withdrawal made by the plaintiff. The defendant, on the genuine apprehension, filed a complaint before the police station. The plaintiff and the defendant had the bank account with Standard Chartered Bank, Haddows Road Branch which was to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d her grievance in the complaint and by no stretch of imagination, the lodging of a complaint on a genuine apprehension can be found fault with. 8. The allegation that the plaintiff was put to irreparable loss and injury is also denied. The police have closed the F.I.R. without providing sufficient opportunity to the defendant. The plaintiff taking advantage of the fact that the defendant has not proceeded further as against the plaintiff for the illegalities committed by her, she has rushed to the Court with false and frivolous suit. There is no cause of action for the suit. Hence, prayed for dismissal of the suit. 9. On the basis of the above pleadings, this Court framed the following issues on 26.10.2015. 1. Whether the defendant lodged complaint against the plaintiff and thus set the criminal law in motion in Crime No.669 of 2009 on the file of the Abiramapuram Police Station with a false allegation that the plaintiff committed forgery and made a sum of ₹ 2,25,000/- transferred to the account of the plaintiff's own concern M/s.Staarlight Works from the account of the partnership firm RDV Staarlight Works , which was started by the plaintiff and the defenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable cause and the same has been given with malice. The plaintiff being a known sine artist her reputation has been lowered in the eye of the public, relatives and also general public. Ex.P.1 to 6 has been marked and the evidence of P.W.1 clearly show that the complaint given by the defendant was without any proper and reasonable cause. The defendant has also not chosen to examine herself and same clearly show that she has not come to the box to get herself exposed. Therefore, it is the contention of the learned counsel for the plaintiff that the plaintiff is definitely entitled to damages besides adverse inference has to be drawn against the defendant. In support of his arguments, he also relied upon the judgments reported in 1999 (3) Supreme Court Cases 573 (Vidhyadhar Vs. Manikarao Another); 2004(4) LW 408 (Kanagambaram Ammal Vs. Kakammal and others) and 2011 (6) CTC 42 (K.A.Shanmugam and another Vs. Tamilarasi and others). 12. It is the contention of the defendant that admittedly the plaintiff and the defendant started a partnership firm. There was some dispute arose in the partnership firm. When the matter stood thus, some amount has been debited from the defendant's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by both sides that the said serial 'Kalasam' came to an end in the year 2009. It is also admitted by both sides that the defendant's sister started producing Telugu version of 'Thangam' and also started Telegu version of 'Kalasam'. From the pleadings of both sides, it can be easily seen that there were dispute arose between partners with regard to the ending of the serial 'Kalasam'. These facts can be seen from the pleadings and evidence of P.W1. 15. Now the crux of the issue involved in this case is whether the complaint lodged by the defendant was without any probable and reasonable cause to maintain a suit for malicious prosecution. Though it is the contention of the learned counsel for the defendant that the complaint was terminated at the investigation stage, it did not even turn out to be prosecution. Therefore, it is the contention of the learned counsel for the defendant that the prosecution was not at all commenced. Hence, suit for malicious prosecution is not maintainable. 16. The contention of the learned counsel cannot be sustained in view of the judgment reported in AIR 1957 Madras 640 (S.T.Sahib Vs. N.Hasan Ghani Sahib and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has also alleged that the plaintiff has failed to render proper accounts of the partnership firm. Since she has failed to complete the accounts and hand over the same to the auditors inspite of several requests, in order to verify the accounts, the defendant sought for the verification of the accounts from the Standard Chartered Bank and found that there was a debit entry to the tune of ₹ 2,25,000/- on 08.06.2009 in favour of the plaintiff's company M/s.Starlight Works. It is also alleged in the complaint that any authorisation normally given by the defendant towards banking transaction is maintained by her. Further, there was no corresponding entry with regard to the debit entry and pay slip has been given by the defendant company and based on the pay slip, a pay order was made to M/s.Starlight works. It is further alleged by the defendant that on seeing the pay slip, she found that she has not signed the pay slip and some one has forged her signature. It is further stated in the F.I.R. that the plaintiff has also signed secondly in the pay slip and also authorised one Firhin to receive the draft. The defendant does not know the said Firhin who has been authorised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently, the documents were collected. Absolutely there is no whisper in the final report with regard to how and from where the documents were collected for sending the same for Handwriting Expert opinion. Similarly, the Handwriting Expert was also not examined before the Court. The opinion of the Handwriting Expert was not based on the exact science and unless the expert is examined before the Court of law any opinion cannot be taken as evidence. Further the final report also does not disclose whether the signature found in the alleged pay slip is that of the defendant. Without establishing the fact that the signature found in the pay slip is that of the defendant, it cannot be contended by the plaintiff that the defendant has given a false complaint without any probable or reasonable cause. 21. It is well settled that in a suit for malicious prosecution, the entire burden lies on the plaintiff to establish the case. Similarly, it is also well settled that a Civil Court has to conduct independent enquiry before satisfying itself with regard to the absence of reasonable and probable cause for lodging the First Information Report. Therefore, it is the duty of the Court to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen that it is not the case of the plaintiff that defendant having signed the pay slip, has filed a false complaint. Whereas, it is the contention of the defendant that on verification of the accounts and seeing debit entry in her account, she found that a sum of ₹ 2,25,000/- was withdrawn and her signature has been forged. She has given a complaint on genuine apprehension. That being the case, it is the duty of the plaintiff to establish that the pay slip infact was signed by the defendant and thereafter, the defendant has falsely given a complaint. Without establishing the same, it cannot be contended by the plaintiff that there is no probable and reasonable cause for lodging a complaint. When some amounts have been debited from one account, it is normal conduct of any human being to lodge a complaint to the lawful authorities to investigate the matter. The above complaint cannot be construed as a false complaint without any probable and reasonable cause and the same has been made with malicious intention. In order to succeed in a suit for damages in malicious prosecution, the plaintiff has to prove the following points 1. that she was prosecuted by the defendant 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Electricity Board Vs. Dilip Kumar Ray), it has been observed that Malicious prosecution Malice. - Malice means an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill will. It may be due to a desire to obtain a collateral advantage. The principles to be borne in mind in the case of actions for malicious prosecutions are these:- Malice is not merely the doing of a wrongful act intentionaly but it must be established that the defendant was actuated by malus animus, that is to say, by spite or ill will or any indirect or improper motive. But if the defendant had reasonable or probable cause of launching the criminal prosecution no amount of malice will make him luable for damages. Reasonable and probable cause must be such as would operate on the mind of a discreet and reasonable man; 'malice; and 'want of reasonable and probable cause have reference to the state of the defendant's mind at the date of initiation of criminal proceedings and the onus rests on the plaintiff to prove them. 26. In 2016 SCC Online 14219 (D.Arun Vs. P.Subramani) it has been held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le from the pleadings. The performance of a duty imposed by law, such as the institution of a prosecution as a necessary condition precedent to a civil action, does not constitute malice . In the complaint, second defendant stated that the signature found on the charge slip do not tally with the original signature of the card holder. Thus, the complainant proceeded to state that there is a reasonable apprehension of forging the card and the signature of the card holder with the connivance of the merchant. It is pertinent to note that the complainant has not made any refernece of the persons involved or given specific names of the individuals. In other words, the complaint pertains to the offence and not the offenders. It is the matter for investigation, which was British Bank which in turn, was pursuant to the complaint made by the card holder Yegneswaran Kumar, it cannot be said that the complaint is vitiated by malice. It is not as if the defendants have taken active part in furtherance of the complaint made. Co-operating with the investigation is different and actively persuading the case for malice is different. The defendants are not instrumental to the case, but merely se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s drawn adverse inference against the plaintiff considering the facts and circumstances of the case. 31. Similarly in 2004(4) L.W. 408 (Kanagambaram Ammal Vs. Kakammal and others), the Honourable Division Bench of this Court has drawn adverse inference and held that non examination of the second defendant is vital to the defence. In the above case also the adverse inference has been drawn on the ground that it was executed by a minor and his father has signed as an identifying witness in the surrender deed. The question was whether the plaintiff was a minor on the date of execution of the surrender or not. Since the father has not been examined, an adverse inference has been drawn against the plaintiff in the above case. 32. Similarly in the judgment reported in 1999 (3) SCC 573 (Vidhyadhar Vs. Manikarao and another) the Honourable Apex Court has held that considering the various judgments, the parties do not appear in the witness box, presumption would arise that the case set up by is not correct as has been held in a series of decisions passed by various High Courts. 33. There is no dispute with regard to the preposition laid down in the above judgments. But merely becau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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