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TMI Blog1956 (12) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a preliminary agreement has been entered into on S.T. Sahib's behalf by this Hussain Howtiier. The lease deed relating to the transaction came into effect from 1-7-1947. 3. I shall now briefly describe the plaintiff in O. S. No. 113 of 1950, N. Hasan Ghani Sahib. This Hasan Ghani Sahib is a vakil of 26 years standing residing at Tenkasi. He pays a Beriz of Rs. 325. His practice seems to be purely on the criminal side. He is said to be a close associate of another person who has been constantly figuring in our Courts in sensational litigations viz,, M.D.T. Kumaraswami Mudaliar examined as P. W. 2 in O. S. 113 of 1950, and which association shows according to the appellant that birds of the same feather flock together. It is in evidence that this vakil was also personally involved in several criminal proceedings which may now be briefly narrated. In C. C. No. 1305 of 1940 he was charge-sheeted along with two others under Section 430, I. P. C. and oh 15-11-1941 under Ex. A-5 this case seems to have been compounded with the permission of the Court. In 1944 one Masoodu Rowthar complained against him for mischief in C. C. No. 8 of 1944. In that case this vakil was a co-acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O. S. 25 of 1951. Hussaim Rowthar travelled with this money from Vadakarai to Tenkasi in the bandy of S.T. Sahib driven by the bandyman Puthoorari. 5. In the evening Puthooran came hack with Risavu who had returned from Tenkasi in that bandy having gone there on business of his own. Hussain Rowthar had not returned by that bandy. The master S.T. Sahib learnt from them that Hussain Rowthar was staying in the house of Ghani Sahib, vakil Tenkasi, and that he would be returning on the next day. 6. On 3-4-1948 Subbiah Pillai, the Inspector of the Tiruvaduthurai Mutt came to S.T. Sahib's house at Vadakarai and asked for the amount due to be paid to the Mutt and which the Mutt was requiring to be paid earlier as they had to pay the kist. This S.T. Sahib had agreed to oblige the Mutt. Thereupon this S.T. Sahib was surprised and told the Inspector that the money had already been sent through Hussain Rowthar and that he should go back and enquire Rayasam Subramania Pillai to whom the money had been directed to be given and would have been given by that time. The Inspector left the place. 7. On 4-4-1948 S.T. Sahib learnt that the money sent had not been received in the Mutt. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them that he had taken the sum of Rs. 9000. S.T. Sahib became fit to move about only on 24-5-1948. 11 (a) In the interval S.T. Sahib learnt from D2 and D3 who had been in the house of Ghani Sahib when Hussain Rowthar came there on 21-4-48 and that when Hussain told the vakil that he had brought Rs. 9000 to be paid to the Mutt and temple, the vakil advised him to retain the amount as he complained that monies were due to him from S.T. Sahib and that when Hussain said what would happen to him if he did so the Vakil told him that he would look after him if he were prosecuted and that the vakil was handed over the money by Hussain apparently for safe custody and that the vakil further advised Hussain to go and sell the paddy in Pathavadakarai. 12. On 24-5-48 S.T. Sahib appeared at the Tenkasi police station and gave a complaint in which he set out all the salient facts. This complaint has been registered as the first information report and as crime No. 72 of 1948 of the Tenkasi police station. 13. In this complaint S.T. Sahib cited as accused Hussain Rowthar, the vakil Hassan Ghani and the son-in-law of Hussain Rowthar viz. Peria Mohammad Rowthr, who is the plaintiff in O. S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... breach of trust was committed, although the alleged conversation between accused 2 and accused 1 might acquire a sinister significance by the subsequent conduct of accused 1 in going to Kooniyur on the next day (3-4-1948) and telling P. Ws. 6 and 7 that he had not got the money to be paid to them and that it is possible for accused 2 being lawyer of good status and rank to give advice to accused 1 in this matter without intending to be dishonest about it, that the evidence tendered against accused 3 stands more or less in the same level and that be unhesitatingly found that no case against accused 2, and 3 had been made out which if unrebutted would warrant their conviction. Therefore he discharged Ghani Sahib and Peria Mohammad Rowthar under Section 253(1), Cr. P. C. and not, be it noted, under Section 253(2) that he considered the charge to be groundless, and framed a charge against Hussain Rowthar under Section 409, I. P. C, the learned Magistrate after allowing further cross-examination, of the P. Ws. and hearing the defence came to the conclusion that there was overwhelming evidence about the entrustment of Rs. 9000 by S.T. Sahib to Hussain Rowthar as his agent and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... encing was lacking in this case and that therefore the prosecution had cot made out Its case. This was on 19-7-1951. - 18. In the meanwhile these two suits had been filed by Ghani Sahib and Peria Mohammad Rowthar for damages for malicious prosecution. In O. S. No. 113 of 1950 Ghani Sahib seeks to recover Rs, 10,000/- and in O. S. 25 of 1951 (originally filed as O. S. 260 of 1950, District Munsifs Court, Tenkasi) Peria Muhammad Rowthar seeks to recover Rs. 2000. The learned Subordinate Judge decreed the plaintiff in O. S. No. 113 of 1950 damages Rs. 5,500 and the plaintiff in O. S. No. 25 of 1951 damages Rs. 650, recoverable only from S.T. Sahib, the other defendants 2 to 4, informants of S.T. Sahib and his witnesses in the criminal case were dismissed out of the suits. Hence these appeals by the defeated S.T. Sahib. Let us' first examine the essentials for action for malicious prosecution.. 19. The action for damages for malicious prosecution is part of the common Law of England. In India the law on the subject is exactly the same as the law in England and the U. S. A. For a comparative study of malicious legal proceedings under the three systems see Ch 22 p. 850 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter way of expressing the idea is, to say that the action should be properly guarded and its true principles strictly adhered to since public policy favours the exposure of a crime which a recovery against a prosecutor obviously tends to discourage. Harper on Torts, Ch 16 p. 581: It is highly desirable that those reasonably suspected of crime be subjected to the process of criminal law for the protection of society. It is necessary that the citizen be accorded immunity for bona fide efforts to bring anti-social members of society to the bar of justice. Again it is necessary that one individual be free to protect his own personal rights by resort; to the Courts without the threat of a counter suit for damages in the event he is unsuccessful. All the restricts resulting from these various interests and principles of social policy are reflected in the usual formula for the tort of malicious prosecution that the plaintiff must show (a) that proceedings had been instituted against him, (b) for an offence which was groundless as evidenced by the successful termination of the proceedings in his favour, and (c) which were instituted against him by the defendant without probable cause and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out in Pollock on Torts, Fourteenth edn., at p. 249, have been for an offence of which a conviction would carry reprobation impairing the party's fair, name. It is not enough that the proceedings were penal in form as is the case' under many administrative statutes; Wiffen v. Bailey and Romford Urban Council, (1915) 1 KB 600 (J); Sriramulu Naidu v. Kolandaivelu Mudaliar, 37 Ind Cas 374; AIR 1918 Mad 990 (K). 25. In order to entitle a plaintiff to succeed is a suit for damages for malicious prosecution, the first essential to be established by him is that there was prosecution of the plaintiff by the defendant. A prosecutor has been described as a man actively instrumental in putting the law in force. A person would be a prosecutor where he files the complaint himself or has it filed through the instrumentality of an agent or a counsel. A private person at whose instance and report the prosecution is launched by the police is a prosecutor within the meaning of the present context: Gaya Prasad v. Bhagat, ILR 30 All 525 (L). But the case would be otherwise, where the defendant merely gave an account of his honest suspicion about the plaintiff to the police, who without any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in his favour. The reason for this proposition is that if in the proceeding complained of the decision was against the plaintiff and was unreversed, it would not be consistent with the principles on which the law is administered, for another Court, not being the Court of Appeal, to hold that the decision was come to without reasonable and probable cause, The word 'ended' is the operative word. If the plaintiff was convicted, and the conviction was quashed on appeal, he can still sue as the proceedings ended in his favour. Where the plaintiff is convicted of an offence similar to, but less grave than the offence with which he was charged by the defendant, the defendant: may still be liable for malicious prosecution of the graver offence. A prosecution may end favourably not only by acquittal but also end favourably by discharge, discontinuance of the proceedings excepting where it is due to the impossibility or impracticability of bringing the accused to trial or dismissal of the complaint; (Indian) Anand and Sastri, Law of Torts (1952), p. 857; Ramaswami Iyer. The Law of Torts, 4th edn., p. 320; Venkatesa Iyer, the Law of Torts, p. 501; Mitter Defamation and Malicious P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted a reasonable cause for the prosecution. 30. The following extracts from the standard text books on the Law of Torts will be helpful. Salmond on Torts, 11th edn., p. 742, has the following to say: Reasonable and probable cause means a genuine belief, based on reasonable grounds, that the proceedings are justified. In Hicks v. Faulkner. (1878) S QBD 167 . (X), Hawkins, J., as said: I should define reasonable and probable cause to be an honest belief in the guilt of the accused, based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accused, to the conclusion that the person charged was probably guilty of the crime imputed.'' In Ramaswamy Iyer's Law of Torts, pp. 321-326 it is stated: The issue is one of fact in the ordinary sense that it is a conclusion to be drawn from the circumstances. It is a question of law in England in the sense that it is for the Judge and not for the jury to decide. Where it is shown that the defendant did not believe in the plaintiff's guil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as used in actions for malicious prosecution, differing more or less in their language, are to be found in the decisions. Thus, for instance, probable, cause, for a criminal prosecution has been defined as a reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious, or as some Courts put it, a prudent man in the belief that the party is guilty of the offence with which he is charged as the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the offence for which he was prosecuted, and as such facts and circumstances as, when communicated to the generality of men of ordinary and impartial 'minds, are sufficient to raise in them a belief or real, grave suspicion of the guilt of the person. With reference to civil actions, probable cause has been said to be such, reason supported by facts and circumstances as will warrant a cautious man in. The belief that his action and the means taken in prosecuting it are legally just and proper. Probable cause' in this connection, does not mean suffic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts on information derived from others making an accusation, these facts to operate as a defence by way of probable cause must relate to the question of guilt. And the test of the sufficiency of the resulting knowledge is whether it would have justified a prudent, honest and strong suspicion of the guilt of accused. Obviously mere rumour or information of a vague and indefinite nature, or information which the party making the accusation knows to be false, or which does not tend to establish the guilt of accused, or a mere statement by third parties that they believe that accused had committed a crime, does not establish probable cause for a prosecution. But as pointed out in the next section: The prosecutor is not bound to verify the correctness of each item of information, or to investigate the crime itself, or to institute an inquiry into the character and antecedents of accused before he attempts to set on foot a criminal prosecution, where he has information on which he is entitled to rely, or to act as a spy on accused for the purpose of ascertaining his defence, or to make inquiries from him or ask him for an explanation, it is sufficient that he acted with such caution, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the man that I feel I must prosecute, but I am not going to believe him to be guilty unless the Court finds him to be so.' Such a man would, I should have thought, have reasonable and probable cause for instituting a prosecution even though he did not affirmatively believe the man to be guilty. It is said sometimes that in order to have reasonable and probable cause there must be an honest belief that there was reasonable ground for prosecuting. This again is by means always necessary. Let me give another illustration. Take the case of a fair-minded man who is personally convinced that the man is guilty but does not him self think the evidence sufficient to justify a prosecution. His solicitor advises him that the evidence is sufficient. He may well say to himself 'I do not myself believe there is sufficient evidence, but' my solicitor says there is, so I feel justified in going on.' If the Judge afterwards takes the same view as the solicitor, then I should have thought that such a man would have reasonable and probable cause for instituting a prosecution, even though he did not himself affirmatively believe that there were reasonable grounds for it. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the institution of legal proceedings however destitute of reasonable and probable cause unless they are instituted maliciously: Abu Bucker Ebrahim v. Magan Lal (C. Javeri, AIR 1940 Mad 683 (Z14)- Braja Sunder Deb v. Bamdob Das. But if there is malice alone; that too is not sufficient. There must be concurrence of malice and want of probable cause. A person actuated by the plainest malice may nevertheless have a justifiable reason for prosecution. On the other hand substantiating of the accusation is not essential to exonerate the accuser from liability to an action, for he may have had good reason to make the charge, and yet be compelled to abandon the prosecution by the death or absence of witnesses, or the difficulty of producing adequate proof. The law therefore only renders him responsible where malice is combined with want of probable cause. It is also well settled law that the reputation of the plaintiff and the defendant will be relevant factors in deciding the existence or absence of probable cause. 34. Damages claimable in a suit for malicious prosecution, may be classed under two heads, namely, (1) solatium for injury to reputation and feeling of the plaintiff an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... good faith is a negation of malice. If the defendant shows that he acted on the advice of counsel after a full and fair presentation of facts he has provided evidence tending to show good faith or to rebut the inference of malice arising from a want of probable cause. the soundness of the advice however or even the bad faith of the attorney can have no bearing upon the defendant's want of malice. It has already been pointed out that a private person at whose instance and report a prosecution is launched by the police is prosecutor within the meaning of the present context and that the case would be otherwise if the defendant was merely an informant and was not the proximate and efficient cause of putting the law in motion. But even in the case of the former, Herniman v. Smith, (1936) 2 All ER 1377 (Z24) affirmed in (1938) AC 305 (Z), is authority for the proposition that the fact that the defendant placed his information before the police may be evidence of reasonable and probable cause. This, if I may say so with respect, is sound common sense. The police is an impartial agency constituted by the State for investigation into offences and the booking of offenders and bringing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al cases where the circumstances which resulted in the acquittal of the plaintiff became relevant, i.e., the corruption of the Magistrate. That is so even with the judgment of the appellate Court or the revisional Court which reverses the order of the lower Court. The civil Court in a suit for malicious prosecution has to base its findings on the evidence produced before itself as the whole question of malicious prosecution is opened anew, and the absence of reasonable and probable cause and malice become points at issue before it and these issues have to be decided on the evidence produced before it: Kutumba Rao v. Venkatramayya AIR1951Mad344 . In regard to the deposition? recorded in the criminal Court, they can be made use of as substantive evidence in the suit if the parties agree to treat those depositions as evidence in the suit or they are admissible under S, 33 of the Evidence Act. Otherwise, those depositions can be made use of only under the provisions of Sections 157 and 158 of the Evidence Act. 36. Bearing these principles in mind if we examine the facts of the case in O. S. 113 of 1950, we find that the plaintiff who has proved the first two requirements, viz., that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Mutt and the Kumarar Kovil. It has already been shown how this was sought to be proved as the first information report filed in this case shows, by the testimony of defendants 2 and 5 and the cartman and the various enquiries made by S.T. Sahib and the admissions made by Hussain Rowthar, narrated in the complaint. The plea of Hussain Rowthar himself was that as a partner with S.T. Sahib he was entitled to retain the amount and this formed the subject-matter of a suit also O. S. 222 of 1952 and the appeal A. S. 57 of 1955. Both the trial Magistrate and the Sessions Judge convicted Hussain Rowthar for an offence under Section 409, I.P.C. In revisinn the conviction and sentence were set aside on the objective standard here that more convincing evidence should have been forthcoming.' Nothing was placed before the learned trial Judge in this suit to come to a different conclusion, viz., that there was no entrustment as alleged by S.T. Sahib. On the other hand, S.T. Sahib has placed adequate evidence to prove this entrustment. The plaintiff did not disprove this entrustment and could not even have sought to disprove this entrustment because his case was not that there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff against them for damages. In the result. S.T. Sahib had the best of grounds for believing that his agent entrusted with Rs. 9,000 had gone to the house of this plaintiff and had failed to return and decamped with the money and sold the paddy at Patha Vadagarai on account of what had happened in the house of this Ghani Sahib. 40. This Ghani Sabib was also known to this S.T. Sahib as a mischief-monger who had figured in several criminal cases previously and his past history was consistent with his interfering with other people's affairs and he was not a person of much property either. There can he no doubt that there are black-sheep in the mofussil Bar who foment litigation and got well to do men embroiled in order to obtain fit pickings. The case for this S.T. Sahib is that this Ghani Sahib is one such person and a close associate of M.D.T. Kumaraswami Muttaliar to whom reference has already been made and In regard to which it is (Tie contention of this S.T. Sahib that this Ghani Sahib was a person fomenting litigation in order to make easy money. 41. But this S.T. Sahib on receiving this information has not rushed on mere suspicion to the police. On the other h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd there has been no suppression of any fact' known to this S.T. Sahib. 43. On this information furnished to them the Tenkasi Police Circle Inspector has made a detailed investigation and has also preferred a charge-sheet against Hussain Rowthar. On finding this, S, T. Sahib has taken legal advice of one Mr. Narasimhachari and that gentleman had advised him that on the evidence available and set out in the charge-sheet itself there was sufficient evidence for charging this Ghani Sahib also. On that evidence S.T. Sahib has petitioned the District Superintendent of Police and the latter had heard Mr. Narasimhachari and has brought to bear his own mind upon the evidence collected. Thereupon satisfied that there was sufficient evidence to charge this Ghani Sahib also, he has directed a charge-sheet to be filed against him also and this has been done. I have already set out the case-law and the extracts from leading text-book writers in support of the proposition urged by the learned advocate Mr. Rajah Ayyar that the trial Judge failed to see that after the complaint was given the police made enquiries, examined a number of witnesses and it was only then that a charge-sheet had b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this High Court every day such permission is asked for and granted. It does not mean that because such assistance is given the party would be able to establish unfounded things not borne out by the evidence on record. It will also be remembered that this Is a case of criminal breach of trust and the complainant by engaging a lawyer to assist the Prosecutor also would seek to press for compensation. Therefore, looked at from any point of view I am unable to deduce anything sinister from the engagement of Mr. Narasimhachari. The learned advocate Mr. Rajah Ayyar was right in contending that this was a step which was proper and legitimate and the point sought to be made against the first defendant in this Court was unsound. 45. In the result, the plaintiff not having shown that the first defendant was actuated by malice and had no reasonable and probable cause to prefer the complaint and the first defendant having been successful in showing that he was not actuated by malice and that he had reasonable and probable cause to file the complaint against this Ghani Sahib, the decree and judgment of the lower Court in O. S. 113 of 1950 awarding damages cannot be supported. They are set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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