C. Dakshinamurthy vs K.K. Venkataswamy Chettiar and Another

This appeal arises out of a suit filed by the respondents herein for damages for malicious prosecution. The appellant had filed a complaint Ex. B-

4 dated 17-4-1965 to the police alleging that the respondents had cut an Odiya tree belonging to him, and that it amounted to criminal trespass and

mischief punishable under the provisions of the Indian Penal Code, and requesting them to prosecute the respondents. As the police did not take

any action on his complaint, the appellant filed a private complaint against the respondents before the Sub-Magistrate, Cuddalore. In the private

complaint, the appellant-defendant alleged that the 1st respondent/1st plaintiff began cutting his Odiya tree, and that when he obstructed such

cutting the 2nd respondent/2nd plaintiff attempted to assault him with a broom stick. The said complaint was taken on file in C. C. 1753 of 1965

and ultimately the plaintiffs were discharged holding that the complaint had not established at least a prima facie case of criminal trespass and

mischief against the plaintiffs. The order of discharge was taken in revision to the District Magistrate, Cuddalore, but without success. The

revisional authority took the view that the matter related to a civil dispute and if the defendant is aggrieved, he can move civil court for redressing

his grievance and for damages for the alleged cutting of his tree. Thereafter the plaintiffs filed O. S. No. 810 of 1965 out of which this second

appeal arises claiming a sum of Rs. 1000/- from the defendant for malicious prosecution.

On a consideration of the evidence, the trial court held that the defendant''s case that the tree was cut by the plaintiffs was probable, that there

was a reasonable and probable cause for initiating the prosecution and that no malice has been established in this case as to form a basis for a

claim for damages for malicious prosecution. On appeal by the plaintiffs'' the lower appellate court has considered the evidence in detail and came

to the positive conclusion that the defendant has not established his case that the plaintiffs had cut his tree, and that the complaint filed by the

defendant against the plaintiffs in the criminal court was false to his knowledge. On that basis, applying the principle laid down by his court in

Boralingiah v. Narayana Gounder 1949 2 MLJ (SN) 39, the lower appellate court held the defendant to be liable for damages for malicious

prosecution.

In this second appeal, the learned counsel for the appellant firstly questions the findings of fact arrived at by the lower appellate court that the

tree was not cut by the plaintiffs, and that the complaint filed by the defendant against the plaintiffs was false. The learned counsel requests me to

reappraise the evidence afresh and to come to my own conclusion on the question whether the complaint filed by the defendant against the plaintiffs

was false to his knowledge. I am not inclined to do so. The trial Court has not given a categorical finding. It merely stated that the defendant''s

allegation that the plaintiffs had cut his tree is probable, while the lower appellate court, on an analysis of the oral and documentary evidence, came

to the conclusion that the defendant''s complaint was false to his knowledge. Being a finding on a question of fact, it is not possible for this Court

sitting in second appeal to interfere with that finding, unless it is based on no evidence. I am not in a position to say that the finding of the lower

appellate court in this regard is without any basis. As a matter of fact, a perusal of the complaint Ex. B-4 shows that the defendant was specific that

he was present at the time of cutting of the tree by the plaintiffs, that in spite of his obstruction they went on with cutting of the tree, and that the 2nd

plaintiff came to assault him with a broom stick. The lower appellate court finds that the allegation made in the complaint is false. In the

circumstances of the case, once the complaint is found to be false, it should be held to be false to the knowledge of the defendant, for it is not as if

he filed the complaint on the basis of information given by a third party. Having come forward with a specific case that he having established the

same, the complaint should be taken to be false to his knowledge. I have, therefore, to uphold the finding of the lower appellate court that the

complaint filed by the defendant against the plaintiffs was false to his knowledge. Once it is found that the complaint filed by the defendant was

false to his knowledge, then it attracts the principle laid down in 1949 2 MLJ (SN) 39. In that case a Division Bench of this Court consisting of

Rajamannar, C. J., and Krishnaswami Nayudu, J., laid down the principle as follows:

It is true that in an action for malicious prosecution the plaintiff has to establish absence of reasonable or probable cause and malice. It is also true

that the burden shifts after the plaintiff has let in prima facie evidence in support of his case. But the question of onus assumes quite a different

character when the plea of the defendant is a mere denial of the allegation of the plaintiff that the complaint was made without reasonable or

probable cause but further, that the offences with which the plaintiff was charged are true to the knowledge of the defendant. In such a case it is

incumbent on the Court to look at the entire evidence adduced in the case on either side and decide whether or not the defendants version, namely,

that he actually and directly was aware of the commission of the offence by the plaintiff can be accepted. Shubrati and Another Vs. Shamsuddin .

When the complaint is false to the knowledge of the complainant not only is want of reasonable and probable cause proved but malice also is

proved.

According to the decision referred to above, when the complaint is false to the knowledge of the complainant it can be taken that there has been

want of reasonable and probable cause as also malice. The learned counsel for the appellant seeks to question this authority by citing the decisions

in Bharat Commerce and Industries Ltd. Vs. Surendra Nath Shukla and Others, and Govindji J. Khona Vs. K. Damodaran and Others, . Those

decisions lay down the well established principle that 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, and (3) that the defendant acted without

reasonable and probable cause and (4) that the defendant was actuated by malice. The decisions have also laid down that want of reasonable and

probable cause should be dealt with separately from the question of malice and that in a suit for malicious prosecution the plaintiff should establish

not only want of reasonable and probable cause, but also malice. The learned counsel relies on those decisions and contends that malice has to be

kept separate from want of reasonable and probable cause, and that in this case even the first plaintiff was examined as P.W. 1 had not alleged

want of reasonable and probable cause or malice on the part of the defendant in launching the prosecution. Nobody can dispute the proposition

that malice has to be independently established apart from want of reasonable and probable cause in a suit for malicious prosecution. But in this

case the finding of fact arrived at by the lower appellate court is that the defendant filed a false complaint that the plaintiffs had cut the tree, and that

the complaint was false to his knowledge. From this finding it is possible to infer want of reasonable and probable cause as also malice as laid

down in the decision in 1949 2 MLJ (SN) 39. The question that arises in this case is whether, on the finding of the lower appellate court that the

complaint was false to the knowledge of the defendant want of reasonable and probable cause as well as malice can be inferred and for deciding

that question the decisions. Bharat Commerce and Industries Ltd. Vs. Surendra Nath Shukla and Others, and Govindji J. Khona Vs. K.

Damodaran and Others, , referred to by the learned counsel are not of any help. In the facts and circumstances of the case, I agree with the lower

appellate court that the plaintiffs have made out their case of malicious prosecution against the defendant.

On the question of damages, the learned counsel for the appellant contends that the sum of Rs. 200/- awarded as damages cannot be sustained.

But it is seen that the sum of Rs. 200/- awarded as damages only represents the costs incurred by the plaintiffs in defending the criminal case filed

by the defendant. Once it is found that the plaintiffs are entitled to damages for malicious prosecution, the expenses which they incurred in

defending the criminal prosecution can be awarded as damages for malicious prosecution. In this view I am not inclined to interfere with the

quantum of damages awarded by the court below. The second appeal, therefore, fails and is dismissed. No order as to costs. No leave.