K. Gopalakrishna Kudva vs Bangle Narayana Kamthy

The plaintiff''s suit which was brought to recover Rs. 3,500 as damages for malicious prosecution was dismissed in the court of the Subordinate

Judge of South Kanara and the plaintiff appeals. The plaintiff was the managing trustee of Shri Venkataramana temple of Mulki and the defendant

complained to the Sub-Divisional Magistrate of Mangalore that the plaintiff had, as trustee, committed offences of criminal misappropriation and

criminal breach of trust in respect of the temple properties. At the trial, the plaintiff was discharged u/s 253 of the Criminal Procedure Code by the

Magistrate on July 15th, 1912.

For the purpose of this case we may leave out of consideration those allegations of the defendant which merely imputed breach of the rules

framed under the award of arbitrators for the management of the temple, and we may at once proceed to those charges in which an element of

criminal dishonesty was disclosed by the prosecutor''s allegations. In the defendant''s complaint, which was prepared by counsel, he specified eight

acts of the plaintiff as constituting offences of the above description under the Penal Code. Of these the most substantial were (1) that the accused

had constructed a golden palanquin and had misappropriated about 4 seers of gold of the value of Rs. 2,000 by charging the temple with the value

of 30 seers of gold while utilising only 26 seers, (2) that the accused had debited the temple with Rs. 400 worth of fire-works for use at festivals

although the amount really spent was only Rs. 200 and that he his misappropriated the deference, (8) that Rs. 4,843 had been paid into court

about six months previously, but had not been brought into the temple amounts and that the accused was using the same for his own purposes, and

(4) that the accused had misappropriated 50 muras of rice and Rs. 10 collected as offerings to the temple. In his sworn statement to the

Magistrate, the defendant further alleged that if the temple cash chest was examined, it would be found that there was a deficiency in the money on

hand when compared with the amount stated in the accounts.

The first charge, namely that of misappropriating Rs. 2,000 worth of gold is a very serious, one and in our opinion was quite unwarranted by the

information of which the defendant was at the time possessed or by what has since transpired. When the defendant was in the witness-box and

was asked upon what basis he made this allegation, his only explanation was that many people were saying that the plaintiff undertook the work of

repairing the palanquin with a view to commit misappropriation and that he also believed that the plaintiff was going to misappropriate the gold. He

admitted that he had not personally examined the goldsmith who made the palanquin before he complained to the Magistrate. The only information

that he had was that which Vasudeva Sanbhogue and Hari Pal gave him. These persons have not been examined as witnesses, and it is clear from

the defendant''s own statement that he had no information that could justify him in making the statement that the accused had misappropriated this

large amount of gold. The Magistrate''s judgment shows that this charge was dropped at the trial as the prosecution found it to be groundless.

The second allegation of importance, which is the 4th charge in Ex. C, namely, that the accused had misappropriated Rs. 4,843 belonging to the

temple was equally unjustifiable. This money had been recovered by a suit instituted on behalf of the temple and the money was in the hands of the

vakil who represented the temple. In the vakil''s hands, it was presumably quite safe. The defendant admitted in cross-examination than he knew

that the amount had been paid to the vakil. Yet he had the audacity in his complaint to declare that the accused was utilising the same for his own

purposes. The fact that this money was not entered, in the temple accounts as having been paid to the vakil would not justify the defendant in

making such an accusation, when, as he admits, he had no information that the plaintiff had actually misappropriated the amount.

The next accusation, which is number 3 in serial order, is that the accused had misappropriated about Rs. 200 shown as spent on fireworks by

means of entries in the accounts showing payments to certain fictitious persons. When he was asked about this, the defendant stated that, before

the institution of the criminal complaint, all he knew was that the plaintiff had made it appear in the accounts that fireworks had been purchased

from unlicensed vendors; but he did not know the names of the persons from whom the purchases had been made. He gathered from the fact that

it was entered in the accounts of the plaint temple that fireworks had been obtained from unlicensed persons, that the plaintiff must have

misappropriated the money under this head of expenditure. That again seems to have been a reckless and unwarranted assumption. He stated that

the payments had been shown in the accounts as having been made to several fictitious persons, but he took no trouble to ascertain whether the

persons shown as having sold the fireworks were really fictitious. As observed by Lord Atkinson in Corea v. Peiris L.R. (1909) A.C. 549 the

pivot upon which all such actions turn is the state of the mind of the prosecutor at the time that he institutes or authorises the prosecution.

In Hicks v. Faulkner (1878) L.R. 8 Q.B.D. 167 Hawkins, J., defined 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 lead any ordinarily prudent and cautious man, placed in position of the accuser, to the conclusion that the person charged

was probably guilty of the crime imputed.

Applying these tests, it can only be concluded on the evidence that the defendant must have acted without reasonable or probable cause when

he accused the plaintiff of misappropriation and criminal breach of trust with respect to the above mentioned three charges.

The fourth of the charges which we need consider relates to the misappropriation of 50 Muras of rice and Rs. 10. At the criminal trial, an entry

of Rs. 246 in the accounts was shown as representing the value of these 50 Muras of rice and Rs. 10. The accused had not brought this item into

the general accounts, but had kept it under the head of "" Kadanadhaya"". The prosecution failed to prove that this entry of Rs. 256 related to any

money received from any other source. The statement that the accused had misappropriated this amount was not justified, but as the defendant

might have entertained some reasonable suspicion from the manner in which the entry was made in the accounts we do not think that, in respect of

this item, there was entire absence of reasonable cause.

As regards the defendant''s allegation that there was a deficiency in the cash balance, the Magistrate found on examination Rs. 492 as the

deficiency. But this was accounted for by a loan of Rs. 510 granted upon the pledge of jewels as evidenced by an entry in the account book seized

at the search. As the Magistrate observed, there was no reason to suppose that there had been any falsification of accounts or misappropriation of

money in respect of these items. At the same time, we do not consider that the defendant''s statement in this respect was without reasonable cause,

as there was an actual shortage of cash.

On the whole, we cannot agree with the Subordinate Judge in his finding that no case has been made out of malicious prosecution. Leaving

aside the statement made in the complaint with regard to inaccuracies in the accounts or to irregularities in the plaintiff''s conduct as trustee, there

are at least three serious accusations of misappropiation, which the defendant had no justification for making. We are of opinion on the first issue

that the complaint in question was in these respects made without any reasonable and probable cause.

There is also no doubt from the evidence that the defendant''s action was dictated by malice. Shortly before the accusation was made, the

plaintiff had excommunicated the defendant. The defendant retaliated by accusing the plaintiff of defamation. The defendant in his evidence

admitted that there had been misunderstanding between him and the plaintiff in the year 1907 in consequence of dealings which they had with one

another in respect of a mortgage transaction which resulted in civil litigation. The manner in which the defendant raked together every conceivable

charge in his endeavour to procure the conviction of his enemy and to cause him the maximum amount of difficulty in defending himself spells

vindictiveneas. It was provided in the scheme sanctioned by the award of arbitrators for the conduct of the temple affairs that this defendant and

others might inspect the accounts at any time for ascertaining whether they were properly kept and that the temple money was properly accounted

for. Instead of proceeding accordingly and inspecting the accounts before launching the criminal prosecution, the defendant rushed into court and

attempted to make criminal charges out of trifling irregularities which might very well have served as grounds for the applying for the removal of the

trustee in proceedings properly instituted for that purpose in a Civil Court, but not for his prosecution.

As Mr. K. Srinivasa Aiyangar in his arguments for the respondent has raised the question whether the plaintiff in an action of this kind is bound

to prove his innocence, and as the Subordinate Judge''s judgment contains a remark that the plaintiff had not proved his innocence by the mere fact

he was discharged in the Magistrate''s Court it is necessary to say a few words on this point. It is well settled that, in actions for malicious

prosecution, the plaintiff must prove four things :- (1) that he was prosecuted, (2) that the prosecution ended favourably to him, (3) that the

defendant acted without reasonable and probable cause, and (4) that the defendant was actuated by malice. Under the second and third heads,

questions as to the plaintiff''s innocence generally arise. But they must, we think, be regarded only as incidental to the questions whether the

prosecution ended in the plaintiff''s discharge or acquittal, and whether the defendant acted without reasonable or probable cause. In Abrath v.

North Eastern Railway Company (1883) 11 Q.B.D. 440 where the plaintiff had been acquitted of the criminal charge and the jury had expressed

the opinion that he left the court without a stain upon his character, and his innocence was not challenged by the defendants at the trial of his action

for malicious prosecution, Bowen, L.J., as he then was, in discussing the onus of proof in such cases, observed that the plaintiff in an action for

malicious prosecution must prove, first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation

was made. As already observed, no question as to proof of innocence arose in the case, and we do not think that the learned Lord Justice

intended to do more than lay down that the prosecution must be shown to have ended favourably to the accused. The substance of the judgment

was that proof of innocence was not by itself prima facie proof of want of reasonable and probable cause. This would appear to be the view taken

by Sir Frederick Pollock in his well-known work on Torts, as after citing Bowen, L.J.''s observations in the text, he observes in a note-"" A plaintiff

who, being indicted on the prosecution complained of, has been found not guilty on a defect in the indictment is sufficiently innocent for this

purpose,."" It is in the same sense that the word "" innocent'''' appears to have been used by Lord Macnaghten in Pestonji Muncherji Mody v. The

Queen Insurance Company ILR (1900) B. 332 and by Lord Davey in Cox v. English, Scottish and Australian Bank Ltd. L.R. (1905) A.C. 168

and by Maclean, C.J., in Harish Chandra Neogy v. Nishi Kanta Banerjee ILR (1901) C. 591. In some cases, the innocence of the plaintiff has

been treated as an element of consideration that enters into the question whether the defendant acted without reasonable and probable cause. If in

Nalli. appa Gounden v. Kaliappa Gounden ILR (1900) . M. 59 the learned Judges intended to lay down that something further must be proved in

suits of this nature beyond proof that the prosecution ended favourably for the accused and that there was an absence of reasonable cause in the

prosecution, then we think that they went too far and that Lord Bowen''s observation above referred to does not support their dictum to that

extent. Failure to prove more than this may be relevant to the question of damages. In our opinion the Subordinate Judge misdirected himself in

observing that the fact of the plaintiff having been discharged by the Magistrate was no proof of his innocence, and in assuming apparently that the

plaintiff was prima facie guilty and that he was bound affirmatively to prove his innocence. In parts of his judgment, e. g., paragraphs 69, 104 and

107, the learned Subordinate Judge has applied to the plaintiff''s conduct the test whether his motive was righteous or unrighteous, which is of

course quite beside the point. We cannot accept the view of the Subordinate Judge in paragraph 108 of his judgment that ''the plaintiff has failed to

establish his innocence in respect of any one of the accusations.''

As regards damages, the plaintiff states that he had to pay about Rs. 2,500 as vakil''s fees in defending himself at the criminal trial. Exhibit B

series are receipts for Rs. 1,150 passed by certain pleaders in his favour. In allowing this appeal and reversing the decision of the Subordinate

Judge, we allow the plaintiff altogether Rs. 2,000 as damages, and we direct the defendant to pay the plaintiff''s costs in this and in the lower

Court.