Marupaudi Kutumba Rao and Others vs Parvathaneni Venkataramayya

Somasundram, J.—The three secod appeal saise out of three suits filed by the appellants to recover damages from the respondent-

defendant for malicious prosecution. The defendant as the same in all the three suits.

In respect of an occurrence on 21-5-1942 the defendant filed a complaint against the appellants and others for offences under Sections 148,

119, 323, 324, 352 and 501, Penal Code. A primes facie case was made out, and so & charge was framed by the Magistrate against appellants

and others for offences under Sections 323 and 324, Penal Code. The accused then entered upon their defence and examined defence witnesses.

The Magistrate, after considering the defence evidence, acquitted the appellants, The appellants thereupon instituted the suits in the Court of the

District Munsif, Vijayawada, for damages for malioious prosecution.

It may he mentioned, the appellants in S. A. no. 793 of 1947 filed a complaint against the defendant, alleging that the defendant and others came

and beat him on 21-5-1942 at about 4 p. m. There were thus two complaints, one by the defendant against the appellants in the second appeals,

and the other by the appellant in S. A. no. 783 of 1947 against the defendant and others. In both the complaints the data of occurrence was

mentioned as 21-5-1942 and time of occurrence as 4 P. M. The case of the defendant was, that the appellants came and beat him in his field

whereas the cane against him was that he and others came and beat the appellants on a tank bund. The difference between the two complaints is

only as to the scene of occurrence, the date and time of occurrence being the same. The cases were, therefore, tried as case and counter. The

complaint filed by the defendant ended in acquittal, as stated already. It is not clear what happened to the complaint filed by the plaintiff in O. S.

no. 328 of 1944.

In the Court of the District Munsif, both parties examined witnesses and let in evidence to show that the complaint filed by each party was the

true one, and that the other was false. Both sides had sustained injuries and to plaintiff''s though they let in evidence to show that the occurrence

was only on the tank bund and not on the filed of the defendant, as alleged by him, did not let in any evidence to satisfy the Court as to how the

injuries on the person of the defendant were caused. They merely suggested that the injuries on his person were self inflicted.

The learned District Munsif, after disonsing the evidence in detail, held that either each party beat the other in the field of the defendant or the

defendant was first beaten in his field by the plaintiff''s and others, and thereupon the plaintiff in O. S. No. 328 of 1944 was beaten by the

defendant and others en the tank bund, resulting in a complaint being filed by each party against the other. In short he believed the witnesses cited

by the defendant and held the complaint was not made without any reasonable or probable cause, and dismissed the suits. The appellate Court

came to the game conclusion and held that on the evidence adduced and the probabilities of the case, the defendant''s version is highly probable

and that there can be no doubt that he had reasonable and probable cause for filing the criminal case against the plaintiffs-appellants, and dismissed

the appeals. 6. In second appeal it is contended by Mr. Sambasiva Rao that in case where there are eye witnesses who have been disbelieved by

the criminal Court and thereby resulting in acquittal, it is not open to civil Court to go behind that acquittal and believe the eye witnesses and find

that there was a reasonable and probable cause for filing the complaint. The learned advocate has not been able to cite any authority in support of

the proposition contended for by him. On the other hand, there is clear authority to the contrary. In Venkatapati v. Balappa, 65 M. L. J. 146 : A.

I. R. 1933 Mad. 429 Ourgenven J. says :

It lies upon the civil Court itself to undertake an entirely independent enquiry before satisfying itself of the absence of reasonable and probable

cause. Indeed I am unable to agree that our Evidence Act justifies an examination of the judgment of the criminal Court in order to ascertain the

grounds upon which the acquittal proceeded and the view taken by the trying Magistrate of the evidence. u/s 43, Evidence Act, it appears to me

that, that judgment can be used only to establish the fact that an acquittal has taken place as a fact in issue in the civil suit. I know of no provision of

the Act which will justify the civil Court in taking into consideration the ground upon which that acquittal was based. Upon this point, I am in

agreement with Gulabchand Gopaldas v. Chunnilal Jagjivandas, 9 Bom. L. R. 1134 and Shubrati and Another Vs. Shamsuddin in the view that

there is no such provision.

Therefore, it is the duty of the civil Court to consider the evidence adduced in support of the defendants version and assess its value to find out if

there is reasonable and probable cause. The lower Courts have done this. As already pointed out, the appellate Court has found that the

defendant''s version id probable, and that he had reasonable and probable cause for filing the criminal case which was ultimately tried as C. C. No.

6 of 1942, and this finding is a finding of fact Vide Balasubramania Sastry v. Ponnusami Iyer, 10 M.L.W. 305 : AIR 1920 Mad. 137. There is no

question of law in these second appeals. They are therefore dismissed with costs. Leave refused.