IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 RSA.No. 1084 of 2007() ---------------------- AS.20/2003 of SUB COURT, PALA OS.308/1999 of MUNSIFF COURT, ERATTUPETTA .................... APPELLANT/APPELLANT/DEFENDANT ------------- MATHEWKUTTY MATHEW, KUZHINJALIL HOUSE, MARYLAND P.O., KADANAD VILLAGE. BY ADV. SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL RESPONDENTS: RESPONDENT/PLAINTIFF ------------------ SHAJI JOSE, S/O. K.K.JOSE, KADANKAVIL, THUDANGANADU P.O., THODUPUZHA. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... R.S.A.No. 1084 OF 2007 ............................................ DATED THIS THE 15th DAY OF JANUARY, 2008 JUDGMENT Defendant in O.S.308 of 1999 on the file of Munsiff Court, Erattupetta is the appellant. Plaintiff is the respondent. Respondent instituted the suit claiming damages for malicious prosecution. Appellant admittedly lodged Ext.B4 First Information Statement alleging that on 24.11.1994, at about 6 pm, while he was walking through Kollappally-Nelloor road and reached in front of Kadanadu village office, four persons including respondent wrongly restrained him and voluntarily caused hurt to him by beating with a stick and he sustained injuries in the hands of appellant. Police, after investigation, on the basis of the statement of appellant, lodged Ext.B1 charge sheet before Judicial First Class Magistrate, Erattupetta. Appellant, along with three others, were tried and finally under Ext.A1 judgment, he was acquitted. Respondent, contending that he was falsely implicated and was prosecuted without any probable and reasonable cause and with malice, claimed damages for malicious prosecution. He claimed that because of the prosecution, he sustained loss of reputation, mental agony RSA 1084/2007 2 and had to meet expenses to defend the case. It was claimed that being a member of the Church Committee, his reputation has been affected and therefore he is entitled to a compensation of Rs.30,000/- for loss of reputation. Claiming that he had paid Rs.6000/- to the counsel and also met other expenses, Rs.8000/- was claimed as damages, Rs.8000/- was also claimed as damages for mental agony. Towards the notice charges, Rs.300/- was claimed. Respondent sought a total compensation of Rs.44,800/-. Appellant resisted the suit denying the plaint allegation and contending that he furnished first information in good faith and without any malice. It was contended that respondent has no right to file the suit solely based on an order of acquittal for the failure of prosecution to prove the case beyond reasonable doubt. It was contended that he had given a true statement before the police and also before the court that he was attacked on 24.11.94 at 6 pm and he was physically assaulted by respondents and others and as a result he was treated at P.H.Centre, Muttom and police registered the case and after investigation lodged charge sheet for the offence under Section 341, 323 and 324 read with Section 34 of IPC and the fact that RSA 1084/2007 3 appellant was acquitted will not enable him to claim damages for malicious prosecution and the suit is only to be dismissed. It was also contended that appellant did not sustain any loss of reputation or mental agony or other expenses. 2. On the evidence of Pws 1 to 4, DW1, Exts.A1 to A8(a) and B1 to B5, learned Munsiff found that appellant was not anywhere near the place of incident on 24.11.1994 at 6 pm when respondent was allegedly attacked by the appellant along with others. Learned Munsiff, relying on Ext.A6 to A8, found that respondent was working in the Crumb factory and on that date, he had jointed duty at 3.20 pm and left the factory after his work only at 12.10 am and therefore the allegation of appellant that respondent attacked him at 6 pm is an allegation made without any reasonable or probable cause. Learned Munsiff also found that as evidenced by Ext.A1, respondent was acquitted and as evidenced by Ext.B4 F.I.Statement, it was the appellant, who set the criminal law in motion. Learned Munsiff, on the evidence also found that appellant in fact acted because of the ill will and malice against respondent. On the evidence, it was found that appellant sustained mental agony as well as loss of reputation. RSA 1084/2007 4 Relying on the evidence of PW2, it was found that appellant, along with other co accused, had to meet the expenses and granted a total compensation of Rs.39,800/- as damages inclusive of Rs.30,000/- for loss of reputation, Rs.8000/- for mental agony, Rs.1500/- towards expenses for defending criminal prosecution and Rs.300/- for expenses for sending notice. Appellant was directed to pay Rs.39,800/- with 6 % interest from the date of the suit. Appellant challenged the judgment before Sub Court, Pala. Learned Sub Judge, on reappreciation of evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that appellant was prosecuted before Magistrate Court not on the basis of a complaint filed by appellant but on the basis of the charge sheet submitted by police after proper investigation and therefore fact that appellant was acquitted for failure of the prosecution to prove the charge beyond reasonable doubt is not a ground to grant damages for malicious prosecution. It was argued that appellant had only stated true facts as seen in Ext.B4 when his RSA 1084/2007 5 F.I.Statement was recorded by the police and police, after investigation, lodged the charge and it was based on the materials collected at the time of investigation, and therefore it cannot be said that appellant maliciously prosecuted respondent. Learned counsel also argued that the criminal case was conducted by the Public Prosecutor and in such circumstances, courts below were not justified in directing appellant to pay damages for malicious prosecution. Learned counsel finally argued that the quantum of damages granted by courts below is excessive. It was argued that there is no evidence to prove the malice and the fact that the criminal case ended in acquittal cannot automatically lead to the conclusion that prosecution was lodged with malice and in the absence of evidence to prove loss of reputation or the quantum of damages, judgments of courts below are not sustainable. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Being a suit for malicious prosecution, respondent, plaintiff has to prove that it was appellant who set the criminal law in motion and that he was prosecuted by appellant and that prosecution ended in his RSA 1084/2007 6 acquittal and that appellant acted without reasonable and probable cause and he was actuated by malice. The argument of learned counsel is that the criminal prosecution was based on Ext.B1 charge sheet and appellant had only furnished Ext.B4 F.I.Statement and therefore it cannot be said that appellant prosecuted the respondent. As rightly found by courts below, the question is whether it was appellant, who set the criminal action in motion. Though respondent was prosecuted on the basis of Ext.B1 charge sheet, the criminal prosecution was set in motion by appellant by furnishing Ext.B4 F.I.Statement. But for Ext.B4, appellant would not have been prosecuted at all. Therefore on the evidence, courts below rightly found that it was appellant, who set the criminal law in motion and therefore it is the appellant, who prosecuted the respondent. Ext.A1 judgment establish that the criminal prosecution ended in acquittal. 5. Then the question is whether the criminal prosecution was without any reasonable or probable cause. The argument of the learned counsel is that finding of courts below is not sustainable as appellant, while injured, believed that respondent was also one of the persons who attacked him and inflicted injury RSA 1084/2007 7 and as appellant did not act further than furnishing Ext.B4 F.I.Statement and this relevant aspect was not appreciated. But that is not the case. Even after Ext.B4 F.I.Statement, appellant continued with his case that it was respondent, along with three others, who attacked him and inflicted injury. Even when examined as witness before the criminal court, he asserted that appellant was present at the scene of occurrence and inflicted the injury. Even in the written statement, appellant asserted that it was respondent, along with others, who inflicted injury on him. Even from box as DW1 he asserted this case. In such circumstances, it cannot be said that appellant is not responsible for setting the criminal law in motion or that he implicated the respondent with reasonable cause. 6. Relying on the records produced from the Crumb Factory, Muttom where appellant was working, trial court and first appellate court found that respondent could not have been at the scene of occurrence at 6 pm on 24.11.1994 as alleged by appellant in Ext.B4 F.I.Statement or before the criminal court or in the written statement or at the time of evidence. Ext.A6(a) attendance register establish that appellant was on duty on that RSA 1084/2007 8 day. Ext.A7(a) entry in Ext.A7 log book establish that company was working in three shifts and appellant was working in the third shift. Ext.A8(a) entry establish that appellant joined duty on that day at 3.20 pm and left the factory only at 12.10 am after midnight. Therefore both courts, relying on the unimpeachable evidence, entered a factual finding that respondent would not have been anywhere near the place of occurence and appellant falsely implicated him as one of the persons who inflicted injury on him at 6 pm. Apart from his own interested testimony, appellant did not adduce evidence to contradict this case or to prove that there was any probable or reasonable cause for alleging that appellant was one of the assailants. In the light of the evidence, factual finding of courts below that appellant implicated respondent without any reasonable or probable cause is perfectly correct. 7. Relying on the decision of a learned Single Judge of this court in Govindji J Khona V.K.Damodaran and others(AIR 1970 Kerala 229) learned counsel argued that there is no evidence to prove the malice and unless all the ingredients provided for malicious prosecution are established, finding of RSA 1084/2007 9 courts below that respondent was maliciously prosecuted cannot stand. When the evidence establish that respondent was working in the factory and could not have been anywhere near the scene of occurrence and he was falsely implicated in Ext.B4 F.I.Statement and the very same version was agitated by appellant throughout, the finding of courts below that appellant was actuated with malice is a perfectly correct view that could be taken on appreciation of the evidence. In such circumstances, finding of courts below that respondent established that he was maliciously prosecuted by appellant is perfectly correct. 8. Then the only question is regarding the quantum of compensation. The argument of learned counsel is that there is no evidence to prove that respondent is entitled to get Rs.30,000/- as awarded by courts below towards loss of reputation. Apart from the evidence of PW1, evidence of PW4 was also relied on by courts below to prove that appellant was earlier a member of the Church committee and because of the prosecution, he could not continue the position and respondent lost his reputation. The argument of learned counsel is that apart from the interested version of PW1, there is no other RSA 1084/2007 10 evidence to prove that fact. Courts below found that even though PW1 was spoken about this aspect, appellant when examined as DW1, deposed that he did not know this fact. Courts below also relied on the evidence of PW4 that respondent sustained loss of reputation. It is on that basis damages was awarded for loss of reputation. In the facts and circumstances of the case, quantum of damages awarded cannot be said to be excessive, warranting interference in exercise of the powers of this court under Section 100 of Code of Civil Procedure. Evidence shows that appellant has to engage a counsel and meet the expenses and had to appear before the criminal court on several occasions, causing great mental agony. In such circumstances, the quantum of compensation granted is also proper. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR, JUDGE lgk/-