IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 AS.No. 666 of 1996() -------------------- (O.S.No.122/1991 OF SUB COURT, KASARGOD) APPELLANT(S): ---------------------- 1. P.PURUSHOTHAMA BHAT, AGED 62 YEARS, 2. P.RAMANATH BHAT, AGED 46 YEARS, S/O P.NARAYANA BHAT, HINDUS, BRAHMINS, CULTIVATORS, RESIDING AT PORINJE OF KUMBDAJE VILLAG,E KASARAGOD TALUK P.O., MOVVAR, KASARAGOD DISTRICT. BY ADV. SRI.K.G.GOWRI SHANKAR RAI RESPONDENT(S): ----------------------- 1. P.BABU, AGED 40 YEARS. 2. SHRIDHARA, AGED 44 YEARS. 3. YASHODA, AGED 30 YEARS. 4. KAVORI, AGED 32 YEARS. (Nos. 1 and 2 are the sons of Mande. No.3 is the wife of Babu. No.4 is the wife of Shreedhara. All are Hindus, Harijans, cultivators, residing at Porinje of Kumbdaje village, p.o.movvar, Kasaragod taluk, Kasaragod district. ADV. SRI.M.SASINDRAN R1 R2 R4 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/5/2009, THE COURT ON 03/06/2009 DELIVERED THE FOLLOWING: K.SURENDRA MOHAN, J. ------------------------------------------- A.S.No.666 of 1996 ------------------------------------------- Dated this the 3rd day of June, 2009 JUDGMENT The plaintiffs in O.S.No.122 of 1991 of the Sub Court, Kasargode challenge the judgment and decree dated 10.8.1995 passed against them. The respondents are the defendants in the suit. The suit was filed for recovery of damages on the ground of malicious prosecution. 2. According to the appellants, on 16.1.1990, the first respondent/defendant filed a criminal complaint before the Badiadka Police falsely implicating them for the offence punishable under Section 436 read with Section 34 of the Indian Penal Code. The allegation was that the respondents had set fire to the dwelling house of the appellants and had thereby committed mischief by fire. First information was given by respondents 2 to 4. On the basis of the statement given by the respondents, the case was taken on file and was tried by the Assistant Sessions Judge, Kasargode as S.C.No.29 of 1990. After trial, the Assistant Sessions Judge acquitted the appellants/accused. The appellants alleged that they were A.S.No.666/1996 2 prosecuted by the respondents maliciously and without reasonable and probable cause. According to them, the respondents have actively taken part in the efforts to procure a conviction against the appellants. They alleged that they were prosecuted by the respondents only out of enmity. The respondents gave statements before the police and evidence before the court with the full awareness that the said statements and evidence were false. The appellants suffered mental agony and physical strain on account of the prosecution. They had spent Rs.5000/- for conducting the case. They claimed a further amount of Rs.5,000/- for mental agony and a further amount of Rs.15,000/- for loss of reputation. Thus, the appellants claimed a total amount of Rs.25,000/- as compensation. 3. The respondents/defendants filed joint written statement denying the allegations made against them and contended that the first respondent had given true information to the Badiadka police and the other respondents had given true and correct statements before the police. They also submitted that the evidence given by them were true. The appellants were not prosecuted by them out of malice. They denied that the complaint was given by them without reasonable and probable cause. The appellants have not suffered any loss of reputation and therefore their claim for damages was A.S.No.666/1996 3 without any basis. According to the respondents, they are poor illiterate Harijans, against whom the appellants have been filing suits or complaints with a view to drive them away from their property. The suit was filed only to harass the defendants. Therefore, they prayed for dismissal of the suit. 4. The trial court framed the following issues, i) Whether the plaintiffs were prosecuted by the defendants maliciously and without reasonable and probable cause? ii) Whether the plaintiffs have suffered damages and loss of reputation and if so, whether the plaintiffs are entitled to get damages from the defendants? iii) Reliefs and order as to costs. and tried the suit. 5. The evidence in the case consists of the oral testimony of the first plaintiff as PW1 and a witness examined as PW2 and Exts.A1 to A9 documents on the side of the appellants and the oral testimonies of the first respondent/first defendant as DW1 and the second respondent/defendant as DW2. 6. The trial court, after an elaborate consideration of the evidence and the contentions of the parties on either side, came to the conclusion that there is no evidence to show that the respondents had prosecuted the appellants without any justification A.S.No.666/1996 4 or that the prosecution was without any reasonable or probable cause. The trial court found that except for proving that the prosecution had ended in their acquittal, the appellant had failed in proving the ingredients necessary for making out the offence of malicious prosecution. Therefore, the court below found that the claim for damages made by the appellants should fail and accordingly, the suit was dismissed. The above appeal is against the said judgment and decree of the trial court. 7. I have heard the learned counsel for the appellants and the learned counsel for the respondents. I have gone through the evidence as well as the documents produced by both parties, in detail. 8. The point that arises for consideration is - Whether the appellants are entitled to recover compensation from the respondents for malicious prosecution? 9. It is argued by the learned counsel for the appellants that the complaint filed by the respondents against them was without any bonafides whatsoever, with the object of deliberately implicating them in a crime. The appellants admit that the dwelling house of the respondents had been set on fire, but denied the responsibility for the said act. According to them, they were implicated in the crime A.S.No.666/1996 5 without any reasonable or probable cause. That was the reason why they were acquitted after trial and therefore they contend that the trial court went wrong in dismissing the claim for damages. According to the learned counsel for the respondents, just because the trial ended in the acquittal of the appellants, it does not follow that the prosecution initiated against them was malicious. The learned counsel for the respondents submit that all aspects of the case were elaborately considered by the trial court and that there are absolutely no grounds to interfere with the said findings. 10. Before any action for malicious prosecution can succeed, the plaintiffs would have to prove that they had been prosecuted by the defendants, that the prosecution had ended in their acquittal, that the prosecution was malicious and that the same was without any reasonable and probable cause. The above ingredients are discernible from a series of decisions on the point, which lay down the above principles, beyond doubt. 11. Ext.A3 is the first information statement, on the basis of which Crime No.4/1990 against the appellants was registered. The First Information Statement is given by the first respondent. It can be seen from the evidence that on 16.1.1990 at or about 4 a.m. in the early morning, there was an incident of fire in which the dwelling A.S.No.666/1996 6 house of DW1 was destroyed. Ext.A3 first information was given by the first respondent against the appellants on suspicion. Ext.A3 does not implicate the appellants directly. On the basis of Ext.A3, the Badiadka Police registered a crime and investigated it. The Police questioned the defendants and on the basis of the investigation conducted, the Police charge sheeted the appellants. Exts.A4 to A7 show that the defendants had testified before the criminal court maintaining that it was the appellants who had set fire to their dwelling house. The acquittal of the appellants is not on the basis of any finding that the respondents had given false evidence. The Assistant Sessions Judge has acquitted the appellants only for the reason that he was not able to accept their evidence regarding the identity of the accused persons in the moonlight. The evidence further shows that the appellants are the landlords of the respondents and that there are a number of cases pending between them. Strong animosity of the appellants against the respondents is clear from the evidence on record. The evidence on record does not reveal any deliberate intention on the part of the respondents to implicate the appellants in the crime. As rightly taken note of by the trial court, if the respondents wanted to implicate the appellants deliberately in the crime, they could have done so by directly naming A.S.No.666/1996 7 them in the First Information Statement itself. There is no evidence to show that the respondents accompanied the Police to the house of the appellants to have them arrested or that they were taking any active participation in prosecuting the appellants. It can only be concluded that the respondents have participated in the trial of the case alone and that they had no role in the investigation or prosecution of the appellants. It is worthwhile to mention that the prosecution itself was instituted, after investigation by the Police, initiated on the basis of Ext.A3 First Information Statement. 12. The burden of proving that the prosecution launched against the appellants was activated by malice is entirely on the appellants themselves. The fact that the prosecution had ended in the acquittal of the appellants is not sufficient to discharge the above burden. In the present case, as already noted above, apart from lodging Ext.A3 F.I.Statement, the respondents are not seen to had taken any active part in the prosecution. The prosecution is seen to have been set in motion by the Police after investigation on the basis of the evidence collected from the parties. The conduct of the respondents in giving evidence in the trial can be described as only participation in the trial. The said conduct cannot be taken as evidence of any malice against the appellants. There is also no A.S.No.666/1996 8 evidence to show that the respondents had made any statement to the Police knowing that the said statement was false. Nor is there any material to justify a conclusion that the respondents had given false evidence before the court. As noticed earlier, the appellants have been acquitted, only because of the difficulty in precisely fixing their identities depending entirely on the moonlight and not because the evidence of the respondents was false. As rightly found by the trial court, there is no evidence in the case to conclude that the prosecution against the appellants was without reasonable or probable cause. The counsel for the appellants has not pointed out any other material or evidence to support the challenge against the various findings of the court below. In the above view of the matter, the appeal fails and is accordingly dismissed confirming the judgment and decree of the trial court. No costs. K.SURENDRAMOHAN Judge css/ A.S.No.666/1996 9 K.SURENDRA MOHAN, J. --------------------------------------- A.S.No.666 of 1996 --------------------------------------- JUDGMENT 3.6.2009