IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 AS.No. 225 of 1997() -------------------- O.S.NO.466 OF 1994 ON THE FILE OF THE SUB COURT, THALASSERY APPELLANT(S): -------------------------- K.K.KUNHIKANNAN NAMBIAR, S/O.NARAYANAN NAMBIAR, AGRICULUTRIST, KURUVA KANNOTH HOUSE, PATTANNOOR, KOVOOR DESOM, P.O.PATTANNOOR, VIA ELAYANNOOR, KANNUR TALUK. BY ADV. SRI.V.RAJAGOPAL RESPONDENT(S): ------------------------------ M.V.PRABHAKARAN, S/O.KRISHNAN NAMBIAR, OVERSEER, K.S.E.B, RESIDING AT VILANGER HOUSE, KUTTIATTOOR, (VIA) MAYYIL KANNUR DISTRICT, KANNUR TALUK. ADV. SRI.E.V.NAYANAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. = = = = = = = = = = = = = = A.S. No. 225 of 1997 = = = = = = = = = = = = = = = = Dated this the 12 th day of June, 2009. JUDGMENT The sole defendant in O.S. No.466 of 1994 on the file of the Subordinate Judge's Court, Thalassery is the appellant in this appeal. The said suit was one for realization of a sum of Rs.54,917/- as damages for malicious prosecution. 2. The facts leading to the impugned judgment and decree are the following:- The defendant had lodged a complaint before the Mattannur police alleging that on 31.07.1992, at about 9 p.m., the 5 named accused persons and two others who could be identified by sight, had beaten him and kicked him and the said persons had thereby committed offences punishable under Sections 143, 147, 148, 341, 323 and 324 r/w Section 149 IPC. The named accused persons were:- A.S. No.225/1997 : 2 : 1. K.K. Kunhiraman 2. Gopalan 3. Radhakrishnan 4. Manoharan and 5. Gangadharan The case was registered as crime No. 171 of 1992 by the Mattannur police which after investigation filed a charge sheet against the five named accused persons before the Judicial First Class Magistrate, Mattannur where the case was registered as C.C. No. 796 of 1992. The defendant was examined as PW1 in that case. After partly examining PW1, on the request of the prosecution, the present plaintiff namely Prabhakaran who was an overseer in the K.S.E.B was impleaded as additional 6th accused in the said case on 30.12.1993 and as evidenced by Ext.A1 order, the learned Magistrate issued non-bailable warrant of arrest against the plaintiff. Subsequently, the learned Magistrate after trial as per Ext.A2 judgment dated 20.05.1994, acquitted all the 6 accused persons including the plaintiff holding inter alia A.S. No.225/1997 : 3 : that the prosecution had miserably failed to adduce reliable and convincing evidence to establish the guilt of the accused. It was thereafter that the plaintiff filed the present suit on 20.10.1994 for damages to the tune of Rs.59,917/- , the break up of which is as follows:- i. Compensation towards lowering of the reputation of the plaintiff by arraying him as an accused in the criminal case ... Rs.40,000/- ii. Compensation for the loss of 9 ½ days of casual leave by taking 9 ½ days leave for attending the criminal court ... Rs.917/- iii.Compensation towards expenses for conveyance incurred by the plaintiff to attend the criminal court on the 15 hearing dates ... Rs.3000/- iv.Fee paid to the plaintiff's counsel for defending the plaintiff ... Rs.1000/- v. Compensation for mental agony and pain suffered by the plaintiff due to the fear of conviction and loss of avocation ... Rs.10,000/- The suit was resisted by the appellant contending, inter alia, that there was reasonable and probable cause for prosecuting the plaintiff, that names of all the accused A.S. No.225/1997 : 4 : were mentioned in the First Information Statement itself given by the defendant, that the name of the plaintiff was deleted by the Police on account of the influence wielded by the plaintiff, that the case was instituted on a police complaint and the defendant had no control over the investigation or the laying of the charge sheet and, that the plaintiff was summoned as an accused consequent on his impleadment by the court and that the defendant was not liable for any damages. On the side of the plaintiff, Exts.A1 to A5 series were marked. The plaintiff was examined as PW1. On the side of the defendant, he examined himself as DW1 and got marked Ext.P1 certified copy of the First Information Report. The learned Subordinate Judge after trial, as per judgment and decree dated 31.01.1996 decreed the suit as prayed for. Hence this appeal. 3. In an action for malicious prosecution, the plaintiff will have to plead and prove the following: 1. That he was prosecuted by the defendant. 2. That the criminal proceedings complained of A.S. No.225/1997 : 5 : terminated in favour of the plaintiff, if from their very nature they were capable capable of such termination. 3. That the prosecution was instituted against the plaintiff with out any reasonable and probable cause and 4. That the defendant was actuated by malice rather than a mere intention to carry the law into effect (See Balbhaddar V. Badri Sah (AIR 1926 PC 46), Braja Sunder Deb V. Bamdeb Das (AIR 1944 PC 1) (Ambalam v. S. Jagannatha (AIR 1959 Madras 89), N.P.Sankaran Nair v. P.V.Rama Iyer (1959 KLT 1081) Kunhukutty Sahib v. Veeran Kutty (1960 KLT 312), Govindji J Khona v. K.Damodara and others (AIR 1970 Kerala 229), Subramania Bhatta v. Krishna Bhatta (1978 KLT 361 FB) and Kottan Thazathu veetil Krishnan v. P.T.Govindan (AIR 1989 Kerala 83). A.S. No.225/1997 : 6 : 4. The fact that the plaintiff was prosecuted by the defendant does not admit of any doubt. It may be true that in this case the plaintiff was tried for the aforementioned offences only after he was subsequently arrayed as an accused on 30.12.93 by the learned Magistrate by exercising his power under Section 319 Cr.P.C. But then, it was none other than the defendant who initially lodged the complaint before the Police, and in the First Information Statement of the defendant the name of the plaintiff had also figured. Eventhough the Police after investigation did not charge-sheet the plaintiff, the defendant was evidently dissatisfied with the same and it cannot be gainsaid that it was the defendant who was behind Ext.A1 order dated 30.12.93 for arraying the plaintiff as additional 6th accused after the defendant himself deposing before the Magistrate about the alleged complicity of the plaintiff. Ext.A2 judgment of acquittal dated 20.5.94 shows that the defendant examined as DW1 before the Magistrate had admitted that he was on inimical terms with the accused A.S. No.225/1997 : 7 : persons due to property disputes, that there were civil cases pending between them, and that he himself was an accused in a proceedings under Section 107 Cr.P.C before the R.D.O. Ext.A2 further shows that the testimony of PW1 showed that he was not sure by whom he was beaten and that he had not narrated either before the Police or before the Court, the overt acts of each of the accused. It was under these circumstances that the Criminal court observed that the prosecution had miserably failed to adduce reliable and convincing evidence to establish the guilt of the accused and that the accused were entitled to a clean acquittal. Thus, the defendant could easily be said to be the prosecutor who lodged the complaint before the Police making allegations false to his knowledge. The defendant examined as DW1 admitted that there were civil and criminal cases between him and the plaintiff. Eventhough all the accused persons (including the plaintiff herein) in C.C.No.796 of 1992 were related to the defendant and therefore not strangers to him, he did not A.S. No.225/1997 : 8 : mention the name of any of his assailants to the Doctor who examined him. This was also admitted by the defendant examined as DW1. If so, the inescapable conclusion is that the prosecution of the plaintiff by the defendant was without reasonable and probable cause. 5. It is not necessary that the defendant should himself prosecute the plaintiff by filing a criminal complaint against him before the Magistrate. It is enough if on the information given by the defendant the Police prosecutes the plaintiff by filing a charge sheet against the plaintiff. In order to become a prosecutor it is not necessary that the defendant should move the Magistrate by filing a complaint. Likewise, it is not necessary that the defendant should figure as a complainant before the Magistrate. It is enough if the defendant had either set the criminal law in motion or had taken an active part in the conduct of the prosecution itself and the same was without any justification (Vide Gaya Prasad v. Bhagat Singh (ILR 30 Allahabad 525 PC), Balbadar V. Badri Shah(AIR 1926 PC A.S. No.225/1997 : 9 : 46), Kunhukutty Sahib v. Veerankutty (1960 KLT 312). 6. The action for malicious prosecution is dominated by the problem of maintaining a balance between two social interests of high importance; the necessity to safeguard the individual from being vexed by unjustifiable litigation and the policy of encouraging citizens to aid in the enforcement of the law. One of the ways in which the above balance is sought to be maintained is by casting the burden of proof on the plaintiff. The burden of proof of absence of reasonable and probable cause is on the plaintiff who thus undertakes the notoriously difficult task of proving a negative. If facts existed which, if known to the defendant, would have constituted reasonable and probable cause, the burden of showing that they were not known to him would lie on the plaintiff (Vide N.P.Sankaran Nair v. Rama Iyyer (1959 KLT 1081 supra). In Herniman v. Smith ( (1938)1 All England Law Reports I), Lord Atkin said that he knew no better definition of the words “reasonable” and “probable” than that given by A.S. No.225/1997 : 10 : Hawkins J in Hicks v. Faulkner (1881), 8 Q.B.D 167 as under:- “I shall define reasonable and probable cause to be an honest belief in the guilt of the accused based upon a full conviction, entered upon reasonable grounds of the existence of a state of circumstances which assuming them to be true would reasonably lead an ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.” (Vide Para 13 of N.P.Sankaran Nair v. Rama Iyye(1959 KLT 1081) Supra and Paulose v. Pappi Pilla Amma (1961 KLT 1067). 7. What will have to be considered next is whether the prosecution was actuated by malice. In a suit for damages for malicious prosecution the wilful behaviour of lodging a false complaint raises a presumption of existence of malice. (See Padmanabhan Gangadharan v. Mathevan - AIR 1976 Kerala 49). 8. It may be true that for holding that the ingredients A.S. No.225/1997 : 11 : to be proved by the plaintiff in an action for malicious prosecution have been made out, the civil court will have to decide the issue de-hors the judgment of the criminal court (See Chamu v. Valayanat Tharayil Chirutha (1970 KLJ 1023) and Subramanya Bhatta v. Krishna Bhatta (1978 KLT 361 F.B). But, in a case, as the present one, where the defendant has admitted from the witness box that when examined before the criminal court he did not attribute any overt acts against the plaintiff and this fact is made mention of in the judgment of the criminal court, the admission of the defendant before the civil court would constitute evidence aliunde the judgment of the criminal court in proof of the ingredients necessary to maintain the action. 9. Where the charge is of such a nature as must be true or false to the knowledge of the defendant, then no question of reasonable and probable cause can arise. Falsity of evidence by the prosecutor himself would go to show the want of reasonable and probable cause and A.S. No.225/1997 : 12 : further go to show malice on the part of the prosecutor (vide Appukuttan v. Makkappan - 1965 KLT 1064). 10. The learned Sub Judge who had the unique advantage of seeing the witnesses and assessing their credibility was inclined to accept the testimony of the plaintiff examined as PW1 in preference to the interested testimony of the defendant examined as DW1. This Court sitting in appeal will be loath to disagree with the conclusions reached by the trial Judge (See Madhusudan Das v. Narayani Bai (AIR 1983 SC 114). 11. I fully concur with the trial Judge that the prosecution under Ext.A2 was one which was launched against the plaintiff by the defendant without any reasonable or probable cause and was actuated by malice and the said prosecution ended in an honourable acquittal of the plaintiff. The judgment and decree passed by the court below awarding a sum of Rs.54,917/- by way of damages does not call for any interference at the hands of this Court. This appeal fails and is accordingly dismissed. A.S. No.225/1997 : 13 : However, in the facts and circumstances of the case, the parties shall bear their respective costs. Dated this the 12th day of June, 2009. V. RAMKUMAR, JUDGE. sj