IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.06.2008 CORAM THE HON'BLE Mr. JUSTICE M.SATHYANARAYANAN Second Appeal No.79 of 1999 M.Ganagavel .. Appellant/Plaintiff Vs A.Ramamoorthy .. Respondent/Defendant Prayer: Appeal filed under Section 100 of C.P.C. against the judgment passed in A.S.No.10 of 1997 on the file of the Principal District Judge, Cuddalore dated 2.1.1998 reversing the judgment and decree in allowing the suit in O.S.No.179 of 1996 on the file of the Additional District Munsif Court, Cuddalore dated 27.11.1996. For Appellant : Mr.R.Muralidharan For Respondent : Mrs.Meenal JUDGMENT The appellant in this appeal is the plaintiff in O.S.No.179 of 1996 on the file of the Court of District Munsif, Cuddalore. The plaintiff instituted the suit in O.S.No.487 of 1994 against the respondent/defendant herein claiming a damages of Rs.16,000/- on account of loss of reputation due to malicious prosecution. 2.The appellant/plaintiff has contended that he owns about 15 acres of land and other house properties at Virupatchi and Sakkankudi and he was the President of Adoorkuppam Primary Agricultural Co-operative Bank and he was also a Director of Kanchananpettai Weaver's Co-operative Society. 3.The respondent/defendant has preferred a complaint against the appellant/plaintiff and 9 others in Crime No.92 of 1991 before Kurinjipadi Police Station wherein it was alleged that the appellant due to previous enmity and as a consequence of Weavers' Society election, came with 9 others on 31.3.1991 at about 9.30 p.m. and formed themselves into an unlawful assembly with dangerous and lethal weapons and they attacked the respondent/defendant, his father and his senior paternal uncle and also committed mischief by setting fire to the dwelling house of respondent/defendant's brother's wife and in the process, the respondent/defendant also got injured. https://hcservices.ecourts.gov.in/hcservices/ 4.After investigation, Kurinjipadi Police Station has laid a charge sheet in P.R.C.No.5 of 1992. After committal to the Sessions Court, Cuddalore, the case was taken on file in S.C.No.282 of 1992. 5.During the course of trial in S.C.No.282 of 1992, the respondent/defendant was examined as P.W.1 and in the cross examination, he deposed as follows: "ehd; vjphpfs; nghpy; bgha; tHf;F bfhLj;njd; vd;why; rhpjhd;/ lhf;lhplk; vd; tPl;oy;jhd; rk;gtk; ele;jjhff; Twpa[s;nsd;/ mnjnghy; nghyprhhplKk; vd; tPl;oy;jhd; rk;gtk; ele;jjhff; Twpa[s;nsd;/ " The trial Court after appreciation of oral and documentary evidence, had acquitted the appellant/plaintiff and 9 other accused on the ground that charges framed against accused have not been proved and that there are so many contradictions in the evidence adduced by the prosecution and therefore, the benefit of doubt shall enure in favour of the accused. The Court of Sessions, Cuddalore on the above said grounds, had acquitted all the accused vide Judgment dated 13.07.1993. It is an admitted fact that challenging the order of acquittal, no revision has been preferred by the respondent/defendant. 6.The suit in O.S.No.179 of 1996 was taken up for trial and on the side of the appellant/plaintiff, he examined himself as P.W.1 and one Murugavel was examined as P.W.2. Exs.A.1 to A.11 were marked on behalf of the appellant/ plaintiff. On behalf of the respondent/defendant, no documents were marked and the defendant himself was examined as D.W.1. 7.The trial Court on consideration of oral and documentary evidence more particularly the admission of D.W.1 before the Sessions Court, Cuddalore found that the criminal case has been falsely instituted against the plaintiff/appellant. As regards the quantum of damages to be paid on account of malicious prosecution, the trial Court found the averments made in the plaint are vague. However, it awarded a sum of Rs.5,000/- as damages towards malicious prosecution. 8.The respondent/defendant aggrieved by the Judgment and Decree passed by the trial Court, has preferred the appeal in A.S.No.10 of 1997 before the District Court, Cuddalore. The lower appellate Court has held that the admission on the part of defendant in Ex.A.2 was merely a suggestion and nod of head in token of an affirmation of the suggestion put to him and it cannot alone be the basis for deciding the complaint as a false one. In view of the said finding, the lower appellate Court has reversed the Judgment and Decree passed by the trial Court and allowed the appeal in favour of the respondent/defendant and aggrieved by the same, the plaintiff has preferred this Second Appeal. https://hcservices.ecourts.gov.in/hcservices/ 9.At the time of admission of the second appeal, the following substantial questions of law were framed:- "(i)Whether the admission by the defendant in Ex.A-2 is not enough to prove malice in launching a prosecution against the plaintiff/appellant as held by the first appellate court? (ii)Whether the defendants is guilty of malice in view of his stand in Ex.A.4 (reply notice dated 8.10.1993) asserting the complaint given by him to be true?." 10.Heard Mr.R.Muralidharan, learned counsel appearing for the appellant and Mrs.Meenal, learned counsel appearing for the respondent. 11.The learned counsel appearing for the appellant has submitted that admission on the part of the defendant in Ex.A.2 has probablised his version that the criminal case instituted at the instance of the respondent/defendant against him is a false and motivated one and on account of the same, he suffered enormous mental agony in the form of confinement during investigation and the ordeal of trial. Therefore, according to the learned counsel, the trial Court was correct in decreeing the suit and the order of reversal passed by the lower Court is liable to be set aside. 12.The learned counsel appearing for the appellant in support of his submissions, has relied upon two judgments reported in 1972-1-MLJ 160 C.Dakshinamurthy V. K.Venkataswamy Chettiar and another and 1988-1- L.W. 520 Theyyunni Nayar V. Mohammed Rowther and others. In 1972-1- M.L.J. 160 (cited supra), earlier judgments of this Court which laid down the principles for damages for malicious prosecution have been reiterated. It was held in the decision, when the complaint is false to the knowledge of the complainant it can be taken that there has been want of reasonable and probable cause as also malice and ultimately, it was found in the said decision that the plaintiffs are entitled to damages for malicious prosecution, the expenses which they incurred in defending the criminal prosecution. 13.In the judgment reported in 1988-1-L.W.520, the ingredients to be established for maintaining an action for malicious prosecution are once again reiterated which are as follows:- 1.That the Appellant was prosecuted by the defendant; 2.That the proceedings complained of terminated in favour of the Appellant and from their nature they were capable of so terminating; 3.That the prosecution was instituted against him without any reasonable or probable cause; 4.That it was due to malicious intention of the respondents and not with a mere intention of carrying the law into effect. https://hcservices.ecourts.gov.in/hcservices/ In the said decision, earlier decision of this Court as well as the Privy Council were referred to. 14.Per contra, Mrs.Meenal, learned counsel appearing for the respondent/defendant has placed reliance upon the judgment reported in 1998-2-L.W.601 S.Rangaraju V. S.Devarajan, wherein the same principles have been reiterated. 15.The learned counsel appearing for the respondent contended that the ingredients for claiming damages for malicious prosecution have not been established at all by the appellant/plaintiff and the averments in the plaint are very vague and bereft of particulars. The learned counsel for the respondent further submitted that the order of acquittal passed by the trial Court was on the basis of lack of evidence and awarding benefit of doubt and therefore, it cannot be taken as honourable acquittal so as to claim damages for malicious prosecution. 16.The Court has carefully considered the rival submissions and also perused the records of the lower Court and also the judgments passed by the courts below. 17.It is an admitted fact that in Ex.A.2 the defendant, who was examined as P.W.1 in S.C.No.282 of 1992, has admitted that it is correct to state that he has given a false case against the accused. In the said criminal case, the plaintiff/appellant has arrayed as accused No.1. The Sessions Court, Cuddalore were also held in its judgment dated 13.07.1993 in S.C.No.282 of 1992 marked as Ex.A.1 in the present proceedings that the prosecution has failed to establish the guilty on the part of the accused though in the later portion of the judgment it says that there are contradictions in the evidence and it has awarded the benefit of doubt in acquitting the accused. 18.Therefore, the fact remains that all the accused including the appellant/plaintiff was acquitted for want of evidence and coupled with the fact that the admission on the part of respondent/defendant that he has instituted a false case clearly establishes the fact that the criminal prosecution lodged on his behalf by the State is a false one. In the judgment reported in 1972-1-M.L.J. 160 C.Dakshinamurthy V. K.Venkataswamy Chettiar and another, it has been held that once the complaint is false to the knowledge of the complainant it can be taken that there has been want of reasonable and probable cause as also malice. In the said judgment, the earlier decisions reported in Bharat Commerce and Industries V, Surendra Nair (AIR 1966 Calcutta 388), G.J.Khona V. A.Damodaran (AIR 1970 Ker. 229):I.L.R. (1969) 2 Ker. have been referred. In 1988-1-L.W.520 Theyyunni Nayar V. Mohammed Rowther and others, after referring to all the earlier judgments on the point, it has been held that "the malice necessary to be established in a suit for malicious prosecution is not even malice in law, such as may be assumed from the intentionally doing of a wrongful act, but malice in https://hcservices.ecourts.gov.in/hcservices/ fact – malus animus – indicating that the party was actuated either by spite or illwill towards an individual, or by indirect or improper motives, though these may be wholly unconnected with any uncharitable feeling towards anybody." 19.Therefore, keeping the said principles in mind and in view of the admission on the part of the respondent/defendant that he falsely instituted the criminal case coupled with the finding of the Sessions Court, Cuddalore in acquitting the appellant/plaintiff, this Court hold that the appellant/plaintiff was maliciously prosecuted and therefore, entitled to damages. The act of malicious prosecution is also evidenced by the fact that before institution of the suit, under Ex.A.3, the appellant/ plaintiff sent a notice to his lawyer claiming damages of Rs.50,000/- for malicious prosecution. The respondent/ defendant had sent a reply under Ex.A.4 wherein it has been stated as follows: (4)My client further states that the learned Asst. Sessions Judge acquitted your client and others as the Police failed to produce the weapons used for assaulting my client and other injured and other grounds. So your allegations that my client prosecuted your client without reasonable and probable cause and actuated by malice are all false". 20.Hence, the malafide intention on the part of the respondent/defendant to lodge a false prosecution against the appellant/plaintiff stands established. Now coming to the question of damages, though in Ex.A.3-Legal Notice, the appellant/plaintiff claimed a sum of Rs.50,000/-, at the time of filing of the suit, he restricted his claim to a sum of Rs.16,000/-. According to the appellant/plaintiff, he owns about 15 acres of land and other house properties and was a President of Adoorkuppam Primary Agricultural Co-operative Bank and was a Director of Kanchananapettai Weaver's Co-operative Society and the same is evidenced by Exs.A.5 to A.11. It is not disputed that after lodging of the F.I.R., the appellant/plaintiff was arrested and was in confinement for four days and thereafter, he came out on bail. It is also an admitted fact that he had undergone the ordeal of trial and ultimately he was acquitted. Therefore, this Court holds that he is entitled to a reasonable sum as damages on account of malicious prosecution. 21.Therefore, taking into consideration all the facts and circumstances, the judgment and decree passed by the lower appellate Court is liable to be set aside. This Court also feels that the sum of Rs.5,000/- awarded by the trial Court towards damages for malicious prosecution is also reasonable. The substantial questions of law are answered in favour of the appellant. https://hcservices.ecourts.gov.in/hcservices/ 22.Accordingly, the Second Appeal is allowed and the Judgment and Decree passed by the lower appellate Court is set aside and consequently, Judgment and Decree passed by the trial Court stands restored. But, in the circumstances, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sgl To 1.The Principal District Judge, Cuddalore. 2.The Additional District Munsif Court, Cuddalore. 3. The Section Officer, VR Section, High Court, Madras. +1cc to Mr.R.Subramanian, Advocate Sr 31758 KSK (CO) km/12.7. S.A.No.79 of 1999 https://hcservices.ecourts.gov.in/hcservices/