IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 SA.No. 820 of 1995(E) --------------------- AS.294/1992 DISTRICT COURT, THALASSERY OS.93/1989 of SUB COURT, PAYYANNUR .................... APPELLANT(S): RESPONDENT:DEFENDANT: ------------------------------------------------------------------- THAZHATHE POTHERA EDAVAN KOMAN NAMBIAR, S/O.KOMAN NAMBIAR, NO OCCUPATION, 70 YEARS, RESIDING AT PARIYARAM AMSOM, TALIPARAMBA TALUK. BY ADV. SRI.K.V.SOHAN SRI.M.P.ASHOK KUMAR RESPONDENT(S): APPELLANTS:PLAINTIFF: ------------------------------------------------------------------ M.V.SUGATHAN, S/O.KUNHAPPA NAIR, 27 YEARS, NO OCCUPATION, RESIDING AT PARIYARAM AMSOM DESOM, TALIPARAMBA TALUK. ADV. SRI.M.RAMESH CHANDER SRI.M.S.MANIKANDAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.N.Ravindran, J. =============== S.A. No.820 of 1995 ===================== Dated this the 14th day of January, 2009. JUDGMENT The defendant in O.S.No.93 of 1989 on the file of the Court of the Subordinate Judge of Payyannur is the appellant. The respondent is the plaintiff therein. The suit instituted by the respondent claiming damages for malicious prosecution was dismissed by the trial court. On appeal by the plaintiff, the Court of the District Judge, Thalassery reversed the decree of dismissal passed by the trial court and passed a decree for recovery of the sum of Rs.2,000/- as damages, together with interest thereon at 6% per annum from the date of suit till realisation. Hence this Second Appeal at the instance of the defendant. 2. The plaintiff, who is the son of sister of the defendant's wife, and the daughter of the defendant were on intimate terms. It is also not in dispute that a child was born to the defendant's daughter in her relationship with the plaintiff and that the plaintiff is presently paying maintenance to the minor child pursuant to the decree passed in O.S.No.121 of 1991 on the file of the Sub Court, Payyannur, which was affirmed by this Court in A.S.No.153 of 1995. The respondent instituted the suit for malicious prosecution on the allegation that he was falsely prosecuted by the defendant for the offences punishable under Sections 363, 364 and 417 I.P.C., that he was acquitted by the Sessions Court, SA 820/95 -: 2 :- Payyannur by Ext.A1 judgment delivered on 25.10.1988, that on account of the false complaint in which he was ultimately acquitted, he had to frequently travel from Bombay to Thalassery, that he had to incur expenses to engage a lawyer and that on account of the false complaint he suffered mental agony and anguish and also loss of reputation. The respondent claimed in all the sum of Rs.20,000/- as damages. 3. In the trial court, the respondent was examined as PW1, his father was examined as PW2 and his neighbour was examined as PW3. On the side of the defendant, the defendant examined himself as DW1 and his daughter was examined as DW2. The trial court on an analysis of the evidence oral and documentary available in the case held that the plaintiff has not succeeded in proving the ingredients required to successfully claim damages for malicious prosecution. It was held relying on the decisions of this Court that the judgment of acquittal evidenced by Ext.A1 cannot be looked into for the purpose of deciding whether the prosecution was malicious or not and that it can be looked into only for the purpose of deciding whether the criminal complaint ended in acquittal or conviction. The suit was accordingly dismissed. On appeal by the plaintiff, the lower appellate court reversed the decree of dismissal passed by the trial court and decreed the suit. 4. It is settled law that in a suit claiming damages for malicious prosecution, the plaintiff must plead and prove that the proceedings have been initiated and continued by the defendant without reasonable SA 820/95 -: 3 :- and probable cause, that he must have acted maliciously and that the prosecution terminated in favour of the plaintiff. In the instant case, apart from stating that the prosecution was initiated with the malicious intention of harassing him and spoiling his bright future and tracing the history of the criminal case which ended in his acquittal, the plaintiff has not pleaded that the defendant had a malicious motive to institute and continue the criminal proceedings against him without reasonable and probable case. It has come out in evidence that the plaintiff was having illicit relationship with the defendant's daughter and that she was spirited away from her residence. It has also come out in evidence that DW2, the daughter of the defendant who was spirited away from her residence had sent Ext.B7 letter to her father the defendant wherein there is specific reference to the fact that she was forced to go along with the plaintiff and that out of shame she did not disclose this fact earlier. In the light of the evidence on record and the findings in Ext.A1 judgment, it cannot be said that the defendant instituted the private complaint without reasonable and probable case and that the defendant was motivated by malice when he filed a private complaint in the Court of the Judicial First Class Magistrate, Payyannur alleging that his daughter who was a minor, was kidnapped by the plaintiff. 6. A learned Single Judge of this Court has in Bhaskara Menon v. Ayyappan - 2007 (3) K.L.T. 914 held that the judgment of the criminal court can be looked into only for the purpose of deciding whether the SA 820/95 -: 4 :- criminal complaint ended in acquittal or conviction and that the judgment of acquittal passed by the criminal court is not sufficient to prove that the prosecution was malicious. It was held that the fact that the criminal prosecution ended in acquittal will not automatically lead to the conclusion that the prosecution was malicious. In the instant case, the plaintiff has not pleaded or proved that the defendant was motivated by malice when he instituted the private complaint alleging that the plaintiff had kidnapped his minor daughter. In the absence of a pleading to that effect, the lower appellate court was not, in my opinion, right in proceeding to examine whether on the materials on record, especially the finding of the criminal court in Ext.A1 judgment, the prosecution was malicious or not. In the instant case, the plaintiff has not pleaded that the defendant instituted the criminal complaint solely out of malice. As his daughter was missing, the conduct of the defendant in filing the criminal complaint cannot be said to be one actuated by malice or one filed without reasonable and probable cause. Apart from the mere allegation that prosecution was malicious, the plaintiff has not pleaded the details which would enable the court to come to the conclusion that prosecution was in fact actuated by malice. If the pleadings are not specific, no amount of evidence can salvage the situation for the reason that evidence in relation to a plea which has not been raised cannot be looked into. The lower appellate court therefore erred in law in reversing the decree of dismissal passed by the trial court and in decreeing the SA 820/95 -: 5 :- suit. 7. In the view that I have taken, I hold that the judgment under challenge is liable to be set aside. The appeal is accordingly allowed and the judgment and decree passed by the Court of the District Judge of Thalassery in A.S.No.294 of 1992 are set aside and the suit, O.S.No.93 of 1989 is dismissed. No costs. P.N.Ravindran, Judge. ess 15/1