IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 AS.No. 227 of 1999() ----------------------------- OS.176/1994 of SUB COURT, OTTAPPALAM .................... APPELLANT/PLAINTIFF: ------------------------------------ SUBOD, S/O.KAKKARATH DR.SUKUMARAN, REPRESENTED BY MUKTHIAR AGENT, SATHEESHNATH, S/O.KAKKARATH DR.SUKUMARAN, THRITHALA AMSOM, MATTAYA DESOM, OTTAPPALAM TALUK. BY ADV. SRI.N.P.SAMUEL, SRI.T.K.CHINNAN. RESPONDENT/DEFENDANT: ----------------------------------------- K. KRISHNANKUTTY, S/O.KUNHUKUNHU, VIJI SADANAM, THIRUMITTAKODE AMSOM, NELLIKKATTIRI DESOM, OTTAPPALAM TALUK, PALAKKAD. BY ADV. SRI.R.KRISHNA RAJ. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. ........................................... A.S.NO.227 OF 1999 ............................................. Dated this the 17th day of May, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree passed in O.S.No.176/1994 of the Subordinate Judge's Court, Ottapalam. The suit was one for damages for malicious prosecution. The court below on a consideration of the materials dismissed the suit. It is against that, the plaintiff has come up in appeal. 2. Before going to deal with the facts of the case, it is desirable that the principles to be followed in such cases to be looked into. In a suit for malicious prosecution the plaintiff has to prove that the defendant was malicious and that he acted without reasonable and probable cause. Malicious means presence of some improbable and wrongful motive that is to say some other motive other than desire to bring justice to a person whom the prosecutor honestly believes to be guilty. The brief facts would reveal that, according to the plaintiff, the defendant in the suit filed a frivolous case against him as S.T.No.1089/1992 before : 2 : A.S.NO.227 OF 1999 JFCM, Pattambi which ended in acquittal under Section 256(1) of the Criminal Procedure Code. It is also submitted that while these persons got down from the witness box and was going away, the plaintiff mocked at them and insulted them. It is extracted to show that there was malicious behind the whole prosecution. On the other hand, the defendant would contend that on 30.8.1991 while coming in his vehicle, the plaintiff and others waylaid him, abused him, intimidated and attempted to commit assault on him. He preferred a complaint which was referred and later a protest complaint was filed which ultimately had resulted in registration and charge in S.T.No.1089/1992. Unless it is proved to the satisfaction of the court that the prosecution was initiated maliciously without any reasonable and probable cause, a claim for damages shall not be sustained. That is the basic principle. DW1, the complainant in the criminal case, had deposed before the court regarding the way in which he was restrained and attempt was made to intimidate and assault him. It is true that the case has ended in acquittal on account of absence of the : 3 : A.S.NO.227 OF 1999 plaintiff. That by itself would not show the malicious nature. It is all the more important when the background of the case is to be seen. It has come out in evidence that there is a fight between the plaintiff's family and the defendant. According to the plaintiff, the defendant has attempted to trespass into their property and tried to reduce it into his possession. It is also their case that the defendant had filed a case against his father and another person which also was on the ground of criminal trespass etc. It is also seen that the present plaintiff and members of the family had also moved petitions and cases for criminal prosecution against the defendant, that also ended in acquittal. So, an ultimate analysis of the entire facts would reveal that there was a property dispute between the plaintiff and the defendant and their family members. There were cases and counter cases among them. So also, according to the defendant, cause of action for initiation of the complaint was with a threat to the defendant to withdraw the case filed by him against the father of the complaint and another. So, a reading of the evidence of DW1 would reveal that he : 4 : A.S.NO.227 OF 1999 had not maliciously prosecuted or initiated action against the plaintiff and others. In the nature of dispute between the parties, one cannot also hold that there was no reasonable or proper cause for initiating the action. When these two basic ingredients are not satisfied, then the plaintiff cannot be granted a decree. In a suit for malicious prosecution, it is incumbent and imperative on the part of the plaintiff to establish those ingredients which does not stand proved in this case. The learned Subordinate Judge has also considered the materials point by point and also based on the legal dictum to arrive at a decision. The Court also relied upon evidence of the plaintiff in the case when he said that neither he nor his father was present when the court acquitted them. The case is attempted to be built on the premise that when these persons after acquittal were moving out, the defendant standing in the veranda of the Court had insulted them. From the conduct and the evidence of the present plaintiff, it is very clear that neither he nor his father were present when the matter ended in acquittal. So the court held that what PW1 speaks is not : 5 : A.S.NO.227 OF 1999 truth and therefore he cannot be believed in a case of this nature. I also agree with the said view of the learned Subordinate Judge. Therefore from these discussions, I hold that there are no materials to hold in favour of the plaintiff in the case and the judgment and decree of the trial court stands to reasoning and law. Therefore the appeal fails and the same is dismissed, but without costs. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.227 OF 1999 M.N. KRISHNAN, J. . ........................................ A.S.NO.227 OF 1999 ........................................ 17th day of May, 2010. J U D G M E N T