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Home » Kunhikannan Nambiar K.K. v. M.V.Prabhakaran, A.S. No. 225 of 1997 Ker.

Kunhikannan Nambiar K.K. v. M.V.Prabhakaran, A.S. No. 225 of 1997 Ker.

2009 (3) KHC 114

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Justice V.Ramkumar

2009-06-12T00:00:00

A.S. No. 225 of 1997

Advocates appearing for the Parties : V.Rajagopal; E.V.Nayanar

J U D G M E N T







V.Ramkumar,
J.


 


1.   The sole defendant in OS
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:


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 CC No. 796 of 1992. The
defendant was examined as PW 1 in that case.
After partly examining PW 1, on the request
of the prosecution, the present plaintiff namely
Prabhakaran who was an overseer in the KSEB 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 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 plaintiffs counsel for defending the plaintiff…
Rs.10007-


      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 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 PW 1.
On
the side of the defendant, he examined himself as DW 1 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 terminated in favour of the plaintiff, if
from their
very nature they were capable 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- Balbhaddarv. 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
KLT1081
1,
Kunhukutty Sahib v. Veeran Kutty, 1960 KLT 3122, Govindji
J.
Khona v, K. Damodara and Others,
AIR
1970 Ker. 2293, Subramania Bhatta v. Krishna
Bhatta,
1978
KLT 361 FB4 and Kottan Thazathu VeetilKrishnan v.P.T. Govindan,
AIR 1989
Ker.
835).


 


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 CrPC.
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. Even though 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
20/05/94 shows that
the defendant examined as DW 1 before the Magistrate had admitted
that he was on inimical terms with the accused
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 CrPC before the R.D.O. Ext. A2
further shows that the testimony of PW 1
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 DW 1 admitted that
there were civil and criminal cases between
him and the plaintiff. Even though all the
accused persons (including the plaintiff herein) in CC
No. 796 of 1992 were related to the defendant
and therefore not strangers to him, he did not
mention the name of any of his assailants to the
Doctor who examined him. This was also admitted by the defendant examined as DW
1. 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, Balbaddar v. Badri Shah,
1926 PC 46, Kunhukutty Sahib v. Veerankutty 1960 KLT
3126).


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 lyyer,
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 Hawkins J. in
Hicks v. Faulkner,
1881 (8) QBD 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 Iyer, 1959 KLT
1081
7 supra and Paulose v. Pappi PillaAmma,
1961 KLT10678).


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 Ker. 499).


8.   It
may be true that for holding that the ingredients 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 horslhe judgment of the Criminal Court (See- Chamu v. Valayanat
Tharayil Chirutha,
1970
KLJ 102310 and Subramanya Bhatta v. Krishna Bhatta, 1978 KLT
361 FB11. 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
further go to show
malice on the part of the prosecutor (vide – Appukuttan v. Makkappan,
1965 KLT 1054).


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
PW 1 in
preference to the interested testimony of the defendant examined as DW 1. This
Court sitting in appeal will be loath to
disagree with the conclusions reached by the trial Judge
(See-Madhusudan Das v. NarayaniBai, AIR 1983
SC11413).


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.54,9171- by
way
of damages does not call for any interference at the hands of this Court. This
appeal fails
and
is accordingly dismissed. However, in the facts and circumstances of the case,
the parties
shall bear their
respective costs.


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