FR JOHN Vs. KUNJUVARIATHU
LAWS(KER)-1955-7-9
HIGH COURT OF KERALA
Decided on July 22,1955

FR. JOHN Appellant
VERSUS
KUNJUVARIATHU Respondents

JUDGEMENT

- (1.) The defendant in the suit filed C.C. 1116 of 1117 before the First Class Magistrate of Perumbavoor on 1.11.1117 complaining that the plaintiff had committed offences punishable under Ss. 392 and 104 of the Travancore Penal Code. His case was that his bull was forcibly taken away by the plaintiff and his men on 18th Edavam 1117 and tied in the plaintiffs compound and when the return of the same was demanded he was threatened. The complaint was dismissed on 31st Medom 1118, the Magistrate holding that the complaint was false and without bona fides. Then the plaintiff filed the present suit for damages for malicious prosecution. The Trial Court awarded him Rs. 100 as damages for mental pain and loss of reputation and Rs. 75 towards costs in the criminal prosecution. When the matter was taken up in appeal the Additional District Judge of Parur reversed that decision and dismissed the suit. Hence the plaintiff has come up in second appeal.
(2.) Ext. A is the copy of the complaint filed by the defendant. Ext. F is the judgment in it. The fact that the complaint was filed and the same was dismissed as false is clearly made out. So what remains to be considered is whether there was probable and reasonable cause for launching the complaint and whether the same was the result of defendants malice. In this case, the fact that the defendants bull was tied up by the plaintiff is admitted. The plaintiffs contention is that he did so when the bull trespassed into his property and caused damages to his crops on 29.10.1117 and that it was taken to the cattle pound at Alwaye on 30.10.1117 as evidenced by Ext. B receipt and the complaint was filed by the defendant knowing all these on 1.11.1117 solely because of his malice. It is further urged that the defendant caused a search to be made as evidenced by Ext. C mahazar knowing that the bull was not there. Now, only one witness speaks in support of the plaintiff with regard to the entrustment of the bull to the cattle pound authorities the very next day after it was tied up. That witness is Pw. 4 who says that he was living in another house in the same compound where the plaintiff was residing at that time. The other witnesses do not give the exact date when the bull was tied up. Their evidence does not show that the bull was taken to the cattle pound the next day after it was tied up by the plaintiff. From the evidence it is seen that though the plaintiff might have taken the bull to the compound on 30th he had been keeping it tied up in his house for more than a day supporting the defendants contention on that point. There is nothing to show that the defendant had definite knowledge of the bull having been taken to the pound on the 30th. In Krishnan Nair v. Narayana Pillai 32 TLJ 184, at page 189 it is observed as follows:- In order to establish absence of reasonable and probable cause, it will not be enough for the plaintiff in a suit for malicious prosecution to show that the real facts established no criminal liability against him. It must also appear that those facts were within the personal knowledge of the defendant. As has been pointed in numerous English cases, reasonable and probable cause depends upon the information and belief of the defendant. There must be a reasonable cause such as would operate on the mind of a discreet man; there must be a probable cause such as would operate on the mind of a reasonable man; at all events such as would operate on the mind of the party making the charge; otherwise there is no probable cause for him; I cannot say that the defendant acted on probable cause, if the state of acts was such as to have not effect on his mind. Tindal, C.J., Brond v. Mam. From the evidence here it is not possible to hold that the defendant had no reasonable and probable cause in filing the complaint in question.
(3.) Then there is the question of malice. Emphasis is placed upon certain statements in Ext. A about the plaintiff being not a proper Christian. I cannot hold that this statement indicates malice as contemplated under law which would justify the award of damages. As pointed out in 32 TLJ 184 in order that there may be a liability on the ground of malicious prosecution malice and absence of reasonable and probable cause must unite. Here I do not think the ground to justify the award of damages on the basis of malicious prosecution have been made out. So there is no ground to interfere with the lower appellate courts decision.;


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