Decided on February 19,1979



S.B.MAJMUDAR - (1.) An unsuccessful plaintiff whose suit for damages on the ground of malicious prosecution has been dismissed by the trial Court has approached us by way of this appeal. 2 A few facts leading to this litigation may be briefly stated: The plaintiff-appellant was serving at the relevant time as a steno-typist in the Bank of Baroda at Rajkot drawing a total pay of Rs. 564.45 P. on the date of the institution of the suit including bonus and other payments. The plaintiff had purchased a house in Ramkrishnanagar street No. 7-A at Rajkot for Rs. 10 500 and spent about Rs. 5000 in carrying out modifications etc. in the said house the case of the plaintiff further is that he wanted to sell this house and to get another house of his own on the land which he wanted to purchase by taking loan from the bank.; for that purpose in the year 1968 he got published an advertisement inviting offers from prospective purchasers of his house; that the said advertisement did not bring any fruit and the plaintiff repeated this effort in 1970. The plaintiff had also informed a broker Jagjivan Parekh to find out a purchaser and the broker is said to have found out the defendant and a Satakhat was executed on 26-7-70 for Rs. 15001.00 and the plaintiff received Rs. 2000.00 as earnest money. The defendant respondent was a medical practitioner and was transferred from Babra to Rajkot at the relevant time that she was staying with her father in the same locality where the plaintiffs house is situated. The case of the plaintiff is that the defendant agreed to purchase as stated above the plaintiffs house and therefore a Satakhat was executed. The plaintiffs case is that the defendant and her husband had seen the house made inquiries about the title and there was a clear talk that the house had been mortgaged twice and the total debt of the mortgagee outstanding was Rs. 7676.00 and according to the plaintiff he had stated that out of the consideration mortgage debts had to be first settled and thereafter a sale deed could be executed in her favour. The plaintiff further stated that the second condition was also agreed upon between the parties that the defendant was bound to advance Rs. 5000 out of consideration to the plaintiff to enable the plaintiff to purchase a plot of land and the plaintiff stated that actually on 7-9-70 as a result of the negotiations between the parties he entered into a Satakhat with one Raghavji Tribhovan for the purchase of a plot for Rs. 4828.00 and paid earnest amount of Rs. 750.00. The plaintiffs further case is that the defendant later on changed her mind after the Satakhat was executed because she had no cash for payment of consideration and she wanted to get out of the contract dated 26-2-70. The plaintiff further stated that on the instigation and guidance of her father the defendant gave a notice on 14-10-70 and thereby committed a breach of Satakhat; that the said notice was premature because time limit of 90 days was getting over on 26 The notice was replied to by the plaintiff on 23-10-70; that the defendant on the advice of her father filed a false criminal complaint under sec. 420 read with 34 of the I. P. C. in the Judicial Magistrates Court at Rajkot. The plaintiff alleged that the particulars of the complaint were got published in Jai Hind and Nutan Saurashtra of 10-11-70 and thus the prestige of the plaintiff suffered heavily among the members of staff in the Bank and his friends and relatives in the community. The plaintiff gave details of the damages suffered by him for false complaint which came to Rs.22000 out of total Rs. 22188. 67 p. which he actually suffered.
(2.) The defendant-respondent resisted the suit by her written statement Ex. 12 and submitted that the plaintiff never told her at the time of Satakhat that the house was under mortgage or that the suit was pending. She stated that there was no condition at the time of Satakhat that she was to advance Rs. 5000.00 to the plaintiff before actual sale to enable him purchase a plot of land. The defendant further denied the allegation of the plaintiff that she had made breach of the Satakhat by demanding performance from the plaintiff by issuing a notice dt. 4-10-70. It was the contention of the defendant that in reply to that notice the plaintiff wrongfully refused to execute the sale deed characterising that notice as premature. The defendant stated that by the fact that she issued notice calling upon the plaintiff to perform his part under the Satakhat she indicated her readiness to perform her part of the contract. The case of the defendant further is that the complaint filed by her against the plaintiff and Jagjivan Parekh was not false. She stated that at the time of Satakhat the plaintiff never informed her that the house was under two mortgagees and that suit were pending in Courts against him for realisation of the mortgage dues. The defendant denied that she had filed false complaint at the instigation of her father and that she caused the particulars printed in the newspapers in order to receive back Rs.2000.00. She stated that she came to know of the mortgages by the plaintiff only when she received a reply to her notice. The defendant admitted that in the criminal case the plaintiff and the broker were discharged but averred that she had not filed that complaint maliciously and that the plaintiff had suffered no damages thereby or by the publication of the report in the newspapers. ... ... ... ... ...
(3.) In view of the aforesaid oral and documentary evidence on record we find that the version of the plaintiff that he had told the defendant regarding the existence of mortgages and suits pertaining to them at the time of the suit agreement is obviously a false story and the clear recitals in the agreement of sale point to the contray. It appears to us that only for the first time in his reply to the defendants notice the plaintiff pointed out about the relevant mortgagee burden on the suit house and about the suits pending in the Court. Under these circumstances if the defendant felt cheated she would be justified in initiating criminal proceedings against the plaintiff and it could not be said under the circumstances that her act to approach the Criminal Court was malicious in any manner whatever. Having bona fide believed that she was duped and she was made to part with Rs. 2000.00 if she approached the Criminal Court for redress of her grievances there was nothing malicious in the same. Criminal proceeding may result in the discharge of the accused as conviction depends upon exact proof and evidence led by the prosecution at the trial but that will not affect the bona fide nature of the proceedings taken out by the complainant. Merely because criminal proceedings result. in acquittal or discharge of the accused it will not establish malice on the part of the complainant. In order to bring home the charge of malicious prosecution and to sustain a suit for damages it was required to be established by the plaintiff that the prosecution was launched with an oblique motive only with a view to harass the accused and it would then be a malicious act. If it was established that the defendant honestly believed that she was justified in launching prosecution the allegation of malice against her would evaporate in air and the plaintiff would not be entitled to a decree for damages in tort on the ground of malicious prosecution. In the present case we have found as a fact well established on the record that the plaintiff did not inform the defendant regarding the pendency of mortgage suits and the existence of mortgage dues on the suit house at the time when the suit agreement was entered into and subsequently this fact was brought to her notice. She would naturally feel aggrieved and under the circumstances if she filed a criminal complaint it could not be said that there was any malice inherent in her approach to the Criminal Court for the redress of her felt grievances. Mere discharge of the plaintiff by the criminal Court was not sufficient to bring home the allegations of malice to the defendant. In the present case we find that the plaintiff has failed to lead cogent evidence to show that there was any malice on the part of the defendant when she filed criminal complaint against him. It is not possible for us to accept the submission of Mr. Shah that the plaintiff had informed the defendant at the relevant time about the existence of mortgage on the suit property and the pendency of the mortgage suits and therefore the conclusion is inevitable that the defendant rightly believed to have been duped when she came to know for the first time by reading the plaintiffs reply that the property which was to be sold to her was burdened with two mortgages and there was mortgage litigation pending in the Court pertaining the suit property. Mr. Shah has alternatively submitted that even if pendency of the mortgage proceedings and the existence of the mortgage burden was not brought home to the defendant at the time of the suit Banakhat it could not be said that the plaintiff was bound to disclose these facts as he would lose his prospective purchaser. That the defendant should have been careful on the principle of buyer beware and she should have cared to inspect the register maintained by the office for registration of documents. She could have immediately detected existing mortgages on the house in question as they were effected by registered documents. This may be a good defence in criminal Court against the plaintiff and may effectively answer the charge against the plaintiff under sec. 420 I.P.C. But so far as the present proceedings are concerned the question for decision is whether the plaintiff has brought home his case against the defendant that she was actuated by malice when she filed the criminal complaint against the plaintiff and for deciding that question the principle of buyer beware cannot be pressed in service by the plaintiff. The plaintiff has to establish by clear evidence that the defendant acted with an ulterior motive and that there was no reasonable and probable cause for her to file criminal proceedings against him. Then only the prosecution can be said to be malicious. Subsequent discharge or acquittal of the accused in criminal proceedings is not at all per se sufficient to establish the plea of malicious prosecution otherwise all acquitted accused say even in murder cases can get substantial amounts by way of damages only on account of such acquittal in criminal cases proof beyond reasonable doubt being the yardstick. that certainly is not the test for deciding the plea of malicious prosecution as a tortious liability in a civil action. On evidence it has been found by the trial Court that there was no malice against the plaintiff when the defendant filed the complaint and she had bona fide believed that she was duped by the plaintiff when she was made to part with the amount of Rs. 2000.00 at the time of the suit agreement. On a consideration of the entire evidence on the record we are also inclined to take the same view. It is established by the defendant that she was not actuated by any malice against the plaintiff when she filed the criminal complaint. Hence the suit for damages on the basis of malicious proceedings must necessarily fail. Mr. Shah brought to our notice a decision in Girjaprasad Sharma v. Umashankar Pathak A.I.R. 1973 M.P. 79. The said decision is of no assistance to Mr. Shah. It has been pointed out by the learned Judges of the Madhya Pradesh High Court that in order to substantiate a plea of malicious prosecution it should be found out whether knowingly false allegations are made and whether want of reasonable and probable cause is clearly established. In the present case we have found that the defendant had not knowingly made any false allegations against the plaintiff. She filed a criminal complaint because she bona fide believed that she was duped by the plaintiff when the plaintiff did not inform her about the mortgage dues on the suit house and the pendency of mortgage proceedings. The defendant and her father have clearly stated on oath before the Court that the plaintiff clearly stated that the title to the Suit house was clear and there was no mortgage debt outstanding. thus positive misleading statement was made by the plaintiff which naturally misled the defendant and her father and they were prompted to part with Rs. 2000.00 by way of earnest money to the plaintiff when the suit agreement was entered into. Nothing has been pointed out by Mr. Shah to disbelieve this clear version of the defendant and her father. Once it is established that the plaintiff had made such a positive misrepresentation and a misleading statement to the defendant and her father in pursuance of which the suit agreement was entered into and the defendant parted with Rs. 2000.00 to the plaintiff it is apparent that any subsequent information regarding mortgages over the suit property would naturally create a reasonable impression on the mind of the defendant that she was cheated and labouring under this bona fide impression if she approached the criminal Court and filed a complaint against the plaintiff it cannot be said to be an act permeated by malice. Subsequent discharge is not at all relevant for deciding the question of malicious prosecution in a civil action and consequently the ratio of aforesaid Madhya Pradesh High Court judgment will be of no assistance to Mr. Shah. Under the circumstances we see no reason to depart from the findings arrived at by the learned trial Judge and to take a contrary view to the one adopted by the trial Court. We uphold the findings of she learned trial Judge on this material aspect and we hold that the plaintiff has not established his case regarding the defendant filing a false complaint against him in any way actuated by malice and consequently the plaintiff would not be entitled to any damages from the defendant. It may be that the plaintiff may have felt offended and may have felt that his reputation was affected but that will be of no consequence. We therefore uphold the finding of the learned trial Judge on issues Nos. 3 4 and 5 and we hold that the plaintiff failed to establish his case regarding his malicious prosecution by the defendant.;

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