EKAMBARAM Vs. E SUBRAMANIAN

JUDGEMENT

(1.) THE plaintiff is the appellant. He filed suit in O. S. No. 828 of 1982 before the District Munsif, Kancheepuram against the respondent herein for damages for malicious prosecution. THE case as set out in the plaint was as follows: THE appellate belonged to a respectable family and was working as assessor in the Electricity Board earning a monthly salary of Rs. 900. He also possessed properties worth Rs. 30, 000. By reason of his employment in a Government office the appellant had earned the goodwill of his fellow employees and the general public. He commanded a good reputation. Though the respondent was a close relation of the appellant, with malice the respondent lodged a criminal complaint against the appellate and two others arumuga Mudaliar and Murugesa Mudaliar before the Judicial Magistrate, kancheepuram in C. C. No. 556 of 1981 under sections 341 and 352 of the Indian penal Code. For the case the appellant had to go to the court 10 times. During his trips to the court the enquiry by his fellow employees about this, caused immense shock and mental pain to the appellant. His reputation went down in the estimate of the general public. THE respondent had therefore to pay the appellant a sum of Rs. 1,000 out of which Rs. 400 was to be paid for mental suffering, Rs. 400 for loss of reputation and for litigation expenses Rs. 200. THE respondent had maliciously taken criminal proceedings resulting in such a loss to the appellant. Though the appellant could claim Rs. 12, 500 as damages he was restricting the claim to Rs. 1, 000.

(2.) THE respondent resisted the suit inter alia contending that he had not taken the criminal proceedings with any ulterior motive or with a view to bring down the appellant's reputation. THE appellant was the respondent's brother's son. THE appellant did not take care of his aged father. He did not even give him food and shelter and the respondent was rendering help to the appellant's father and because of this there was some misunderstanding. In January 1981 the respondent had written a letter to Murugesa Mudaliar and arumuga Mudaliar about a woman and because of this the appellant and others were waiting to beat the respondent. On 11. 7. 1981 at 11 o'Clock in the morning, behind the house of Pillaiarkulam Dharmapillai the appellant and two others obstructed the respondent and the appellant pulled respondent's shirt and immobilised him and the appellant beat him and because of that the respondent got hurt in his left wrist. THEreafter, the respondent lodged a complaint with the police. As the police did not take any action, the respondent lodged proceedings before the Second Class Magistrate and the court held that the charges had not been established beyond all reasonable doubt and acquitted the appellant and others. In any event the damages claimed were excessive. THE suit was liable to be dismissed.

(3.) THERE are four elements to be satisfied for successfully maintaining an action for malicious prosecution. They are in the words of Privy Counsel in Balbhaddar Singh and another v. Badri Sah and another, AIR 1926 PC 46. "in action for malicious prosecution the plaintiff has to prove that he was prosecuted by the defendant; that the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating; that the prosecution was instituted against him without any reasonable and probable cause and that it was due to a malicious intention of the defendant and not with a mere intention of carrying the law into effect. " This position of law has been reiterated time and again in all subsequent decisions relating to malicious prosecution. The Privy council in that case has further stated that "the question is not,'did the plaintiff commit the offence'or did defendant invent the offence against plaintiff, the two queries exhausting the possibilities of the situation. The question is: Has plaintiff proved that defendant invented and instigated the whole proceedings for prosecution. "