Decided on August 11,1967

Sekharan Nair Appellant


- (1.) This appeal is by the plaintiffs whose suit for damages for malicious prosecution succeeded in the Court of first instance but failed in the lower appellate Court.
(2.) The plaintiffs were prosecuted by the defendant under S.447, 426, 341 and 323 I. P. C. on the averment that at 10 a.m. on 29.5.1959 the 1st plaintiff was found making a foot-path through his land and when he protested, the plaintiffs attacked him 1st plaintiff assaulting him and plaintiffs 2 and 3 catching hold of his waist. The parties are close relations, plaintiffs 2 and 3 being daughters of the defendants maternal aunt and the 1st plaintiff being 2nd plaintiff's son. Plaintiffs 2 and 3 and the defendant are almost of the same age (near 60). The judgment in the criminal case is proved in the case as Ext. A-1. It reads thus: "P.Ws.2 and 3... have deposed that they have actually seen the incident. They were working in their fields adjoining 'Arugunilam' (the scene of occurrence) at the time of occurrence. No doubt P.Ws.2 and 3 are independent witnesses and nothing substantial have been brought out against him by the defence. The accused...denied the offence and cited two witnesses in support of their version.... D.W.2....has stated that his buffaloes were given for ploughing the adjoining land belonging to Ittiyal Unnirnaya Amma on the day of the alleged occurrence and....that he was in the field.. watching the buffaloes and that the incident took place in the field on 29.5.1959. D.W.1 has stated that though he could not say whether the incident actually took place or not and that if any such incident had taken place he would have heard about it...... On a dispassionate consideration of the evidence adduced by the prosecution and the defence, I find that there is not much difference with regard to the quality and quantity of the evidence. Two witnesses have deposed in favour of the prosecution and two have deposed against it. There is not much difference in the status of the witnesses also. In the result therefore, I find that the prosecution has not proved its case beyond reasonable doubt against the accused. Accordingly I give the benefit of doubt to the accused, hold them not guilty of the offences under S.447, 426, 341 and 323 IPC and I acquit them under S.245(1) Crl. P.C."
(3.) It is well settled that in an action on malicious prosecution the plaintiff has to prove (1) that the prosecution was without reasonable and probable cause, (ii) that the prosecution was actuated by malice in the sense of an improper motive other than vindication of justice (iii) that it ended in his favour, and (iv) that he has suffered damages by way of mental agony, expenses of defence and / or loss of reputation. (See Braja Sunder Deb v. Bandal Das, AIR 1944 PC 1 and Mohamad Amin v. Jogendra Kumar Banerjee - ( AIR 1947 PC 108 );

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