- (1.) THE defendant in O.S.No.579 of 1981 on the file of the District Munsif, Pudukottai is the appellant before me. THE respondent (M.Venkatarama Iyer) filed the suit claiming damages for malicious prosecution. According to the respondent/Plaintiff, the appellant/defendant preferred a false complaint before the Sub Inspector of Police, Karambakudi on 29.1.1979 against the plaintiff and 10 others and the same was registered in Crime No.41 of 1979 for offences under Secs.347, 148, 341, 379, 323, 324 and 307, I.P.C. It is admitted that the plaintiff got anticipatory bail on 3.2.1979. It is also admitted that proceedings under Sec.107, Crl. P.C. was launched against him. Ultimately, a charge sheet was filed on 27.12.1979 dropping major offences referred to in the first Information Report and seeking to prosecute the plaintiff/respondent under Secs. 147, 148, 447, 341 and 323, I.P.C. By judgment dated 1.8.1980, the plaintiff and others were acquitted. According to the plaintiff/respondent, he had been prosecuted only with malice and not for genuine reason. THErefore, the plaintiff/respondent sought to realize the expenses incurred by him as well as damages for loss of reputation. THE plaintiff is said to be a retired teacher and a big farmer.
(2.) THE defendant/appellant filed a written statement contending that his complaint was true and it was filed to vindicate the wrong committed by the plaintiff and others. It is also pointed out that there was some faction in the village on account of a sale transaction. THErefore proceedings under Sec.107, Crl. P.C. were rightly invoked. It was categorically stated that the defendant did not falsely implicate the plaintiff in the criminal proceedings. On the above pleadings the learned District Munsif raised only two issues: 1. Whether the defendant had initiated the criminal proceedings without any reason and without any basis" 2. What is the relief that the plaintiff was entitled to" The trial court decreed the suit and awarded a sum of Rs.1,500 as damages with costs. On appeal, the same was confirmed by the appellate Judge in A.S.No.39 of 1983. In challenging the above judgments, it is argued that both the courts have merely relied on the judgment of the Magistrate in acquitting the accused, for decreeing the suit. It is pointed out that the Magistrate had adverted to the enmity between the parties and therefore drawing inference from the judgment of the Magistrate, the courts below have wrongly come to the conclusion that the plaintiff had been maliciously prosecuted. It transpires that the defendant's brother one Abdul Hameed had entered into a contract with one Kasinathan for the sale of his property. But the defendant's brother did not sell the property to Kasinathan and sold it to certain other third parties. Kasinathan is said to have filed a suit for specific performance. According to the respondent/plaintiff, the defendant had approached him to support his brother in the suit for specific performance. It is the further case of the respondent/plaintiff that he had refused to do so and on that account, he had been falsely implicated in the criminal case. It is in evidence that the agreement of sale was written by the respondent/plaintiff and had been marked as Ex.A-7 in the suit. It is also in evidence that Kasinathan was successful in getting a decree for specific performance in the trial court. We are not however concerned with those proceedings. We are concerned with the complaint lodged by the defendant/appellant before Karambakudi police station registered as Crime No.41 of 1979. The first information report is marked as Ex.A-1 in the suit. A careful perusal of Ex.A-1 shows that at about 3.00 p.m. on 28.1.1979, when the defendant/appellant was harvesting his crops, he was summoned by certain persons including kasinathan and others. He replied by saying that he would come after the harvest. But the persons who had come to summon him proceeded to indulge in unlawful activities. The defendant/ appellant was beaten with sticks aruvals etc. He was threatened and asked to sign certain stamp papers. A sum of Rs.106 kept in his shirt-pocket was stolen. He had swooned in the field itself. Among the persons who had assaulted him, he could recognise at least ten persons, out of whom, the plaintiff Venkatarama Iyer was named as the 5th person. The F.I.R. was given at about 4.00 p.m. on 29.1.1979, i.e., after about 23 hours after the occurrence. The complaint was taken on file and the victim was sent by the Sub-Inspector of Police with a memo to the Government Doctor. The Doctor examined him at about 4.45 p.m. on 29.1.1979 and had noted the injuries. The Doctor has recorded the wound certificate wherein the Doctor stated that the victim defendant was assaulted by 5 unknown persons with hands and kicked by feet. After the completion of the investigation charge sheet was filed on 27.12.1979. In his judgment dated 1.8.1990 marked as Ex.A-4, the Magistrate has chosen to disbelieve the witnesses and also referred to the enmity between the parties and accordingly acquitted the accused under Sec.255(1), Crl. P.C. Before the Magistrate, apart from the Doctor, 5 other persons were examined.
(3.) BEFORE the trial court, the respondent/plaintiff examined himself as P.W.I and the Doctor who gave the wound certificate was examined as P.W.2. P.W.2, the Doctor has only stated that he examined the defendant and he had told him he was beaten by 5 persons with hands and legs. He had given him treatment. Ex.B-6 was marked through him. It is dated 19.1.1979 relating to the treatment given to him. The Doctor has not stated that the defendant had told him that 5 unknown persons had beaten him. The evidence is only that 5 persons had beaten him. Neither in the chief-examination, nor in the cross-examination, any question was asked as to how the Doctor recorded that 5 unknown persons had beaten him. While so, considerable reliance has been placed by the learned counsel for the respondent and the courts below on the fact that the wound certificate contained the words that 5 unknown persons had beaten the defendant. From the above record of the Doctor it is sought to be made out that the mention of the plaintiff's name in the First information Report could not be true. It is further argued that the defendant had apparently attempted to rope in the plaintiff only because of his enmity and only with a view to maliciously prosecute the plaintiff/respondent. I am not convinced by the above arguments for two reasons. First of all, the Doctor, as P.W.2, has not given evidence that the defendant has stated that only unknown persons had beaten him. It is not clear as to how the Doctor has recorded that unknown persons had beaten the victim defendant. Secondly, the First Information Report was given at 4.00 p.m. on 29.1.1979 and in that First Information Report, the name of the plaintiff was clearly mentioned. The Doctor had examined the defendant victim at 4.45 p.m. on 29.1.1979. Apparently after the First Information Report was taken on file, the Sub Inspector had sent the defendant victim to the Doctor. Therefore, it cannot be argued that the F.I.R. was subsequently prepared or manufactured just for the purpose of implicating the plaintiff/respondent. The second aspect of the case relates to the fact that the F.I.R. contains several serious offences including 307 and 379, I.P.C. whereas the charge sheet did not contain those offences. From the above fact, an inference is sought to be made by the courts below that the defendant had some motive in implicating the plaintiff. I am unable to appreciate this argument as well. The victim gives the F.I.R. on the basis of his assessment of the situation. The fact that after investigation, the police could not find materials to support the other charges and therefore prosecuted the plaintiff and others only for certain minor offences cannot lead to the inference that the defendant had falsely implicated the plaintiff. The courts below have based their entire findings on the judgment of the Magistrate in the criminal case. In fact, the appellate Judge observes: "...The judgment of the criminal court would clearly indicate that the plaintiff was innocent and there was no reasonable and probable cause for the prosecution." The above observation of the appellate Judge only shows that the civil court had shirked its responsibility and had proceeded to merely rely on the judgment of the Magistrate. In fact, the Magistrate had acquitted the accused because witnesses had either not supported the prosecution case or the witnesses were not believable. ;