VENTHURLA BUDAN SAB Vs. BALLARAPU VENNURAMMA AND OTHERS
LAWS(APH)-1969-7-20
HIGH COURT OF ANDHRA PRADESH
Decided on July 16,1969

Venthurla Budan Sab Appellant
VERSUS
Ballarapu Vennuramma And Others Respondents


Referred Judgements :-

ABRATH V. NORTH EASTERN RAILWAY COMPANY [REFERRED TO]
BROWN V. HAWKES [REFERRED TO]


JUDGEMENT

CHINNAPPA REDDY,J. - (1.)The plaintiff in O.S. No. 187/1964 on the file of the Court of the District Munsiff, Cuddapah is the appellant in this Second Appeal. He filed a suit for damages for malicious prosecution against the two respondents. His case is briefly as follows:-
There were some disputes between the respondents and one Chinnabbi, the plaintiff "™s brother-in-law. In that connection there was a rioting on 5-3-1963. The 2nd defendant took his wife, the 1st defendant to the police station at Pendlimarri and got her to make a report against Chinnabbi and his partisans. The Plaintiff was not implicated in that report. Chinnabbi and his men were arrested by the police in consequence of the complaints of the 1st defendant. The plaintiff off red bail and got them released. The defendants were enraged by the help rendered by the plaintiff to his brother-in-law and his men Later when the police "˜referred "™ the 1st defendant "™s complaint as false she filed a private complaint before the Judicial Second Class Magistrate Cuddapah on 25-4-1963 in which he implicated the plaintiff as one of the accused alleging. That it was on the active instigation of the plaintiff that the other accused beat her. The case ended in an acquittal. Thereafter the plaintiff filed the suit out of which this second Appeal arise for damages for malicious prosecution claiming a sum of Rs. 450/-. Both the defendants contes "™ed the suit. They once again asserted that it was at Ike instigation of the plaintiff that Chinnabbi and his men committed rioting and caused injuries to the 1st defendant. The plaintiff examined himself and stated that when Chinnabbi and his men were arrested by the police he went to the police station and got them released by offering bail. He also stated that the 1st defendant threatened him when he offered bail. He filed Ex.A-1, a copy of the report given by the 1st defendant to the Station House Officer, Ex. A-3, certified copy of the complaint made by the 1st defendant to the Judicial Second Class Magistrate, Cuddapah, Ex. A-4, a certified copy of the judgement of the Judicial Second Class Magistrate acquitting the plaintiff and Ex. A-5, the original of Ex. A-3. Neither the name of the plaintiff nor the act of instigation was mentioned in Es. A-1.

(2.)The plaintiff examined P.Ws. 2 and 3 to support his case. On the side of the defendants three witnesses were examined. The 1st defendant, the author of the complaint and the injured, did not go into the witness box. Her husband, the 2nd defendant was examined as D.W. 1. He stated that on a certain day he was beaten by Chinnbbi and others being egged on to do so by the plaintiff. When the 1st defendant came running and tried to intervene the plaintiff abased her and asked the others to beat her where upon he was beaten badly. He stated that they went to the police Station and his wife gave a report to the Sub-Inspector. His wife told the Sub-Inspector that it was at the instigation of the plaintiff that she was beaten. The Sub Inspector said that he did not want the entire story, but only wanted to the know the names of the persons who actually beat her. D.Ws. 2 and 3 also gave evidence stating that the plaintiff instigated Chinnabbi and his men to beat the defendants. In his evidence D.W 1. did not mention tho me of either D.W. 2 or D.W. 3 as an eye witness. In cross-examination he also admitted that D.W. 2 was not examined in the Criminal Court also nan eye witness. The learned District Munsiff who tried the suit decree the same and awarded damages of Rs. 450/- made up of Rs. 200/- paid by the plaintiff as fees to his counsel in the Criminal case, Rs. 50/- spent by him towards incidental expenses and Rs. 200/- towards mental suffering. On appeal by the defendants the learned Subordinate Judge, Cuddapah reversed the judgement of the learned Munsiff and dismissed the suit. The learned Subordinate Judge was of the opinion that in order to prove malice and want of reasonable and probable cause it was incumbent on the plaintiff to examine the Sub-Inspector of Police. The non-examination of the Sub-Inspector was, according to the learned Subordinate Judge, fatal to the plaintiff "™s case. The learned Subordinate judge also observed that the non-examination of the 1st defendant was immaterial as it was for the plaintiff to establish malice and want of reasonable and probable cause. These facts, according to the learned Subordinate Judge, disclosed that the offence complained of by the 1st defendant was true and therefore there was no malice and no want of reasonable and probable cause.
(3.)Sri Kondapi, learned counsel for the plaintiff challenges the conclusion of the learned Subordinate Judge on several grounds to which I shall refer later. At this a stage it will be useful to refer, in so far as they are relevant, generally to the questions and principles involved in an action for damages for malicious prosecution. It is now well settled that in a action for damages for malicious prosecution the plaintiff has to prove, and the onus is on him to prove, that he was prosecuted by the defendant, that the proceeding terminated in his favour, that the prosecution was instituted with out any reasonable and probable cause and that it was actuated by malicious intention. But, it is necessary for the plaintiff to prove that was innocent of the charges upon which he was tried though if the defendant pleads that his complaint was true and leads evidence to substantiate the plea, the question of guilt of innocence may have to be decided. Again as proof of absence of reasonable cause is proof of a negative fact, in general, the plaintiff need give only slight evidence of such absence and the onus may stand discharged. Innocence itself is sufficient proof of absence of reasonable and probable cause. But when facts forming the basis of the complaint are professed to be within the knowledge of the defendant the question of innocence may determine the question of want of reasonable and probable cause too. The observations of Bowen L.I., in Abrath v. North Eastern Railway Company, (1882) 2 Q.B.D. 440 , have now become classic and may be quoted :
"œSomething has been said about innocence being proof, prima facie, of want of reasonable and probable cause. I do think it is When mere innocence wears that aspect, it is because the fact of innocence involves with it other circumstances which show that there was the want of reasonable and probable clause; as, for example, when the prosecution must know whether the story which he is telling against the man whom he is prosecuting is false or true. In such a case, if the accused is innocent, it follows that the prosecutor must be telling a falsehood, and there must be want of reasonable and probable cause. Or if the circumstances proved are such that the prosecutor must know whether the accused is guilty or innocent if he exercises reasonable care it is only an identical proposition to infer that if the accused is innocent there must have been a want of reasonable and probable care Except in cases of that kind, it is never true that mere innocence is proof of want of reasonable and probable cause it must be innocence accompanied by such circumstance as to raise the presumption that there was a want of reasonable and probable cause "

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