Masud, J. - (1.) This is an appeal against the judgment and decree of Datta, J., delivered on 20th April, 1961 whereby he has granted a decree for Rs. 14,685 with interest at the rate of 6 per cent against the appellant in a suit for malicious prosecution.
(2.) The plaintiff-respondent Surendra Nath Shukla was appointed as a Clearing Clerk on a salary of Rs. 125 per month by Bharat Airways Ltd., having its registered office at No. 8, Royal Exchange Place, Calcutta sometime in 1948. In or about 10th January, 1950 the name of the said Bharat Airways Ltd. has been changed to M/s. Bharat Commerce and Industries Ltd. (the appellant), but the registered office of the appellant retained the same address. The respondent, M/s. Birla Bros. Ltd., which was the managing agent of the said Bharat Airways Ltd; continued as managing agent of the appellant after the said change of name. The respondent, Indian Airlines Corporation, a body corporate, constituted under Section .3, Air Corporations Act, 1953 was impleaded, inasmuch as under the said Act it took over, on or about Aug. 10, 1953, Bharat Airways Ltd. as one of the companies expressly mentioned in Section 2 (v) of the Air Corporations Act. The said Surendra Nath Shukla was first posted at the Head Office of Bharat Airways Ltd. at No. 4, Chittaranjan Avenue, Calcutta and was thereafter transferred to its Dum Dum Office in 1949. Bharat Airways Ltd. used to indent and purchase various aeroplane parts and other accessories connected with aeroplanes from foreign countries, At the material Lime, i.e. in 1951 and 1952 the said Surendra Nath Shukla was working in the clearing Department of the office of Bharat Airways Ltd. and his duty was, inter alia, to clear the consignments of the said goods on payment of heights, custom charges, etc. and to deliver the same after such clearance to the Stores Department of Bharat Airways Ltd. In pursuance of the said duty Mr. Shukla used to clear the consignments of Bharat Airways Ltd., with the money advanced to him from time to time by the latter. According to Mr. Shukla, there were occasions when he had to meet the expenses by advancing money himself for the aforesaid purposes subject to future adjustment with Bharat Airways Ltd. On September 24, 1952 Mr. Shukla admitted in writing after adjustment of accounts upto 31st July, 1952 that a sum of Rs. 4,762-14 is payable by him to Bharat Airways Ltd. On 22nd December, 1952 he applied for leave on the ground that he was suffering from cold and fever. On 26th December, 1952 be wrote a letter demanding bis salary for the month of November, 1952 and threatened that he would take recourse to legal proceeding unless his salary was remitted within three days. On the same date, that is, 26th December, 1952 he wrote a letter stating that a sum of Rupees 28,857 was due to him as he paid the same out of his own pocket for clearing goods of Bharat Airways Ltd. On 27th December, 1952 he again applied for leave for a month from 29-12-52 to 29-1-53 and informed the company that he would intimate his address if be would go out for a change. On 31st December, 1952 Bharat Airways Ltd. filed a petition to the Deputy Com. missioner of Police, Detective Department alleging that Mr. Shukla committed offence of criminal breach of trust and cheating in respect of a sum of Rs. 4,881/18/3p. under Section 408 and also under Section 420 of the Indian Penal Code respectively. On the same day the company post-ad a registered letter stating that it could not sanction leave as no medical certificate was sent. The company, however, withdrew the letter from the post office on the same date. On 2nd January, 1953 the company replied to the plaintiff's letter dated 26th December, 1952 denying that any money was due from the company to Mr. Shukla. On the same date the appellant dispensed with the services of Mr. Shukla from the date of his absence, i.e. 22-12-52, on the ground that he has committed breach of trust and cheating in respect of Rs. 4,381/13/3p. On 29th January, 1953 Mr. Shukla made another application for leave and towards the end of February, 1953, according to Mr. Shnkla, he received the said letter of dismissal dated 2-1-53 when he was at Benares. On 26th February, 1953 Shri Shukla appeared before the Calcutta Police Court for obtaining bail. On 28th May, 1953 the Air Corporations Act, 1953 came into force and the undertaking of Bharat Airways Ltd. was taken over by Indian Airlines Corporation. In the Criminal Case. No. G. R. 716 of 1953 (State v. S. N. Shukla) the plaintiff was acquitted of the charge under Section 408 but convicted under Section 420. On 29th March, 1954 a Division Bench of the Calcutta High Court acquitted the plaintiff of the charge against him under Section 420. On 4th May, 1954 the plaintiff wrote to Indian Airlines Corporation to reinstate him in service but he got no response from the said Corporation. On 6th February, 1956 the plaintiff instituted Suit No. 366 of 1957 (Surendra Nath Shukla v. Indian Airlines Corporation and Anr.) in this Court challenging the order of dismissal. On 14th May, 1956 he filed the present suit for malicious prosecution. On 23rd March, 1961 Mr. Shukla's First suit for wrongful dismissal was dismissed with costs by Datta, J. but on 20th April, 1961 the same learned Judge, in the present suit for malicious prosecution, granted a decree for Rs. 14,685 against the present appellant, Bharat Commerce and Industries Ltd. Mr. Shukla thereafter appealed against the judgment of Datta, J. dated 23rd March, 1961 but the said appeal was dismissed by a Division Bench of this Court on June 1, 1965. The present appeal was filed on 15th February, 1962 against the judgment and decree of Datta, J. dated 20th April, 1961.
(3.) Mr. B. K. Ghosli, learned counsel for the appellant has contended that the decree in favour of Mr. Shukla should be set aside on the following grounds: (a) On the facts and circumstances of the case, there were sufficient materials to hold that the appellant had reasonable and probable cause to lodge a complaint on 31-12-52 against Mr. Shukla under Sections 408 and 420 of the Indian Penal Code. (b) Both on facts and in law the appellant company was not actuated by any matter in lodging the said complaint. (c) Mr. Shukla might have grievance against Bharat Airways Ltd, but had no cause of action against the present appellant and, as such, the suit should not have been decreed against the appellant company.;