KASINATH SAHU Vs. JAGAMOHAN NANDI

JUDGEMENT

(1.) THIS appeal is by the defendant against the reversing decree of the learned additional District Judge of Cuttack. The plaintiff sued the defendant for damages of Rs. 2,000/- for malicious prosecution. It was alleged that the plaintiffs wife was the owner of a touring cinema named Pragati Cinema. One Basudeb Das was the manager. In 1956 shows were being given at Banki. During that period Basudeb made purchases of daily necessaries from the defendant who was a grocer at banki. He also made loans of rupees twelve hundred under two different promissory notes of rupees six hundred each from the defendant by pledging some cinema implements. In due course it was planned that the Cinema would shift to Athgarh. At that time Basudeb approached the defendant for release of me cinema implements and promised that payment would be sent from Athgarh. But the defendant did not agree to do so until he was paid off. The plaintiff stepped in and gave a letter to the defendant on 20th of December, 1956, (Ext. C) standing surety for repayment. In spite or such letter of the plaintiff given by the manager to the defendant, the latter did not release the machine parts. The defendant was paid from Athgarh in instalments. The plaintiff called upon the defendant to settle the accounts and release the articles. The defendant, however, did not release the same and claimed more money. With a view to harassing the plaintiff, the defendant started a false prosecution under Section 420 of the Indian Penal Code in the Criminal Court at Banki. There was absolutely no reasonable and probable cause for the prosecution and the case was instituted mala fide out of malice. The plaintiff averred loss of prestige and social status. The criminal case continued for more than two years and ultimately ended in acquittal on 21-3-1961. The plaintiff sued for recovery of damages of rupees one thousand and an equal amount for reimbursing himself in respect of expenses incurred in his defence. The suit was filed on 15-2-1961.

(2.) THE defendant claimed that the criminal case was brought about genuinely and upon legal advice. The plaintiff held out a false assurance to the defendant on the basis whereof the defendant had acted to his prejudice. Thus an offence of cheating had really been committed. The judgment of acquittal was not proper.

(3.) THE learned trial Judge found that there was not much of dispute in regard to the facts. He found that the defendant had taken the advice of a senior advocate at Cuttack and on his advice the criminal case had been instituted. He further found that the plaintiff had failed to prove that the defendant's dues bad been cleared before or by the time the criminal case was brought. He ultimately dismissed the suit. The learned appellate judge drew adverse inference against the defendant from his conduct, from the fact that his suit for realisation of money on the basis of the two promissory notes had failed and placed the burden on the defendant to prove want of reasonable and probable cause on the footing of the decision of this Court in the case of Gobind Chandra Sambarsingh Mohapatra v. Upendra Padhi, AIR 1960 Orissa 29. He concluded against the defendant but decreed the suit only for a sum of Rs. 500/- by way of general damages with proportionate costs. This reversing appellate decree is the subject-matter of the present second appeal.