BHARGAVA, J. - (1.) THIS appeal is from the judgment and decree of the Senior Civil Judge, Ganganagar, dated 7th March, 1963, and arises out of a suit commenced by the plaintiff for recovery of Rs. 10,500/- as damages for malicious prosecution.
(2.) THE defendant is a retired cashier of Tehsil Hanumangarh and on 25th December, 1958, he made a report to the Deputy Inspector General of Police, Bika-ner, that he had been cheated by the plaintiff. It was alleged in the report that the plaintiff by deceit and false representation on the promise of securing quota of sugar in partnership obtained from him a sum of Rs. 11900. This money was supplied by the defendant to the plaintiff on various dates. THE plaintiff did not obtain the sugar quota in the name of the partnership as promised but obtained it in his own name and that of his son namely Badriprasad Madanlal. THE plaintiff sold some sugar and kept on bluffing the defendant that he would give him his share of profits and return the amount invested but ultimately denied having received any amount from him and that he had any share in that sugar business THE police after investigation submitted a challan under sec. 420 I. P. G. against the plaintiff who on trial was covicted by the trial Magistrate but on appeal to the Sessions Judge he was acquitted. Plaintiff's case is that the prosecution against him was launched by the defendant on account of malice and that he had no reasonable and probable cause for instituting the criminal proceedings. He has claimed a sum of Rs. 10,500 as damages for malicious prosecution. THE defendant's plea is that he had not launched the prosecution without any reasonable and probable cause. THE allegation of malice is also denied and it is stated that the plaintiff has not suffered any damages. The trial court on these pleadings framed the following issues: (1) Whether the defendant had prosecuted the plaintiff by making a report to the police without any reasonable and probable cause? (2) Whether the plaintiff incurred Rs. 5500/- as expenses in the criminal litigation and was entitled to recover it from the defendant? (3) Whether the plaintiff was entitled to recover Rs. 5000/ as damages on account of loss of reputation and mental and physical worry from the defendant? (4) Relief? Both parties gave oral and documentary evidence in proof of the issues, and the learned Senior Civil Judge on a consideration of the evidence came to the finding that the plaintiff was prosecuted by the defendant for a criminal offence and that prosecution finally terminated in favour of the plaintiff, that is to say he was acquitted in appeal by the Sessions Judge. He further found that the prosecution was not launched by the defendant without any reasonable and probable cause. He also did not find that the defendant was actuated by malice in taking criminal proceedings. He found that the plaintiff was entitled on the decision of issue No. 1 in his favour to special damages to the extent of Rs. 2200/- and Rs. 500/- for general damages. But in view of his finding on issue No. 1 against the plaintiff he dismissed the suit The question that the defendant had set the law in motion by making a report to the Deputy Inspector General of Police upon which the plaintiff was challaned has not been disputed in this Court. That the defendant was actively instrumental in setting the law in motion is not open to doubt. He led evidence before the police in support of his allegation and also appeared as a witness before the Magistrate. The fact that the prosecution ended in favour of the plaintiff is also not in dispute and the judgment of the Sessions Judge dated 24th September, 1960, has been produced to prove it. Learned counsel for the appellant has raised the following contentions: (1) that the defendant was actuated by malice in making the report to the police against the plaintiff because at the municipal elections in Hanumangarh, majority of the candidates supported by the plaintiff's party to which the defendant was opposed had succeeded; (2) that there was no basis at all for the defendant to take criminal proceedings against the plaintiff; (3) that even if the defendant had advanced money to the plaintiff for carrying on some partnership business in sugar and the plaintiff had refused to return the money and the share of profits, it could at best create a civil liability and could not constitute any offence. I shall discuss these contentions one by one. The first question is whether defendant had any malice against the plain-tiff at the time he made the report against him to the police. In actions for damages on account of malicious prosecution, the term "malice" is not to be considered in the sense of spite or hatred or 111-will against an individual, but of malus animus and as denoting that the party is actuated by improper and indirect motives. Winfield on Tort says: (Eighth Edition p. 582,583, 584) "judicial attempts to define malice have not been completely successful. Some other motive than a desire to bring to justice a person whom he (the accuser) honestly believes to be guilty seems to overlook the fact that motives are often mixed. "at one time malice was not always kept distinct from lack of reasonable and probable cause, but a cogent reason for separating them is that however, spiteful an accusation may be, the personal feelings of the accuser are really irrelevant to its probable truth. The probability or improbability of X having stolen my purse remains the same however much I may dislike X. And it has long been law that malice and lack of reasonable and probable cause must be separately proved!. Want of reasonable and probable cause may be evidence of malice in cases where it is such that the jury may come to the conculsion that there was no honest belief in the accusation made. If there was such an honest belief, the plaintiff must establish malice by some independent evidence, for malicious motives may co exist with a genuine belief in the guilt of the accused. If want of reasonable and probable cause is not proved by the plaintiff, the defect is not supplied by evidence of malice. "from the most express malice, the want of probable cause cannot be implied. ' "the burdeh of proving malice lies on the plaintiff. The question of malice or no malice is for the jury, not for the judge, and if there is any evidence upon which the jury could find malice, the judge should leave the question to them. " In para 3 of the plaint it was alleged that at the municipal elections in Hanumangarh which were to be held on 23-10-1958, the candidates belonged to two parties. The plaintiff himself was candidate and the defendant was supporting the opposite party while the plaintiff was an active supporter of his own party. In that election majority the candidates supported by the plaintiff's party came out successful, and for this reason the defendant started having enmity with the plaintiff. In support of this allegation plaintiff examined P. W. 2, P. W. 8 and P. W. 9. It has come in evidence that at the municipal elections there were two parties in Hanumangarh, one Jed by Shri Ghanshyamdas and the other by Shri Naraindass, both practising lawyers. Plaintiff belonged to the party of Shri Ghanshyamdas. The defendant himself was not a candidate at the election. He was only a voter. It is the common case of the parties that the plaintiff was opposed by one Vilayatiram. It is also admitted that Vilayatiram was in no way related to the defendant and only lived in that locality like other voters. Neither the plaintiff nor the defendant was the leader of their respective parties and there is no evidence to show that the defendant took any active part in opposing the plaintiff at the elections. No evidence has been given that the defendant actively canvassed against the plaintiff or approached anyone to cast his vote against the appellant. P. W. 2 has stated that he had gone to help the plaintiff at the elections and had stayed at Hanumangarh for two days. However the witness did not know as to who belonged to the party of Shri Ghanshyamdas. He has admitted that before elections, relations between the parties were cordial. He has stated that Naraindas himself was not a candidate at the elections and he did not know who was the candidate of his party. He also did not know which other persons had won the elections. P. W. 8 has stated that the defendant had not contested the election and he did not know to which party he belonged P. W. 9 has stated that he himself was a candidate at the elections and like the plaintiff belonged to the party of Shri Ghanshyamdas He has stated that the defendant had helped Vilayatiram who was opposing the plaintiff at the election. The witness is a lawyer who appeared on behalf of the plaintiff in the criminal case. He has gone to the length of stating that the defendant had admitted to him that the criminal case instituted by him was false. It is difficult to believe the witness on this point that the prosecutor could make an admission to the counsel for the accused that the prosecution was false. As against this, Vilayatiram B. W. 9 has appeared for the defendant and he has stated that though there were two parties one led by Ghanshyamdas and the other by Naraindas, he did not belong to either party He has also stated that the defendant had not helped him at the elections. The defendant has himself denied to have rendered any help to the candidate opposing the plaintiff at the elections On the above evidence, I am not satisfied that there existed any malice between the parties when the defendant had lodged a report to the police against the plaintiff. Learned counsel then pointed out that the defendant in his statement has admitted that he had submitted an application against the plaintiff before the income- tax authorities which shows that he wanted to harm the plaintiff. No doubt the defendant has admitted that he had made an application to the Income tax Commissioner against the plaintiff after he denied his share in the business: but the defendant was not further questioned about the nature of the application. Even the plaintiff does not say in his statement that there was ill will between the parties apart from the reason that they belonged to opposite camps at the municipal elections. Therefore the decision of the case will largely depend upon the question whether prosecution was launched without any reasonable and probable cause. Therefore I proceed to examine this question. On behalf of the respondent it was urged that the fact that the appellant was convicted by the trial Magistrate is itself a prima facie proof that the prosecution was not launched without any reasonable and probable cause. Reliance is placed on Dhanjishaw Battanji vs. Bombay Municipality (1) where Bhagwati J. as he then was, held: "where there has been a successful appeal from a conviction, this would be for the purpose of pleading a sufficient termination of the proceedings in the plaintiff's favour. But the conviction though reversed would afford prima facie evidence of reasonable and probable cause for the prosecution. The conviction though subsequently reversed is however not treated as any evidence of reasonable and probable cause for prosecution in cases where the facts are quite well known to the defendant and the charge is such as must be true or false to the knowledge of the defendant. " The same point was considered by the Calcutta High Court in Niaz Mohammad vs. Alfred Morris (2), and Mukherjee J. as he then was, held: "the fact that the plaintiff in a suit for damages for malicious prosecution had been convicted by the trial court and only acquitted on appeal is ordinarily prima facie evidence to prove the existence of reasonable and probable cause for his prosecution by the defendant. Where, however, the facts alleged by the defendant as prosecutor were professedly within his personal knowledge and the trial court believing him had convicted the plaintiff, such conviction is no evidence of reasonable and probable cause, if the appellate court came to a contrary conclusion. " But in the present case, I do not propose to go into this point and I would, therefore, examine the question whether the prosecution was launched without any reasonable and probable cause independently of the fact of the appellant's conviction by the trial Magistrate. Winfield on Tort (eighth edition) at page 579 says: "there does not appear to be any distinction between 'reasonable' and 'probable'. The conjunction of these adjectives is a heritage from the redundancies in which the old pleaders delighted, and although it has been said that reasonable cause is such as would operate on the mind of a discreet man, while probable cause is such as would operate on the mind of a reasonable man, this does not help us much, for it is difficult to picture a reasonable man who is not discreet. The expression "reasonable and probable cause" was defined by Hawkins J. in Hicks vs. Faulkner (3) as - "an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. " The above definition was approved by the House of Lords in Horniman vs. Smith (4 ). Various other definitions have been attempted and in Glinski vs. Mc. Iver (5) Lord Delvin observed that - "reasonable and probable cause means that there are sufficient grounds for thinking that the accused was probably guilty but not that the prosecutor necessarily believes in the probability of conviction; he is only concerned with the question whether there is a case fit to be tried. Objectively there must be reasonable and probable cause for the prosecution and the prosecutor must not disbelieve in his case even though he relies on legal advice. " In the same cause, Lord Denning observed - "a prosecutor need not be convinced of the guilt of the accused; he need only be satisfied that there is a proper case to go before the court. He must have reasonable and probable cause in fact and not merely think that he has. " In the present case, in the light of the above, it has, therefore, to be seen whether there was no basis for defendant to make a report to the police about the deceit practised upon him by the plaintiff. Plaintiff has denied that he had ever agreed to take the defendant into partnership of sugar business or that he had obtained any money from him. He has, however, admitted that he was a partner in the firm Sheoprasad Bhagwandas, the other partners of which were Pragchand and Mangilal, his brothers, but they were separate from him. He admitted that he had obtained quota of sugar in the name of Badriprasad and Madanlal, that is, himself and his son. He has admitted that the cost of one wagon of sugar was Rs. 20,000 excluding other incidental charges and expenses. He has also admitted that he made no entries in the account books relating to the purchase and sale of this sugar. He says, to meet the cost of sugar, he had withdrawn some money from his account in the bank and the rest he had with him at his house. He also admits that neither during the course of investigation nor at the trial he had produced any accounts relating to this sugar. He also admitted that on 19th Sept. 1958 a cheque for Rs. 3500 in the name of Sheoprasad Bhagwandas was given to him by firm Kailash Chandra Ramjilal. He denied that he had obtained this cheque for the purchase of sugar. He admitted that the sum of Rs 3500 was repaid by his firm Sheoprasad Bhagwandas to Kailashchandra Ramjilal, but he did not remember whether it was done on 7th October, 1958 The importance of this date shall be discussed when I come to discuss the defendant's evidence about the payment of the money to the plaintiff.
(3.) IT way be stated here that the question whether the sum of Rs. 11,900 was paid by the defendant to the plaintiff for the purchase of quota of sugar is also the subject matter of another civil litigation in which the defendant has filed the suit for rendition of accounts against the plaintiff. I am informed that the suit has been decreed by the trial court and the appeal against the said decree is pending in this Court. I, therefore, do not propose to examine the evidence regarding the payment of money, as if the question of payment of money is actually in issue before me. I only wish to examine evidence on this point so as to arrive at the conclusion whether the prosecution was launched without any reasonable and probable cause. Any observations made by me in the course of this judgment on that point should, therefore, not bind the court deciding the civil appeal between the parties. It will thus appear that although the plaintiff has been carrying on business and is also a contractor, yet he did not make any entries in the account-books relating to the sale and purchase of sugar which is in dispute. He says that he had kept some loose cash memos and his accounts in a book as a memorandum but even these accounts were not produced either in the criminal or the civil proceedings. As against this evidence, defendant has stated that in order to pay his half share of capital for the purchase of sugar, he had paid Rs. 11,900 to the plaintiff. He says that he withdrew different amounts from various persons with whom his money was deposited. According to him he withdrew Rs. 2500 on 12th August, 1958, from the firm of Karnidan D. W. 4. Karnidan has produced the entries from his khata and Rokar Ex. A. 1/dw 4, Ex. A. 2/dw4. Then he withdrew Rs. 2500 on 29th August, 1958, from the firm of D. W. 10. D. W. 10 has also supported the statement of the defendant and has also produced the entries from his account books marked Ex. 1/dw. 10 and Ex. 2/d W. 10. On 31st August, 1958, he with-drew Rs. 800 from D. W. 2 and adding Rs. 200 more from his own pocket paid Rs. 1000 to the plaintiff on that date. D. W. 2 has also supported the defendant that the sum of Rs. 800 was paid by him to the defendant on that date out of the money which had been deposited with him. Thus upto the end of August, the defendant's case is that he had paid Rs. 6000 to the plaintiff to purchase sugar. Then he says that he went to Bikaner and told the defendant that in case the wagon of sugar is received and he is required to pay some money, he should obtain Rs. 6,000 from Banthia Brothers, Hanumangarh Juharmal D. W. 6 who is a partner of Banthia Brothers has stated that on 17th September, 1958, defendant came to their shop and told him that he had purchased sugar in the partnership of Badri Prasad and out of Rs. 12gc0 he had already paid Rs. 6000 to him and if Badriprasad comes to ask for Rs. 6000 it should be paid to him from his account and it should be debited to him. The witness has further stated that on 22nd September, 1958, Badri Prasad plaintiff came to their shop and demanded Rs. 6000 but he told him that at that moment he was unable to pay him Rs. 6000 and would pay him on receiving it from his shop at Sangaria. Then Badriprasad did not come to his shop and after 8 or 9 days, defendant again came to his shop and demanded Rs. 5c00 which was paid to him on 7th October, 1958. The witness has also produced the entries from his Khata and Rokar Bahis marked Exs. A1/dw6 and A2/dw6. Again on 19th October, 1958, defendant obtained Rs. 1000 from Banthia Bros and D. W. Jethmal has corroborated his evidence and has also produced entries from his Rokar Bahi, which was in his handwriting Ex A2/dw6, and Khata Ex. A1/dw6 According to the defendant, he paid Rs. 900 more towards the price of sugar. Rameshwarlal D. W. 3 corroborates the defendant's evidence on this point. Rameshwarlal D. W. 3 has also stated that plaintiff had come to the house of the defendant and had told him to pay the balance of money which was due for the price of sugar upon which the defendant paid him Rs 900 and had told him that he had paid the total cost of sugar of his share. The witness has admitted that in those days he was living in the defendant's house as a tenant. The witnesses who have stated to have advanced to the defendant out of the deposits made with them by the defendant have also deposed that at the time of taking money the defendant had told them that the money was required for bring paid to the plaintiff for the purpose of purchasing quota of sugar. Learned counsel for the appellant says that the above statement of the witnesses is not admissible in evidence but under sec. 157 of the Evidence Act, former statements of witnesses can be proved to corroborate later testimony of the same fact. Sec. 157 runs as follows: "in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority competent to investigate the fact, may be proved. " Now in order to corroborate the testimony of the defendant any former statement made by him relating to the same fact at or about the time can be proved. The former statement made to the above witnesses was at the time he withdrew money from them for making payment to the plaintiff. His statement was made about the time when the payment is alleged to have been made to the plaintiff for the purchase of sugar, and. in ray view, the statement of the witnesses is admissible under sec. 157 Evidence Act in corroboration of the subsequent statement of the defendant. Besides the above evidence, there is the statement of D. W. 3, D. W. 4 has also stated that the defendant had told him that he may sell the sugar on commission which he had ordered but the terms of commission were not then settled with the defendant. After a few days the defendant came to him and told him that he should sell half of the sugar which he had obtained in the partnership of Badriprasad on commission. At that time the terms of commission were settled and he sent for 75 to 80 bags of sugar from the house of Badriprasad plaintiff, but the latter refused to deliver the bags. D. W. 5 has deposed that the defendant had made a complaint to him that he had paid Rs. 12000 to the plaintiff for purchasing sugar but the plain-tiff had refused to give his share of sugar to him. Thereafter he went to the house of Shri Ghanshyamdas Vakil and then they both went to the house of the plaintiff and told him about the complaint of the defendant upon which the plaintiff denied to have taken any money from the defendant. He has admitted in cross examination that his uncle's son was married to the sister of the defendant. D. W. 7 has stated that about 10 days before the Diwali in 1958, defendant was sitting at his shop. The plaintiff also happened to come there and the defendant then asked him to sell the sugar which was still lying and his money should be paid to him because he required it upon which the plaintiff told him that he would sell the sugar before Diwali and after this the accounts would be settled. The contention of learned counsel for the appellant is that it is highly improbable that the defendant would pay such large sums of money to the plaintiff without obtaining any receipt from him. It is further argued that besides Rame-shwarlal D. W. 3 who was the tenant of the defendant, there is no other witness to prove that the amount was actually paid by the defendant to the plaintiff. It is true that no agreement in writing about the partnership was made between the parties. It is also true that no receipt was obtained by the defendant from the plaintiff about the payment of money and as to actual payment by the defendant to the plaintiff except Rameshwar Lal there is no other witness. But having regard to allthe evidence which has been discussed above and the fact that plaintiff has suppressed his own accounts it cannot be held that the defendant's allegation of his having advanced money to the plaintiff for the purchase of sugar in partnership and his subsequent denial of the entire transaction was without foundation. The burden of proof, although in a negative form was on the plaintiff to show that the prosecution was launched against him without any reasonable and probable cause and in the face of the evidence which has come on the record, it cannot be said that the report was made by the defendant without any reasonable and probable cause. The evidence undoubtedly shows that sugar was purchased in partnership and that for some time the plaintiff continued bluffing the defendant and ultimately denied the receipt of money as well as his share in the sugar. Defendant' version finds support from the evidence of independent witnesses like D. W. 4, D. W. 10, D. W. 2, D. W. 6 and D. W. 8. ;