BOLANDANDA PEMMAYYA Vs. AYARADARA KUSHALAPPA

JUDGEMENT

(1.) The sole question that is submitted for consideration in this appeal is whether the respondent-plaintiff gets a cause of action for a suit to claim damages for malicious prosecution against the appellants who filed a complaint for theft before the Sub-Inspector and the latter took no further action on the ground that it was false.

(2.) The facts as found by the District Judge in R.A. No. 41 of 1960 are that the appellants filed a complaint on 10-12-1959 before the Sub-Inspector of Police at the Police Station at Napaklu alleging that the plaintiff had committed theft of cardomom and fish-traps on 1-12-1959. On receipt of this complaint, the Sub-Inspector of Police recorded the statement of defendant No. 1(who is the son of defendant No. 2), went to the house of the plaintiff where he recorded his statement and took a search of his house. He then made a note on the complaint that it was false and ordered it to be filed. The plaintiff then instituted O.S. 364/1959 in the Court of the Munsiff at Mercara claiming Rs. 500 as damages for false and malicious prosecution. The learned trial Judge dismissed the suit holding that there was no evidence to establish that as a result of the complaint against him, the Police had searched his house or that he had suffered any damage. In the appeal by the plaintiff, the learned District Judge concluded "that the complaint was a false one, that it was made without reasonable and probable cause and it must have been actuated by malice because of the ill-feelings between the parties." In view of this finding, he awarded Rs. 200 as reasonable damages to the plaintiff 'taking into account the status of the parties, the existence of ill-feelings between them and the defendants' own conduct in the case'. Mr. G.P. Shivaprakash the learned advocate appearing for the appellant has submitted that the plaintiff had no cause of action for his suit for malicious prosecution as the mere institution of a complaint before the police does not amount to prosecution for an offence. He further submitted that in order to entitle an aggrieved party to sue for malicious prosecution he must show that some person or authority clothed with judicial power was moved for action and that as a result of that action, which has been found to be false and suspicious, the plaintiff had proved to have suffered some damage. In support of this argument, he has relied upon the following passage from the judgment of the Judicial Committee of the Privy Council in Mohammed Amin v. Jogendra Kumar AIR 1947 P C108:

(3.) In Dattatraya Pandurang v Hari Keshav AIR 1949 Bom 100, the defendant lodged a first information to the Police of a theft in their shop expressing their suspicions against the plaintiff who was their employee in the shop. The police investigated into that offence, arrested the accused and finally discharged him as no evidence was forthcoming to show that the employee-plaintiff had committed the alleged theft. After his discharge the plaintiff instituted the suit for damages for malicious prosecution. It was held that the facts did not warrant a finding that there was a prosecution of the plaintiff by the defendant. In arriving at this decision the Court referred to the following passage from an earlier judgment of that Court in Dhanjishaw Rattanji v. Bombay Municipality, AIR 1945 Bom. 320: