LAWS(KER)-1964-9-27

KURIAKOSE Vs. KURIYAN

Decided On September 28, 1964
KURIAKOSE Appellant
V/S
KURIYAN Respondents

JUDGEMENT

(1.) The second appeal arises out of a suit for damages for malicious prosecution, the defendants, husband and wife, being the appellants. The Trial Court decreed the suit granting Rs. 250/- as general damages, Rs. 100/- as advocate's fee paid by the plaintiff in the criminal case and Rs. 39/- for other expenses he had to meet in connection with the same. Thus a decree for Rs. 389/- was granted by the Trial Court and that was confirmed in appeal by the lower appellate court.

(2.) In second appeal the appellants' counsel has pressed only two points: (1) that the 2nd defendant should not have been made liable in damages, because she was not a "prosecutor" and (2) that the quantum of damages awarded is high, especially the special damages of Rs. 100/- paid as advocate's fee, because there was no evidence regarding that.

(3.) The counsel of the appellants has cited Badduri Chandra Reddy v. Pammi Rami Reddy (AIR 1955 Andhra 218) & has argued that the 2nd defendant the wife, did nothing but merely pass on to her husband, the 1st defendant, the information she got from her four or five year old child about the theft of pepper from their house by the plaintiff and others in their absence. He has also contended that since the complaint in the case was given only by the 1st defendant, the 2nd defendant is not a "prosecutor". I do not think that the Andhra decision cited has gone so far as laying down that no one other than the formal complainant should be treated as the prosecutor. In fact, there are several decisions including decisions of the Privy Council laying down that the whole conduct of the party should be taken into consideration and the question as to who is the prosecutor must be determined as a question of fact in each case taking into consideration all the circumstances. To give an illustration, if a person who harbours malice against another makes his servant file a complaint against that another and actively helps in the prosecution keeping behind scenes all the while, can it be said that the prosecutor is the servant and not the master I think the answer must obviously be that the master is the real prosecutor and that he is the person who is liable in damages. I do not propose to multiply illustrations like this. I shall only mention two or three decisions over and above the decision of the Andhra High Court already referred to. These decisions, among themselves, have considered several decisions including decisions of the Privy Council. The decisions are: Venkatappayya v. Ramakristnamma ( AIR 1932 Mad. 53 ); Issardas Kishinchand v. Assudomal Remandas (AIR 1940 Sind 90); and Nishabhkumar v. K. C. Sharma (AIR 1961 Madh. Pra. 329). I do not find any substance in this contention.