THOMAS JACOB Vs. CHERIAN

JUDGEMENT

(1.) This second appeal is against the decree passed in appeal dismissing a suit for malicious prosecution, reversing the decree of the first court. On the 20th August, 1950, the respondent presented a petition, Ext. P 1, before the Circle Inspector of Police, Chengannur to take suitable action for his protection and for preventing breach of the peace, against four named counter petitioners, the 4th being the appellant and the first two being the appellant's maternal uncles. The respondent also gave an oral statement Ext. P 2, on the same day to the Inspector of Police. The latter after investigation, reported a case to the Magistrate having jurisdiction by Ext. P 3, for taking action against the counter petitioners under S.107 of the Criminal Procedure Code. A number of witnesses were to be called for the prosecution. On the 18th July, 1955, the respondent and the 1st three counter petitioners jointly filed a petition Ext. P 6, stating that they had settled their differences, and that there was no more an apprehension of breach of the peace and requesting that the case may be dropped. On the same day, the appellant filed a petition Ext. P 11. protesting his innocence and praying that order may be passed removing him from the party array. As seen from Ext. P 5, the order of discharge dated the 8th August, 1955, the respondent had also made a sworn statement before the Magistrate, that he apprehended no further trouble from the counter petitioners; accordingly, all of them were discharged. The suit for damages for malicious prosecution was commenced on the 8th December, 1955, and the appellant alone was examined in support of his case.

(2.) The points that require to be proved in a suit of this kind are well known and need not be enumerated. For the decision of this case, it is only necessary to consider, whether the appellant has established two of them, that is, that the respondent launched the prosecution without reasonable and probable cause and that he acted maliciously. I agree with the Subordinate Judge in holding that the appellant has not done so. It is true, that the prior disputes were between the respondent and counter petitioners 1 and 2 or their predecessors, and that there was no evidence of any long standing dispute between the appellant and the respondent. According to the appellant, he was implicated just to see that he did not assist the other counter petitioners in the conduct of their defence before the Magistrate. How this could be achieved by merely implicating him, I fail to see; I should have thought that by implicating him, the counter petitioners could all pool their resources to fight a common enemy. This theory of the appellant is not convincing.

(3.) It is not correct to think, as was urged, that Exts. P 1 to P 3 did not impute any specific act to the appellant. He was implicated as having belaboured the respondent's brother, as having caused hurt to one of the witnesses in a criminal case launched by the brother, and as having, on the night of 19th August, 1950, after conspiring with the others in the house of the 3rd counter petitioner, forced open the gateway of the respondent's house, committed house trespass, and intimidated the respondent. The appellant was also charged, with going about armed as if in preparation to attack him, and with intimidating him. During the pendency of the proceedings before the Magistrate, there were further complaints against the appellant by others, who might have been called to support the prosecution had the proceedings continued, upon which the Magistrate ordered the appellant and others by Ext. P 10 dated the 24th October, 1950, to execute an interim bond to keep the peace. At the trial, the respondent, Dw. 1, testified to his case and in particular to the incident of the 19th August. As against these, the appellant relied only on his own testimony. It was not enough for the appellant to point out, that prior enmity between the appellant and respondent has not been proved, or that such prior enmity could have existed, if at all, only between the respondent and the other counter petitioners. As the Privy Council has observed in Balbhaddar Singh v. Badri Sah AIR 1926 PC 46 , the question is not even whether the appellant committed the acts complained of or whether the respondent invented the acts or the offences imputed to the appellant, but the question is, whether the appellant has proved, that the respondent "invented and instigated the whole proceedings for prosecution". In this, the appellant has not succeeded.