APPUKUTTAN Vs. MAKKAPPAN

JUDGEMENT

(1.) This second appeal is by the plaintiffs, whose suit for damages for malicious prosecution, though decreed by the Munsiff, has been dismissed on appeal by the District Judge. It is conceded that the prosecution launched by the defendant against the plaintiffs, who are husband and wife, under S.323, 341 and 447 read with S.34, I.P.C., for assaulting the defendant on his land, ended in a discharge. The Munsiff found the defendant had filed the complaint without any reasonable and probable cause and maliciously. The District Judge found that the plaintiffs have not proved malice or want of reasonable and probable cause for the prosecution and therefore reversed the Munsiff. Counsel for the appellant contends that the District Judges finding is based on an erroneous view of onus of proof and pointed out that there is a material distinction in this context between complaints on personal knowledge and complaints laid on information believed. In the former case, but not in the latter, the discharge by the criminal Court raises a presumption that the charge was without reasonable and probable cause.

(2.) In Taharat Karim v. Malik Abdul Khaliq (AIR 1938 Patna 529) the learned Judges observed that the onus of establishing that the defendants had no reasonable and probable cause for the prosecution undoubtedly lay on the plaintiffs and continued:

(3.) The above proposition was challenged before but was followed by S. K. Das, J., in Darsan Pande v. Ghaghu Pande (AIR 1948 Patna 167) and his Lordship cited the observations Of Bowen, L. J. in 1883 (11) QBD 440 in full support thereof. The same view has been taken in Gobind Chandra v. Upendra Padhi (AIR 1960 Orissa 29).