BHASKARA MENON Vs. AYYAPPAN

JUDGEMENT

(1.) Plaintiffs in O.S.150/1983 on the file of Munsiff's Court, Tirur are the appellants. Defendant is the respondent. Appellants instituted the suit seeking a decree for damage alleging malicious prosecution contending that respondent lodged a criminal complaint which was taken cognizance by the Judicial First Class Magistrate, Tirur in C.C.475/1978 for the offence under section 379 of Indian which ended in acquittal under Ext.A1 judgment and that prosecution was baseless and as a result appellants sustained mental agony and it affected reputation of the appellants who belong to a respectable family and therefore they are entitled to damages of Rs. 10,000/- for defamation and mental agony and Rs. 5000/- for expenses. Respondent filed a written statement disputing the allegations in the plaint and contending that he has been in possession of the property and the criminal complaint was filed on true facts and there was no malice and therefore appellants are not entitled to the decree sought for.

(2.) Learned Munsiff on the evidence of first appellant as PW1 and Exts.A1 to A5 and that of respondent as DW1 and a witness as DW2 granted a decree for Rs. 2000/- holding that respondent maliciously prosecuted appellants and is liable for damages. Respondent challenged the decree and judgment before the Sub Court, Tirur in A.S. 21/1988. Learned Sub Judge on reappreciation of evidence found that Ext.A1 judgment could only be looked into for deciding whether the criminal prosecution ended in conviction or acquittal and there is no evidence to prove that prosecution was under malice and appellants are not entitled to the decree for damages granted by the trial court. The suit was dismissed. It was challenged in the Second Appeal.

(3.) The second appeal was admitted formulating the following substantial questions of law.