LAWS(APH)-1967-8-12

KAMBHAMPATI VENKATA SATYANARAYANA Vs. KAMBHAMPATI PEDA SUBBARAO

Decided On August 10, 1967
KAMBHAMPATI VENKATA SATYANARAYANA Appellant
V/S
KAMBHAMPATI PEDA SUBBARAO Respondents

JUDGEMENT

(1.) Our learned brother Chandrasekhara Sastry, J., has referred this second appeal to a Bench for the determination of two questions involved therein viz., (1) whether a proceeding under Sec. 107, Cr. P. C., can be held to be a prosecution for the purpose of maintaining a suit for damages for malicious prosecution and (2) whether the findings regarding the malice and want of reasonable and probable cause are findings reasonable and probable cause are findings of fact whether they are findings which can be canvassed in second appeal. These questions arise from a suit instituted by the first plaintiff, kambhampati Peda Subbarao and plaintiffs Nos. 2 and 3, his sons, the 4th plaintiff who is the father-in-law of the 1st plaintiffs first son by name Krishna Murthy, the 5th plaintiff who is the father-in-law of the 2nd plaintiff and the 6th plaintiff who is the son-in-law of the 1st plaintiff against the brother of the 1st plaintiff, Kambhampati Venkata Satyanarayana alleging inter alia that the defendant and his two brothers, Gopalarao and Venkataratnam conspired to eliminate this first plaintiff from his business and because the 1st plaintiff took necessary steps to prevent them from taking possession of the business, the 1st defendant and his brothers harbored malice against the 1st plaintiff and his sons. On the night of 17-9-57, at about 10.30 P. M., when the 1st plaintiffs son, Krishna Murty went to his shop, which was dealing in goods obtained on an agency from Charminar Cigarette Factory, there was an altercation during the course of which Krishna Murty, Venkataratnam and Gopalarao are alleged to have received injuries. All the three of them were taken to the hospital for treatment. The next day, a police constable informed the 1st plaintiff that his son, Krishna Murty was taken to police station in unconscious condition and from there to the General Hospital, Vijayawada, for treatment, and that Krishna Murty ran away from the hospital in the early hours on 18-9-57. On the inquiry of the 1st plaintiff, however, he got information that at about 4 P. M. on 18-9-57, the police reported that Krishna Murty fell into a canal. From the inquiry, the 1st plaintiff suspected some foul play on Krishna Murty at the hands of the 1st defendants brothers. He, therefore, sent a wire Ext. A-1 dated 18-9-57 to the D. S. P. Krishna, and also to the Inspector General of Police conveying his apprehension and praying for immediate action. Thereafter, he sent a further wire, Ext. A-2 on 21-9-57 in which he disclosed his suspicion against the 1st defendant, his brothers and some others. In view of this, it is alleged that the 1st defendant in order to save himself and his brothers from the responsibility to account for the loss of Krishna Murty, has maliciously conceived the vicious idea of implicating the 1st plaintiff and the other plaintiffs in criminal proceedings, and consequently filed proceedings under Sec. 107, Cr. P. C. in M. C. 105/57 before the Joint Magistrate, Vijayawada, on 25-9-57 making false allegations. A preliminary order under Sec. 112, Cr. P. C. was passed by the Magistrate and notices were issued to the plaintiffs. In spite on the fact that the nine adjournments were given to enable the defendant to produce evidence, he did not do so, even though all the plaintiffs were regularly attending the Court on the relevant dates. Eventually the complaint was dismissed as frivolous. The plaintiffs alleged malice and want of reasonable and probable cause against the defendant for having initiated proceedings against them under Sec. 107, Cr. P. C. and claimed damages for the mental damages for the mental agony and loss of reputation, which they suffered as well as trouble and expense they had incurred, which they valued at Rs. 2000 made up of Rs. 1000 towards compensation for the mental agony and loss of reputation suffered by them and Rs. 1000 towards expenses incurred by them.

(2.) The dependent denied the allegations and stated that the security proceedings were instituted bona fide due to reasonable apprehension about the security of the defendant and his brothers. In the disputes which arose out of partition, the plaintiffs bore grudge against the defendant and his brothers. On the night of 17-9-57 out of spite and with a view to kill them, Krishna Murty, stabbed Venkataratnam and Gopalrao with a big knife when they were in the shop of Charminar Agency. It is stated that the said Krishna Murty was caught red-handed and kept in the police custody in the hospital at Vijayawada. Later on, he absconded to avoid criminal prosecution. Gopalarao and Venkataratnam were treated in the hospital for some time. The defendant further stated that it is not true that Krishna Murty received Stab injuries that it was due to terror and apprehension that the defendant and his brothers believed that their lives were in danger and that the plaintiffs and Krishna Murty conspired against them. To ensure their safety, the defendant and his brothers filed M. C. 105/57 before the Joint Magistrate, Vijayawada, which was terminated as unnecessary because an offence under Sec. 307, I. P. C. was pending investigation against Krishna Murty. The defendant further stated that the security proceedings were not intended to defame the plaintiffs or bring them to disrepute or to cause them wrongful loss or suffering. M. C. No. 105/57 cannot be taken as a criminal prosecution launched against the plaintiffs so as to entitle them to claim damages for malicious prosecution. Besides, it is state, the plaintiffs were not arrested or put to any hardship nor did they spend Rs. 1000 towards expenses and consequently, they are not entitled to damages. It is also pleaded that the suit is barred by limitation, and that a single suit is not maintainable.

(3.) The Munsif framed two issues, viz., (1) whether the defendant instituted the proceedings in M. C. No. 105/57 on the file of the Joint Magistrate, Vijayawada, against the plaintiffs without reasonable and probable case, and whether he was actuated by malice in doing so, and (2) to what damages, if any, are the plaintiffs entitled? He held that not only was the prosecution actuated by malice but also it was without reasonable and probable cause and awarded Rs. 1000 as damages for mental suffering and loss of reputation, Rs. 500 for legal fees and Rs. 100 towards incidental expenses. An appeal preferred against this judgment before the Subordinate Judge, Vijayawada, was dismissed.