VENTHURLA BUDAN SAB Vs. BALLARAPU VENNURAMMA AND OTHERS

JUDGEMENT

(1.) The plaintiff in O.S. No. 187/1964 on the file of the Court of the District Munsiff, Cuddapah is the appellant in this Second Appeal. He filed a suit for damages for malicious prosecution against the two respondents. His case is briefly as follows:-

(2.) The plaintiff examined P.Ws. 2 and 3 to support his case. On the side of the defendants three witnesses were examined. The 1st defendant, the author of the complaint and the injured, did not go into the witness box. Her husband, the 2nd defendant was examined as D.W. 1. He stated that on a certain day he was beaten by Chinnbbi and others being egged on to do so by the plaintiff. When the 1st defendant came running and tried to intervene the plaintiff abased her and asked the others to beat her where upon he was beaten badly. He stated that they went to the police Station and his wife gave a report to the Sub-Inspector. His wife told the Sub-Inspector that it was at the instigation of the plaintiff that she was beaten. The Sub Inspector said that he did not want the entire story, but only wanted to the know the names of the persons who actually beat her. D.Ws. 2 and 3 also gave evidence stating that the plaintiff instigated Chinnabbi and his men to beat the defendants. In his evidence D.W 1. did not mention tho me of either D.W. 2 or D.W. 3 as an eye witness. In cross-examination he also admitted that D.W. 2 was not examined in the Criminal Court also nan eye witness. The learned District Munsiff who tried the suit decree the same and awarded damages of Rs. 450/- made up of Rs. 200/- paid by the plaintiff as fees to his counsel in the Criminal case, Rs. 50/- spent by him towards incidental expenses and Rs. 200/- towards mental suffering. On appeal by the defendants the learned Subordinate Judge, Cuddapah reversed the judgement of the learned Munsiff and dismissed the suit. The learned Subordinate Judge was of the opinion that in order to prove malice and want of reasonable and probable cause it was incumbent on the plaintiff to examine the Sub-Inspector of Police. The non-examination of the Sub-Inspector was, according to the learned Subordinate Judge, fatal to the plaintiff "™s case. The learned Subordinate judge also observed that the non-examination of the 1st defendant was immaterial as it was for the plaintiff to establish malice and want of reasonable and probable cause. These facts, according to the learned Subordinate Judge, disclosed that the offence complained of by the 1st defendant was true and therefore there was no malice and no want of reasonable and probable cause.

(3.) Sri Kondapi, learned counsel for the plaintiff challenges the conclusion of the learned Subordinate Judge on several grounds to which I shall refer later. At this a stage it will be useful to refer, in so far as they are relevant, generally to the questions and principles involved in an action for damages for malicious prosecution. It is now well settled that in a action for damages for malicious prosecution the plaintiff has to prove, and the onus is on him to prove, that he was prosecuted by the defendant, that the proceeding terminated in his favour, that the prosecution was instituted with out any reasonable and probable cause and that it was actuated by malicious intention. But, it is necessary for the plaintiff to prove that was innocent of the charges upon which he was tried though if the defendant pleads that his complaint was true and leads evidence to substantiate the plea, the question of guilt of innocence may have to be decided. Again as proof of absence of reasonable cause is proof of a negative fact, in general, the plaintiff need give only slight evidence of such absence and the onus may stand discharged. Innocence itself is sufficient proof of absence of reasonable and probable cause. But when facts forming the basis of the complaint are professed to be within the knowledge of the defendant the question of innocence may determine the question of want of reasonable and probable cause too. The observations of Bowen L.I., in Abrath v. North Eastern Railway Company, (1882) 2 Q.B.D. 440 , have now become classic and may be quoted :