RAGHUNATH SAMAL AND ORS. Vs. MULI SAHU

JUDGEMENT

(1.) THIS is an appeal by the Plaintiffs against the appellate judgment of the Subordinate Judge, Keonjhar reversing the judgment of the Munsif, Anandapur decreeing in part the Plaintiffs's suit for damages for malicious prosecution. The case of the plain tiffs shortly stated this; Defendant No. 1 encroached upon a piece of Government waste land in mouza Padmapur and when he started cultivation of the land, the Plaintiffs protested and prevented him from cultivating the waste land. As Defendant No. 1 did not still desist from his action, the Plaintiffs reported against him to the local Sarpanch but Defendant No. 1 did not pay any heed to the latter's advice. Defendant No. 1 therefore bore a grudge against the Plaintiffs and filed a criminal case against them under Sections 143, 426 and 447, Indian Penal Code on the false and baseless allegations that the Plaintiffs formed an unlawful assembly, trespassed on the land in posses Hi on of Defendant No. 1 by damaging his fence and damaged the vegetables and Arhar grown by the Defendant No. 1 on the land. It was alleged that the Defendant No. 1 was actuated by malice in filing this criminal complaint. The criminal case was tried on merits and the Plaintiffs were acquitted. Thereafter, they brought the suit claiming Rs. 700/ - as damages from all the Defendants alleging therein that Defendant No. 1 filed the false case against them on the advice and instigation of Defendants 2 and 3. The Defendants resisted the suit stating that the criminal case filed by Defendant No. 1 against the Plaintiffs was true and not false and much less malicious. It was stated that Defendant No. 1 was in possession of the land and had grown vegetables and arhar thereon after fencing it. The Plaintiffs asked Defendant No. 1 to give his land to them for excavation of a tank, but as he did not agree to do so, they formed an unlawful assembly, uprooted the fence and damaged the vegetables and plants standing on the land. It was denied that Defendants 2 and 3 instigated Defendant No. 1 to file the case.

(2.) THE learned Munsif who tried the suit held that the Plaintiffs failed to establish that Defendants 2 and 3, who no doubt were witnesses for Defendant No. 1 in the criminal case filed by him, had ever instigated him to file the complaint and would not therefore be liable for any damages. On the evidence recorded in the suit, he came to the conclusion that the criminal case filed by Defendant No. 1 against the Plaintiffs on allegations which Defendant No. 1 claimed to have Been himself were false and that in launching the prosecution, Defendant No. 1 was actuated by malice. On the point of damages, he found that the Plaintiffs could not make out a case for the full amount of damages claimed and therefore passed a decree in their favour for Rs. 200/ - to be claimed from Defendant No. 1 alone. On appeal, the learned Subordinate Judge relied on some admissions made by Plaintiff No. 1 in Court which go to show that on the date of occurrence the Plaintiffs protested and prevented Defendant No. 1 from cultivating the land. He therefore, came to the conclusion that there was reasonable and probable cause for Defendant No. 1 to file the case. He also held that the Plaintiffs on whom the onus rested failed to establish malice and want of reasonable and probable cause on the part of Defendant No. 1. In the result, he allowed the appeal and dismissed the suit.

(3.) AS in the present case, the Defendant No. 1 has claimed to have seen the entire occurrence himself and the Plaintiffs were acquitted in the criminal case, the presumption is not only that the Plaintiffs are innocent, but also that there was no reasonable and probable cause for the accusation against them. Even if it is accepted for a moment that the finding of the learned Subordinate Judge that this presumption has been rebutted so far as the charge under Section 143, Indian Penal Code is concerned, yet there is no evidence, much less any finding, that this presumption has been rebutted in respect of the other two charges.