PITABAS DAS Vs. FAKIR CHANDRA DAS AND ORS.

JUDGEMENT

(1.) TWO Plaintiffs filed the suit claiming damages for malicious prosecution against Defendants 1 and 2 in a sum of Rs. 2100/ -.

(2.) THE Defendants contended that they had probable and reasonable cause to launch the prosecution and it was not malicious.

(3.) MR . M.M. Das, the learned Counsel for the Appellant contends that the lower appellate court erred in finding that the first Defendant had reasonable and probable cause to launch the prosecution. He relies mainly upon the fact which, according to him, was proved that on the day of occurrence, the first Plaintiff was absent at Bhadrak on duty, where he was a Railway fitter. If the presence of the first Plaintiff at Bhadrak on the day of occurrence is accepted, certainly it is a case where the prosecution is launched without reasonable and probable cause. In support of his presence at Bhadrak the Plaintiff mainly relied upon Ext.1, the muster -roll in which he was marked present on the day of occurrence, that is, on 16 -1 -50. This document was produced into Court by P.W. 1 who spoke that a muster -roll was kept by the authorities at the Bhadrak Station of Class IV servants and that in that muster -roll the first Plaintiff was marked present on that day. The person who marked the muster -roll was one Messiah who was not examined by the plffs. but P.W. 1 spoke to the fact that it was marked by Messiah. The learned Counsel contends that this document shows beyond possibility of doubt the presence of the first Plaintiff at Bhadrak on the of occurrence. But unfortunately he did not take care to see that this document is tendered properly into, evidence by examining the person who actually marked the attendance. In the absence of the person who marked him present and without his evidence the evidence of P.W. 1 cannot go to show that the first Plaintiff was actually present on the day of occurrence at Bhadrak. The learned Counsel contends that Ext. 1 is a public document under Section 74 of the Evidence Act and therefore the entry must be taken by itself. I cannot accept his contention, that a muster -roll maintained at a railway station is a public document contemplated by Section 74 of the Evidence Act. The only other evidence which the Plaintiffs tendered with regard to Plaintiff No. 1's presence at Bhadrak is his own evidence which was not accepted by the appellate court. The learned Counsel contends that the evidence of P.W. 6 and 7 goes to show that the first Plaintiff was not present at the scene of occurrence, but that evidence was rejected by both the Courts below, The appellate court has accepted the evidence of Defendants witnesses as to the presence of the Plaintiffs at the scene of occurrence and the trial court observed that there was nothing against the evidence of the Defendants' witnesses who spoke to the presence of the Plaintiffs. The Plaintiffs ought to have examined some persons from Bhadrak to the effect that on that day Plaintiff No. 1 was present at the Railway Station.