JAMNADAS SHIVRAM BARI Vs. CHUNILAL HAMBIRMAL MARWADI

JUDGEMENT

(1.) This is a first appeal from the decision of the First Class Subordinate Judge of Nasik who rejected the plaintiffs claim for damages against the defendant for malicious prosecution. It appears that one Victim had obtained Home deforested land from Government on new terms in 1915 In October he sold the crop to the defendant. When the defendant wished to reap the crop, a claim was made on the first occasion by plaintiffs 2 and 4, and two days later the claim was renewed with the addition of plaintiff 1 who purported to have bought the crop from plaintiff 8. The defendant alleged that he had been assaulted by the servants of the plaintiff, and had left the ground under the honest belief that the plaintiffs had no right whatever to reap the crop and had, been guilty of a criminal offence. He thereupon lodged a complaint of theft against the plaintiffs is the first Court the plaintiffs were convicted that on appeal the conviction was reversed.

(2.) The question now arises whether the 1st plaintiff who alone appeals is entitled to a decree for damages. In these cases the first thing is to ascertain the facts; the next step is to ascertain whether on those facts there was a reasonable and probable, cause for instituting the prosecution; and finally whether there is malice. In a trial before a Judge and Jury, the Jury have first to ascertain the facts; then it is a matter for the Judge to decide whether there is a reasonable and probable cause; and then the question of malice will be one for the Jury. The learned trial Judge has rightly laid down what the plaintiffs had to prove in order to succeed. He came to the conclusion that they had not proved that the defendant had no reasonable and probable cause for instituting the prosecution against them; that he came to an honest belief in the guilt of the accused based on a full conviction founded upon reasonable grounds, and there was a state of circumstances existing which, assuming them to be true, would lead any ordinary and cautious person to the conclusion that the person charged was probably guilty of the crime imputed.

(3.) The facts, however, are far from clear from the record. Undoubtedly Vithu had leased the ground from Government, and undoubtedly Kama had raised the crop which was ready to be reaped in October. But in what circumstances Rama had raised the crop is by no means certain. It is alleged that he raised the crop on behalf of Vithu on payment of a specific sum, and therefore, he had no title to reap the crop, and therefore, no title to dispose of the crop in favour of the 1st plaintiff. But this is by no means clear on the evidence. We are perfectly entitled to assume that Kama thought that he had got a good title to the crop and had a right to dispose of it to the 1st plaintiff. Undoubtedly Vithu disposed of the crop to the defendant. But on the day when the defendant was dispossessed the 1st plaintiff produced a receipt for the amount that he paid to Kama. It was therefore a case of a purchaser of a crop finding that there was some ground for thinking that his vendor had Hot played fair with him. The defendant had no particular reason for knowing who had raised the crop until he was confronted with a person who asserted a title to reap the crop. Taking those as the facts in the case, could it be said that the defendant K. 152 had reasonable and probable cause for instituting the prosecution? Had he an honest belief in the guilt of the accused, or rather was not the desire to prosecute the accused one which arose from the disappointment he experienced when he found that he would not be able to reap the fruits of his purchase from Vithu without a contest? And it is a common experience in this country that persons in that position are far too apt to rush off to a Criminal Court as the speediest method of establishing their case. On a due consideration of the evidence, I have come to the conclusion that the facts did not warrant any reasonable and probable cause for instituting the prosecution must mention that placed in the position of a Jury directed by the Judge that there was no reasonable and probable cause for instituting the prosecution, this would be a case in which one might safely infer malice for the purpose of giving the plaintiff a decree. The result must be then that the decree of the lower Court dismissing the plaintiffs claim must be reversed and there must be a decree, in favour of the 1st plaintiff for Rs, 500 damages and costs throughout. Fawcett, J.