GOLAP JAN Vs. BHOLANATH KHETTRY

JUDGEMENT

(1.) The suit which has given rise to this appeal is described by the plaintiff as one for malicious prosecution or failing that as a suit disclosing injury and damage to him and so entitling him to relief.

(2.) The suit came in the first instance before Pugh J., who gave the parties an opportunity of placing their evidence before the Court, but both sides agreed that it would not be convenient to call evidence until it was determined whether the plaint, supplemented by certain facts as to which the parties were agreed, disclosed a cause of action. To this the learned Judge assented and in the result he has dismissed the suit. From this judgment the present appeal has been preferred.

(3.) So far as the suit purports to be one for malicious prosecution the material facts on which our decision is invited, are briefly these. On the 29th of March 1909, the defendant Bholanath Khettry laid a complaint in the Calcutta Police Court against the plaintiff for criminal breach of trust. The Magistrate under Section 202 of the Criminal Procedure Code referred the matter to the Police for enquiry and finally dismissed the complaint. The question is whether assuming malice and lack of probable cause, there was such a prosecution as is necessary for the maintenance of a suit for malicious prosecution.