SITA RAM Vs. BHIM SEN

JUDGEMENT

(1.) This is an. appeal by the defendant from an order of the Additional Subordinate Judge of Aligarh, reversing the decision of the Munsif upon certain questions of fact, and remanding the case for the trial of the remaining issue in the case under Section 562 of the Civil P. C., The suit was brought to recover damages for alleged malicious prosecution. It appears that the defendant Bhim Sen lodged a complaint against the plaintiff, Sita Ram, of an offence under Section 215 of the Indian Penal Code, in the Court of the Magistrate of Bulandshahr, the charge being that the plaintiff stole cattle, and then restored the cattle to the owners on receipt of rewards. The complaint was heard and dismissed on the 21 of December, 1900. Thereupon, on the 21 of January, 1901, the present suit was instituted. In his plaint the plaintiff alleges that there was enmity between him and the defendant arising out of a dispute about a plot of land which was formerly under the cultivation of the father of the defendant, and was then in the possession of the plaintiff and his brothers, and that the false complaint was lodged against him in consequence of this enmity, that the charge was malicious and made without reasonable or probable cause. In his written statement the defendant denied that there was any enmity existing between him and the plaintiff, and he alleges that the charge made against the plaintiff was well- founded. The third paragraph of the written statement of the defendant runs as follows: "The plaintiff is a cattle-thief. He receives a share in stolen cattle. The criminal case was not groundless. On the other hand, it was a bond fide case, and was instituted for public good."

(2.) In the Court of first instance (the Munsif) found that the defendant did not institute the prosecution of the plaintiff, but merely laid an information of certain facts before the District Magistrate, and that the prosecution was therefore not instituted by the defendant. No attempt has been made before us to support this portion of the judgment. It is clearly erroneous. The Munsif also found that there was reasonable and probable cause for the prosecution, if there was a prosecution by the defendant, and that malice had not been proved, and accordingly he dismissed the suit. On appeal the Additional Subordinate Judge reversed the finding of the lower Court, holding upon the evidence that the defendant did prosecute the plaintiff, and that he did so maliciously" and without reasonable or probable cause.

(3.) It has not been contended before us, as we have said, that the finding of the lower appellate Court that the defendant did prosecute the plaintiff is wrong. The appellant's learned pleader confined his argument to two grounds of appeal, namely, that the plaintiff did not prove, as he was bound to do, the want of reasonable and probable cause for the prosecution, and also malice on the part of the defendant. The Additional Subordinate Judge found that "there was no evidence whatever to show that the plaintiff restored to the owners the stolen cattle when they paid for them," that the allegation of the defendant that the stolen cattle had been restored to their owners by the plaintiff in his presence was absolutely false. He finds, in fact, that the charge was false, and that it was false to the knowledge of the defendant inasmuch as he purported to make it of his own personal knowledge, and not from information obtained from others, or from inferences reasonably drawn from matters which were brought under his notice. In the criminal Court the defendant, he says, admitted that he only had heard of the plaintiff's bad reputation, and that the theft of the cattle and their restoration had not taken place before him; while at the trial the defendant swore that the cattle had been restored to two persons in his presence. It is clear from his judgment that the Additional Subordinate Judge found, not merely that the charge brought against the plaintiff was a false charge, but that it was false to the knowledge of the defendant. Under these circumstances he held that there was no reasonable or probable cause for the prosecution, and from the absence of such reasonable and probable cause, he inferred malice on the part of the defendant. In the course of his judgment the Subordinate Judge makes use of some loose and ill-considered language, which has no doubt led to this appeal. For example, he say.?, that the defendant failed to prove that the charge was true. "Want of reasonable and probable cause should therefore be presumed, and malice will also be inferred from the fact that the charge was recklessly made."