PEDDA VENKATAPATHI Vs. GANAGUNTA BALAPPA

JUDGEMENT

(1.) The 1 plaintiff appeals against the dismissal of his suit filed for damages for malicious prosecution against the 1 defendant, now respondent, and two others. The case arose out of a disturbance which took place on the 12 September, 1922, at Malayavantham village, Dharmavaram Taluk, Anantapur Distinct. Consequent upon that disturbance the 1 defendant filed a complaint, Ex. V, before the Police on the 13 September. The purport of that complaint was that the village Madigas were holding a festival on that evening and that in consequence of certain conduct of the complainant's which had caused annoyance to them they came in a body to his house and made trouble there. The 1 plaintiff is himself the son-in-law of the 1 defendant and, it was alleged, identified himself with the action of the Madigas and while the disturbance was proceeding fired a shot with a revolver which injured one Venkataramappa, examined in the present case as D.W. 3. Accordingly the 1 plaintiff was made the 1 accused and other persons to the number of 17 were also included. The Police took up the case and presented a charge sheet, alleging that acts of rioting and an attempt to murder were committed in the course of the occurrence, and the case was tried by the Deputy Magistrate of Gooty. That officer discharged a number of the accused but framed a charge against the 1 plaintiff and one other of the accused. By way of defence the former then set up an alibi which he sought to establish by examining a number of witnesses. The version which these witnesses supported was that on the day of the occurrence the 1 plaintiff left the village at about the middle of the day to go to Dharmavaram, visited the Taluk Office, where he did some business in his capacity as Village Munsif, and then went on to the railway station where he met his brother who came from Anantapur by the mail train and himself proceeded to Anantapur by the opposite mail train, leaving Dharmavaram at about 2-30 A.M. He had some legal business in Anantapur and accordingly went as early as 5 A.M. to the house of his pleader Mr. Adimurthi Rao. The learned Deputy Magistrate accepted this evidence and acquitted the plaintiff, whereupon this suit for damages was filed.

(2.) There has been some discussion in this case as to what lies on the plaintiff to prove and what use can be made of the judgment of the Criminal Court. The Privy Council have in Balbhaddar Singh V/s. Badri Sah (1926) 51 M.L.J. 42 (P.C.) now made it clear what are the several elements which in a case of this description have to be satisfied. Besides the fact of the prosecution and of its termination in favour of the plaintiff it has to be shown that the prosecution was instituted against him without any reasonable and probable cause and that it was due to a malicious intention. This pronouncement has been somewhat curiously construed in the judgment of a single Judge of the Allahabad High Court which has been drawn to our attention, Mohammad Daud Khan V/s. Jia Lal (1929) 116 I.C. 852. The learned Judge would appear to think that some presumption arises from the mere fact that the plaintiff has been acquitted by the Criminal Court in cases where there is no scope for surmise and where evidence was given by the defendant of what he actually saw. I think that this case goes a good deal further than the usually accepted position, which is not affected by the Privy Council judgment, that it lies upon the Civil Court itself to undertake an entirely independent enquiry before satisfying itself of the absence of reasonable and probable cause. Indeed I am unable to agree that our Evidence Act justifies an examination of the judgment of the Criminal Court in order to ascertain the grounds upon which the acquittal proceeded and the views taken by the trying Magistrate of the evidence. Under Section 43 of the Evidence Act it appears to me that that judgment can be used only to establish the fact that an acquittal has taken place as a fact in issue in the civil suit. I know of no provision of the Act which will justify the Civil Court in taking into consideration the grounds upon which that acquittal was based, and upon this point I am in agreement with Gulabchand Gopaldas V/s. Chunilal Jagjivandas and Shubrati V/s. Shams-ud-din (1928) I.L.R. 50 All. 713 in the view that there is no such provision. The clear and straight issue in the present case, which must be decided before we can find absence of reasonable and probable cause, is whether the respondent was deliberately making a complaint which was in substance false when he alleged that the appellant took part in the disturbance and fired the shot which injured D.W. 3; and the appellant must establish the falsity of this complaint by disproving it before he can be entitled to damages.

(3.) The learned District Judge has analysed the evidence which repeated in the Civil Court the prosecution evidence given at the criminal trial and in paragraph 17 of his judgment has come to the conclusion, which I think is supported by the facts of the case, that the only points of difference in the stories of the two sides are (1) as to the immediate cause of the quarrel, (2) whether or not the plaintiff's followers advanced to the house of Talari Thimmappa to fire, and (3) whether the 1 plaintiff was present or absent; and in paragraph 20 he has canvassed upon the same evidence the probabilities in favour of or against the 1 plaintiff's presence. As to that he points out that in the absence of leading it is improbable that the Madigas would have been bold enough to attack the villagers of the opposite faction. Then there is the incontestable circumstance that a shot was fired which wounded D.W. 3 and the natural question arises, if the 1 plaintiff did not fire it, who did? It was apparently fired in a crowded street of a village and it is most improbable that the actual author of the shot should not have been known to a considerable number of people. But we find that neither in the criminal case nor in the evidence in the Court below was any attempt made to show or suggest that it could have originated from any other source than the 1 plaintiff. Thirdly, the learned District Judge draws attention to the fact that the 1 plaintiff absconded immediately after the occurrence and did not give himself up till some considerable time later, when proclamations had been issued for his arrest. This conduct on the part not of an ignorant villager but of a man in the position of a Village Munsif is necessarily highly significant.