RAM KISHUN PRASAD Vs. RAM NARAIN PRASAD

JUDGEMENT

(1.) This appeal arises out of an action for malicious prosecution. The appellant is the defendant. The two substantial questions which are raised in this appeal are first, whether the defendant prosecuted the plaintiff in a manner giving rise to an action for malicious prosecution, and the second whether the defendant was entitled to have notice under Section 80, Civil P.C. Shortly, the facts are these. I do not propose to state them in detail but merely to give the substance of the story which gave rise to the criminal prosecution.

(2.) It was alleged by the defendant that he placed a certain sum of money in the mail bag which was taken to the branch post office by a messenger, and that although he omitted to make a note in his books at his office of the sending of that money, on inquiry it was found that the money had not arrived. Information was given to the police in which it was stated that he, the defendant, along with one Deo Narayan left his office and went to the branch post office, and there asked the plaintiff whether he had received the money, (the plaintiff, I should have stated, is the postmaster of the branch office) and he stated that he did not receive it and then threatened him that is, the defendant, for having stated that he had received it. On that information inquiries were put on foot and the police eventually prosecuted the plaintiff. It is said in this case by the defendant that he did not institute the prosecution against the plaintiff.

(3.) Two authorities are relied upon by the plaintiff-respondent to establish the fact that he, the defendant, had prosecuted him. One is the case of Gaya Parshad Tewari V/s. Bhagat Singh (1908) 30 All 525 and the other, also a case before the Judicial Committee of the Privy Council, the case of Balbhaddar Singh V/s. Badri Sah, a report of which appears in the A.I.R. 1926 P.C., 46. A passage from the opinion of Lord Dunedin in latter case is relied upon in this connexion and it is to this effect: Of course there is nothing in the point which seems to have been taken in the Courts below, but which was not urged before their Lordships that here de facto the appellants were not prosecuted by the respondent, In any country where, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the word could not be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing.