ALEXANDER BRAULT Vs. INDRAKRISHNA KAUL

JUDGEMENT

(1.) The plaintiff claims damages for malicious prosecution. He is a French subject, aged 76, and for 44 years has carried on business in Calcutta and is of unblemished reputation. Inter alia, he is sole agent for the sale in British India of certain petrol lamps known as "Tito Landi" which he imports from Paris and of which he has sold more than 30,000. By a letter, dated 14 October 1929 the defendant, who is engineer to the Jharia Water Board, ordered one such Lampe de Grand Luxe, Art Bronze, as illustrated in plaintiff's catalogue and priced at Rs. 42, to be sent V.P.P., and this was sent the following day. On 30 October the defendant wrote, complaining that the petrol container of the lamp leaked, owing to a minute hole in the body of the container, where the metal was too thin and asking that another lamp should be sent in its place. The plaintiff asked that the lamp should be sent to him for inspection, and, on 5 November, the defendant sent back the lamp having first marked with chalk the place where the alleged hole was situate and described the spot as being "directly the under the knob of the extinguisher." He also sent a rough sketch, which showed the spot, at a point in the ornamental lines on the upper part of the body of the container. This lamp has been produced in Court by the plaintiff. The leak has been repaired and it coincides exactly with the spot indicated by the defendant in his letter. On 11 November, the plaintiff sent a second lamp to replace the first. In December the defendant ordered certain accessories for the lamp. On 2 March, 1930, nearly four months after the receipt of the second lamp, he wrote, saying that this one also leaked and that by closely examining the container, it appears that the bronze metal had been Patched up neatly in the place where it has started leaking again. The lamp is lit only for a few hours and I have been filling and lighting up personally, so that the defect is entirely due to the supply of a patched up container and asking for a new lamp. The second lamp has been produced in Court by the defendant. The spot indicated by him, where he alleges that the old leak had been patched up, is in a different place altogether from the spot shown in his sketch, being situated near the bottom of the body of the container. No one, who examined the container closely, as he alleges that he did, and who exercised any reasonable care in such examination could possibly have been under the impression that the two spots were the same and I do not believe the defendant when he alleges that he was under this impression. By his letter dated 5 March plaintiff refused, and, in my opinion, reasonably, to replace the lamp, in view of the lapse of time. On 30 April the defendant's pleader, one Gouriram, wrote saying that the plaintiff had sent the second lamp purporting to be a new one" whereas it was the first lamp "patched up and revarnished," that his client had paid for "a first class new lamp" whereas the one sent was "not new and serviceable," and that his client had been cheated, and threatened to take legal proceedings both civil and criminal.

(2.) The plaintiff replied in a courteous letter dated 5 May. Pour months later, on 9th September 1930, the defendant instituted criminal proceedings against the plaintiff at Dhanbad whereby he was charged with cheating under Secs.417 and 420, I.P.C. Process was served upon the plaintiff at his office in Calcutta. The trial took place upon 19 and 30th January and 6 and 17 February 1931 when the Magistrate dismissed the complaint and acquitted the plaintiff. The plaintiff incurred expenses in defending himself to the extent of Rs. 2,000 and, in my opinion, these were reasonably incurred. His books have been disclosed in confirmation of these payments. The defence is a denial that the defendant acted falsely or maliciously or without reasonable or probable cause, and a plea to the jurisdiction. The following issues were raised: 1. Jurisdiction. 2. Seasonable or probable cause. 3. Malice. 4. Damages. So far as the facts are concerned, this is, in my opinion, an undefended case. I can find neither excuse nor palliation of the outrageous course adopted by the defendant. In the witness box, he persisted in the charge that the second lamp sent was the first one patched up, though he had to admit that the alleged patch in the second lamp was nowhere near the spot indicated in his letter as the place where the first lamp had leaked. In fact far from expressing contrition for his offences, he aggravated them and recklessly charged the plaintiff with fabricating evidence by faking the lamp which he produced in Court with a repair spot in order to deceive the Court. That there was no ground for so serious an accusation is proved sufficiently by the defendant's own sketch, and his counsel wisely refrained from making any such suggestion in cross-examination. With regard to the criminal charge, all that he could say was that he was under the impression that he had been cheated and was so advised by his pleader. Before instituting proceedings, he made no inquiry about the plaintiff's position or reputation in the business world, but he had previous dealings with him and believed him to be honest. In fact, the plaintiff has nothing to do with the sale of the lamps or with correspondence which is attended to entirely by the witness Mrs. Percy on the plaintiff's behalf. The defendant admitted that, if he had got his money back, he would have been quite satisfied and would have dropped the proceedings. Although he thought he had been cheated, he waited four months before instituting criminal proceedings, his explanation being that he waited until his work made it convenient, and then excused the delay by stating to the Magistrate that correspondence was going on, though all correspondence had ceased in May. He says that he carefully considered his position before he took proceedings.

(3.) I am satisfied, upon the evidence, that the defendant never had any honest impression or belief that he had been cheated or that the plaintiff had cheated him, that he acted as he did simply out of spite and vexation, because he could not get his own way about the supply of a third lamp, and that he instituted the criminal proceedings solely for the purpose of bringing pressure to bear upon the plaintiff and without taking either reasonable or any care to inform himself about the true facts. In so acting, I am of opinion that the defendant was actuated by malice and that he had no reasonable or probable cause for instituting the proceedings. Further, I hold that the Court has jurisdiction to try this case. Leave was given under Clause 12 of the Letters Patent, and the cause of action arose partly within jurisdiction. In Read v. Brown (1888) 22 QBD 128 Lord Esher agreed with the definition of cause of action" given in Cooke V/s. Gill (1873) 8 CP 107 namely: Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.