SURENDRA NATH SAHU Vs. BIDHU BHUSAN PANJA

JUDGEMENT

(1.) This appeal which is at the instance of a defendant arises out of a suit for malicious prosecution. The facts shortly stated are as follows: One Nagendrabala instituted a suit against Sailajakanta, brother of the appellant Surendra, on a mortgage in which the defence taken was that the bond had been paid off and a receipt granted. The receipt was found to be a forgery, but at the appellate stage it was discovered that a document on which the plaintiff herself had relied had also been fabricated. This was a certified copy of a judgment in another suit in which two lines of type-writing had been introduced by way of addition to what the original judgment had contained. These additional lines were found to have been forged. Sailajakanta, the defendant in the mortgage suit, moved the appellate Court to make a criminal complaint against Nagendrabala and one Bidhu Panja who subsequently became the plaintiff in the suit for malicious prosecution, and who is respondent in the present appeal. That application was refused. Then the present appellant Surendra, the defendant in the suit for malicious prosecution, filed a formal complaint in a Magistrate's Court charging several persons including respondent, Bidhu Panja with offences arising out of the act of falsifying the copy of the judgment which had been produced in Nagendrabala's suit. The persons accused were summoned but discharged. Against that order, Surendra moved the District Magistrate who caused Bidhu Panja to be committed for trial to the Sessions Court. Bidhu was tried on a charge of forgery under Section 466, Indian Penal Code, but was acquitted by a jury whose verdict was unanimous. Bidhu Panja then filed the present suit and obtained a decree which was affirmed on appeal. The case for the defendant-appellant in the Courts below was that he had been informed by two persons, Kirtibash and Man-matha, that the forgery had been perpetrated by Bidhu Panjd, Kirtibash was the brother and Manmatha, the nephew of one Chuni who had acted as tadbirkar for Nagendrabala and who, it appears, actually filed the forged document in Court.

(2.) The Courts below have correctly stated the questions which arose for determination as being: (1) Whether criminal proceedings terminated in the plaintiff's favour; (2) whe ther the defendant acted on reasonable and probable cause; and (3) whether he acted maliciously. Both the Courts have decided these questions in the plaintiff's favour. Mr. Sen on behalf of the appellant has taken two points. Firstly he has contended that the Courts below have erred in virtually placing upon the defendant the onus of showing reasonable and probable cause. Mr. Sen urges that it was for the plaintiff to show absence of rea. sonable and probable cause and that he has failed to discharge this burden. In the second place, Mr. Sen has argued that the lower appellate Court erred inasmuch as it decided the case against the defendant on the finding that he had acted maliciously, whereas it should first have considered whether he acted without reasonable and probable cause. It would. be convenient to take the second point first. It cannot be disputed that in an action for malicious prosecution, the question of malice does not arise until a stage has been reached subsequent to that in which it has been determined that there was no reasonable and probable cause for the prosecution. As regards this point, it is sufficient to say that a reading of the judgment of the appellate Court as a whole shows that all the three questions were found against the defen-dant. The appellate Court did, in fact, make a passing reference to the question of malice before entering upon a discussion of reasonable and probable cause, but it was only after it had decided the latter question that the Court really took up the question of malice, and this question has been gone into very thoroughly only in the concluding portion of the judgment of the appellate Court.

(3.) As regards the first point urged by Mr. Sen, his contention really was that the Courts below have approached the question of reasonable and probable cause from a wrong angle, because they have discussed at length the failure of the defendant to establish reasonable and probable cause without first considering whether the plaintiff had succeeded in showing that there was no reasonable and probable cause for the defendant to launch the prosecution. In support of this argument, Mr. Sen has drawn attention to the fact that the lower appellate Court has attached great importance to the failure of the defence to examine Kirtibash and Manmatha, the persons who, according to the defendant, informed him, that Bidhu Panja had committed the forgery. These two persons were examined as witnesses for the prosecution in the criminal trial. They, along with the appellant, were defendants in the suit for malicious prosecution, but as against them the case was eventually withdrawn. Mr. Sen has relied upon a number of decisions which arose out of actions for malicious prosecution, and these may bo briefly noted.