GULABCHAND GOPALDAS Vs. CHUNILAL JAGJIVANDAS

JUDGEMENT

(1.) It appears that the learned Judge, in the Court below, in confirming the decree, felt himself, upon the evidence which had been given in the first Court, unable to come to any satisfactory conclusion, the case for the plaintiff, in the present case, being that on the occasion that he was alleged to have committed this criminal trespass in the house in question at Yeola, he was not present there at all.

(2.) The case for the defendant, the alleged malicious prosecutor, is that the plaintiff was there; but as I said above, on the evidence in the Civil proceedings neither the lower appellate nor the first Court could come to any satisfactory conclusion as to the presence or absence of the present plaintiff, the accused.

(3.) That being so, the learned Judge of the lower appellate Court went very carefully indeed into the question as to whether or not he was entitled to treat the judgment of the Magistrate and the evidence given before the Magistrate, as evidence in the case; and it is clear from his judgment, in fact he says so in so many words, that looking at the judgment of the Magistrate as being a record of the facts found, he came to the conclusion that the plaintiff was not present at the time when this alleged offence was committed. We are of opinion that the lower appellate Court was wrong in so treating the judgment of the Magistrate. The main grounds upon which the lower appellate Court relied on the judgment of the Magistrate are that the facts were much more fresh before the Magistrate, that the Magistrate was a dependable officer and that the lower Court had confidence in his judgment.