DARSAN PANDE Vs. GHAGHU PANDE

JUDGEMENT

(1.) This second appeal arises out of an action for malicious prosecution. The defendant is the appellant before me. He had filed a complaint against the respondents alleging that they had committed offences under various sections of the Indian Penal Code. The respondents were summoned to stand their trial and after a trial lasting for about a year they were acquitted by the criminal Court. The respondents then brought the present action for malicious prosecution. The Courts below have decreed the suit, the learned Munsif allowing Rs. 160 for the expenses incurred in the criminal litigation and Rs. 490 as damages for loss of prestige and physical and mental discomfort. The learned Subordinate Judge who heard the appeal has reduced the amount of damages. Learned Counsel for the appellant has not very seriously raised before me the question of the amount of damages, and learned Counsel for the respondents on whose behalf a cross-objection was filed regarding the amount of damages has not seriously pressed the cross- objection. Therefore, if the decision of the Courts below is right in other respects, it would be unnecessary to consider the question of the amount allowed as damages by the Court of Appeal below.

(2.) There is no dispute in this case that a criminal proceeding was instituted against the respondents on the complaint of the appellant, nor is there any dispute that the said proceeding terminated in favour of the respondents. These two facts are not in doubt. It may, therefore, be taken as beyond dispute that the respondents have proved (1) that they were prosecuted by the appellant and (2) that the proceedings complained of terminated in favour of the respondents. The points which it is necessary for the plaintiff to substantiste in an action for malicious prosecution are no longer in doubt; they have been decided over and over again.

(3.) It has been laid down in numerous decisions that besides the two points mentioned above the plaintiff must also prove that the prosecution was instituted against him without any reasonable and probable cause, and that it was instituted with a malicious intention, that is, not with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact. It is with regard to these two points that learned Counsel for the appellant has seriously pressed his arguments before me. His contentions so far as I have understood them, are threefold, firstly, he has contended that the Court of Appeal below was wrong in drawing a particular presumption as to the absence of a reasonable and probable cause from the innocence of the respondents as established by the acquittal in the criminal Court, on the basis of a. decision of this Court in Taharat Karim V/s. Abdul Khaliq A.I.R. 1938 Pat. 529; secondly, he has contended that the Court of Appeal below has committed an error of record with regard to the evidence of one of the witnesses for the respondents (P.W. 2), and thirdly, he has contended that the Court of Appeal below has committed an error in law in inferring malice, the kind of malice which is required to sustain an action for malicious prosecution, from mere absence of a reasonable and probable cause, in other words, it is contended that the Court of Appeal below has really come to no finding on the question of malice and it is suggested that this clearly vitistes the decision, of the Court of Appeal below.