K GOPALAKRISHNA KUDVA Vs. BANGLE NARAYANA KAMTHY

JUDGEMENT

(1.) The plaintiff s suit which was brought to recover Rs. 3,500 as damages for malicious prosecution was dismissed in the court of the Subordinate Judge of South Kanara and the plaintiff appeals. The plaintiff was the managing trustee of Shri Venkataramana temple of Mulki and the defendant complained to the Sub-Divisional Magistrate of Mangalore that the plaintiff had, as trustee, committed offences of criminal misappropriation and criminal breach of trust in respect of the temple properties. At the trial, the plaintiff was discharged under Section 253 of the Criminal Procedure Code by the Magistrate on July 15th, 1912.

(2.) For the purpose of this case we may leave out of consideration those allegations of the defendant which merely imputed breach of the rules framed under the award of arbitrators for the management of the temple, and we may at once proceed to those charges in which an element of criminal dishonesty was disclosed by the prosecutor s allegations. In the defendant s complaint, which was prepared by counsel, he specified eight acts of the plaintiff as constituting offences of the above description under the Penal Code. Of these the most substantial were (1) that the accused had constructed a golden palanquin and had misappropriated about 4 seers of gold of the value of Rs. 2,000 by charging the temple with the value of 30 seers of gold while utilising only 26 seers, (2) that the accused had debited the temple with Rs. 400 worth of fire-works for use at festivals although the amount really spent was only Rs. 200 and that he his misappropriated the deference, (8) that Rs. 4,843 had been paid into court about six months previously, but had not been brought into the temple amounts and that the accused was using the same for his own purposes, and (4) that the accused had misappropriated 50 muras of rice and Rs. 10 collected as offerings to the temple. In his sworn statement to the Magistrate, the defendant further alleged that if the temple cash chest was examined, it would be found that there was a deficiency in the money on hand when compared with the amount stated in the accounts.

(3.) The first charge, namely that of misappropriating Rs. 2,000 worth of gold is a very serious, one and in our opinion was quite unwarranted by the information of which the defendant was at the time possessed or by what has since transpired. When the defendant was in the witness-box and was asked upon what basis he made this allegation, his only explanation was that many people were saying that the plaintiff undertook the work of repairing the palanquin with a view to commit misappropriation and that he also believed that the plaintiff was going to misappropriate the gold. He admitted that he had not personally examined the goldsmith who made the palanquin before he complained to the Magistrate. The only information that he had was that which Vasudeva Sanbhogue and Hari Pal gave him. These persons have not been examined as witnesses, and it is clear from the defendant s own statement that he had no information that could justify him in making the statement that the accused had misappropriated this large amount of gold. The Magistrate s judgment shows that this charge was dropped at the trial as the prosecution found it to be groundless.