DATTATRAYA PANDURANG DATAR Vs. HARI KESHAV GOKHALE

JUDGEMENT

(1.) This is a suit filed by the plaintiff against the defendants to recover Rs. 7,300 as and by way of damages for malicious prosecution. The plaintiff was employed by the defendants on or about June 6,1945, at their jewellery shop as a part-time employee attending the shop only in the mornings. That was a temporary employment presumably on probation and the employment was confirmed on or about June 13, 1945, It appears that on or about June 16, 1945, some gold ornaments which had been entrusted by the customers to the defendants were missing and the plaintiff was amongst other employees questioned by the proprietor of the defendants, one Gharpure. Gharpure attended the shop and inquired of the plaintiff as well as the other employees what they knew about the theft of the ornaments and the plaintiff protested his innocence in the matter of the charge. On the night of June 16, 1945, one Anant Sakharam Joshi, a clerk of the defendants, gave the first information to the police and stated therein that all the other employees of the defendants were old and trustworthy but that the plaintiff was a recent employee of the defendants and that by certain actions of his which were observed in the shop the suspicion fell on the plaintiff that he might be the criminal. That fact was freely and frankly stated by Joshi in the first information which he gave to the police on the night of June 16, 1945. This was a cognizable offence and the police entered into investigation of the offence under Chapter V of the Bombay City Police Act. The police-officer in accordance with the provisions of Section 60 of the Act appears to have had reason to suspect the commission of the offence and proceeded to carry on the investigation in the matter of the offence. He was not entitled to keep the plaintiff in custody for more than 24 hours and therefore on June 18, 1945, he made an application to the Presidency Magistrate, 8 Court, Girgaum, for a remand of the plaintiff in custody, which remand was granted up to July 2,1945. The same story was repeated on July 2 and 9, 1945, the ultimate order for remand being up to July 16, 1945. Even up to July 16, 1945, the police were not in a position to do anything against the plaintiff, there being no evidence forthcoming to show that he had committed the offence, and therefore on July 16, 1945, the police made an application for discharge and cancellation of the bail bond of the plaintiff before the same Magistrate, which was granted. The bail bond was cancelled and the plaintiff was discharged. This is what happened in the matter of this first information given by Joshi, the clerk of the defendants, and the investigation by the police in the matter of the offence alleged to have been committed by the plaintiff.

(2.) These are the circumstances which have been alleged by the plaintiff as giving him a cause of action for malicious prosecution against the defendants, and it is on these circumstances that the plaint has been based. After recounting in paragraphs 3, 4, 5, 6 and 7 the facts with regard to the conduct of the defendants in the matter of this charge the plainiff proceeds to say that as a result of the charge made by the defendants against him and his consequent detention in jail, he lost his service with the Phoenix Mills, Ltd., Bombay, and also lost the benefit of the provident fund to which he was contributing. He says: As a result of the said wrongful and malicious action of the defendants he suffered very greatly in body, mind and his reputation in addition to the loss of his employment and the benefit of the provident fund. He states his cause of action in paragraph 10 of the plaint: The plaintiff states that the complaint made by the defendants to the said police authorities -against the plaintiff in connection with the said patli besides being false in its particulars as regards the articles actually missing from the said shop was actuated by malice and entirely baseless without any cause whatever much less a reasonable and probable cause. He further proceeds to state: The plaintiff further states that as a result of the application for remand made by the said police authorities to the said Presidency Magistrate, the said learned Magistrate took cognizance of the offence alleged against the plaintiff as aforestated and that the said learned Magistrate later on discharged the plaintiff in the circumstances hereinabove described.

(3.) I may at this stage observe that besides the narration of the circumstances which I have already narrated above, there is nothing averred in the plaint by way of any conduct on the part of the defendants or any of their employees which instigated or induced the police to do anything by way of taking proceedings against the plaintiff, the only thing averred in the plaint being that Gharpure had stated that the matter would be reported to the police and that the action of the defendants in the matter of the first information which they gave to the police was wrongful and malicious. There was no other complaint made by the defendants before the police besides the first information which was given by Joshi, the clerk of the defendants, on the night of June 16, 1945. So far as the plaint goes, there was nothing further done by the defendants besides giving that first information to the police and there end, so far as the plaint is concerned, all the circumstances which are alleged by the plaintiff against the defendants.