KHAJE HUSSENUDDIN Vs. KISAN

JUDGEMENT

(1.) JACKSON , A.J.C. 1. This appeal arises from a suit for damages for malicious prosecution which the lower Court has dismissed. The prosecution arose out of a dispute regarding the succession to the property of one Maroti. Maroti had two brothers, Janji, the father of the defendant 1, Kisan, and Sakharam, the husband of defendant 2, Bindi. Both these brothers predeceased him, and after he too died, Kisan claimed his property on the strength of a will made by Maroti in favor of Kisan and Sakharam. Maroti's widow, Lakshmi alias Gangu Bai, resisted Kisan's claim, and a contest took place for possession of the cotton crop obtained from Maroti's fields after his death. Kisan and Bindi made reports to the patel and to the police, that one Khair Muhammad, Lakshmi's agent, and certein other Mahomedans, had broken the look put upon Marot Dhaba by Kisan, had taken out the cotton there from and carried it away and had assaulted Kisan and Bindi in doing so. No action was taken by the police, and on 11th January 1924 Kisan lodged a complaint in the Court of the Sub-Divisional Magistrate, Jalgaon. Five of those against whom Kisan complained, including the plaintiff-appellant, were eventually charged with an offence punishable Under Section 147, but in the end they were acquitted on 23rd December 1924. On 1st December 1925 the plaintiff-appellant Hussenuddin instituted his suit for damages.

(2.) THE lower Court has found that Kisan alone was responsible for instituting the criminal proceedings against Hussenuddin but that though Hussenuddin was acquitted in those proceedings, he has failed to prove that Kisan acted maliciously or without reasonable and probable cause. It is argued on behalf of the appellant that the complaint was false to the knowledge of the defendants and that is sufficient to show both malice and want of reasonable and probable cause. I agree that if a deliberately false complaint is proved to have been made, no further proof of malice and want of reasonable and probable cause would be required. No authority, I think, is necessary for that proposition; but it does not follow that because the accused in the criminal case were acquitted and because the complainant must, if the complaint was false, know that it was false, he must be held to have deliberately made a false complaint. It is true, as has been contended on behalf of the appellant on the authority of the Privy Council decision in Balbhaddar Singh v. Budri Sah A.I.R. 1926 P.C. 46, that the plaintiff in a suit for damages for malicious prosecution need not prove that he was innocent of the charge made against him; but their Lordships do not indicate that it can ever be sufficient, in a suit for damages for malicious prosecution, to prove the mere fact of acquittal. The plaintiff can establish the other facts necessary to entitle him to damages without proving his innocence; but if he relies on the falsity of the complaint to establish those other facts he must, in fact, prove his innocence by proving the complaint to be false; and he cannot do this, as has been held in Gobardhan Singh v. Ram Badan Singh A.I.R. 1922 All. 209 by simply putting in the judgment of the criminal Court which acquitted him.

(3.) I agree with the lower Court that Husseinuddin has failed to establish that Kisan brought his complaint maliciously and without reasonable and probable cause, and that his suit therefore had to be dismissed. In view of this finding I need not consider the question whether Bindi, who was not a party to the complaint, could be held to have joined with Kisan in instituting the criminal proceedings. The appeal is dismissed with costs.