Kerala High Court
Y Menon vs Sreenivasan on 26 October, 2010
Author: M.N. Krishnan
Bench: M.N.Krishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 639 of 1995(D)
1. Y MENON
... Petitioner
Vs
1. SREENIVASAN
... Respondent
For Petitioner :SRI.M.K.S.MENON
For Respondent :SRI.A.SUDHI VASUDEVAN,BINDHU MOHANDAS
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :26/10/2010
O R D E R
M.N. KRISHNAN, J.
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A.S.NO.639 OF 1995
.............................................
Dated this the 26th day of October, 2010.
J U D G M E N T
This is an appeal preferred against the judgment and decree of the Subordinate Judge, Tirur in O.S.No.171/1992. The suit is one for damages on the ground of malicious prosecution. The defendant in the suit filed a police complaint which was referred by the police. But the defendant moved a private complaint under Sections 447 and 379 read with Section 34 IPC before the Judicial Second Class Magistrate, Parappanangadi. The Magistrate took cognizance of the case as C.C.No.66/1989.
2. It is the case of the plaintiff that the case was filed without any reasonable and probable cause. The Magistrate has acquitted the accused. The plaintiff is a retired officer of the LIC of India and he had filed the suit claiming a sum of Rs.1,58,758/=.
3. The defendant has filed a written statement contending that the north western portion of Palasseri paramba belonged to Unniyatha @ Kuttimalu. She had executed a Will in favour of the defendant in 1971. She died : 2 : A.S.NO.639 OF 1995 in 1988. A document was executed in the name of Sreedevi Amma, the mother-in-law of the defendant. By virtue of that document, the property having north south measurement of one kole has been given to Sreedevi Amma as way for entering into her property. The plaintiff had trespassed into the property which belonged to the defendant and cut and removed 3 pine trees. The defendant had filed a police complaint in respect of the criminal trespass and illegal cutting and removal of the pine trees. It is contended that the case was filed only on bonafide belief and therefore a suit for malicious prosecution will not lie. The trial court on consideration of the entire materials found against the plaintiff and dismissed the suit. It is against that decision the plaintiff has come up in appeal.
4. Heard the learned counsel for the appellant as well as the respondent. Malicious prosecution is a right, the liability of which consists improperly instituting unsuccessful criminal proceedings for an improper purpose and without reasonable and probable cause. The necessary ingredients that constitute malicious prosecution are; (1) the defendant : 3 : A.S.NO.639 OF 1995 is malicious, (2) he acted without reasonable and probable cause and (3) the prosecution has ended in acquittal. Now it is also equally settled principle that it is the burden of the plaintiff to prove that the prosecution was initiated for want of reasonable and probable cause. So far as acquittal part is concerned it is an admitted fact that criminal case against the plaintiff had ended in acquittal. So the most important ingredients are whether the prosecution was launched without reasonable and probable cause and in doing so whether the defendant was malicious. It is not the only litigation between the parties. There are other civil litigations also that had been filed between the parties.
5. It is the case of the defendant that the property belonged to one Kuttimalu and Kuttimalu had bequeathed it in his favour and a document has been executed in favour of Sreedevi Amma, the mother-in-law of the defendant, with respect to the pathway having a width of 6 feet. Now the question is which is the boundary of this pathway. In order to appreciate the materials, it is profitable to refer to the plan which is produced and marked as Ext.B5 which : 4 : A.S.NO.639 OF 1995 was filed in O.S.No.220/1988. It gives an idea as to the dispute between the parties.
6. According to the plaintiff, the property described as ABCD in that plan is the property that is given to the plaintiff's mother-in-law where as according to the defendant the property that is given is XYFE. If the property given to the plaintiff's mother-in-law is ABCD, then admittedly the pine trees stand within ABCD and therefore the defendant may not have any right. But the defendant would contend that the property given is not ABCD but it is only XYFE. If XYFE is the boundary line with respect to the property, then the pine trees are situated on the northern side of XYFE and therefore the plaintiff does not have any right over the property. So one has to understand that fight between the parties is with respect to the property that is set apart as pathway and it is the northern boundary of that pathway. When the defendant had filed a criminal complaint under the belief and impression that XYFE is the northern boundary line of the pathway and as the pine trees are cut from the property situated further north of that XYFE line, : 5 : A.S.NO.639 OF 1995 it has been cut and removed from the property belonging to the defendant and therefore the plaintiff had committed trespass and cut and removed the trees. So really there was a dispute with respect to the boundary of the property. So one has to hold that it was not a litigation or a prosecution started without any reasonable and probable cause. When the defendant claims that he is the owner of the property wherein the trees are situated and that the case is filed to protect his property, then one cannot hold that there is a malicious prosecution. So materials are not forthcoming to prove that criminal proceedings have been initiated without reasonable and probable cause as well as maliciously. When three out of four ingredients are not substantiated, it has to be held that the trial court was right in holding that the suit for malicious prosecution cannot succeed. I am not entering into other factual aspects which has been discussed by the court with respect to the correctness of the boundary etc for the reason that really they are only done with the intention to bring that the prosecution has not been done without any probable and reasonable cause. : 6 : A.S.NO.639 OF 1995 Therefore I agree with the finding of the learned trial judge and hold that there is nothing to interfere with. The judgment and decree of the trial court are confirmed and the appeal is dismissed without costs.
M.N. KRISHNAN, JUDGE.
cl : 7 : A.S.NO.639 OF 1995 M.N. KRISHNAN, J.
........................................... A.S.NO.639 OF 1995 ............................................. 26th day of October, 2010.
J U D G M E N T