Madras High Court
Venkittu Achari vs C. Vaithiyanathan on 4 April, 2000
Equivalent citations: I(2001)ACC133, 2000(3)CTC37
Author: D. Murugesan
Bench: D. Murugesan
ORDER
1. This second appeal arises out of a suit filed by the respondent herein towards damages for malicious prosecution. It is the case of the respondent/plaintiff that he is reputed person of the locality and there was enmity between two groups of persons headed by one Thiru. Packirisamy Pattar and Thiru.Palani Pattar in regard to the management of Arulmighu Kamakshi Amman Temple. The plaintiff belongs to Thiru Packirisamy Pattar group and the defendant belongs to the said Palani Pattar group. In view of the dispute with regard to the management of the temple, there was enmity between parties and the defendant in order to damage the reputation of the plaintiff launched a false complaint on 17.3.1983 with the police as if the plaintiff and two others used filthy languages against the defendant and on such complaint the plaintiff was arrested at 9.30 p.m. on 17.3.1983 and be was released on bail at 11.00 a.m. on 18.3.1983. The plaintiff further stated in the plaint that on the basis of the false complaint launched by the defendant the police prosecuted the plaintiff under Section 75 of the Madras City Police Act which finally ended in acquittal. It was further contended by the plaintiff that there was a reception to the sister of the plaintiff in the evening of 17.3.1983 and the plaintiff's marriage was to be held on 24.3.1983 and in view of the false complaint and the subsequent arrest of the plaintiff had caused damage to his reputation among his relatives and the public and therefore the plaintiff instituted the suit for malicious prosecution seeking for a sum of Rs.2,000 towards damages.
2. The defendant while denying the averments made in the plaint, had contended that in fact there was enmity between the two groups as referred to above, the said Packirisamy Pattar was functioning as the Managing Trustee of the temple and he misappropriated the funds of the temple and therefore he lost faith of his relatives which resulted in his dismissal from the Managing Trustee on 15.8.1976. As against the order of his dismissal as Managing Trustee, the said Packirisamy Pattar filed O.S.No.326 of 1976 and the same was dismissed. The appeal filed by the plaintiff in A.S.No.154 of 1979 was also dismissed. The plaintiff and his father helped the said Packirisamy 'Pattar to conduct the above litigations. Since the suit filed by Packirisamy Pattar was dismissed, the plaintiff sought to, interfere with the management of the temple more particularly the functioning of Palani Pattar as Managing Trustee of the temple. Since the said Packirisamy Pattar interfered with the management of the functioning of Palani Pattar as Managing Trustee," the-said Palani Pattar filed O.S.No.2016 of 1981 and obtained an interim injunction against Packirisamy Pattar from interfering with the functioning of Palani Pattar in I.A.No.3185 of 1981. Finally the said suit ended in favour of Palani Pattar and therefore the plaintiff who was with Packirisamy Pattar developed enmities against Palani Pattar and the defendant. Therefore, on 17.3.1983 the plaintiff scolded the defendant with filthy languages. In this regard a message was given to the police through phone. On the basis of such message the Sub Inspector of Police, Cuddalore O.T. Police Station arrived at the spot and he found the plaintiff and two others were creating unscene by using filthy languages. Thereafter the defendant gave a written complaint on 17.3.1983 to the Inspector of Police in respect of what had happened at that time. Therefore the defendant submitted that the complaint was given only in respect of incident that occurred and there was no intention on the 'part of the defendant to defame the plaintiff. The defendant further contended that the plaintiff was acquitted on the ground that offence under Section 75 of Madras City Police Act was not made out as the occurrence took place within the temple premises which is a private place and not in the public place. Therefore the defendant sought for the dismissal of the suit.
3. The Trial Court on appreciating the evidence found that the plaintiff has not made out a case for malicious prosecution and consequently dismissed the suit. However, on appeal, the lower appellate Court found that the plaintiff has made out a case for malicious prosecution and accordingly allowed the appeal with a direction, that -the plaintiff is entitled to a compensation of Rs.2,000 from the defendant.
4. In a suit for damages for malicious prosecution, it is well established principle that the plaintiff, in order to succeed, has to prove the following points :
(i) that he was prosecuted by the defendant.
(ii) that the prosecution ended in the plaintiff's favour.
(iii) that the defendant acted without reasonable and probable cause and
(iv) that the defendant was actuated by-malice.
In order to find out as to whether the above established principles have been proved on facts by the plaintiff it would be relevant to refer to the facts based upon the suit is filed by the plaintiff and the same is defended by the defendant. In so far as the first principle is concerned, it is the case of the plaintiff that when he was attending to a reception, his brother informed him that the policeman came to the temple at 8.30 p.m. and therefore the plaintiff went to the temple and on seeing the plaintiff, the defendant pointing out to the police by stating that the plaintiff was the person behind Packirisamy Pattar and therefore requested the police to arrest the plaintiff. Thereafter the plaintiff was arrested and was taken to the police station in a van. Per contra, it is seen from Ex A-2 that the Sub Inspector of Police, Cuddalore O.T. received a message from the Police Control Boom at about 9.50 p.m. on 17.3.1983 in respect of a quarrel in front of the temple and accordingly he proceeded to the spot where he found that the plaintiff and two others were causing disturbance in front of the temple and were using filthy languages. Thereafter only the defendant gave a written complaint in respect of what had happened at the time when the police was present and as well as prior to the arrival of the police. Even though a written complaint was given by the defendant, the same was only in pursuance of a message given to the police control room. It is not known from Ex.A-2, as to who informed the police over phone. However, at the time of the argument the learned counsel for the appellant proceeded as if the complaint was given by the defendant himself. Therefore, it can be construed that the prosecution was launched only on the written complaint of the defendant.
5. With regard to the second principle namely that the prosecution ended in plaintiff's favour is concerned, it is to be noted that the plaintiff was prosecuted for an offence under Section 75 of Madras City Police Act. The learned Magistrate who tried the case found on evidence that the alleged occurrence in fact took place within the temple premises which is a denotified temple and. did not happen in a public place and therefore the ingredients of Section 75 have not been complied with and accordingly held that the offence under Section 75 cannot be sustained on facts. Having held so, the learned Magistrate proceeded further to analyse the evidence to find out the genuineness of the complaint and finally held that the complaint was false.
6. On the above set of facts it is very clear that the prosecution even though ended in favour of the plaintiff, cannot be construed that it was ended in favour of the plaintiff on merits. Firstly, the complaint itself was not sustainable since the alleged occurrence took place within the premises of the temple. Once the Magistrate came to the conclusion that the offence under Section 75 cannot be sustained in the given set of facts, he ought not to have proceeded further to give a finding in respect of the complaint. In that view the Magistrate cannot acquit the accused on merits. All that the Magistrate has said was that the offence under Section 75 of Madras City Police Act was not sustainable and therefore he had to necessarily dismiss the complaint. Such a dismissal of : the complaint cannot be construed as the prosecution ended in favour of the plaintiff on merits. I am compelled to take this view since the discussion of the learned Magistrate with regard to the incident cannot be relied upon in a case for malicious prosecution and the Court trying the suit for malicious prosecution has to independently consider on merit as to whether the case for malicious prosecution is made out or not based on the evidence available before the Court. Therefore, it cannot be construed that the second principle have been established in favour of the plaintiff.
7. In so far as the third principle is concerned, it is for the plaintiff to establish that the complaint, made by the defendant was without reasonable and probable cause on the admitted facts, there were enmities between, two groups, one supported by the plaintiff and another supported by the defendant. When such enmity is put by the plaintiff against the defendant and vice-versa. the Court must be cautious to find out whether the defendant has without reasonable and probable cause has made the complaint. The fact remains that the Sub Inspector of Police Cuddalore O.T. arrived at the spot on a message from Control Room at 9.50 p.m. on 17.3.1983 and he in fact found the plaintiff and two others were behaving in a disorderly manner and using filthy languages. This fact of information to the police and the Sub Inspector of Police himself witnessed such an incident have not been controverted by the plaintiff and the same has not been properly appreciated by the lower appellate Court. The said fact is more vital since the defendant gave complaint only after the above incidents. Therefore it cannot be construed that the defendant gave a complaint without any probable or reasonable cause. If that be so, then the next question would be whether there was malice on the part of the defendant in giving the said complaint.
8. In order to arrive at the correct meaning of the word 'malice' it would be relevant to refer to as follows:- Salmond & Heuston On Law of Torts which states; -
"Malice means the presence of some improper and wrongful motive - that is to say, an intent to use the legal process in question for some other than its legally appointed and appropriate purpose. It can be proved either by. showing what the motive was and that it was wrong, or by showing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor; for example, prosecuting a person for theft in order to deter others, from committing similar depredations, the levying of blackmail, or the correction of the accused in respect of some unconnected matter, such as the obtaining of compensation or restitution from the accused (the civil law, not the criminal, being the appropriate instrument for this purpose). Again, a prosecution is not malicious merely because inspired by anger for the injury suffered, for this, is one of the motives on which the law relies to secure the prosecution of offenders against the criminal law."
9. Applying the above, now it should be decided as to whether in lodging the complaint, the defendant has acted with malice. It is settled law that such act of the defendant was actuated by malice should be established only by the plaintiff. In Basamma and others v. Peerappa, it was held that in. a suit where the action is founded on what is called as abuse of the process of the Court or malicious prosecution, the plaintiff has to allege and prove that the abuse of the process of the Court was also malicious " A similar view has been taken in the judgment reported in" Syamalambal v. Namberumal, . In this connection as already pointed out that there were enmities between two groups namely one by Packirisamy Pattar supported by the plaintiff and another by Palani Pattar supported by the defendant. It is the case of the plaintiff that since he supported Packirisamy Pattar in his litigations against Palani Pattar with, regard, to the management of the temple, the defendant had falsely lodged the complain. In order to establish that the complaint was purposefully, intentionally, maliciously and in order to defame the plaintiff was given by the defendant only because of the above-enmity, it would be appropriate for the plaintiff to establish the same by examining the said Packirisamy Pattar. Except the plaintiff examining himself as witness, he has not chosen to examine Packirisamy Pattar to substantiate his claim of enmity which according to him has actuated the defendant to lodge the complaint. In the absence of the evidence of Packirisamy Pattar, and only on the basis of the evidence of the plaintiff, it cannot be contended that the burden which is heavily on the plaintiff to establish that the defendant had actuated with malice while lodging the complaint has been discharged. In the absence of the same and especially when the complaint was given only on probable and reasonable cause, it cannot be said that the defendant was actuated with malice when he lodged the complaint. So long as the falsity of the complaint is not accepted by this Court, there is no question of attributing any malice on the part of the defendant. It is well settled that so long as the legal process is honestly used for its proper purpose, mere lodging of complaint by setting the law into motion creates no liability on the defendant. On the other hand, if there are reasonable grounds for the complaint, even as impropriety or motive on the part of the person giving complaint is not in itself a ground for liability. In that view of the matter, I am of the considered view that the lower appellate Court has totally misconstrued the scope of the order of the Magistrate wherein he dismissed the complaint on the ground that offence under Section 75 was not sustainable and it was taken place in the temple premises. Without coming to an independent conclusion by appreciating the evidence on its own, the lower appellate Court seems to have persuaded with the findings of the Magistrate with regard to the complaint. The discussions and the consequent finding of the learned Magistrate cannot be the basis for the lower appellate Court to come to the conclusion that the defendant had . lodged the complaint without reasonable and probable cause and was actuated with malice. The finding to the said effect by the lower appellate Court is not independent on its own conclusion arrived on the basis of evidence but purely on the basis of the findings of the Magistrate Such finding is not justifiable especially when on merits the plaintiff has not discharged his burden more particularly has not established and proved the second, third and fourth principles extracted by me in earlier paragraphs. When the plaintiff failed to establish those principles, he is not entitled to sustain a suit for damages on the ground of malicious prosecution. The conclusions arrived by the lower appellate Court is not supported by evidence and as such the same cannot be sustained. In that view of the matter it is to be concluded that the plaintiff is not entitled to sustain the suit and consequently the suit is liable to be dismissed and accordingly the same is dismissed. The judgment and decree of the trial Court is restored and the second appeal is allowed. No costs.