IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 1084 of 2007()
1. MATHEWKUTTY MATHEW,
... Petitioner
Vs
1. SHAJI JOSE, S/O. K.K.JOSE,
... Respondent
For Petitioner :SRI.SHAJI THOMAS PORKKATTIL
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :15/01/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 1084 OF 2007
............................................
DATED THIS THE 15th DAY OF JANUARY, 2008
JUDGMENT
Defendant in O.S.308 of 1999 on the file of Munsiff Court,
Erattupetta is the appellant. Plaintiff is the respondent.
Respondent instituted the suit claiming damages for malicious
prosecution. Appellant admittedly lodged Ext.B4 First
Information Statement alleging that on 24.11.1994, at about 6
pm, while he was walking through Kollappally-Nelloor road and
reached in front of Kadanadu village office, four persons
including respondent wrongly restrained him and voluntarily
caused hurt to him by beating with a stick and he sustained
injuries in the hands of appellant. Police, after investigation, on
the basis of the statement of appellant, lodged Ext.B1 charge
sheet before Judicial First Class Magistrate, Erattupetta.
Appellant, along with three others, were tried and finally under
Ext.A1 judgment, he was acquitted. Respondent, contending
that he was falsely implicated and was prosecuted without any
probable and reasonable cause and with malice, claimed
damages for malicious prosecution. He claimed that because of
the prosecution, he sustained loss of reputation, mental agony
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and had to meet expenses to defend the case. It was claimed
that being a member of the Church Committee, his reputation
has been affected and therefore he is entitled to a compensation
of Rs.30,000/- for loss of reputation. Claiming that he had paid
Rs.6000/- to the counsel and also met other expenses, Rs.8000/-
was claimed as damages, Rs.8000/- was also claimed as damages
for mental agony. Towards the notice charges, Rs.300/- was
claimed. Respondent sought a total compensation of Rs.44,800/-.
Appellant resisted the suit denying the plaint allegation and
contending that he furnished first information in good faith and
without any malice. It was contended that respondent has no
right to file the suit solely based on an order of acquittal for the
failure of prosecution to prove the case beyond reasonable
doubt. It was contended that he had given a true statement
before the police and also before the court that he was attacked
on 24.11.94 at 6 pm and he was physically assaulted by
respondents and others and as a result he was treated at
P.H.Centre, Muttom and police registered the case and after
investigation lodged charge sheet for the offence under Section
341, 323 and 324 read with Section 34 of IPC and the fact that
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appellant was acquitted will not enable him to claim damages
for malicious prosecution and the suit is only to be dismissed. It
was also contended that appellant did not sustain any loss of
reputation or mental agony or other expenses.
2. On the evidence of Pws 1 to 4, DW1, Exts.A1 to A8(a)
and B1 to B5, learned Munsiff found that appellant was not
anywhere near the place of incident on 24.11.1994 at 6 pm when
respondent was allegedly attacked by the appellant along with
others. Learned Munsiff, relying on Ext.A6 to A8, found that
respondent was working in the Crumb factory and on that date,
he had jointed duty at 3.20 pm and left the factory after his work
only at 12.10 am and therefore the allegation of appellant that
respondent attacked him at 6 pm is an allegation made without
any reasonable or probable cause. Learned Munsiff also found
that as evidenced by Ext.A1, respondent was acquitted and as
evidenced by Ext.B4 F.I.Statement, it was the appellant, who set
the criminal law in motion. Learned Munsiff, on the evidence
also found that appellant in fact acted because of the ill will and
malice against respondent. On the evidence, it was found that
appellant sustained mental agony as well as loss of reputation.
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Relying on the evidence of PW2, it was found that appellant,
along with other co accused, had to meet the expenses and
granted a total compensation of Rs.39,800/- as damages inclusive
of Rs.30,000/- for loss of reputation, Rs.8000/- for mental agony,
Rs.1500/- towards expenses for defending criminal prosecution
and Rs.300/- for expenses for sending notice. Appellant was
directed to pay Rs.39,800/- with 6 % interest from the date of the
suit. Appellant challenged the judgment before Sub Court, Pala.
Learned Sub Judge, on reappreciation of evidence, confirmed the
findings of learned Munsiff and dismissed the appeal. It is
challenged in the second appeal.
3. Learned counsel appearing for appellant was heard. The
argument of the learned counsel is that appellant was
prosecuted before Magistrate Court not on the basis of a
complaint filed by appellant but on the basis of the charge sheet
submitted by police after proper investigation and therefore fact
that appellant was acquitted for failure of the prosecution to
prove the charge beyond reasonable doubt is not a ground to
grant damages for malicious prosecution. It was argued that
appellant had only stated true facts as seen in Ext.B4 when his
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F.I.Statement was recorded by the police and police, after
investigation, lodged the charge and it was based on the
materials collected at the time of investigation, and therefore it
cannot be said that appellant maliciously prosecuted respondent.
Learned counsel also argued that the criminal case was
conducted by the Public Prosecutor and in such circumstances,
courts below were not justified in directing appellant to pay
damages for malicious prosecution. Learned counsel finally
argued that the quantum of damages granted by courts below is
excessive. It was argued that there is no evidence to prove the
malice and the fact that the criminal case ended in acquittal
cannot automatically lead to the conclusion that prosecution was
lodged with malice and in the absence of evidence to prove loss
of reputation or the quantum of damages, judgments of courts
below are not sustainable.
4. On hearing the learned counsel, I do not find any
substantial question of law involved in the appeal. Being a suit
for malicious prosecution, respondent, plaintiff has to prove that
it was appellant who set the criminal law in motion and that he
was prosecuted by appellant and that prosecution ended in his
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acquittal and that appellant acted without reasonable and
probable cause and he was actuated by malice. The argument of
learned counsel is that the criminal prosecution was based on
Ext.B1 charge sheet and appellant had only furnished Ext.B4
F.I.Statement and therefore it cannot be said that appellant
prosecuted the respondent. As rightly found by courts below, the
question is whether it was appellant, who set the criminal action
in motion. Though respondent was prosecuted on the basis of
Ext.B1 charge sheet, the criminal prosecution was set in motion
by appellant by furnishing Ext.B4 F.I.Statement. But for Ext.B4,
appellant would not have been prosecuted at all. Therefore on
the evidence, courts below rightly found that it was appellant,
who set the criminal law in motion and therefore it is the
appellant, who prosecuted the respondent. Ext.A1 judgment
establish that the criminal prosecution ended in acquittal.
5. Then the question is whether the criminal prosecution
was without any reasonable or probable cause. The argument of
the learned counsel is that finding of courts below is not
sustainable as appellant, while injured, believed that respondent
was also one of the persons who attacked him and inflicted injury
RSA 1084/2007 7
and as appellant did not act further than furnishing Ext.B4
F.I.Statement and this relevant aspect was not appreciated. But
that is not the case. Even after Ext.B4 F.I.Statement, appellant
continued with his case that it was respondent, along with three
others, who attacked him and inflicted injury. Even when
examined as witness before the criminal court, he asserted that
appellant was present at the scene of occurrence and inflicted
the injury. Even in the written statement, appellant asserted
that it was respondent, along with others, who inflicted injury on
him. Even from box as DW1 he asserted this case. In such
circumstances, it cannot be said that appellant is not responsible
for setting the criminal law in motion or that he implicated the
respondent with reasonable cause.
6. Relying on the records produced from the Crumb
Factory, Muttom where appellant was working, trial court and
first appellate court found that respondent could not have been
at the scene of occurrence at 6 pm on 24.11.1994 as alleged by
appellant in Ext.B4 F.I.Statement or before the criminal court or
in the written statement or at the time of evidence. Ext.A6(a)
attendance register establish that appellant was on duty on that
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day. Ext.A7(a) entry in Ext.A7 log book establish that company
was working in three shifts and appellant was working in the
third shift. Ext.A8(a) entry establish that appellant joined duty
on that day at 3.20 pm and left the factory only at 12.10 am after
midnight. Therefore both courts, relying on the unimpeachable
evidence, entered a factual finding that respondent would not
have been anywhere near the place of occurence and appellant
falsely implicated him as one of the persons who inflicted injury
on him at 6 pm. Apart from his own interested testimony,
appellant did not adduce evidence to contradict this case or to
prove that there was any probable or reasonable cause for
alleging that appellant was one of the assailants. In the light of
the evidence, factual finding of courts below that appellant
implicated respondent without any reasonable or probable cause
is perfectly correct.
7. Relying on the decision of a learned Single Judge of this
court in Govindji J Khona V.K.Damodaran and others(AIR
1970 Kerala 229) learned counsel argued that there is no
evidence to prove the malice and unless all the ingredients
provided for malicious prosecution are established, finding of
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courts below that respondent was maliciously prosecuted cannot
stand. When the evidence establish that respondent was
working in the factory and could not have been anywhere near
the scene of occurrence and he was falsely implicated in Ext.B4
F.I.Statement and the very same version was agitated by
appellant throughout, the finding of courts below that appellant
was actuated with malice is a perfectly correct view that could
be taken on appreciation of the evidence. In such circumstances,
finding of courts below that respondent established that he was
maliciously prosecuted by appellant is perfectly correct.
8. Then the only question is regarding the quantum of
compensation. The argument of learned counsel is that there is
no evidence to prove that respondent is entitled to get
Rs.30,000/- as awarded by courts below towards loss of
reputation. Apart from the evidence of PW1, evidence of PW4
was also relied on by courts below to prove that appellant was
earlier a member of the Church committee and because of the
prosecution, he could not continue the position and respondent
lost his reputation. The argument of learned counsel is that
apart from the interested version of PW1, there is no other
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evidence to prove that fact. Courts below found that even
though PW1 was spoken about this aspect, appellant when
examined as DW1, deposed that he did not know this fact.
Courts below also relied on the evidence of PW4 that respondent
sustained loss of reputation. It is on that basis damages was
awarded for loss of reputation. In the facts and circumstances
of the case, quantum of damages awarded cannot be said to be
excessive, warranting interference in exercise of the powers of
this court under Section 100 of Code of Civil Procedure.
Evidence shows that appellant has to engage a counsel and meet
the expenses and had to appear before the criminal court on
several occasions, causing great mental agony. In such
circumstances, the quantum of compensation granted is also
proper.
Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-