JUDGMENT
A.K. Parichha, J.
1. This appeal is directed against the judgment and decree passed by the learned Subordinate Judge, Bhawanipatna in Money Suit No. 11 of 1978 decreeing the claim of the plaintiff-appellant in part.
2. Appellant as the plaintiff, filed the above suit pleading, inter alia, that due to previous enmity with him, respondent Nos. 2 and 3 set up respondent No. 1, who was working as maid servant in his house to lodge a false complaint against him and accordingly, respondent No. 1 lodged a complaint vide ICC No. 1 of 1976 (T.R. No. 113/76) in the Court of S.D.J.M., Bhawanipatna alleging therein that while she was sweeping the room in the house of the appellant, at about 8.00 p.m. on 7-12-1975, the appellant entered into the room, closed the door, pulled her saree and tried to rape her and that when she resisted, the appellant dealt slaps and fist blows causing some injuries on her face. That case was transferred to the Court of learned Subordinate Judge-cum-J.M.F.C., Bhawanipatna, where after trial an order of acquittal was recorded. According to the appellant, because of lodging of false complaint, his reputation in the society was severely affected and he also suffered mental agony and financial loss and therefore, he filed the suit for malicious prosecution claiming compensation from the respondents.
3. Respondents, as defendants filed joint written statement denying the allegations of the plaintiff-appellant, pleading, inter alia, that the allegations made by respondent No. 1 in the complaint petition were true and that in fact the appellant outraged the modesty of respondent No. 1. They denied any loss of reputation or prestige of the appellant indicating that the appellant has no reputation at all.
4. From the pleadings of the parties, the following issues were framed by the trial Court.
1. Whether the defendant Padma Debi prosecuted the plaintiff in criminal Court without any reasonable and probable cause and maliciously?
2. Whether the other defendants are liable for the factors of the defendant-Padma Bewa?
3. Whether the plaintiff is entitled to the quantum of the claim?
4. To what relief the plaintiff is entitled to?
5. The plaintiff examined himself and two witnesses and produced the certified copy of the judgment in ICC No. 1 of 1976, some portions of depositions of the witnesses and copy of the complaint petition, which were marked as Exts. 1 to 6. Defendants examined defendant Nos. 1 and 3 as D.Ws. 1 & 2 respectively and did not produce any document. After perusing the evidence led by the parties, learned Subordinate Judge came to hold that respondent No. 1 Padma Bewa prosecuted the appellant in the criminal Court maliciously without any reasonable and probable cause. He accordingly directed the said respondent to pay a compensation of Rs. 2,000/- to the appellant by way of damages. Learned trial Court, however, came to the conclusion that although there was inimical feeling between the appellant on one hand and the respondent Nos. 2 and 3 on the other, there was lack of material to prove that these defendants set up respondent No. 1 to lodge the false complaint. He accordingly, dismissed the claim of the appellant against defendants 2 & 3. Aggrieved by this order of dismissal of the claim against respondent Nos. 2 and 3, the plaintiff-appellant has filed this appeal.
6. Mr. B.N. Misra, learned Counsel submitting-on behalf of Mr. S.K. Nayak-1 contends that not only there is evidence on record to show that the respondent Nos. 2 and 3 were actively associated with the filing of false complaint against the appellant, but their evidence in the complaint case as well as in the suit are also there to show that they got the appellant falsely prosecuted in order to defame him and harm his reputation. He claims that the conclusion of the learned trial Court on issue No. 2 is against the weight of evidence on record and is highly unreasonable. He further states that when the respondent Nos. 2 and 3 gave evidence in the criminal case that they saw the appellant committing the offence and ultimately the case ended in acquittal, malice on their part should have been inferred and decree for malicious prosecution should have been granted against them. In support of this contention. Mr. Mishra cites the case of Lambodar Sahu v. Laxmidhar Pani 1972 (1) CWR 370.
7. Mr. A.K. Das, learned Counsel submitting on behalf of Mr. A.K. Mishra and associates, on the other hand, argues that enmity between the parties by itself does not establish malice and basing on existence of enmity simpliciter, decree in a suit for malicious prosecution cannot be granted. He states that when there was no specific material to show that respondent Nos. 2 and 3 got the criminal complaint filed against the appellant, the learned trial Court was justified in dismissing the suit against them.
8. Admittedly, respondent No. 1 filed the complaint case vide ICC No. 1 of 1976 and the said case after trial ended in acquittal. As has already been stated in the cases of Harihar Panigrahi v. Bharat Panigrahi 1970 (36) CLT 30; Raghunath Samal v. Muli Sahu 1970 (36) CLT 692 and Taharat Karim v. Mallik Abdul Khalic AIR 1938 Patna 529, when criminal complaint ends in acquittal, the plaintiff-accused is entitled to a presumption that the complaint was filed with malicious intent. The judgment of ICC No. 1 of 1976 (Ext. 1) clearly reveals that the allegations raised by respondent No. 1 in the complaint petition was proved to be untrue. Thus, taking the presumption available as well as the contents of Ext. 1, the learned trial Court rightly held the respondent No. 1 liable for malicious prosecution. This part of the finding is also not under challenge. The only point raised in the appeal is that presumption of malice is equally available against respondent Nos. 2 and 3.
9. Law is settled that in a case of damage for malicious prosecution, onus of proof of absence of reasonable and probable cause rests on the plaintiff. But this is qualified to the extent that in cases where the accusation against the plaintiff purports to be in respect of an offence which the complainant/defendant claims to have seen him commit and the trial in the criminal case ends in acquittal on merits, the presumption would be that not only the plaintiff was innocent but also there was no reasonable and probable cause for such accusation. This ratio has also been noted in the case of Lambodar Sahu v. Laxmidhar Pani (supra). Now the question arises as to whether this presumption can be extended to the witnesses who claim to have seen the complainant accused committing the alleged offence. Although no specific precedent is available, logically it can be concluded that such presumption should also be extended to a witness who deposes in the Court that he saw the complainant/accused committing the alleged offence, but the Court ultimately finds that allegation as untrue and malice can be inferred from his conduct or surrounding circumstances.
10. In the instant case, there is no direct evidence to show that the defendant Nos. 2 and 3 instigated respondent No. 1 to file complaint case against the appellant. Respondent Nos. 2 and 3 however admitted in their evidence that they followed respondent No. 1 to the police station and hospital and gave statement before the Investigating Officer in support of the allegations and they also gave their evidence in the criminal complaint case. Respondent No. 3 as D.W. 2 admits in cross-examination that he gave evidence in the criminal case and stated about what respondent No. 1 had told him after the occurrence. Neither in the criminal case nor in the suit, respondent No. 3 claimed that he saw the appellant committing the offence alleged. The judgment of ICC No. 1 of 1976 also shows that the respondent No. 3 never claimed to be an eye-witness to the occurrence. So, the presumption noted in Lambodar Sahu (supra) is not available against respondent No. 3.
11. So far as respondent No. 2 is concerned, Ext. 1 reveals that he gave statement in the criminal complaint case that he saw the appellant committing the alleged offence on respondent No. 1. The statement of respondent No. 1 as D.W. 1 also indicates that respondent No. 1 arrived at the spot and saw the alleged occurrence. P.W. 3, who is an independent person stated that respondent No. 2 requested him to be a witness for respondent No. 1 in the criminal complaint case, but he declined. It will be evident from Ext. 1 as well as the statement of D.W. 2 that respondent No. 2 was in inimical terms with the appellant and he had also filed the criminal case against a family member of the appellant and that the case also ended in acquittal. In the written statement as well as in his evidence, respondent No. 2 has been categorically alleging that the appellant is the person without character, reputation or goodwill in the society. Once all these evidence and circumstances are considered together, one cannot but come to a conclusion that respondent No. 2 gave his statement in the criminal complaint case against the appellant with malicious intent to harm the reputation of the appellant. He was, therefore, equally liable for malicious prosecution of the appellant. Learned trial Court somehow lost sight of the above-noted evidence and circumstances and in consequence came to an erroneous conclusion that there is no evidence or circumstance to show malicious intent on the part of the respondent No. 2.
12. For the aforesaid reason, the impugned judgment and decree is modified and the decree of damages for malicious prosecution is granted against both respondent Nos. 1 and 2. Since there is no qualm about the quantum of compensation awarded, respondent Nos. 1 and 2 are both jointly and severally liable to pay a sum of Rs. 2,000/-to the plaintiff-appellant within a period of three months from the date of this order failing which the appellant would be at liberty to recover that amount along with proportionate cost of the suit and appeal through Court.
13. In the result, the appeal is allowed on contest in part.
