Beharilal Bhawasinka And Anr. vs Jagarnath Prasad Kajriwal on 18 November, 1958

JUDGMENT

K. Ahmad, J.

1. This appeal by the plaintiffs is directed against the judgment and decree dated the 31st March, 1952, passed by Mr. Krishna Saran Pandey, Subordinate Judge of Muzaffarpur. It raises the question as to now far the plaintiffs-appellants are entitled to damages, if any, against the sole defendant-respondent Jagarnath Prasad Kajriwal for malicious prosecution and false imprisonment as also for libellous statements alleged to have been made against them by the defendant.

2. It is the admitted case of the parties that these two plaintiffs-appellants are father and son, respectively, and members of a joint Mitakshara family, carrying on the business of auctioneers under the name and style of Messrs. Bhawasinka Sales Bureau in the town of Muzaffarpur. Further it is admitted that the defendant also is a businessman and he too has his business office in that very town. The present case between the parties has arisen out of an auction sale of jewelleries held at the local Town Hall in Muzaffarpur on the 1st January, 1949, between 11 a.m. to 5 p.m.

The jewelleries sold in that auction were, it is admitted, brought by one Mr. K.B. Shroff of Bombay, and there was an agreement made between him and the plaintiff’s that the same would be disposed of by auction sale through the plaintiffs’ firm. By the terms of the agreement the plaintiffs were to get 2 per cent, commission on the gross amount of the sale and further they had to arrange for the publicity of the auction sale, the cost of which, however, was to be borne by Mr. K. B. Shroff. It is not denied that in pursuance of this contract the plaintiffs gave wide publicity of the aforesaid auction sale, and in the course of that a largo number of big printed posters, handbills and list of jewelleries, both in Hindi and English, were distributed in the town. Further, that sale was also advertised by means of loud speakers.

In the advertisements so made it was specifically noted that the jewelleries belonged to Saheb johar Singh, Zamiridar of Bedana, and others and were being sold under the orders of the Presidency Magistrate, Bombay. Further, it was also stated therein that though the auction sale would be held on the 1st January, 1949 yet on a day prior to the sale, i.e., on the 31st December, 1948, the jewelleries would be allowed to be inspected by the public in that very Town Hall. Lastly, in the auction advertisement sheet, which is Exhibit 4 on the record, there was a specific mention made of certain conditions which were binding on the parties taking part in the sale. They were as follows: “Conditions of Sale.

1. Payment immediately after the sale is completed.

2. The purchaser shall pay 25 per cent, deposit on each lot at the fall of hammer as demanded by the auctioneer, failing which the lot will be again auctioned. The security deposit of 25 per cent, will be forfeited if goods not taken delivery within 24 hours.

3. Please see and examine the jewelleries on 31st December which is fixed for view.

4. The genuineness of the jewels is guaranteed by the auctioneers; any complaint regarding genuineness of the jewels will be entertained within 24 hours of the sale, after which nothing will be heard, and the auctioneers’ responsibility will be (sic) cease.”

3. According, as arranged, all the jewelleries were put to inspection by the public on the 31st December, 1948, from 11 a.m. to 5 p.m., and it is not denied that on that day a large number of persons attended it and inspected the jewelleries. Thereafter, on the day following, that is, on the 1st January, 1949, which was a Saturday, auction sale began at or near about 11 a.m. at that very place. In the course of the auction sale on that day the defendant-respondents purchased in several lots jewelleries worth Rs. 19,769/1/0 inclusive of sales tax in the name of various persons, including himself, his son and his maternal uncle; and having then and there paid the entire price in cash, he took delivery of the jewelleries as also cash memos and then went back in the evening along with them to his home.

His case is that thereafter, in the morning following on the 2nd January, 1949, he got those jewelleries tested by three Sonars, Mali Ram (D. W. 3), Dwarka Sonar and Gangadhar. They, according to him, found that the metals in which the jewels were set were copper and brass and the jewels themselves contained black chita and spots, which it is said, made them unfit for use by a Hindu. Accordingly, he first came to his house and then went to the Dharamsala close by where Mr. K.B. Shroff along with his other Gujrati companions were putting up. At that time, it is said, the plaintiff No. 1 was also present there.

To all of them the defendant there made request to take back the articles as the metal was brass and copper and the jewels were defective. In answer thereto’, the plaintiff refused to do it. At this, it is said the defendant got the conviction that he had been cheated. Accordingly, he soon thereafter consulted M. Sharda Prasad Bhandari, a pleader of the local Court, who, as claimed by the defendant, drafted a complaint and the defendant along with that went to the police station and there handed over the same to the Police Sub-Inspector. It is Exhibit B on the record and reads as follows:

“To
The Officer-in-Charge, Town F. S. Muzaffarpur.

Sir,

I have the honour to report that on representation of Sri Bihari Lal Bhawasinka and his son Sri Madan Lall Bhawansinka Proprietors of the Bhawasinka Sales Bureau of Muzaffarpur and some Gujraties who represented that they had come with the jewelleries I purchased jewelleries set in gold as represented by them at the sale held yesterday in the town hall, worth Rs. 19769l(sic)/1/- with sales tax in my own name, and also in the name of my son Ramakant and my maternal cousin Jwaja Prasad for which Cash Memos twelve in number were granted which are being attached herewith. Both the Gujraties and the two Bhawasinkas represented that the sale was done under the orders of the Presidency Magistrate, Bombay and belonged to Bedana Zamindar Jahar Singh and others.

They also represented that the jewelleries were genuine and the gold was also genuine. The ornaments purchased by me in accordance to Cash Memos attached herewith.

On testing them I find that neither the jewelleries are real nor gold is real. Testing of some portion of gold by Dwarka Sonar and others has proved that the metal which has been represented to be gold is really copper as will be apparent from the portion of metal sent herewith.

Thus the aforesaid persons have dishonestly induced me to deliver a sum of Rs. 19769/1/- and thus they have cheated me.

I went to them this morning and complained about the cheating they have done by (sic) they refused to listen to me. The Gujraties have also refused to disclose their identity and I apprehend that they are trying to run away from this town. They are at present in the town hall, Muzaffarpur, and were staying in the Marwari Dharamshala, Muzaffar-pur. I can identify them.

Hence this information for taking necessary action against them for cheating me.

My witnesses are:–

1. Sri Banwari Lal Sanganeria, 2. Bhagirath Prasad Singhania, 3. Sunder Mull Kajriwal. 4 Badri Prasad Noria, 5. Dwarifca Prasad Sonar, 6. Bisham-bhar Lall all of Saraiyagunj, Muzaffarpur,

Others names will also be given at the time of investigation.

Yours faithfully,      
Sd. Jagarnath Prasad Kejrjwal.

(sic)

Muzaffarpur, June 2, 1949.”

4. On the basis of this complaint the Sub-Inspector drew up. the following F. I. R. which is Exhibit 1 on the record:

“First information of a cognizable crime reported under Section 154, Criminal ‘Procedure Code, at police station Town Sub-Division Sadr ‘A’ District Muzaffarpur.

No. 2, date and hour of occurrence –1-1-49 day time not known. Date and hour when reported 2-l-49 1 p.m. Place of occurrence and distance and direction from police station.

Town hall 1/2 mile north of P.S. To P. Vill. Date of despatch from police station.

 X       X      X  
 

N.B. A first information must be authentication (sic) by signature, mark or thumb-impression of informant and attested by the signature of the officer recording it.  
   

1. Name and residence of informant and complainant. Jaganath Pd. Kejriwal, Sarayiagunj" Town P.S.  
 

2. Name and residence of accused. 1. Bihari Lal Bhawasinka, 2. Madan Lal Bha-wasinka, 3. Two Gujraties, names etc. not given.  
 

3. Brief description of offence with section and of property carried off, if any.  
 

Cheating in respect of jewelleries worth Rs. 19,769/1. Under Section 420, I. P. C.  
 

4. Steps taken regarding investigation explanation of delay in recording information.  
 

Case instituted and investigation taken up.  
 


5. Result of the case.   
 

Sd. K. P. Verma,        
 Designation S. I. Town 2-1-49.  
 

(First information to be recorded below.) 
 

 Note.  The signature  or mark of  informant should be affixed at foot of the confirmation (sic).  
 

The petition of the compltreated, as F. I. R. is attached herewith.  
 

Sd. K. P. Verma,  
S. I. Town 2-1-49.  
 

This led to an immediate investigation by the police in the course of which the police on that very day raided the Town Hall some time between 1 p.m. and 2 p.m., when auction sale was still in progress. There he put the plaintiffs & three principals under arrest and seized all the jewelleries along with the connected papers and vouchers that were lying there. Naturally at this the public who had assembled in the Town Hall gradually disappeared. The plaintiffs thereafter accompanied by two police constables went to their home to arrange for sureties, and eventually they succeeded to get bail at about 8 p.m. But ultimately on the close of the investigation, the police on the 15th February, 1949, submitted final report in that case with the remark “False and Mistake of Fact”.

This the Sub-Divisional Officer accepted & finally dropped the proceeding and discharged the accused from the bail bonds on the 16th February, 1949. It may, however, be stated that in the meantime, perhaps through the intervention of some friends or some sort of arbitration, the jewelleries purchased by the defendant were got returned and the defendant in turn back the price paid by him. But the plaintiffs being aggrieved that they had been got arrested maliciously and without any reasonable and probable cause by the defendant, sent a registered notice on the 21st March, 1949, through an advocate to the defendant claiming damages for the same under different heads amounting in all to Rs. 5250/-. In reply thereto, which was dated the 10th April, 1949, the defendant denied all liabilities. Hence the suit giving rise to this appeal on the 27th May, 1949, for the reliefs as stated above.

5. The case of the plaintiffs is that on the day fixed for the inspection of the jewelleries, that is, on the 31st December, 1948, the defendant also besides other people had inspected them and in the course of that inspection he was being assisted by a jeweller also along with some other friends. Further, on the next day at the time of auction also the bidders had been given full opportunity not only to examine the jewels but also to get them tested if they so liked. Therefore, according to them it is incorrect to say that the defendant had no opportunity to satisfy himself as to the quality of the jewels that had been put to auction or as to the kind of the metal wherein they had been set. But if in spite of all this the defendant decided to fight to the last against his rival bidders and had for that reason to pay any high price, the fault, if any, was that of the defendant and not of the plaintiffs.

Further, their case is that it was only after his return to his house that the defendant came to realise that perhaps in the course of auction, the price that he paid was more than what the articles were worth for and, soon on the following morning i.e. on 2nd January, 1949, he approached the plaintiffs and on the ground of high prices spggested that they should be returned which the plaintiffs refused to do. As it was only a counter-Hast to this that the defendant thereafter on the basis of a false story filed a malicious complaint against them before the police for which there was neither any reasonable nor any probable cause and then in collusion with the police on that very day got the auction place raided, the auctioneers arrested and jewelleries along with the connected papers seized.

Further, the plaintiffs have also averred that in the advertisements made by them all that they had guaranteed was the genuineness of the jewelleries and not the kind or quality of the metal wherein they had been set. As for the subsequent return of these jewelleries to the plaintiffs they have given a different story. According to them it was brought about under certain circumstances over which the plaintiffs had no control. Then there is also a claim made in the plaint that the statements made by the defendant in the reply to the notice were libellous, and therefore, for that also he is liable.

6. In answer to these allegations made by the plaintiffs the defendant filed a long written-statement. Therein not only the integrity and status of the plaintiffs have been challenged but it has further been claimed therein that the story about presence of the defendant in the Town Hall on the 31st December, 1948, for the purpose of inspection was all false. According to him, on that day the defendant was at Kurshella and had come back to Muzaffarpur on the next morning on the 1st January, 1949.

Further, his case is that being influenced by the fact that all those jewelleries belonged to Saheb Johar Singh of Bedana and others and that they were being sold under the orders of the Presidency Magistrate, Bombay, as also for the reason that in the Hindi advertisements which alone had come to his hands there was no guarantee whatsoever either of the jewelleries or of the metal in which they were set, he thought that the jewelleries in any case were not only genuine but also of very high order and that the metal in which they were set must necessarily therefore be gold.

But quite to his surprise on the next day in the morning when he got them tested by Dwarka Sonar and Gangadhar Sonar and others he found that the metals were all spurious and the so-called stones set in them were also faked and defective. Accordingly, then and there he went to the plaintiffs. But in spite of the complaint made to them to that effect the plaintiffs refused to take them back. Therefore the defendant, as advised by his lawyer, lodged a complaint before the police and thereafter left the matter exclusively in their hands to be proceeded with as they thought fit and proper.

In substance, therefore, the charge of cheating as stated by him before the police was based on an irresistible and bona fide conclusion that he had come to in the light of the circumstances referred to above, and that was further strengthened by the opinion he got from his lawyer. Therefore, the allegation as made in the plaint that arrest of the plaintiffs was malicious or that it was without any reasonable and probable cause, is according to the defendant incorrect.

On the contrary, the claim of the defendant is that on the facts stated it is obvious that in doing what he did he all along acted under a bona fide conviction that he had been cheated and if the police on the basis of his complaint arrested the plaintiffs, they did it in exercise of their independent judgment and not at his instance or in any collusion with him. Lastly, it has been pleaded that the averments made by him in the reply to notice were not false and libellous, rather they were correct in any case they were not actionable. Therefore, according to the defendant, the plaintiffs are not entitled to any relief as claimed in the plaint.

7. On these pleadings the following issues were framed at the trial:

“1. Have the plaintiffs any cause of action or right to sue?

2. Was the arrest of the plaintiffs malicious and without any reasonable and probable cause?

3. Are the plantiffs entitled to damages, if so to what amount?

4. Has the defendant aggravated the alleged tort by his statements in the reply to notice?”

On issue No. 2 the trial Court held “that the defendant had reasonable and probable cause for lodging information with the police against the plain-tiff’s and their principals”. As to issue No. 4, the finding given is “that the defendant had justification for making the assertions which he did in Exhibit 3(a)”. Lastly, on the quantum of damages, the trial court has held as follows: “I hold that the plaintiffs are not entitled to any damages. If J had accepted the case of the plaintiffs, then I would not have allowed them any damages for malicious prosecution or for loss of commission in the business, but would have allowed them Rs. 100 each for wrongful arrest and the mental and bodily pain and loss of reputation caused. I would have further allowed them Rs. 50 on account of legal and miscellaneous expenses incurred by them in the case”. Accordingly, the suit was finally dismissed by the trial Court, Hence this appeal.

8. In my opinion so far as the case for malicious prosecution is concerned that has to fail and in that regard the finding given by the trial Court is unassailable. The wrong of malicious prosecution is not an absolute trespass based on a forcible and direct injury, but a trespass on the case, for the injury there is neither forcible nor direct, but merely consequential: what directly brings about prosecution in the case of this wrong is some judgment or judicial order of a Court of Justice, and as the judgment of the Court interposes between the complainant on one side and the person prosecuted on the other, the responsibility of that prosecution however, erroneous, irregular or without jurisdiction, is on the Court which passes the judgment and not on the party which has set the machinery of law into motion.

The rule of law is that Court of Justice is not the agent of the litigant but acts in the exercise of its own independent judicial discretion. That being so, the litigant can be charged only indirectly, that is, if the matter giving rise to the prosecution has been brought to the Court by him with a motive malicious or without any reasonable or probable cause. The learned Subordinate Judge, while dealing with this part of the case, has rightly pointed out how the wrong of malicious prosecution differs with that of false imprisonment as referred to. in Austin v. Dowling, (1870) 5 CP 534 at p. 540; Lock v. Ashton, (1848) 12 QB 871; Elsee v. Smith, (1822) 1 Dow and Ry. K. B. 97; and Panton v. Williams, (1841) 2 QB 169. It may be useful to quote here a passage from the judgment of Willes J. in (1870) 5 CP 534 (supra), which reads:

“The distinction between false imprisonment and malicious prosecution is well illustrated by the case where parties being before a Magistrate, one makes a charge against another, whereupon a Magistrate orders the person charged to be taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and judgment of a judicial officer are interposed between the charge and the imprisonment.”

In the present case the imprisonment, if any had been admittedly caused by the police, and was not the result of any judicial order. Therefore, in this case the claim for malicious prosecution is wholly misconceived and the finding given by the trial court on this part of the case has to be maintained.

9. Then conies the claim for false imprisonment. As contradistinguished with the wrong of malicious prosecution it is an action of trespass and not one of the case. In this wrong the injury is always forcible and direct, forcible in the sense of being an act of physical interference with the person or property of another. As such trespass lies for alt direct injuries, whether wilful or merely negligent. Salmond in his Law of Torts refers to this wrong in these words:

“An action for false imprisonment will lie against any person who authorises or directs the unlawful arrest or detention of the plaintiff by a merely ministerial officer of the law, as distinguished from a judicial officer or Court of Justice. He who sets in motion a merely ministerial officer, such as a constable, has no protection similar to that which is extended to the litigant in a Court of Justice, He makes that ministerial officer his agent, and is responsible for any arrest or detention so procured or authorised, as if it were, his own act. It is necessary, however, even in such a case to prove actual direction or authorisation, such as is sufficient to make the ministerial officer the agent of the defendant. Mere information given to such an officer, on which he acts at his own discretion, is no ground of liability: Hopkins v. Crowe, (1836) 4 Ad and El 774; Grinham v. Willey, (1859) 4 H. and N. 498″. There is, however, as again stated in the same authority” a curious distinction between arrest by a private person and arrest by a constable.”

A private person justifying an arrest for a suspected felony must prove that the felony has actually been committed, whether by the person arrested or by some one else, and if in fact there has been no felony committed, it is no defence that there was reasonable and probable cause for believing the person arrested to be guilty. In the case of arrest by a constable, on the other hand, it is sufficient that there was reasonable and probable cause of suspicion, even if no felony has been in fact committed: Beckwith v. Philby, (1827) 6 B and C 635; Walters v. W.H. Smith and Sons Ltd. (1914) 1 K. B. 595. Unlike the case of malicious prosecution, it is not necessary for liability that the arrest should have been malicious, it is enough that it was without reasonable and probable cause: Hogg v. Ward, (1858) 27 L. J. Ex. 443; Alien v. Wright, (1838) 8 C. and P. 522. The burden of proving the existence of reasonable and orobable cause is on the defendant: Hicks v. Faulkner (1881) 8 QBD 167 at p. 170.”

Therefore, in view of the law as stated above, there are two main questions which on the facts or the present case arise for consideration: (1) whether the arrest of the plaintiffs, as alleged, was at the instance of or in collusion with the defendant, or it was in the exercise of an independent judgment of the Sub Inspector of Police himself who arrested them; and (2) whether there was any reasonable and probable cause for the arrest of the plaintiffs. The case of the defendant is that the arrest of the plaintiffs in the instant case was in exercise of an independent judgment of the police and not at his suggestion or in collusion with him, and further that there was sufficient reasonable and probable cause for the same.

The onus of proving as already stated, of both these two points is on the defendant and unless that is properly discharged the judgment has to be entered in favour of the plaintiffs. The finding of the trial Court, however, on both these points is in favour of the defendant. The finding on the second point is “that the defendant had reasonable and probable cause for lodging information with the police against the plaintiffs and their principals. The first circumstance relied upon by the trial Court in support of this finding is based on the reasoning, that even if the stones be natural but if they contain kala chhita and dag as is proved by the evi-dence of Lala Babu and the defendant’s witness Mali Ram they cannot be said to be real jewelleries and must be held to be defective in character”.

In my opinion, the basis, as stated above, for holding that the jewels were not genuine is not only erroneous but rather fallacious. The word “Genuine” as defined in the Law Lexicon means not spurious or counterfeit,” or as explained in dictionary “belonging to, derived from or descended from the original, source or stock; authentic, typical; pure”. Here on the point of genuineness this much is conceded by the trial Court itself that “it is not proved, nor is it the case of the defendant that the stones were imitation”. If that is so, then the mere tact that the quality of those jewels, though real, was of an inferior order cannot be ground for holding that they were not genuine at all.

Further, it has to be remembered that what law plaintiffs guaranteed under the various leaflets and posters issued by them in the process of advertising was only the genuineness of the jewels and not any particular quality of the same. In the conditions of sale (Exhibit 4) quoted above all that is stated in this connection is that “the genuineness of the jewels-is guaranteed by the auctioneers.” Similarly, in auction advertisement poster (Exhibit 50) what is stated is: “The genuineness of the jewels is guaranteed by the auctioneers. Any complaint regarding genuineness of the jewels will be entertained within 24 hours of the sale after which our responsibility ceases.” Likewise, in the cash memo (Exhibits 6-6K) what is guaranteed is clearly stated in the three-following clauses given thereunder:

“1. Please see and examine the jewelleries before you leave the auction premises.

2. The genuineness of the jewels is guaranteed by the auctioneers. (Any complaint regarding genuineness of the jewels will be entertained within 24 hours of the sale), after which nothing will be heard and our all responsibility will cease.

3. No any other complaint else and except the genuineness of the jewels will be entertained.”

Therefore, it is difficult to say that what was guaranteed by the auctioneers was anything more than that they were genuine and certainly in no case they can be interpreted to mean that the jewels were not only not spurious but also that they were of any particular quality or that they did not suffer from any defect. It may be that “Dagi and doshi are less valuable than the real jewels without dagi and doshi”, but dagi and doshi cannot make the jewels unreal or any way less genuine. It may also be true, which however I am not sure of, that “dagi and doshi jewels-have no importance so far as their efficacy on the person of a human being is concerned” or “that the stones with kala chhita are bad in the eyes of Indians”. But such a belief is not in any way supported by any rule of science or taken as a proposition of wide acceptance. Therefore that again cannot take away the genuineness of the jewels if they are in fact genuine, though defective in other respects.

Lastly, the learned Subordinate Judge has said that: “It is a matter of common knowledge that Indians purchase precious stones for use on account of the fact that such stones are said to have certain efficacy on the human persons”. In my opinion, this proposition also as stated is rather too wide. It may be that stones are sometimes purchased from that point of view, but that is never the case applicable to all ornaments that are to be found in common use. Therefore, the grounds on which the Court has come to the conclusion that the jewels could not be said to be real are founded partly on misapprehension and partly on superstition and as such cannot be maintained in law. In my opinion, on the very finding given by the trial Court that the stones were not imitations it has to he held that what was guaranteed by the auctioneers in regard to the genuineness of the jewels was fully discharged by them.

10. The second circumstance relied upon by the trial Court is the fact that the metals wherein the jewels were set were not gold but copper and silver. In my opinion, in this regard also the trial Court” has depended much upon speculation. The simple and admitted fact is that there was no guarantee given for the kind or quality of metal wherein the jewels were set; rather in item No. 3 of Exhibit 6 it was specifically stated that “no any other complaint else and except the genuineness of the jewels will be entertained.”

Therefore, the fact that the metals wherein the jewels were set had the appearance of gold, or the tact that the jewelleries are as a rule invariably set in alloyed gold or in platinum, or the fact that in none of the advertisements there was any clause guaranteeing the genuineness of the metal can be a ground for holding that there was any valid reason for the defendant to be carried away by the assumption that the metals used were in fact gold or that by implication there was any guarantee given as to the quality of metal also. Then it cannot he denied that on the day preceding the auction all the jewelleries, meaning thereby the jewels as well as the metals in which they were set, had been put to inspection and a large number of persons had as a matter of fact inspected the same.

Further, it is also fairly established from the evidence on the record that even when the auction was in progress it was open to every buyer to inspect and verify both the quality of the jewels as also the quality of the metal in which they were set. Therefore, it was the duty on the part of the purchasers including the defendant to get themselves satisfied about the defect if any which was there either in the jewels or the metals in which they were set. After all in the process of commercial bargain a purchaser has also certain duties to discharge as stated in the phrase ‘Caveat Emptor’.

It has been said on behalf of the defendant that he had not inspected the metals on 31-12-1948, as he was not present on that day in Muzaffarpur. This has not been accepted by the trial Court, and the exact finding given on that point is that “the defendant has no doubt not adduced sufficient evidence to prove his alibi that he was at Kurshaila on 31-12-1948”. Yet the case of the plaintiffs on this point has also been thrown out on the ground that they too failed to establish that the defendant inspected the jewellery on 31-12-1948.

I think the trial Court here has fallen into an error and has erroneously tried to approach the case on the simple proposition of absolute onus. In a civil proceeding when the evidence has been gone into by both the sides it is for the Court to find out the truth unless the evidence on both sides is hopelessly worthless. The plaintiffs in this case in support of their allegations have examined six witnesses, apart from Thakur Prasad who was examined as an expert on commission. Two of those witnesses specifically deposed on the point of the presence of the defendant in the Town Hall on 31-12-1948.

The statement of P. W. 1 was “The defendant also inspected the jewelleries on that date. He was accompanied by two friends and a jeweller.” Likewise P. W. 2 stated: “I had gone to the local town hall on 1-1-1949 on which date the plaintiff held a show of jewels to be sold by them by auction sale.” Then says, “It was held on 31-12-1948 and 1 had attended. I saw the defendant also present there.” The trial Court has disposed of these two statements by a sweeping observation that the evidence adduced by the plaintiffs to prove his presence in the town hall on the said date is quite unsatisfactory and unconvincing, as will appear from the cross-examination of the witnesses examined by the plaintiffs on this point.”

I have carefully gone through the cross-examination of P. Ws. 1 and 2 and I in any case do not find any material in their cross-examination to support the conclusion that what was stated by them in examination-in-chief was not true or that the same was false. Further, there is evidence on the record that even on the day when the purchase was made by the defendant in the course of auction he was not all alone but in the company of some jewellers. The trial court has not taken any notice of this statement made by some of the P. Ws. I think it should not have been so lightly ignored especially when that statement made by them has not been challenged in cross-examination.

Therefore, I think that not only that the plaintiffs gave sufficient opportunity to the intending buyers to satisfy themselves fully both as to the quality of the jewels as also “about the quality and kind of metals in which they were set, but also that the defendant did as a matter of fact utilize this opportunity and satisfied himself fully about their worth both on the 31st December, 1948, as also on 1-1-1949. But if in spite of it the defendant chose to enter the bid and to purchase the jewelleries by overbidding his rival bidders as the result of which he had to pay high prices, the fault if any was his and not that of the auctioneers.

11. Thirdly, the learned Subordinate Judge has also tried to draw an adverse inference against the plaintiffs on the grounds that in spite of the demand made by the defendant on the next day of the purchase the plaintiffs at first refused to take back the goods and to repay the money, but subsequently that again did so (sic). In my opinion this circumstance is not of any significance on the point of cheating. After all there is a stage where a contract becomes complete and unless thereafter there is any valid ground made out by the party concerned it is not to be reopened at his sweet will.

Here the contract of sale and purchase had been completed, cash had been paid and the jewelleries delivered. Thereafter, there was nothing left for the contract to be completed; and if in spite of it the defendant on the next day wanted to return the jewelleries on a term not covered by the contract, it was open to the plaintiffs to say that they would not do it; and if for some reason or other, subsequently the principals of the plaintiffs agreed to take back the same, that also cannot necessarily lead to the conclusion that they did it because they by implication admitted that there was some flaw on their part in that bargain. It may be that the principals of the plaintiffs being men from Bombay did not like to waste much of then-time and energy over litigation in Muzaffarpur far away from their office in Bombay.

To them perhaps it was more profitable that they should take back the jewelleries purchased by the defendant than to get the truth of the allegation tested or falsified by a protracted trial. It is nothing uncommon that as a rule men of business, in order to save both time and energy, avoid litigation as far as possible, more so when they happen to Be men from outside, or dealing in a business which comparatively depends on local confidence. Therefore, these circumstances also cannot be relied upon in support of the finding as stated above.

12. Fourthly, the trial Court has placed reliance on the facts that in the advertisements made about the auction sale there was a specific statement made that the jewels belonged to Johar Singh, the Zamindar of Bedana, and others as also that it was being held under the orders of the Presidency Magistrate, Bombay. In my opinion, these facts had been inseited in those advertisements in order to reassure the intending purchasers that there was no defect in the title as also to protect the auctioneers from future complications. It is too much to say that in spite of the opportunities referred to above these two statements could be a ground for any valid suggestion to the intending purchasers that the jewelleries were set in metals which were nothing but gold or that the jewels did not suffer from any defect.

It is true that the certified copy of the order of the Presidency Magistrate was not produced at the trial and it is also true that in the final report the statements said to have been made by the principals of the plaintiffs are not consistent with this story. But, in my opinion, none of these factors can be a ground for throwing out the authenticity of the letter of authority (Exhibit 12) given by the principals of the plaintiffs to the plaintiffs on the 28th December, 1948, nor the claim made in this behalf by P. W. 1 can be ignored. The letter of authority specifically mentions the fact that the ornaments were the property of B. Johar Singh and others while P. W. 1 in his cross-examination claimed “I saw the copy of the order of the Presidency Magistrate, Bombay.”

I think one can reasonably accept that at the time when the present proceeding was started it was not easy for the plaintiffs to get a copy of that document from Bombay and so far as their principals were concerned, they also, I am sure, would not have given any willing assistance in a matter like this when they had already taken back the materials with a view to avoid all future litigation. Then it may be said that they could have been at least summoned, but it has to be remembered that to get a witness from Bombay and that contrary to his wishes, is neither easy nor any practicable proposition.

13. And as to what is said to have been stated in the final report by the principals of the plaintiffs it is enough to say that it cannot be used as evidence against them. As such neither of these can be used as basis for drawing an adverse inference against the plaintiffs that there was any attempt on their part of cheating or defrauding the customers.

14. Lastly, it has been found by the learned Subordinate Judge that the very fact that the F. I. R. had been lodged by the defendant after consulting the lawyer is good evidence of the bona fide belief that he had a good cause of action against the plaintiffs. In support of this finding reliance has been placed here on the decision in Ravenga v. Mackintosh, (1824) 107 ER 541. There Bayley J., observed:

“I accede to the proposition, that if a party lays all the facts of the case fairly before counsel, and acts bona fide upon the opinion given by that counsel (however erroneous that opinion may be) he is not liable to an action of this description.”

While Holroyd, J. stated:

“It is unnecessary to decide in this case, whether a party who acts upon a belief that he has a good cause of action (such belief being founded upon the opinion of a legal adviser of competent skill and ability), but influenced by a malicious motive, can be said to have a reasonable or probable cause of action, when in truth he has no actual cause of action, because the jury here have found that the defendant did not act bona fide upon the opinion given, and did not believe that he had any cause of action whatever”.

So it is obvious that it is not a question of law but only a circumstance to be taken into consideration in coming to a finding of fact as to whether the defendant in getting the plaintiffs arrested acted bona fide or without any reasonable and probable cause.

On the facts of this case, I think the defendant has failed to establish that there was any reasonable or probable cause for him to lodge any F. I. R. against the plaintiffs under Section 420 of the Indian Penal Code. On the contrary, it appears to me that the true reason for lodging the F. I. R. was that subsequently he realised, may it be on the ground of his own judgment or the judgment of others who had been approached by him, that what he had paid for those jewelleries was much more than their real price and therefore attempted to get back somehow the money which he had paid for the jewelleries. In this connection it is important to note that according to the plaintiffs what was claimed by the defendant in the conversation that took place in the morning following was:

“The defendant came to my place in the morning of 2-1-49. He asked me to take back some of the jewelleries on the ground that he had paid very high prices for them. I refused to comply with his request. He threatened me and left my place.”

As opposed to this the claim of the defendant is that what he seated there was:

“I met them and the plaintiff in a room on the 1st floor of the Dharamshala. I requested them to take back the articles as the metal was brass and copper and the jewels were defective. Plaintiff No, 1 then replied that the articles could not be returned”.

Unfortunately, the trial Court has not given any finding on the truth or otherwise of these two conflicting statements. But in the view which I take of the case and of the circumstances stated above as also the evidence given at the trial I am more inclined to hold in favour of the plaintiffs in this respect than that of the defendant.

I cannot believe for a moment that a man with the experience of the defendant would not realise that no auctioneer would take back the articles once sold if they did not suffer from any defect guaranteed. The defendant is not in any way a man of less experience or less acquainted with the rules of business in the commercial world. His age as given in the deposition is forty-five. He claims to be a man of substance. Further, the evidence shows that it was not his first attempt to purchase jewelleries. Previously also he had made purchases of jewels worth more than Rs. 50,000. Therefore, it is difficult for me to accept that he is so innocent in the matter of transactions as he has posed to be in the witness-box.

I have carefully read the evidence of the defendant as also of his witnesses and the impression of the defendant as also of his witnesses and the impression that I get is that they have unnecessarily attempted to make out a case of cheating against the plaintiffs and that with the sole idea of avoiding the liability of recklessness which the defendant displayed in getting the plaintiffs arrested without any reasonable or probable cause. Further many of the facts stated in the petition of complaint (Exhibit B) are obviously incorrect. For example, it is stated therein that “I purchased jewelleries set in gold as represented by them at the sale held yesterday in the town hall.”

There is not the least iota of evidence on the record to suggest that there was any representation made by the plaintiffs or their principals either at the time of sale or even before that the metal in which the jewels were set was gold. Similarly it is stated therein that “they also represented that the jewelleries were genuine and the gold was also genuine”. Here also the latter part is obviously wrong. The third statement made therein is: “On testing them 1 find that neither the jewelleries are real nor gold is real”.

In this also the first part of the claim is obviously wrong, for even the defendant had to admit in his cross-examination that nobody told him on testing that the jewels were faked or imitation. Lastly, in that complaint petition the defendant stated: “The Gujratis have also refused to disclose their identity and I apprehend that they are trying to run away from this town”. This statement is on the face of it very alarming and the motive underlying it could be nothing but to get the auctioneers arrested at once.

Unfortunately, there is no reliable evidence on the record to suggest that there was any refusal on the part of the Gujratis to disclose their identity, nor any trustworthy circumstance suggesting that they were trying to run away from the town. On the contrary, it is not denied that for that day too the sale was not only advertised to be held but in fact held also. Lastly whatever may be said about the Gujratis at least the auctioneers themselves were not strangers.

They were men of the town. In these circumstances the alarming character of the statement made, in the F.I.R., apart from the fact that many of the statements made therein, as stated above, were obviously incorrect is indicative only of one conclusion and that is that the defendant was anxious to use this complaint as a lever to extort back the money which he had paid to the auctioneers and that by means of their arrest and prosecution as also that of their principals. Had he been cautious and honest he could not have put in any incorrect or exaggerated statements in the petition of complaint, nor in a form so alarming as stated above. Therefore, in my opinion, the wrongful arrest was not only without any reasonable and probable cause but was perhaps the result of an ulterior motive too.

15. Then, it has been argued that even if it be assumed that the motive in lodging the complaint before the police was without any reasonable and probable cause, yet the wrongful arrest made by the police was not at the instance of or in collusion with the defendant but was made in exercise of their independent judgment which they thought fit and proper in the course of the investigation. In my opinion this is also not true. In the petition of complaint it is specifically stated: “they are at present in the town hall, Muzaffarpur, and were staying in the Marwari Dharamshala, Muzaffarpur. I can identify them. Hence this information for taking necessary action against them for cheating me”.

This is fully consistent with what the plaintiff stated in his examination-in-chief, namely, that

“The police raided the town hall between 2 and 3 p.m. The police Sub-Inspector was accompanied by the defendant who pointed me and, my son to the Sub-Inspector and requested him to arrest us. We were arrested and all the jewellery and the papers relating to the auction sale were seized. On enquiry the Police Sub-Inspector told me that the defendant had lodged an information with him against us under Section 420, I. P. C. and so we were being arrested”. Further it finds corroboration also from the statements made by P. W. 3, P. W. 4 and P. W. 5.

But in the witness-box what the defendant stated was: “I did not go (to) the town hall on 2-1-49 and did not tell people assembled there that the plaintiffs were cheats and were cheating people and that they should get a refund of their purchase prices. I did not point out the plaintiffs to the police and did not it (sic) to arrest them”. The trial Court, however, on a discussion of this Bart of the case has held that “I am however not inclined to believe this statement of the defendant that he did not accompany the police to the town hall and remained sitting at his house after lodging the F.I.R,”, but then it has stopped there without giving any finding as to whether the arrest was made: at the suggestion or identification of the defendant.

I have carefully gone through the evidence of P. Ws. 1, 3, 4 and 5 and I find no reason to disbelieve them when they say that it was at the instance and identification of the defendant that the arrest was made at the Town Hall. Further it has to be remembered that so far as the factum of arrest itself is concerned, that is not in this case denied. Therefore it is quite understandable that the police in the course of arrest must have got them identified by the party interested in their arrest especially when at least some of them, namely, the Gujratis were quite strangers in the town.

And then this also finds full support from the mode and manner in which the petition of complaint was got drafted by the defendant and the anxiety shown therein for their immediate arrest. Therefore, taking into consideration the motive as stated above, and the circumstances of the case as also the evidence on the record the only irresistible conclusion that one can come to is that it was at the instance of and in collusion with the defendant that the police arrested the plaintiffs. That being so, I hold that the claim for false imprisonment as stated by the plaintiffs has been fully made out by them.

16. Then there is also a claim made by the plaintiffs on the ground of libellous statements said to have been made by the defendant against them. This part of the case rests exclusively on the so called imputation made in Ex. 3{a). That is the reply dated 10th April, 1949, to the notice given by the plaintiffs on 21st March 1949. Therein the main paragraphs, which have been relied upon in support of this part of the case, are 8, 9, 10 and 12. In those paragraphs the allegations made are that the plaintiffs cheated the defendant and duped others by making false representations as also by deception and fraud.

It is, however, to be noted that those statements, though by themselves libellous were made in answer to the notice given by the plaintiffs that it was the defendant who got them arrested and that not only without any reasonable and probable cause, but also maliciously, and as such he was liable to pay damages for the same. Therefore, though in view of what I have found above, the liability arising from it cannot be saved on the ground of justification’ as held by the trial Court, yet the fact remains that they were made on an occasion which in law is privileged.

Here the privilege arises for two reasons; firstly for the reason that the statements were made in the performance of a duty; Toogood v. Spyring, (1834) 1 Cr. M. and Rule 181 and Stuart v. Bell, (1891) 2 QB 341; and secondly that they were made in the protection of interest; De Buse v. McCarty and Stepney Borough Council, (1942) 1 KB 156; Turner v. M. G. M. Pictures Ltd., (1950) 3 All ER 449 and it cannot be denied that in either case reciprocity was there as contemplated in law; Adam v. Ward, (1917) AC 309; White v. Stone Lighting and Radio Ltd., (1939) 2 KB 827. Further though it is true that in the case of qualified privilege as is the case here, it can constitute protection only if the statements were made honestly and without any indirect or improper motive, but here there is no evidence that the statement made in reply to the notice was made either dishonestly or with any indirect or improper motive and not only with an honest intention to be consistent with what had already been stated in the F.I.R.

The principle which determines whether any particular occasion is privileged was in (1834) 1 Cr. M. and Rule 181 expounded by Parka B. in these words “The statement is protected if it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.” Therefore, the claim for defamation also like that for malicious prosecution has to be rejected, though the one for false imprisonment, as already held above, has to be allowed.

17. Next, therefore, that arises for consideration is the quantum of damages that has to be allowed for the case of false imprisonment. In law, as already stated, false imprisonment is derived from the action of trespass. Therefore, in that case it is not necessary to prove actual damage. Here, however, the actual damage has also been specially pleaded. At the foot of the plaint, damages as claimed have been classified under the following six headings:

Head of torts.

Account; Estimated damages suffered.

Damages Caused.

1.
For wrongful arrest
…

Rs.  5,000/-

Rs. 1,000/-

2.
For damages sustained in body and mind
…

Rs.  5,000/-

Rs. 1,000/-

3.

For loss of personal reputation in the social circle and in the public
…

Rs.  5,000/-

Rs.   500/-

4.

For loss of reputation and good name of business Messrs Bhawsinka Sales Bureau
…

Rs.  5,000/-

Rs.   500/-

5.
For loss of commission in the business
…

Rs.  2,000/-

Rs. 2,000/-

6.

For legal and miscellaneous expenses Incurred In obtaining discharge
…

Rs.    300/-

Rs.   250/-

Rs. 22,300/-

Rs. 5,250/-

Of these only the last 2 items, namely, item Nos. 5 and 6 can be included in the category of special damages, while the rest are in the nature of general damage which the law implies is not necessary to be specially pleaded. In the case of the former the principle which is generally applied is one of restituitio in integrum while in the case of the latter the quantum is assessed on the principle of fair compensation. I have already quoted above the finding given by the trial Court on the question of damage.

Therein the damage as assessed by it for the first four items, namely, those covered under the class of general damage, is Rs. 100. As to this class of damage Earl of Halsbury L. C. in the Modiana, (1900) AC 113, has rightly pointed out that “Nobody can suggest that you can by any arithmetical computation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident”. Still the Court has to do the best which it can in the light of the circumstances available on the record. Unfortunately, in this case there is no material referred to in the judgment under appeal on the basis of which the assessment has been made by the learned Subordinate Judge, nor the quantun as found by him under the aforesaid heading has been challenged before me.

Therefore, the assessment made by the trial Court for the damages claimed under the first four headings has to be maintained. Further there is the established principle that an appellate Court should be slow to interfere with the assessment made by the trial Court and then if it has to do it “it must be satisfied either that the Judge, in assessing the damages, applied a wrong principle of law, or short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be wholly erroneous estimate of the damage, Nance v. British Columbia Electric Ry. Co. Ltd, (1951) A C 601.” Unfortunately on this point there has been no argument advanced before me either that the assessment as made by the trial Court was inordinately low or that it was inordinately high.

Then as to the last two items, the finding given, is that even if the plaintiffs’ case had been accepted the trial Court would not have allowed any damages for malicious prosecution and for loss of commission and at best only Rs. 50/- on account of legal and miscellaneous expenses. Now this finding so far as it relates to the claim for malicious prosecution is fully justified by the view as taken above. But I see no reason why the claim for loss of commission should not be allowed if it is held, as has been held by me, that the allegation about false imprisonment is true.

There can be no doubt that it was the result of the arrest made on the 2nd of January, 1949 that the auction sale had to be postponed and the people-assembled there had to run away, if not for anything else, at least for fear of police, and the investigation by them in the matter of auction sale. In these circumstances I think the defendant cannot escape the liability for what the plaintiffs suffered as a result thereof in the matter of commission. It is true that in paragraph 21 of the written statement the amount of damages claimed has been challenged in general terms as high and excessive.

But there is no specific case made out either in that paragraph or anywhere else in the written, statement about the falsity of the claim on account of “loss of commission in the business”, though other items have been therein challenged specifically apart from what have been said about them in general terms. Even then, however, it was for the plaintiffs not only to plead but also to establish by evidence that had the sale been allowed to continue in the normal course as scheduled that would have brought to their coffer as commission not less than Rs. 2000. Unfortunately, on this point the evidence given by the plaintiffs is rather meagre, and the only reliable material which is there and which can be relied upon as the basis for assessing the loss of commission on the second day is what was earned by the plaintiffs as such on the first day of the auction.

In support of the sale made on the first day the cash memos have been brought on the record on behalf of the plaintiffs. On their basis it has been claimed by Mr. Bhabananda Mukherji appearing for the respondent and not challenged by the other side that in the auction held on the first day jewelleries worth about Rs. 19,000/- were sold. There is, however, one factor which distinguishes the sale of the first day with that which was to be on the second. And that is the fact that the second day of sale was a Sunday and then there is evidence on the record that on that day the crowd which had collected in the town hall was comparatively much larger.

Therefore, for that reason, certain margin has to be allowed in favour of larger sale on that day. I think roughly the sale on that day can be reasonably assessed, excluding the sale of a few hundreds which had already been made before the arrest, at Rs. 25,000. That amount of sale, on the basis of 2 per cent, commission, would have earned for the plaintiffs a sum of Rs. 500 as commission. That being so, in my opinion, under the heading loss of commission the plaintiffs are entitled to a sum of Rs. 500 only. Then, so far as the amount allowed by the trial Court under the heading “legal and miscellaneous expenses” is concerned, that has not been challenged before me.

18. In the result, therefore, the judgment and decree of the trial Court are set aside and appeal is allowed in part to the extent as stated above with proportionate costs throughout.