Nagendra Kumar vs Etwari Sahu And Ors. on 22 April, 1957

JUDGMENT

Raj Kishore Prasad, J.

1. This is an appeal by the sole defendant from the judgment of Mr. S. Z. A. Naqui, Additional Subordinate Judge. Second Court, Monghyr, decreeing the plaintiffs’ suit for damages for malicious prosecution.

2. On this appeal, only two questions have been debated at the Bar: (1) Whether there was want of reasonable and probable cause on the part of the defendant-appellant in prosecuting the plaintiffs-respondents in the Criminal Court and, (2) Whether the defendant in prosecuting the plaintiffs was actuated and motivated by malice?

3. The plaintiffs instituted the present suit against the defendant for grant of a decree for Rs. 11000/- as per account given at the foot of the plaint by way of damages for malicious pro-eecution.

4. Briefly stated, the case of the plaintiffs was that in the year 1942-43 the defendant was posted at Monghyr as a Sub-Deputy Collector, and he was also then Price Control Officer there, As plaintiff No. 1 did not agree to the reduction of his quota of sugar for the benefit of one Sukhdeo Ram Marwari of the Firm of Messrs, Trilokchand Sukhdeo Bam, who was in the good books of the defendant, he was annoyed with the plaintiff.

It was further alleged in the plaint that for various other reasons the defendant bore grudge and malice against plaintiff No. 1. and. therefore, he tried in various ways to harm the plaintiff No. 1. In December, 1942, the defendant had purchased two gallons of petrol from plaintiff No. 1’s petrol pump at Monghyr on credit. On the 16-4-1943. the plaintiffs had gone to the Price Control Office to enquire about the payment of the price of the said petrol when plaintiff No. 1 was arrested by the defendant, who subsequently lodged a complaint against both the plaintiffs under Section 448, Indian Penal Code, on 26-4-1943.

The plaintiffs were put on trial, but were ultimately acquitted on 14-8-1943. It was alleged that out of sheer malice the defendant had prosecuted the plaintiffs without any reasonable and probable cause on account of which plaintiff No. I suffered heavy loss in his business, and repu-

tation, and was put to acute physical and mental worries. The plaintiiis, therefore, c!a med that they were entitled to Rs. 24.000/- as damages, but due to the slender means of the defendant the plaintiffs confined their claim to Rs. 11,000/- only. (5) The defendant contested the suit on he main ground that the prosecution of the plaintiffs was bona fide and true, and, in the interest of purity of administration of justice, and, there was no malice on his part, He further denied the plaintiffs’ story about his purchase on credit of two gallons of petrol from the plaintiff l’s petrol shop, and, the demand by them of the price thereof from the defendant.

5a. The learned Subordinate Judge found that:

“…..Prom the very beginning’ each
Individual act of Mr. Kumar against Babu Etwari Sahu was actuated with worst type of malice and personal grudge against him and the case under Section 448, I. P. C., under consideration was also brought by Mr. Kumar out of sheer malice and without any reasonable and probable cause.”

5b. He further found that the notices under Section 80 of the Code of Civil Procedure were sent to the defendant on 11-6-1944, and 12-6-1944, and were duly served on him. On the question of the quantum of damages, he found that the plaintiffs’ claim was not unreasonable. He, therefore, decreed the plaintiffs’ suit in toto against the defendant.

6. The defendant, therefore, has presented the present appeal against the judgment and decree of the learned Subordinate Judge. Mr. Ray Paras Nath, Government Pleader, in support of the appeal, has contended that the findings of the court below are erroneous in fact and law both, and, that the plaintiffs had failed to prove either malice or want of reasonable and probable cause on the part of the defendant in filing the complaint (Ext. 3), and in prosecuting the plaintiffs under Section 448 of the Indian Penal Code, and, as such, the Plaintiffs should be non-suited.

7. Mr. P. R. Das, however, who appeared for the plaintiffs-respondents, presented a’ very vigorous argument in support of the judgment, and, tried to justify the findings of the court below, both on the question of malice and on the question of want of reasonable and probable cause.

Principles Governing An Action For

Malicious Prosecution.

8. It would be useful at the outset to know the principles which govern an action for malicious prosecution and, the conditions of liability for the same.

8a. The object of law is the creation and protection of legal rights. Any interference with a man’s right, whether with respect to his personal liberty or property is prima facie wrongful. A person as such is prima facie entitled to set the law in motion against any person, who has wronged him, either in person or property, if he does so with an honest intention of protecting his own and the public interest.

It is no doubt true that courts established for administering justice, civil or criminal should be open to every aggrieved person in. vindicating his right, but at the same time everv person has a corresponding right that he should not be harassed by legal proceedings improperly instituted against him. Law is anxious that persons should not be harassed In courts of law.

From motives of public policy, the law gives protection to persons prosecuting, even where there is no reasonable or probable cause for prosecution; but if the person abuses his privilege for the indulgence of his personal spite, he loses the protection and is liable to an action, not for the malice, but for the wrong done in subjecting another to the annoyance, expense, and possible loss of reputation by a causeless prosecution.

So, whenever the law has been set in motion, not for the bona fide purpose of vindicating justice, but there is a perversion of the machinery of justice for improper purposes, an action will be maintainable.

9. To found an action for damages for malicious prosecution based upon criminal proceedings the test is not whether the criminal proceedings have reached a stage at which they may be correctly described as prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results.

The mere presentation of a false complaint which first seeks to set the criminal law In motion will not per se found an action for damages for malicious prosecution. If the Magistrate dismisses the complaint as disclosing no offence with which he can deal, it may well be that there has been : othing but an unsuccessful attempt to set the criminal law in motion, but no damage to the plaintiff results.

Laying the information before the Magistrate, therefore, would not be the commencement of the prosecution, unless the Magistrate issues a summons against the plaintiff, and, when once, a summons is issued, the commencement of the prosecution relates back to the laying of the information. The malicious criminal prosecution, therefore, means instituting unsuccessful criminal proceedings against any one resulting in damage to him, if the prosecution is inspired by malice and is destitute of any reasonable and probable cause.

10. The Privy Council in 1947, in Moham-mad Amin v. Jogendra Kumar, AIR 1947 PC 108: 74 Ind App 193 (A), reviewed the Indian decisions on the subject, and, modified the previous view that the mere presentation of a false complaint which first seeks to set the criminal law in motion will per se found an action for damages for malicious prosecution, and laid down the law just mentioned. Several decisions of the Indian High Courts, including the decision of this Court in Subhag Chamar v. Nand Lal, ILR 8 Pat 285: (AIR 1929 Pat 271) (B), were either overruled or disapproved.

11. The law of malicious prosecution has been examined in all its aspects also by Bhag-wati J., as he then was of the Bombay High Court, and, his Lordship, after a consideration of English and Indian decisions on the subject, In Dhanjishaw Rattanji v. Bombay Municipality, AIR 1945 Bom 320: ILR 1945 Bom 547 (C), has also laid down the law to the same effect.

Conditions of Liability.

12. On being analysed, malicious prosecution resolves itself into the following component parts, and, therefore, the plaintiff must prove to succeed in an action for damages for such prosecution.

(i) The prosecution by the defendant of a criminal charge against the plaintiff before a tribunal into whose proceedings the courts are competent to enquire; and,

(ii) that the proceedings complained of ter-

minated in his favour, if from their nature they: were capable of so terminating; and,

(iii) that the defendant instituted or carried on such proceedings maliciously; and,

(iv) that there was an absence of reasonable and probable cause for such proceedings; and

(v) that the plaintiff has suffered damage.

12a. The above conditions of liability have been laid down in Halsbury’s Laws of England, Hailsham Edition, Volume XXII, paragraph 11, page 10; Clerk & Lindseli on Torts, 9th Edition, page 664; Balbhaddar Singh v. Badri Sah, AIR 1926 PC 46: 7 Pat LT 591 (D), Per Lord Viscount Dunedin; and AIR 1945 Bom 320 (C) Per Bhagwati J.

12b. The onus of proving every one of the above conditions of liability is on the plaintiff.

Burden of proof :

13. On the question of burden of proof, Mr. Das has relied on the classical judgment of Lord Justice Bowen in Abrath v. The North-Eastern Ely. Co., (1883) 11 QBD 440 (E) at p. 456, where the distinguished and noble Lord observed :

“Whenever litigation exists, somebody must go on with it; the plaintiff is the first to begin; if he does nothing, he fails; if he makes a prima facie case, and nothing is done to answer it, the defendant fails. The test, therefore, as to the burden of proof of onus of proof, whichever term is used, is simply this; to ask oneself which party will be successful if no evidence is given, or if no more evidence is given than has been given at a particular point of the case, for it is obvious that as the controversy involved in the litigation travels on, the parties from moment to moment may reach points at which the onus of proof, shifts, and at which the tribunal will have to say that if the case stops there, it must be decided in a particular manner.

The test being such as I have stated, it is not a burden that goes on for ever resting on the shoulders of the person upon whom it is first cast. As soon as he brings evidence which, until it is answered, rebuts the evidence against which he is contending, then the balance descends on, the other side, and the burden rolls over until again there is evidence which once more turns the scale.

That being so, the question of onus of proof is only a rule for deciding on whom the obligation of going further, if he wishes to win, rests.”

14. Mr. Das relied also on Halsbury’s Laws of England, Volume XXII, page 21, para 32, and, on the judgment of Lord Tenterden C. J., in Cotton v. James, (1830) 109 ER 735 (P), at page 735, where the learned Chief Justice observed:

“….. in general the plaintiff must
give some evidence showing the absence of probable cause. But such evidence is, in effect, the evidence of a negative, and very slight evidence of a negative is sufficient to call upon the other party to prove the affirmative, especially where the nature of the affirmation is such as to admit of proof by witnesses, and cannot depend upon matters lying exclusively within the party’s own knowledge, as in some case of criminal prosecution it may do.”

15. The above high authorities, therefore, establish that the burden of proof, in the first instance, lies on the plaintiff. He must show not only that he was prosecuted by the defendant, and, that the prosecution terminated in his favour, but also that he suffered damage, and

] that the defendant acted maliciously, and with-I out reasonable and probable cause.

The plaintiff no doubt in proving absence of reasonable and probable cause has to prove a negative, and, in general, need only give slight evidence of such absence, but it cannot be inferred from the most express malice. The burden of proof, therefore, is not stationary. When the plaintiff has given such evidence, which, if not answered, will entitle him to a decree, the burden of proof is shifted to the defendant.

If facts existed, which, if known to the defendant would have constituted reasonable and probable cause, the burden of showing that they were not known to him would lie on the plaintiff. The defendant on his part may give evidence of all the facts that were before his mind at the time of the prosecution, whether for the purpose of negativing malice, or of establishing reasonable and probable cause.

If the facts before the defendant, when prosecuting, prima facie, amounted to a reasonable and probable cause, but the defendant did not believe the plaintiff to be guilty, and, he was not so, in effect; want of such belief is evidence of the want of reasonable and probable cause, and is apparently conclusive; but the plaintiff must prove such disbelief, if alleged.

16. After ascertaining the principles governing the burden of proof, let us now first know, what is meant by ‘Reasonable and Probable Cause’?

What is “Reasonable and Probable Cause?

16a. Lord Atkin, in Herniman v. Smith, 1938 AC 305 (G) at p. 316, on this subject, observed:

“I know of’no better statement of the issue than the words of Hawkins J., in Hicks v. Faulkner, (1881) 8 QBD 167 (H), at p. 171: ‘I should define reasonable and probable cause to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man. placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.”‘

It is well settled that the question of the absence of reasonable and probable cause is for the judge. At the same time it is I think, clear that the question is one of fact and not law.”

17. The plaintiff, therefore, must prove that the facts and circumstances of the case at the time of the offence- were such as to be in the eyes of the Judge inconsistent with the existence of reasonable and probable cause. Reasonable and probable cause depends upon the information and belief of the defendant.

There must be a reasonable cause — such as would operate on the mind of a discreet man; there must be a probable cause–such as would operate on the mind of a reasonable man; at all events such as would operate on the mind of the party making the charge; otherwise there is no probable cause, if the state of facts was such as to have no effect on his mind.

18. The question of reasonable and probable cause depends in all cases not upon the actual existence, but upon the reasonable bona fide belief in the existence of such a state of things as would amount to a justification of the course pursued in making the accusation complained of no matter whether this belief arises out of the

recollection and memory of the accuser or out of information furnished to him by others.

19. A man is not bound before instituting proceedings to see that he has such evidence as will be legally sufficient to secure a conviction. Neither is it necessary that the defendant should act only on legal evidence, and inquire into everything at first hand. It is sufficient if he proceeds on such information as a prudent and cautious man may reasonably accept in the ordinary affairs of life; and it is for the plaintiff to show that there was a want of proper care (sic) that information.

20. It may not, however, be justifiable to commence a prosecution on mere suspicion. Where a prosecutor had nothing before him, but. circumstances of mere suspicion, or where he! knew that the acts on which the prosecution was founded were done openly and bona fide in assertion of a legal right, there is in general no reasonable and probable cause.

There may be cases where there is quite clearly reasonable and probable cause in the mind of a man, who has a spiteful motive as against the man whom he is prosecuting, but that does not seem to be fatal to his case, if the other, facts proved that there was in existence that which he was entitled to regard as reasonable and probable cause for the prosecution. A man, therefore, may be prosecuted from a malicious motive, and, yet, at the same time, the prosecutor may have reasonable and probable cause for prosecuting. The important element which, there fore, has to be proved is want of reasonable and probable cause.

21. It is never true that mere innocence is proof of want of reasonable and probable cause. Innocence per se does not therefore raise the presumption as to want of reasonable and probable cause. It must be innocence accompanied by such circumstances as raise the presumption that there was a want of reasonable and probable cause. Innocence, therefore, coupled with other circumstances may raise a presumption as to want of reasonable and probable cause.

The onus is undoubtedly on the plaintiff, but may be discharged by showing that the fact of-innocence in a particular case involves with it other circumstances which show that there was the absence of reasonable and probable cause.

22. It cannot, of course, be laid down as an abstract proposition that an accuser is justified in acting either upon the credited statement of an informant, or upon his own memory. The question must always arise according to circumstances whether it was reasonable to trust either the one or the other. A person, who acts upon the information of another, trusts the veracity, the memory, and the accuracy of that other, in each of which he may be completely deceived.

His informant’s veracity may be questionable: his memory fallacious; and his accuracy un-reliable. Yet it does not follow that it was unreasonable to believe in his information if he never had cause to doubt him. In like manner, a man may be deceived by his own memory, yet it does not follow that it was unreasonable to trust it, if he never before knew it to be defective. The mind of the prosecutor at the time When he initiated the proceeding is an important factor in determining the existence of reasonable and probable cause.

It is not required of any prosecutor that he must have tested every possible relevant fact

before he takes action. His duty is not to as-certain whether there is a defence, but to ascer-tain whether there is reasonable and probable cause for a prosecution.

23. The above propositions of law are clearly established by (1681) 8 QBD 167 at p. 171 (H); Herniman v. Smith, (1936) 2 All ER 1377 (I), which was confirmed by the House of Lords in (1938) 1 All EB 1: (1938) AC 305 (Q); Nitya Nanda Mandhata v. Binayak Sahu, (S) AIR 1955
Orissa 129 (J); Clerk and Lindsell on Torts, 9th Edition, pages 673-675; and Darsan Pande v. Gnaguu Pande, AIR 1948 Pat 167 (K), per Das J-. as he then was.

W hat is Malice?

24. Absence of reasonable and probable cause alone, however, will not create liability; there must also be malice, in the sense of indirect and improper, motive, not with a mere intention of carrying the law into effect,
but with an intention which was wrongful on point of fact. Malice and absence of reasonable
and probable cause must unite and co-exist in order to produce liability.

Where there is such plain lack of reasonable
and probable cause that obviously the prosecutor
could not have believed in the charge, this may itself provide an evidence of malice. Therefore, the absence of belief in the defendant’s mind as to the merit of the case may no doubt afford evidence of malice, so also lack of good faith on his part in initiating the proceeding, and, an indication of his desire to concoct evidence to procure conviction per fas et nefas through right or wrong.

Malice 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 be only accounted for by imputing wrong or indirect motive to the prosecutor. A prosecution is malicious only if it is
animated by a desire to use the criminal law for some such purpose for which it is not intended. Malicious intention means a wish to injure the party, rather than to vindicate the law.

25. Malice is undoubtedly linked up with reasonable and probable cause, and, the two ques-tions are in most cases interwoven. Malice has been said to mean any wrong or indirect motive, but a prosecution is not malicious merely because it is inspired by anger. However wrong-headed a prosecutor may be, if he honestly thinks that the accused is guilty of a criminal offence, he cannot be called the initiator of a malicious prosecution.

As observed by Lord Porter, in Braia Sunder Deb v. Bamdeb Das, AIR 1944 PC 1: 24 Pat LT
395 (I.), in most cases, the two questions are interwoven, and, there may be circumstances which show that there was not merely want of a reasonable and probable cause, but also malice of the kind required in an action for malicious prosecution.

26. Dealing with the question of malice, Cave J., as he then was, in Brown v. Hawkes, (1891) 2 QBD 718 (M), at page 722, observed:

“Now malice, in its widest and vaguest sense, has been said to mean any wrong or indirect motive; and malice can be proved, either by shewing what the motive was and that it was wrong, or bv shewing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor.”

26a. Dealing with the question whether want

of reasonable and probable cause may itself show mance, his Lordship said:

“Of course, there may be such plain want of reasonable and probable cause that the jury may come to the conclusion that the prosecutor could not honestly have believed in the charge he made, and in that case want of reasonable and probable cause is evidence of malice. But I am not prepared to assent to the proposition that, where there is want of reasonable and probable cause, the jury may always find malice, no matter what the circumstances may be.”

26b. As observed by Das. J., as he then was in AIR 1948 Pat 167 (K), the question of malice depends on the circumstances of each particular case, and, it would be wrong to say, as a general proposition, that malice would be inferred from the absence of reasonable and probable cause. As observed by Lord Porter in the just mentioned Privy ‘Council case, there may be malice, but no absence of reasonable and probable cause. Conversely, the absence of reasonable and pro-bable cause is not per se evidence of malice, but the same circumstances in a particular case may show both, that is, absence of a reasonable and probable cause and malice, the two questions being interwoven in most cases.

27. The contention of Mr. Das, therefore, that malice is, in most cases, linked with reasonable and probable cause is correct. As observed by Cockburn C. J., in Fitzjohn v. Mackinder (1861) 9 CB (NS) 505 (N), at p. 531:

“A prosecution, though in the outset not malicious, as having been undertaken at the dictation of a Judge or Magistrate, or, if spontaneously undertaken, from having been commenced under a bona fide belief in the guilt of the accused, may nevertheless become malicious in any of the stages through which it has to pass, of the prosecutor, having acquired positive knowledge of the innocence of the accused, perseveres malo animo in the prosecution, with the intention of procuring per nefas a conviction of the accused.”

28. In the instant case, it is admitted that the plaintiffs were prosecuted by the defendant, and, that thpv were acquitted by the Magistrate before whom the accusation was made. The only two conditions of liability, therefore, which were challenged by the plaintiffs in that suit were; first, that there was want of reasonable and probable cause for the prosecution; and. secondly, that the proceedings of which the plaintiffs were complained were initiated in a malicious spirit.

All these two propositions the plaintiff has to make out, and, if any step is necessary to make out any one of these two principles, the burden of making good that step rested upon the plain-US.

29. Keeping in view, therefore, the above principles governing an action for malicious prosecution, I will now proceed to consider the argument created bv the learned Government Pleader, on behalf of the appellant, to find out if the plaintiffs have proved, which they must, in the first instance prove, in order to succeed in an action for malicious prosecution, two things: (1) that the prosecution was malicious, and. (2) that the defendant had acted without reasonable and probable cauee.

30. Malice: The learned Government Pleader, in support of the appeal, contended, in the first place, that the finding of the court below on the question of malice is erroneous, and, it

cannot be sustained on the evidence. On the
other hand, Mr. P. B. Das for the plaintiff-res-

pondents strenuously argued that malice is writ large on the part of the defendant as is evident from Exts. 5 (1), 5 (g), 5 (k), P (2), K (1) and 9, on which he has chiefly, and strongly relied for establishing malice.

31. In my judgment, as I will presently
show, even on the above mentioned exhibits relied upon by Mr. Das, malice cannot be said to have been established. At best, they only show that the defendant may have been annoyed with plain-

tiff Etwari Sahu for having complained against him, first, on 6-3-1943, before the District Magistrate (Ext. 5 (k) ); second, on 17-3-1943, to the Additional District Magistrate, (Ext. 5 (g)), and. the third, on 21-3-1943, to the same Additional District Magistrate (Ext. 5 (f)).

But, as I have stated earlier, a prosecution cannot be said to be malicious merely because the prosecutor was annoyed also by the previous conduct of the person prosecuted.

32. I shall now proceed to examine the contentions of the parties, and, the evidence relied upon by them on the question of malice.

33. Plaintiff Etwari Sahu’s case was that the defendant had grouse against him for three reasons : (1) the defendant wanted to give prefer-

ence to another dealer Sukhdeo Ram Marwari over the plaintiffs; (2) one R. N. Kumar, a relation of the defendant, was an employee in the service of the Jamalpur Municipality, where plaintiff Etwari Sahu was a Municipal Commissioner, and, he voted for removal of R. N. Kumar from service, and (3) plaintiff Etwari Sahu, made repeated demands from the defendant for payment of his outstanding bill for Rs. 4/5/-, being the price of two gallons of petrol, which the defendant was alleged to have purchased from the
plaintiff’s Petrol Purnp on. 22-12-1942.

34. Reasons of Defendants’ Grouse: (1) Re: Sukhdeo Ram: To support the partiality and favouratism of the defendant for Sukhdeo Ram, Mr. Das relied on Exts. 20, H, I (3) and 9, and on the evidence of the plaintiff Etwari Sahu (P. W. 17), and, of the defendant (D. W. 3).

35. Plaintiff Etwari Sahu was convicted on 3-3-1943. According to Etwari Sahu (P. W. 17), his conviction order was passed by Mr. H. N. Sinha on Saturday at about 7 p. m. at his house, and, at the time of the judgment, the defendant was also present at the house of Mr. Sinha. There is, however, no documentary evidence, much less any reliable oral evidence, except the statement of the plaintiff (P. W. 17), to support this allegation.

It was contended that, along with-Etwari (P. W. 17), one Jugal Kishore Marwari was also convicted by Mr. H. N. Sinha for an offence under Rule 81 (4) of the Defence of India Rules; and, that, as would appear from Ext. 2 (h). the judgment of the appellate court dated 21-4-1943 in the case of Jugal ‘Kishore Marwari, the judgment of the High Court dated 16-11-1942, was in the file of Mr. H. N. Sinha, when he convicted Jugal ‘Kishore Marwari and plaintiff Etwari Sahu, but inspite of it, Mr. H. N. Sinha convicted the plaintiff as well as Jugal Kishore Marwari, notwithstanding the decision of the High Court to the
effect that the alleged offence under Rule 81 (4) of the Defence of India Rules was no offence, if the alleged offence took place before the 11th and 18th of July, 1942, when the Defence of India Rules were amended.

It was, therefore, urged that the alleged offence committed by Etwari Sahu on 23-5-1942, was in the eye of law no offence, and, in that view, Etwari Sahu should not have been convicted by Mr. H. N. Sinha, but he was convicted by him because of the defendant. Reliance was. placed on Ext. 1 (d), the order sheet in the criminal appeal of Jugal Kishore Marwari, wherein on 4-3-1943, it is recorded that it was alleged by the appellant’s pleader that the judgment was delivered by Mr. H. N. Sinha after 6 p. m. on 3-3-1943, and that the copy of the judgment had not yet been obtained.

There is also an order therein to the effect that the order passed on 4-3-1943, in the appeal of Jugal Kishore Marwari, was to govern the appeal of Etwari Sahu also. There is, however, no reliable evidence to connect the defendant with the conviction of Etwari Sahu on 3-3-1943, by Mr. H. N. Sinha, except the ipse dixit of the plaintiff, Etwari himself. I am, not prepared to accept his evidence on this point.

36. Ext. 20: It was further contended, in this connection that an application for a copy of the judgment in which plaintiff Etwari Sahu was convicted from the court of Mr. H. N. Sinha was applied for by Sukhdeo Ram on 4-3-1943, as will appear from Ext. 20, which is a certified copy of the application made by Sukhdeo Ram for certified copy of the judgment dated 3-3-1943. It is contended that Sukhdeo was not a party to this criminal prosecution, and, still he had applied for its copy.

The copy was delivered to Shyam Sundar Prasad on behalf of Sukhdeo Ram before 6-3-1943, and P. W. 17, Etwari Sahu, has stated that in his presence the certified copy of this judgment was made over by Sukhdeo Ram to the defendant, who took it to the house of Mr. Haider, on 5-3-1943, and, thereafter the plaintiff got the letter (Ext. H) suspending his licence on 6-3-1943. There is no doubt on Ext. 20 that Sukhdeo Ram had obtained a copy of that judgment, but, in my opinion, there is nothing strange in this conduct of Sukhdeo Ram because he being a rival of Etwari Sahu was perfectly justified in collecting all materials against Etwari Sahu.

37. The District Magistrate on 6-10-1942, recommended the name of the plaintiffs’ firm also to be included amongst the recognised dealers of sugar for both Monghyr and Jamalpore on the plaintiffs’ representation to him made on 28-9-1942. The District Magistrate’s letter is Ext. 11 (b). In pursuance of this recommendation of the District Magistrate, the name of the plaintiffs’ firm was included on 23-12-1942 in the letter of the Chief Controller of Prices and Supplies Ext. B (4).

On 2-3-1943, Sukhdeo Ram filed a petition before the District Magistrate for cancelling the quota of sugar given to the plaintiffs for Monghyr town and for increasing his own quota. On 3-3-1943, a similar petition (Ext. E (2) ) was filed by Sukhdeo Ram to the District Magistrate through the Senior Deputy Magistrate, in which a reference was made to his earlier petition, and the same prayer was made.

On this petition on 3-3-1943, the Senior Deputy Magistrate, Khan Bahadur Haider made a note that Sukhdeo Ram had no reason to complain because he had allotted 2000 maunds to Sukhdeo Ram but when plaintiffs’ firm’s name was also in the list for Monghyr, he divided this quota equally between the two. On this report, the District Magistrate, Mr. N. Bakshi, on 6-3-

1943, passed the order: For the present Etwari Sahu’s licence has been suspended.”

38. Sukhdeo Ram, being, therefore, a rival dealer, would naturally try to point out prominently and immediately the defects of his rival, to the authorities concerned. It cannot, therefore, be said that the defendant had any hand in this action of Sukhdeo Ram. What Sukhdeo Ram did, was done by him in his own interest to strengthen his claim made in his petition, Ext. E (2).

39. Ext. H: Ext. H is the notice dated 6-3-1943, which was sent to the plaintiffs’ firm by Mr. Hassan Mohiuddin (D. w. 1), who was then the Price Control Officer, informing the plaintiff’s firm that the District Magistrate had suspended the licence of the plaintiffs’ firm for the present due tg his conviction. The defendant, therefore, cannot be said to have any hand in the Suspension of the licence of the plaintiffs, when on the evidence of D. W. 1 and Ex. H itself, it is clear that the defendant was not then the Price Control Officer. Further, it will appear from the evidence of the defendant (D. W. 3) that:

“So far giving licence, its suspicion, or cancellation was concerned the minimum authority was the S. D. p. and above him A. D. M. or D. M. So far giving of quota was concerned, S. D. O. was again the minimum authority.”

This evidence is supported by Ex. E (2) as also by the evidence of D. W. 1. Hassan Mohiuddin. I have, therefore, no hesitation in accepting the evidence of the defendant that he was not responsible for the suspension of the licence of Etwari Sahu.

40. Ext. 1 (3) : Reliance was placed on Ext. 1 (3), which is a letter from the Senior Deputy Magistrate Monghyr. to the Manager, Samastipur Central Sugar Co. Ltd., on 6-3-1943, in which the name of Messrs. Ram Kishun Shaw Etwari Shaw, who were also shown as the recognised merchants to whom the necessary quota of sugar was to be supplied, had been penned through.

The argument is that this letter was signed on 3-3-1943 but it was not issued till 6-3-1943, and, that it was issued after scoring out the name of Messrs. Ram Kishun Shaw Etwari Shaw, who had originally been given quota for sugar for Monghyr and Jamalpur both. In my opinion, it does not in the least show that the defendant had any hand in the matter; first, because this letter was issued by the Senior Deputy Magistrate to the Manager, Samastipur Central Sugar Co. Ltd. and not by the defendant, and, secondly, because on 6-3-1943, the defendant, as will appear from Ext. H, was not the Price Control Officer.

What appears to have happened is that this letter, Ext. I (3), was prepared to be sent to the Sugar mill with the name of the plaintiffs’ firm. But, thereafter, when it was known that Etwari Sahu had been convicted for profiteering, the Sub-divisional Magistrate ‘and the District Magistrate naturally wanted to see the judgment, and, after seeing the judgment, the District Magistrate on 6-3-1943 directed the suspension of the licence of the plaintiffs, and thereafter, the name of the plaintiffs’ firm was scored out from Ext. 1 (3), and then the letter was sent on 6-3-1943

In my opinion, this seems to be natural, because, no Government officer, could possibly have tolerated the idea of granting a licence to a person, who had been convicted of black-marketing. In my opinion, therefore, Ext. 1 (3) does not show that the defendant had any hand in this

matter, and, Ext. H shows that the plaintiffs’ licence was suspended by the District Magistrate himself, and not by any other person.

41. Ext. 9: Reliance was next placed on Ext. 9 to show that the sugar quota of the plaintiffs’ firm was transferred to Sukhdeo Ram. Ext. 9 is a list of distribution of sugar quotas for February and March, and also April, 1943. It appears from Ext. 9 that for Monghyr, the plaintiffs’ firm had a quota of 1,000 maunds. Out of this one thousand maunds 300 maunds were transferred to Sukhdeo Ram, and therefore, Sukhdeo got in all 1,000 maunds, which included his own quota of 700 maunds.

The plaintiffs’ quota of 700 maunds for Jamalpur was transferred to other merchants of Jamalpur with, whom Sukhdeo Ram had nothing to do. It will further appear from Ext. 9 that on 27-4-1943, Mr. S. N. Haider ordered that Etwa-ri’s quota should remain in abeyance until report against him was received from the Price Control Officer and orders obtained from the District Magistrate, and, accordingly, orders and letters were ordered to be issued to the mill concerned.

On 11-5-1943, the defendant submitted a report to the Senior Deputy Collector and asked
for to the effect that the quota of the plaintiffs firm should be distributed among other distributors of Monghyr and Jamalpur. Much has been made of this report by Mr. Das, and, he has submitted that malice is writ large on this report. In this report, the defendant reported that the plaintiffs’ firm had been prosecuted and sentenced in the past profiteering, & a number of prosecutions were going on against this firm, one of these being that he had tampered with the evidence in many profiteering cases, managed to get copies of the Government confidentials, etc.

It has been very strenuously argued by Mr. Das that this report is full of absolute exaggeration of facts, and, a false report was submitted to the Senior Deputy Collector to prejudice him against the plaintiffs’ firm, inasmuch as there is absolutely no evidence to show any other prosecution of the plaintiff, except for the alleged offence on 23-5-1942, which ended in his conviction on 3-3-1943, by Mr. H. N. Sinha, but which, however, was subsequently set aside, and, plaintiff Etwari Sahu was acquitted on 21-4-1943, as will appear from the appellate judgment, Ext. 2 (i).

The other prosecution was of plaintiff Etwari Sahu’s servant Lachhmi Singh for an offence alleged to have been committed on 27-7-1942. which ended in his conviction on 9-12-1942 by Mr, S. P. Singh, but, that conviction also was subsequently set aside on 6-8-1943, on appeal, as will anpear from the appellate judgment, Ext. 2 (b). It is, therefore, submitted that except these two prosecutions of the plaintiff No. 1 and his servant, there was absolutely no evidence of any ether prosecution, or any conviction.

Mr. Das, therefore, urged that it is obvious from this report of the defendant that he had malice against the plaintiffs, and, therefore, he submitted a false report. In my opinion, this report does not show any malice on the part of the defendant. At the utmost it shows that the defendant was very much annoyed with the plaintiffs, and, therefore, he was not prepared on any ground whatsoever to allow the plaintiffs’ firm to continue to hold any licence, and, for that reason, he submitted this exaggerated report to the Senior Deputy Collector.

As the quota was to lapse on 31-5-1943, if not taken from the mills, the defendant on 20-5-1943, informed Mr. Haider, the Sub-divisional Officer, about this position, and, therefore, Mr. S. N. Haider on the 21st May ordered the quota of the plaintiffs’ firm to be distributed pro rata amongst the other registered dealers of Jamalpur and Monghyr.

In pursuance of this order, the defendant allotted only 300 maunds more to Sukhdeo Ram out of 1,000 maunds of the plaintiffs’ firm for Monghyr. In my opinion, this Ext. 9 does not show either malice of the defendant or any special favour to Sukhdeo Ram. In my judgment, therefore, the contention of Mr. Das, that the defendant was instrumental in getting the plaintiffs’ licence suspended, so that his quota may be transferred to Sukhdeo Ram, has not been established.

His further contention that the suspension of the plaintiffs’ licence during the pendency of his appeal against his conviction was a matter of serious consequence does not merit any consideration, in view of the petition (Ext, 5 (k) ) filed by plaintiff to the District Magistrate on 6-3-1943, after receipt of the notice (Ext. H) informing the plaintiffs that their licence had been cancelled by the District Magistrate, on which the District Magistrate passed an order that the question of restoration of the licence will be considered after the orders in appeal are received.

42. It should be noted that the plaintiffs’ licence was not cancelled, but it was only suspended by the District Magistrate himself pending the decision of the appeal by the plaintiff Etwari Sahu against his conviction.

43. It is important further to note that never before 6-3-1943, any complaint whatsoever was made against the defendant by the plaintiffs. It is only when the plaintiff No. 1 is convicted on 3-3-1943, that the plaintiff No. 1 starts making complaints against the defendant.

44. The plaintiff’s allegation that Sukhdeo Ram was friendly with the defendant is denied by the defendant (D. W. 3). He has stated that, he prosecuted Sukhdeo Ram Marwari under the Defence of India Rules, and, the prosecution against him was lodged on 1-7-1942, and, Judgment was delivered in that case by Mr. N. K. Banerji, on 28-10-1942. His evidence is supported by Ext. W, the prosecution register.

This shows that on 1-7-1942. Sukhdeo Ram was prosecuted for an offence under Rule 81(4) of the Defence of India Rules, but he was acquitted by Mr. N. K. Banerji on 28-10-1942. It was contended by Mr. Das on the basis of Ext. W. that Sukhdeo Ram was prosecuted not by the defendant, but by the Crown, because in the column showing the name of the ccmpla-rant in case of Sukhdeo Ram “Crown” is mentioned as the complainant, whereas In ca=es where the price Control Officer is the complainant, in that column it is mentioned “Price Control Officer.”

In my opinion, there is substance in this contention, because in the case of a prosecution for an offence under the Defence of India Rules, it is well known that a report has to be submitted by the officer concerned, and, thereafter, prosecution is started; and, therefore, the mere fact that the words “P. C. O.” are not mentioned against the prosecntion of Sukhdeo Ram will not show that the defendant was not the prosecutor of Sukhdeo Ram.

Similar is the entry with regard to Lachhmi Singh, who was prosecuted on 13-7-1942, for the same offence. It will appear from Ex. 7 (a), the report submitted by the defendant on 7-7-1942, that on his report Lachhmi Singh was prosecuted. This fact also goes to show that the defendant had no partiality for Sukhdeo Ram. On the other hand, it appears that the defendant was doing his duty legally and strictly, and, there-fore, he prosecuted those who, he thought, had contravened the provisions of law.

I have no hesitation in accepting the evidence of the defendant (D. W. 3) to the effect that he had no partiality for Sukhdeo Ram, nor, was he on so friendly terms with Sukhdeo Ram, as to show him a favour in preference to other persons.

45. Ext. C : In order to show that the de-fendant was inimically disposed towards plaintiff No. 1 from before his conviction, and, that it is not correct that the defendant got annoyed only when plaintiff No. 1 started making complaints against him after his conviction on 3-3-1943, Mr. Das placed strong reliance on Ext. C, which is a note submitted by the Price Control Clerk on 7-8-1942, regarding appointment of wholesale dealers of sugar.

It was contended that this note was submitted by Baleshwar Prasad Sinha on 7-8-1942, to the Subdivi-sional Magistrate, in which the name of the plaintiffs’ firm was mentioned, and, this note was accepted in toto by the Subdivisi-onal Magistrate, because he passed the order “Yes –as proposed” on the same day, that is, 7-8-1942, and, therefore, it was contended, that it was obvious from this order of the Subdivisional Magistrate that the names of the plaintiffs’ firm was penned through after receipt of that order from the Subdivisional Magistrate by the defendant.

The learned Subordinate Judge has accepted plaintiff is evidence in the cross-examination to the effect that his name was penned through by the defendant after the note was approved by the Subdivisional Officer and sent back to the Price Control Office. But it is to be remembered that Etwari Sahu refused to disclose the name of the informant, who informed him of this fact. It was further contended that the plaintiff’s firm’s name was penned through, and, the name of M/s. Jaliram Khemchand was entered because, as suggested to the defendant in his cross-examination, which was denied by him, Khemchand of the firm Jaliram Khemchand was the maternal uncle of Sukhdeo Ram.

In my opinion, it has not been established that the name of the plaintiffs’ firm was penned through by the defendant after the list had been received back from the Subdivisional Magistrate It will appear from Ext. B(1) that on 3-8-42. Government had asked the District Magistrate to send two or three names of wholesale dealers of sugar in each of the principal markets. The District Magistrate asked the Sub-divisional Magistrates to send names of such merchants.

On receipt of this letter, Baleshwar Prasad Sinha, the Price Control Clerk, submitted date on 7-8-1952, Ext. C to the Senior Deputy Magistrate in charge Price Control Department, and therein he noted down the several petitions which had been filed by different persons in respect of each principal market. For Jamalpur, three petitions were filed: (1) by Mesrs. Jaliram KHEM-chand, (2) by Messrs. Ramkishun Shaw Etwari
Shaw, and (3) by Messrs. Kedar Nath Harihar-natix Similarly, in case of Lakhisarai and Khagaria also, three petitions were filed.

It appears that the Sub-divisional Officer decided to send two names for each market, and, therefore, he penned through one of the three names in the case of Jamalpur, Khagaria and Lakhisarai, and, thereafter, he approved the list showing two persons where there were more than two applications for the same market. The name of Ramkishun Shaw Etwari Shaw was, therefore, penned through obviously by the Sub-divisional Magistrate himself, which may be due to the fact that plaintiff Etwari Sahu was being prosecuted then for an offence, which he had committed on 23-5-1942, and, his servant Lachhmi Singh had also committed a similar offence on 27-7-1942, for which he was also then being pro-secuted. In view of these two prosecutions, which were pending against Etwari Sahu and his servant Lachhmi Singh at that time, it is not far to seek the reason for the exclusion of the name of Ramkishun Shaw Etwari Shaw from Ext. C.

46. There is another reason why this part of the plaintiffs’ case cannot for a moment be accepted. It is the plaintiffs’ case that they filed a petition on 28-8-1942, before the District Magistrate against the expunging of their name from Ext. C. The petition dated 28-8-1942, which I will deal with in detail later on when considering Ext. 11 (b), has not been filed in the case, nor, its copy has been filed to substantiate their case which is now being set up against the defendant to show that the plaintiffs then also in their petition filed on 28-8-1942, made this specific allegation against the defendant.

Plaintiff Etwari Sahu (P. W. 17) admitted that he had got no documentary evidence to prove that his licence was suspended at the in-stance of the defendant, and that he said so because on 3-3-1943 he was convicted and on 4-3-1943 Sukhdeo Ram Marwari obtained urgent copy of the judgment and made it over to the defendant who produced the same before Mr. Haider, P. W. 17 further admitted that he did not remember from whom he learnt these facts.

It, therefore, appears to me that the entire criticism of Mr. Das on Ext. C against the defendant is an after thought conceived after the institution of the present suit to meet the defence that never before the plaintiff No. 1’s conviction on 3-3-1943 he made any complaint against the defendant. I have, therefore no hesitation in rejecting the criticisms of Mr. Das on Ext. C as being without any foundation.

47. Ext. 8 series: In this connection, Mr. P. R. Das, also relied strongly on Ext. 8 series in order to show that the defendant was in office on 7-8-1942. when Ext. C. the note, was submitted by Baleshwar Prasad Sinha, the Price eontrol clerk to the Sub-divisional Officer, who was in charge of the price control department. He particularly relied on Ext. 8 Cf) dated 4-8-1942, and Exts. 8 (g) and 8 (h) dated 11-8-1942, besides Ext. 8 (I) dated 14-8-1942. Ext. 8 (j) dated 26-8-1942. Ext. 8 (k) dated 27-S-1942, Exts. 3 Cm) and 8 (n), dated 31-8-1942.

These Exts. 8 series are permits of kerosene oil issued to different persons under the signature of the defendant as the Price Control Officer. Mr. Das contended on the basis of Ext. 8 (f) dated 4-8-1942, and Exts. 8 (g) and 8 (h) dated 11-8-1942, that these documents clearly show that the defendant was working in his office between 4-8-1942, and the 11-8-1942, during which

period Ext. C the note, was submitted on 7-8-1942, by Baleshwar Prasad Sinha the price control clerk, to the Sub-divisionai Officer.

The case of the defendant, on this point, was that due to the August disturbance he had been deputed by Government to restore peace and to the Rationing Department, and, therefore, he could not possibly have had any hand in the cancellation of the name of the plaintiffs’ firm from Ext. C. Mr. Das contended that the disturbances commenced on 10-8-1942, and certainly not earlier than 9-8-1942, and, therefore, the defendant’s evidence that he was deputed to look after the August disturbances was false.

Mr. Das further submitted that if the defendant was deputed for such a purpose, there must have been an order of the District Magistrate or the Sub-divisional Magistrate, but no. such order had been filed to support his case, neither, Baleshwar Prasad Sinha, nor the Sub-divisional Officer, who was in charge of the Price Control Department at that time, had been examined, and as a matter of fact no documentary evidence had been produced, although such evidence was possible, to show that the defendant was away from headquarters on that day, and that the defendant was really deputed at that time.

In this connection, the defendant was cross-examined, and, he stated on looking into Ext. C that he had absolutely no concern with this note. He further stated that this note was prepared in accordance with Government letter, (Ext. B (1)) which was read by Baleshwar Prasad Sinha without his knowledge. He further stated that Ext. B (1) did not come to his knowledge at that time, as he was away from the head quarters.

He said that he was saying so, because had he been at the headquarters, during the office hours on that day, the Government letter Ext. b (1) and the note (Ext. C) prepared by the clerk must have passed through him, because this was an important matter so far as the Price Control Department was concerned. He further stated that he came to know of Ext. C about a month and a half after because he was tied up for a few days in restoring peace and was put incharge of town rationing office, and when he was in rationing office, he used to issue permits.

He further stated that the Rationing Office was located in Zila School building, whereas the Price Control Office was in the Collectorate building, and the distance between the two would be about three quarters of a mile. I have no hesitation in accepting the evidence of the defendant, because the fact that he was deputed to the Rationing Office certainly on or before 4-8-1942, is supported by Ext. 8 (f), and the other Exts. 8 series referred to before, which have been filed by the plaintiffs themselves.

The fact that Baleshwar Pd Sinha, or the Sub-divisional Officer has not been examined or that no documentary evidence has been produced to show the defendant’s deputation is of no consequence, because the plaintiffs’ Ext. 8 series themselves support the defendant’s case of Ms deputation to the Rationing Office. Further, no document has been filed by the plaintiffs for the period between 5-8-1942 to 10-8-1942. to show that the defendant was as a matter of fact working in the price control office.

The defendant stated that the Rationing Office was started after the August disturbances of 1942, which could mean after 9-8-1942, but it

appears from Ext. 8 (f) which was issued on 4-8-1942, that defendant had issued the permit much earlier than 10-8-1942. Therefore, it appears that he was deputed to the Rationing office much earlier, and, that the Rationing Office was functioning from before 9-8-1942, after which the August, disturbances started.

It appears the defendant has made a mistake in this respect in saying that the Rationing office was started after the August disturbances of 1942 specially in view of Ext. 8 (f) itself. From the evidence and circumstances dissolved by Ext. 8 series, therefore, it appears that the defendant was deputed to the Rationing Office which was functioning from before the August disturbances as supported by Ext. 8 (f), and, therefore, the defendants’ case that he was not in his office in the Price Control Office on 7-8-1942, is correct, and it must be accepted.

48. In my opinion, therefore, the name of the plaintiffs’ firm was scored out by the Senior Deputy Magistrate in charge of the Price Control Office, and not by the defendant as alleged by the plaintiffs either before sending the note (Ext. C) or after its receipt on approval by the Sub-divisional Officer nor, the defendant had any hand in getting the plaintiffs firm’s name penned through from Ext. C. If anybody was responsible for the name of the plaintiff’s firm being expunged from Ext. C in my opinion, the entire blame lay with the plaintiffs’ themselves because of the earlier prosecution of plaintiff Etwari Sahu and his servant Lachhmi Singh for black marketing, which were then pending.

49. In view of these considerations, the first reason given by the plaintiffs for alleging that the defendant had a grouse against them, must be rejected.

50. (2) Re: R. N. Kumar: The second reason given by the plaintiff for alleging that the defendant had a grudge against them, need not detain us long. The defendant (D. W. 3) admit-ted very candidly in his evidence that R. N. Kumar was known to him and that he was a very distant gotia of his. He further admitted that in the criminal court at Jamalpur, he had stated tliat R. N. Kumar was his distant relation.

But in my opinion, that cannot be a ground for suggesting that due to the dismissal of R. N. Kumar. for whose dismissal, plaintiff Etwari Sahu also voted at the Municipal meeting, the defendant was annoyed. Had R. N. Kumar been, a close relation of the defendant, then there could have been some substance in it. But even an the evidence of the plaintiff (P. W. 17) the dismissal of R. N. Kumar could be no ground for any annoyance to the plaintiff, because P. W. 17 stated in his evidence that he did not remember for what offence R. N. Kumar was dismissed. In such circumstances, I am not prepared to accept this as a ground for the defendant to entertain any grouse against the plaintiff.

51. (3) Re: Petrol Bill: The third reason suggested by the plaintiff was that plaintiff No. 1 made repeated demands from the defendant to pay his outstanding dues, of Rs. 4/5/- on account of the purchase of Petrol in December, 1942. Reliance in this connection was placed on Ext. 18 (b), which is an envelope containing the bills, which was in the name of the defendant and which is alleged to have been received by the Head clerk, Awadh Kishore Narayan on behalf of the defendant.

In the first place, it will appear from the

evidence of the defendant that Awadh Kishore did not sign the envelope containing the bill in the defendant’s presence or at his instance. Awadh Kishore Narayan was not examined in the case, and, therefore, there is nothing to show that really Awadh Kishore Narayan was either authorised by the defendant to receive his personal bills, or that Awadh Kishore Narayan signed the envelope in token of having received the Bill.

This petrol is alleged to have been purchased on 22-12-1942, and, the bill is dated 31-12-1942, which was received by Awadh Kishore Narayan on 2-3-1943. This purchase of the Petrol has been denied by the defendant himself. It will appear from the T. A. Bill (Exts. R series) of the de-fendant that on 22-12-1942 on which date the defendant is alleged to nave purchased two gallons of petrol on credit from the plaintiffs’ petrol pump, he did the tour, from Monghyr to Jamalpur and back on a cycle, and not in a friend’s car as he did before On certain dates.

Whenever the defendant made tour in a friend’s car, he showed it in his T. A. Bill, and, the cost of propulsion paid was also mentioned therein. Therefore on this T. A. bill which was submitted by the defendant and was passed by the District Magistrate on 29-3-1943, the plaintiffs’ case that the defendant purchased petrol on credit on 22-12-1942 is falsified. Gaurishankar Dubey (P. W. 6) was examined by the plaintiffs.

He stated that in December 1942, the defendant purchased two gallons of petrol from the pump of the plaintiff on credit, that he was in service of the plaintiffs since 1942, and, he used to work under the plaintiffs at Monghyr Petrol Pump. He further stated that plaintiff Etwari Sahu is the sole agent of Petrol both at Monghyr and Jamalpur. In the cross-examination, however, he admitted that he used to keep credit book which used to be written day to day, and that cash memos are granted and a counter foil thereof is kept.

He further stated that bills are prepared according to Bill book. At the time, when the defendant is alleged to have purchased the petrol on credit one Shennath Singh is alleged to be present. Neither Sheonath Singh has been examined, nor. the credit book, or the bill book, or the counter foil receipts book has been filed by the plaintiffs.

52. In this connection, Mr. Das relied on the Privy Council decision in Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96: 42 Ind App 202 (O); in which Sir George Parwell, who delivered the opinion of the Board observed:

“But it is open to a litigant to refrain from producing any documents that he considers irrelevant, if the other litigant is dis-satisfied it is for him to apply for an affidavit of documents, and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails to do neither he nor the court at his suggestion is entitled to draw any inference as to the contents of any such documents.

53. Mr. Das relying on the above observation contended that these documents were irrelevant according to the plaintiffs, and, therefore, there was no duty cast 011 them to produce them, and, if the defendant considered himself dissatisfied, it was for him to call for them from the plaintiffs, and if then, the plaintiffs would not

have produced them, then only an adverse inference could be drawn against the plaintiffs.

(54) it will appear, however, that the docu-merits, above mentioned, cannot be said to be irrelevant, because the plaintiffs wanted to show that they went to the Price Control Office after office hours for the purpose of demanding their outstanding bill, and, therefore, it was the duty of the plaintiffs to establish their case by the best evidence which was in their possession, and if the plaintiffs have not done so, the court is certainly entitled to draw an adverse inference against them.

55. In a subsequent case, their Lordships of the Privy Council in Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, 44 Ind App 98-(AIR 1917 PC 6) (P), observed:

“A practice has grown up in Indian Procedure of those in possession of important documents or information lying by trusting to the abstract doctrine of the onus of proof and failing, accordingly, to furnish to the courts the best material for its decision. With regard to third parties this may be right enough they have no responsibility for the conduct of the suit, but with regard to the parties to the suit, it is, in their Lordships’ opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the court the written evidence in their possession which would throw light upon the proposition.”

56. This rule was again reiterated in Rameshwar Singh v. Ranjit Lal Pathak, AIR 1929 PC 95 (Q). This question was examined also by their Lordships of the Supreme Court in Hiralal v. Badkulal,’ 1953 SCR 758: (AIR 1953 SC 225) (R), in which Mahajan J., as he then was, negatived the contention raised in the case that it was no Part of the defendants’ duty to produce the books of accounts unless they were called upon to do so, and, the onus rested on the plaintiffs to prove their case.

57. In the Supreme Court case, the defendants admitted that they maintained regular books of account, and that they had written the accounts in their own books from which the true balance could be ascertained. But the account books were not produced on the ground that they were not bound to produce them, unless they were called upon to do so. This contention was negatived by their Lordships of the Supreme Court, and, the above rule laid down by the Privy Council was affirmed.

58. In my opinion, therefore, it was for the plaintiffs to produce their books of account to show that as a matter of fact, the defendant did purchase the petrol on credit on the date alleged, but they not having done, that on the T. A. Bills (Ext. R series), it must be held that their case that the defendant purchased on credit petrol on the 22-12-1942. is false one set up to explain the admitted presence of the plaintiffs after office hours in the Price Control Office. (After discussing the evidence in Paras 59 to 95, His Lordship proceeded:)

96. For these reasons, taking all the circumstances into consideration antecedent events and the conduct of the defendant before and after the charge as disclosed by the several documents relied upon by the plaintiffs, I have absolutely no hesitation in coining to the conclusion that the plaintiffs have failed to prove any malice on the part of the defendant,

97. I, therefore, in disagreement with the

first court, hold that the plaintiffs have failed to prove malice on the part of the defendant.

98. Reasonable and Probable Cause: As stated earlier, a man can be prosecuted from a malicious motive, and, yet, at the same time, the prosecutor may have reasonable and probable cause for prosecuting. There may be cases where-there is quite clearly reasonable and probable cause in the mind of a man who has a spiteful motive as against the man whom he is prosecuting if the other facts prove that there was in existence that which he was entitled to regard as reasonable and probable cause for the prosecution.

99. The most important question to consider, therefore, is, if the plaintiffs had proved want of reasonable and probable cause on the part of the defendant in commencing the prosecution of the plaintiffs?

100. The two questions of malice and want of reasonable and probable cause are interwoven in most cases, and, the question of malice is linked with reasonable and probable cause, but, on the facts and circumstances and materials in the case, I have no hesitation in coming to the conclusion that the defendant in commencing the prosecution of the plaintiffs was actuated by no other motive than a desire to bring to justice the plaintiffs whom he bona fide believed to be guilty. The plaintiffs have failed to establish that the motive of the defendant was wrong, or, that the circumstances disclosed by the documents relied upon by the plaintiffs were such that the prosecution could only be accounted for by imputing some wrong and indirect motive to the defendant.

101. I would now proceed to consider the second ouestion resented by the learned Government Pleader that the plaintiffs had failed to prove want of reasonable and probable caupe on the part of the defendant for their prosecution.

102. On this main question, it is material to state that the plaintiffs were charged (Ext. 3) by the defendant for having entered his office with a view to secure the copies of the Government confidential and prosecution reports and other papers in the custody of the Head Clerk, Awadh Kishore Narayan, and Bhakatipada Banerji (p. W. 1), clerk in the Price Control Office and thus to cause wrongful gain to himself and. wrongful loss to the Government and cause annoyance. They were prosecuted for an offence, which they were alleged to have committed under Section 448 of the Indian Penal Code.

103. I agree with the learned Subordinate Judge that pieces of evidence, each by itself insufficient, may together constitute a significant whole and justify by their combined effect a conclusion; but, I am unable to accept his conclusion that in the present case the case under Section 448, Indian Penal Code, brought by the defendant against the plaintiffs. was without any reasonable and probable cause.

104. The learned Subordinate Judge, being of opinion that there was absence of reasonable and probable cause, has decreed the plaintiffs’ suit It will, therefore, be necessary to examine the facts ascertained by the defendant, which were before him, at the time when he laid the information and subsequently proceeded with the prosecution.

105. On the evidence of the defendant D. W. 3, we get the following facts upon which Mr. Das relied for showing absence of reasonable and

probable cause on the part of the defendant for the prosecution of the plaintiffs:

106. About two months before the 16-4-1943,
the defendant got informations that confidential
papers, which were in the custody of his Head
Clerk, Awadh Kishore Narayan, were leaking out
from his office, in spite of his instruction to the
Head Clerk to keep such papers strictly confidential, so that parties may not have access to
them. A day before the plaintiffs’ arrest on 16-4-

1943, the defendant got information again that
confidential informations were leaking out from
his office. On the morning of 16-4-1943, the defendant again enquired from his Head Clerk
about the rumour, and, the Head Clerk told him
that such information was given to him by his
enemies. But his explanation did not satisfy the
defendant.

He, therefore, decided to make a surprise visit to his office after office hours in the evening, because, at that time, the office hours were in the morning. The same evening on 16-4-1943, he was informed by his Orderly Peon, Wali Ahmad, that plaintiff Etwari Sahu was in the office, and was sitting there from some time before and talking with the clerks. The defendant, therefore, at once, all alone, started from his house to the office. When he reached the office, he found plaintiff Etwari “Sahu coming out of the office room, and, at that time, he was within the doors of the office. The defendant asked Etwari Sahu, plaintiff 1, to wait there. Plaintiff Etwari Sahu stood there, but his servant Biranchi Singh, plaintiff 2, slipped away from there.

107. Immediately thereafter on 16-4-1943, in the evening, the defendant, in the presence of plaintiff Etwari Sahu, examined his four clerks, who were in the office at that time, namely, Awadh Kishore Narayan, Bhaktipada Banerji (P. W. 1), Chakradhar Prasad and Md. Jalaluddin. The statements of Awadh Kishore Narayan, who was not examined in the suit, and, of Bhaktipada Banerji, who was examined as P. W. 1 by the plaintiffs, are to be found in Ext. Q, which is a Record Book for orders, and Ext. A (1) in Ext. Q is the signature of P. W. 1. Awadh Kishore Narayan was examined first, and, he stated that plaintiff Etwari Sahu came in the office twenty minutes before his arrival and was present all along in the office, and, that he did not ask him to go away, and, that he had no talk with plaintiff Etwari Sahu.

Thereafter, Bhaktipada Banerji (P. W. I)
was examined by the defendant, and, he stated that plaintiff Etwari Sahu came in the office at 5.35 p. m. to enquire whether his bill for petrol had been prepared or not, to which P. W. 1 replied that it was not ready. He further stated that he asked plaintiff Etwari Sahu to go out of the office, and, he carried out his order. He further stated that Etwari Sahu came at 5.50 p. m. and Biranchi Singh, plaintiff 2, Munshi of Etwari Sahu, plaintiff 1 came into the office just before the arrival of the defendant, but he could not say on what purpose he had come. P. W. 1 further stated that he asked plaintiff 2 also to go out, and, he carried out his order, and, he was going away.

108. After recording the statements of Awadh Kishore and Bhaktipada, the statements of the other two Clerks, Chakradhar and Jalalud-din, who were present there, were also recorded by the defendant. The first question which the defendant put to Jalaluddin was: Why the plaintiffs were in the office and, Jalaluddin told the

defendant that they were taking copies of confidential papers, and, on hearing this, the defendant recorded the statement of Jalaluddin on a separate sheet of paper. The defendant, thereafter, examined Chakradhar also, and, he also made a statement similar to that made by Jalaluddin.

109. The defendant then arrested Etwari Sahu on 16-4-1943. and, released him on bail, which was given by P. W. 2, who was present there outside the Price Control Office. Mr. N. Kumar, left his office at about 6.30 p. m. Biranchi Singh, who escaped that day, however, surrendered on 17-4-1943, and, he was also granted bail. The order sheet drawn up by the defendant against the plaintiffs for an offence under Section 448 of the Indian Penal Code (Ext. 1) would show that plaintiff Etwari Sahu was arrested on 16-4-1943 under Section 64 of the Criminal Procedure Code in the Price Control Office.

110. The defendant started departmental enquiries against Awadh Kishore and Bhaktipada Banerji (P. W. 1) on 17-4-1943, and, after finishing his enquiry on the same day, the defendant passed orders on 17-4-1943, removing Awadh Kishore and Bhaktipada Banerji (P. W. 1) from his office. The order of the defendant against Awadh Kishore Narayan dated 17-4-1943, is Ext. II, which would show that Awadh Kishore was directed to revert to his own. original post in another office where he was working before being brought to the defendant’s office.

111. The defendant left Monghyr for his departmental examination at Patna, which was to commence on 19-4-1943, as will appear from Ext. G. The departmental examination lasted till the 22nd April, 1943, and, therefore, Good-Friday holidays intervened, and, therefore, the defendant came back to Monghyr on 25-4-1943. On 26-4-1943, relying on the statements of Jalaluddin and Chakradhar and knowing that the statement of Bhaktipada Banerji (P. W. 1) explaining the presence of plaintiff Etwari Sahu in the office was false, because he had never purchased any petrol on credit in December for which any bill was pending with him, the defendant filed a complaint (Ext. 3) against the plaintiffs. In the petition of complaint, he mentioned himself besides Jalaluddin and Chakradhar Prasad, two of the clerks of his office, as prosecution witnesses; and, along with the complaint he sent his report and the original ordersheet, as also the original statements of Jalaluddin and Chakradhar Prasad signed by them, and recorded by him to the court concerned.

112. In the present suit, Jalaluddin and Chakradhar Prasad have not been examined, nor, their statements, nor, the report referred to in the petition of complaint have been filed. In the criminal court, the defendant, his two clerks, Jalaluddin and Chakradhar Prasad, were examined as prosecution witnesses, and, the statements of Jalaluddin and Chakradhar Prasad were also exhibited as evidence in that case. The plaintiffs, on this complaint, were put on their trial for an offence under Section 448. Indian Penal Code, before Mr. M. L. Alam, Magistrate, First Class, who, on 14-8-1943, acquitted them, as he found on the evidence that no case under Section 448, Indian Penal Code, had been made out against the plaintiffs (Ext. 2′).

113. The question, therefore, which arises is: Upon this state of facts, can it be said that want of reasonable and probable cause on the part of

the defendant for the prosecution of the plaintiffs has been established by them?

114. Reasonable and probable cause, as stated earlier, in the words of Hawkins J., in (1881) 8 QBD 167 (H), which were accepted and adopted also by Lord Atkin in 1938 AC 305 at P. 395 (G), means
“an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.”

115. On this statement of the issue, therefore, the crucial question, and, the first question is: Has it been proved that the defendant commenced and proceeded with the prosecution without any honest belief that the plaintiffs were guilty of criminal trespass under Section 441, Indian Penal Code?

116. Plaintiff’s arrest under Section 64, Criminal Procedure Code. The fact that the plaintiffs were found in the office of the defendant in the evening of 16-4-1943, irrespective of the object with which they had gone there, is admitted by plaintiff Etwari Sahu (P. W. 17) himself. He has stated that:

  "On 16-4-1943, I and Biranchi Singh had gone to the P. C. Office to enquire why my bill for petrol was not paid  ..... After making
the enquiry while I was coming out of 'the office Mr.  Kumar  came   .....But     Mr.  Kumar

used to become angry why I was there. I told him that I had come to enquire about my petrol bill. Thereupon, Mr. Kumar said that he had arrested me. Hari Lal stood as my bailor and I was released on bail. Before arresting me, Mr. Kumar had enquired from the head clerk why I was there. The head clerk had told him that I was there to enquire about my petrol bill.”

117. The fact, that the plaintiffs were found coming out of the Price Control Office by the defendant is, therefore, admitted. Plaintiffs’ entry into the office at that hour of the day was prima facie illegal, and their action amounted to criminal trespass. The plaintiffs, had, therefore, prima facie committed an offence for which they were liable to be arrested under Section 64, Criminal P. G. The defendant not only found the plaintiffs coming out of the office after office, hours, but also found that their explanation for coming there as well as explanations offered by Bhaktipada Banerji (P. W. 1) or Awadh Kishore, for the plaintiffs’ presence there, were false. In such circumstances, it can not be said that the defendant was not justified in arresting plaintiff Etwari Sahu under Section 64 of the Code of Criminal Procedure.

118. The plaintiffs also realized that their undesirable activities were detected and that is why Biranchi Singh fled away. Mr. P. R. Das was eloquent while arguing this point and contended why did not the defendant search Etwari Sahu, but his companion who may have freen in, possession of a note of confidential information had run away. I have no doubt in my mind that Etwari Sahu had taken Biranchi Singh for this purpose. It is ridiculous to say that Etwari Sahu, who according to Mr. Das, was a very wealthy business man considered it necessary to go himself to the Price Control Office to enquire whether a bill for Rs. 4/5 had been passed or not or even to

demand himself such a paultry stun of RS 4/5-even if it was due.

119. Plaintiff 1’s case. The next question is : Is it true that plaintiff Etwari Sahu, as stated by him and as supported by Bhaktipada. Banerji (P. W. 1), had gone to the Price Control Office to demand the payment of his alleged outstanding bill for Rs. 4/5/- which represented the price of two gallons of petrol alleged to have been purchased by the defendant on 22-12-1942. This question has been considered by me earlier, and, I have found that this defence of plaintiff Etwari. Sahu was false, and, therefore, the statement of Bhaktipada Banerji (P. W. 1) to the defendant was also false to the knowledge of the defendant. It is established by reliable evidence (exts. R. series) T. A. Bills of the defendant for the month of December, 1942, and January, 1943, that on 22-12-1942, the defendant made his tour on his cycle and not in a friend’s car for which cost of propulsion could have been paid and two gallons Of petrol could have been purchased by the defendant. I have given reasons for holding that this story of plaintiff Etwari Sahu is a pure concoction, and, that Bliakcipada Banerji (P. W. 1), no doubt made that statement immediately on being examined by the defendant after Awadh Kishore, but his statement cannot be accepted as true. The reason why P. W. 1 or even plaintiff Etwari. Sahu put up this defence to the defendant as am explanation for his presence in the Price Control Office is not far to seek. On the evidence of P. W. 6 plaintiff Etwari Sahu was the sole agent of petrol for Monghyr and Jamaipur. Plaintiff Etwari Sahu, as well as Bhaktipada Banerji (P. W. 1) knew that plaintiff Etwari Sahu, being the sole agent for the supply of petrol at Monghyr or Jamaipur, and further knowing that officers used to purchase petrol from the plaintiff 1’s shop, thought of this handy explanation, which had no foundation whatsoever, to explain away the presence of the plaintiffs in the office of the price Control Officer and to save tbeir own skin. I am, therefore, not prepared, for the reasons already given, to accept the plaintiffs’ case that they had gong to the Price Control Office to enquire why his bill for petrol had not been paid.

120. Office hours : Mr. Das then submitted that the plaintiffs’ going into the office of the defendant on 16-4-1943, after court hours, was not illegal so as to amount to criminal trespass, because (1) plaintiff Etwari Sahu was allowed to enter the office at the hour of the day by the head clerk, Awadh Kishore Narayan, and, therefore, the entry of the plaintiffs into the office with the tacit permission of the head clerk did not amount to trespass; (2) the plaintiffs’ entry was not after office hours, although after court hours, because there is distinction between court hours and office hours and, (3) on the evidence of D. W. 1, Mr. Hassan Mohiuddin, no time was fixed for clerks to remain in office, and, they used to remain in the office till the day’s work was finished, and, therefore, if the plaintiffs went Into the office at that hour of the day their entry was not even a case of civil trespass.

121. In support of the first contention that the plaintiffs went into the office of the defendant admittedly after court hours with the tacit permission of the head clerk, Mr. Das has relied on the evidence of D. W. 1 to the following effect:

“The clerks used to come and work in the afternoon during morning sittings. No time was fixed for the clerks to remain in the office, they used to remain in the office till the day’s work was finished. The coupon could not be distributed to

consumers in the absence of officers. In the absence of officers, the Head Clerk was incharge of
the office and he could have allowed outsiders and dealers to enter in the office.”

Mr. Das, therefore, contended that, as in those days the courts were holding morning sittings as admitted by P. W. 1 also, the defendant did not come in the office in the afternoon or in the evening, and, in his absence, therefore, the head clerk, as admitted by D. W. 1, was incharge of the office, and, he could have allowed outsiders and dealers to enter into the office. This, Mr. Das contended, proved that the plaintiffs went into the office with the permission of the head clerk, Awadh Kishore Narayan, and, in such circumstances, the plaintiffs’ entry could not be illegal. There is no evidence, however, to prove that the plaintiffs want into office either at the in-4 vitation of the Head Clerk Or with the permission of the Head Clerk. Even, P. W. 1 has not stated that the plaintiffs were allowed to be in the office by the Head Clerk; on the other hand, he has stated that when the plaintiffs came in the office to demand the price of petrol alleged to have been purchased by the defendant, he told them that the bill for the price of petrol had not yet been passed, and, after this talk, he asked the plaintiffs to go away. The Head Clerk, Awadh Kishore Narayan, was not examined in the suit, but his statement was recorded by the defendant which is to bg found in the Record Book for Orders (Ext. Q). Mr. Das relied on his statement to the effect that plaintiff Etwari Sahu was allowed in the office, as he often came, and, that Awadh Kishore Narayan did not ask plaintiff Etwari Sahu to go away.

It is doubtful if this statement of Awadh . Kishore Narayan in the absence of his examination in court as a witness was admissible in evidence and could legally be used. But even if it is used, his whole statement has to be taken into consideration, because Awadh Kishore Narayan further stated that ;

“I know that afternoon is not the ‘public hours.’ There was no previous engagement between me and Babu Etwari Sahm. It is a trespass on the part of any person to come into the office.”

122. On this evidence, therefore, it is obvious that the head clerk could not legally allow any person to enter the office after court hours, which were according to Awadh Kishore Narayan, also not ‘public hours.’ In my opinion, therefore, even if the Head Clerk Awadh Kishore Narayan, who was in collision with the plaintiffs allowed them to be there, their entry cannot be said to be legal so as not to amount to criminal trespass, when they had not been permitted to come into the office at that hour of the day by the defendant himself.

123. Mr. Das, in support of his second and third contentions, strongly urged that although afternoon was not the court hour, because in those days, courts were sitting in the morning, but court hours are not the same thing as office hours, and office hours would mean not only court hours, but also the time during which clerks were working in the office even after court hours to finish the day’s work, and, as such, office hours would continue from the morning, which would include court hours, up to the time, when the clerks would be in the office working to finish the day’s work. In support of his contention, he has again relied on the evidence of D. W. 1 to the following effect :

Q. “Is it not a fact that the P. Control department usually discouraged dealing with dealers or

merchants through lawyers rather preferred dealing with them directly?

A. We neither encouraged nor discouraged-lawyers coming to the office. It was very seldom that lawyers used to appear for any dealer in connection with price control works. It may be that in almost cent per cent, cases the dealers themselves used to deal with their affairs in p. C. Office.

In average we had to deal with. 30 to 40 dealers every day in the office and similarly we had to deal with 100 to 150 consumers every day in office. The clerics had to do the works of the dealers and the public in pusuance of the works we did with them as stated above. From January 1943, when I joined till the end of 1944, we experienced dearth of staff in our office. The dealers and the consumers were not allowed to enter the office room without permission of the officer in charge of the office. The dealers used to send slips during office hours and they were called one by one. The consumers were called inside the office at 4-30 to 5 P.M. during office hours for distribution of coupons, when the coupons were ready. In morning sittings the consumers were called in the office at 11 or 11-30 A.M. I never went in the office in the evening or afternoon, when the office used to have morning sittings.”

124. He has further relied on the evidence of P. Ws. 1, 2, 3, 5, 7, 8, 11, 12, 13, 14, 17, 18, and 20, of whom P. Ws. 18 and 20 are pleaders, to the effect that there was no restriction for the public to enter the Price Control Office, and, that there was no placard prohibiting public entry in the office, and that the Price Control Office used to remain open for work from morning till 8 O’clock in the night as stated by P. W. 1.

125. As against this, we have the evidence of (1) D. W. 1, Hassan Mohiuddin, a Sub-Deputy Magistrate, who was then for some time Price Control Officer, (2) D. W. 2. the officiating Head Assistant of the Monghyr Collectorate, who was employed as Head Clerk and Accountant in the Price Control Department in place of Awadh Kishore Narayan, (3) D. W. 3, the defendant himself, and, (4) D. W. 4, a Sub-Deputy Collector in charge of Refugees Office who had connections, at that time with the Price Control Office also. All of them have stated that there was a placard of “No Admission” outside the Price Control Office, and, that the public had no free access in the office.

Even D. W. 1 has stated that excepting pleaders and mokhtars, nobody was entitled to enter
the price Control Office without permission,
and, that outside the door of the office, a placard,
was hanging in the door, wherein “no admission”

was written in English, Urdu and Hindi. No
doubt, P. W. 1, Bhaktipada Banerji, who was once
a clerk in the Price Control Department, has
stated that the public had free access to the room,
where the price Control Officer and all clerks
used to sit and where the plaintiffs had entered,
and, that there was no “No Admission” card any
where in the room, but, the fact that there was
a “No Admission” placard hung up and attached
to the door of the defendant was admitted even
by p. W. 12. In answer to a question : “Was
there any placard (Takhti) attached to the door
of the Officer?”, P. W. 12 answered : “Yes. Then
says I do not remember to have seen any Takhti
there.”

126. I am, therefore, not prepared to discard, the evidence of the defendant’s witnesses, who are all responsible Government Officers, and, who

were connected with the Price Control Office some time or other, and, therefore, I have no
hesitation in rejecting the evidence of the plain-tiff’s witnesses, who are ail interested witnesses and in collusion with the plaintiffs and either connected with them, or, who have grudge against the defendant for being prosecuted and convicted some-time or other. I am, therefore, not prepared to agree with Mr. P. B. Das that simply because some clerks used to work even after court hours in the afternoon or in the envening up to 8 P. M.,
that hour of the day would be considered to be office hours for the purpose of allowing free access to the public into the office as a matter of right.

127. I would, therefore, hold that court hours are office hours, and, the hours during which clerks used to work in the office to dispose of the day’s work even in the afternoon or in the evening up to 8 P. M. would not and could not be considered to be office hours in order to entitle the public including the plaintiffs to enter, as a matter of right, the office at that hour of the day.

128. Mr. Das relied very strongly on the statement of D. W. 1, quoted above, to the effect that the Price Control Office had to deal with 100 to 150 consumers every day in office, and it was impossible for the clerks to finish the work of the day within court hours, and, therefore, they used to come in the afternoon also to finish the work of the day, and, as such, it was not unnatural for the Price Control Office to deal with dealers and the consumers even after court hours. But, in my opinion, D. W. 1 has definitely stated that the dealers and consumers were called inside for distribution of coupons, when the coupons were ready only towards the end of the court hours, according to the morning or the day’s sitting of the court.

D. W. 1 has further stated that the coupons could not be distributed to consumers in the absence of officers. In such circumstances, I am not prepared to accept the contention of Mr. Das that because the four clerks were working in the Price Control Office in the afternoon or in the
evening of the 16th April, 1943, that hour was office hour so as to entitle the plaintiffs to enter the office as a mattter of right.

129. For these reasons, I hold that the plaintiffs’ entry into the office of the defendant in the evening of the day of occurrence was illegal and amounted to a criminal trespass.

130. Mr. Das next contended that the defendant on the 16th April, 1943, had no definite information that the plaintiffs had come to the defendant’s office for the purposes mentioned in the petition of complaint, and, therefore, he acted on mere suspicion, and, in this view also, the plaintiffs’ arrest would be illegal, particularly because Wali Ahmad, Orderly of the defendant, who informed him on the 16th April, 1943, has not been examined.

131. In my opinion, the non-examination of Wali Ahmad is of absolutely no importance, because what Wali Ahmad, according to D. W. 3, informed him was that plaintiff Etwari Sahu was in the office of the defendant and was sitting there from some-time before and talking with the clerks, and nothing more. Wali Ahmad did not tell the defendant the purpose for which plaintiff Etwari Sahu had come and was in the office. This information of Wali Ahmad was found to be correct, because when the defendant made a surprise visit to his office, he found the plaintiff Etwari Sahu actually coming out of the office

room, and, at the time when he was seen by the defendant he was within the doors of the defendant’s office. The information of Wali Ahmad, therefore, was found to be correct. In such circumstances, the examination of Wali Ahmad was entirely unnecessary, and, his examination would not have, in the least, improved the matter.

132. It is true that the defendant had suspicion from before that the contents of confidential papers of his office were leaking out to the public through his office. The confidential papers used to be in the custody of the Head Clerk, and, the Head Clerk, in spite of the warning of the defendant, was taking no heed of it, because the defendant even after that warning got information that confidential informations were leaking out from his office.

133. The suspicion of the defendant that confidential papers were leaking out from his office is confirmed by Ext. 5(f) itself, which is the petition filed by plaintiff Etwari Sahu to the Additional District Magistrate, on the 21st March, 1943, and a reference to which has already been made. In para 5 of this petition, plaintiff Etwari Sahu stated:

“That as far as the petitioners were aware, the Senior Dy. Collector has not said anything incriminating against the petitioner.”

If information regarding confidential matters were not leaking out from the office of the defendant, how could plaintiff 1 say that the Senior Deputy Collector has not said anything incriminating against him? This confidential information plaintiff Etwari Sahu could only have got from the clerks of the defendant’s office, namely, the Head Clerk and P. W. 1, who were incharge of the confidential papers. This assertion of the plaintiff no. 1 in para 5 of Ext. 5(f), therefore, completely establishes the fact that confidential informations were leaking out from the Price Control Office through the Head Clerks, Awadh Ki-shore Narayan, who was mainly incharge of the confidential papers.

134. The suspicion of the defendant must have been further confirmed when he actually found the plaintiffs coming out of the office at that hour of the day and one of the plaintiffs, namely, Biranchi Singh running away at the sight of the defendant. The explanation offered: by P. W. 1 was false to the knowledge of the defendant. At that moment his previous suspicion must have matured in belief. In such circumstances, it can not be said that the defendant was not justified in either arresting the plaintiff no. 1 on the 16th April, 1943, or, taking further action in the matter.

135. DELAY: Mr. Das then contended that there has been a long delay in filing the complaint, because although plaintiff Etwari Sahu waH arrested on the 16th April, 1943, and Biranchi Singh on 17-4-1943. the complaint was filed on 26-4-1943, and, that the explanation of the defendant giving reason for the delay is false and should not be accepted. Now, it will appear that plaintiff Etwari Sahu was arrested on the 16th April, 1943, which was Friday.

Biranchi Singh, plaintiff 2, was arrested on 17-4-1943, which was Saturday, and, the defendant’s departmental examination was to commence from Monday, 19-4-1943, as will appear from Ext. G. On the evidence of the defendant, the departmental examination continued up to 22-4-1943, and, thereafter, Good Friday holidays intervened, and, he returned to Monghyr on 25-4-1943, and filed the complaint, the next day, that is, on the
26th April, 1943. In these circumstances, therefore, in my opinion, there has been no delay in filing the complaint against the plaintiffs.

136. Elements of Section 441, Indian Penal Code : Mr. Das, next contended that the elements of Section 441 of the Indian Penal Code, were not present in the present case, and, therefore, the plaintiffs could not be said to have committed an offence under Section 448 of the Indian Penal Code. In support of his argument, Mr. Das, relied on the Privy Council decision in Sinnasamy Selvanayagam v. The King, (1951) A. C. 83 (S), in which Sir John Beaumont, who delivered the opinion of the Board, while construing Section 427 of the Ceylon Penal Code, which corresponds to Section 441 of the Indian Penal Code, at page 86, ob-served :

“Section 427 does not make every trespass a criminal offence : it is confined to cases in which the trespass is committed with a particular intention, and the intention specified indicates that the class of trespass to be brought within the criminal law is one calculated to cause a breach of the peace. Their Lordships are satisfied that the section was not intended to provide a cheap and expeditious method for enforcing a civil right.

It is to be noted that the section deals with occupation, which is a matter of fact, and not with possession, which may be actual or constructive and may involve matters of law. The first paragraph of the section comes into operation When a trespasser enters land in the occupation of another with the intent specified, and the second parasrranh applies when the entry is lawful but becomes unlawful, e.g., when the entry is made on the invitation of the occupier and there is a refusal to leave when the invitation is withdrawn. But, in either case, there must be an occupier whose occupation is interfered with, and whom it is intended to insult, intimidate or annoy (unless the intent is to commit an offence). The section has no application where the fact of occupation is constant, the only change being in its character, as where a tenant holds over after the expiration of his tenancy.”

137. Mr. Das relying on the just mentioned observation of Sir John Beaumont contended that unless the intent specified in the section is established, every trespass will not amount to a criminal trespass, and, therefore, in the instant case, the plaintiffs’ particular intention specified in Section 441 has not been established, and, as such, the plaintiffs could not have committed an offence under Section 448. Mr. Das relied on a further observation of Sir John Beaumount, at p. 87, that :

“Entry upon land, made under a bona fide claim of right, however, ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant tO establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent, or at any rate constituted no more than a subsidiary intent.”

138. Relying on the above observation, he submitted that what intention the defendant had in his mind, when he arrested Etwari Sahu on 16-4-1943, will appear from his own evidence to the following effect :

“I arrested Etwari Sahu on 16-1-1943, and took bail from him for criminal trespass in my office. Wrongful gairis and wrongful loss was an element of criminal trespass in my mind then. There were no other element in my mind.”

139. He, therefore, contended that simply because causing annoyance is also mentioned in the petition of complaint, and, although on the evidence of P. W. 1, the defendant used to get annoyed at the sight of plaintiff Etwari Sahu, that would not be considered to be the intention which was present in the mind of the defendant when he arrested plaintiff Etwari Sahu on 16-4-1943.

The defendant’s intention, according to his own admission, at that time, was: “wrongful gains and wrongful loss”, and, no other element of criminal trespass was present in the defendant’s mind then. Mr. Das, therefore, submitted that if that was the position, and, as the defendant had, on his own evidence, no definite information on this matter, it cannot be said that the defendant did not act on mere suspicion, but that he had reasonable and probable cause to prosecute the plaintiffs for an offence under Section 448 of the Indian Penal Code.

140. As observed by Sir John Beaumont in the just mentioned Privy Council case:

“….. intention, which is a state
of mind, can never be proved as a fact: it can only be inferred from facts which are proved. It may well be that in doing a particular act a man may have more intentions than one;…..”

141. Therefore, to bring a case within Section 441 of the Indian Penal Code, the intention specified in the section must be the dominant intention.

142. In the present case, there is no difficulty in ascertaining the dominent intention of the plaintiffs in going to the office of the defendant after office hours in the evening of 16-4-1943. On the facts proved in the case, the only inference, which could be drawn from them would be that the dominant intention of the plaintiffs in going to the office of the defendant at that hour of the day was obviously to secure some copies of confidential papers in the custody of the head clerk, Awadh Kishore Narayan, and Bhaktipsda Banerji (P. W. 1), both of whom were in plaintiffs’ league.

143. Taking, therefore, the proved facts, namely, (1) the plaintiffs’ entry into the defendant’s office in his absence and without his permission and knowledge after office hours, (2) plaintiff Etwari Sahu’s explanation, which was by way of a claim of right to be in the office at that hour of the day, being false, and a mere cloak to cover the real intent, (3) the defendant’s suspicion from before that confidential papers were leaking out in collusion with the head clerk from his office,’ and (4) the statements of the other two clerks, Chakradhar Prasad and Jalalud-din, made to the defendant, that the plaintiffs were there because the other two clerks, Awadh Kishore and Bhaktipada, were on friendly terms with them, and, that they were in the office for taking copies of prosecution reports and confidential papers, in my opinion, they establish beyond any shadow of doubt the essential elements required by Section 441 of the Indian Penal Code, and, thus the dominant intention of the plaintiffs for their entry into the office of the defendant.

In my opinion, therefore, the contention of Mr. Das that the elements required under Section 441 of the Indian Penal Code have not been proved cannot be accepted as correct. I am not taking into consideration the fact that causing annoyance was also mentioned in the petition of complaint, because, in my opinion, that was not the dominant intention of the plaintiffs for going to

the defendant’s office, although annoyance would be the natural consequence of the plain tiffs being in the office at that hour of the day, if seen by the defendant.

144. Taking all the just mentioned circumstances together into consideration, I am unable to come to any other conclusion than this: that there was no evidence tending to prove that the defendant commenced proceedings for prosecution of the plaintiffs without any honest belief that the plaintiffs were guilty. The facts made out a prima facie case which the defendant thought should be tried by a proper court.

The honest belief of the defendant in the guilt of the plaintiffs was based upon a full conviction, founded upon reasonable grounds of the existence of the above mentioned state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the defendant, to the conclusion that the plaintiffs were probably guilty of the crime imputed. I would, therefore, answer the first question accordingly in the negative.

145. Then the second Question is: Has it been proved that the defendant failed, or neglected to take reasonable care to inform himself of the true facts before commencing or proceeding with the prosecution?

146. In the present case how can it be said that the defendant failed to take reasonable care to inform himself, when the position as proved in this action was this: Immediately when the defendant found plaintiff Etwari Sahu coming out of his office and he arrested him, he asked plaintiff Etwari .Sahu for an. explanation, although it is not required of any prosecutor that he must have tested every possible relevant facts before he takes action, and, it is not his duty to ascertain whether there is a defence; yet, in tho present case, before taking any action against the plaintiffs, the defendant asked plaintiff Etwari Sahu his explanation.

The explanation given by plaintiff Etwari Sahu was found false by the defendant U” his own knowledge, and, thereafter, he pi’oeeeded to take tho statement of the four clerks, who were present in the presence of the plaintiff Etwari Sahu. Two of these clerks, namely, Jala-luddin and Chakradhar, stated to the defendant, as stated by D. W. 3, that the other two clerks, Awadh Kishore Narayan & Bhaktipaxla Banerji, were on friendly terms with the plaintiffs, who were in the office, arid, that they were taking copies of prosecution reports and confidential papers.

These two clerks made their statements in presence of not only the plaintiffs, but also of Awadh Kishore and Bhaktipada Bunerjee (P. W. 1). In such circumstances, it cannot be said that the defendant failed or neglected to take reasonable cnre to inform himself of the true facts before commencing the prosecution of the plaintiffs.

147. There seems to be considerable force in the contention of the learned Government Pleader that the facts that the plaintiff Etwari Sahu’s servant Biranchi Singh, plaintiff 2, slipped away from there leads to the inference that he had in his possession copies of some confidential papers, and, therefore, to avoid detection on being searched, he at once slipped away from there while the defendant was busy asking the plaintiff Etwari Sahu why he had entered the office at that hour of the day.

148. At this very stage, I may notice the-argument of Mr. Das on the question of non-recording of the statements of Jalaluddin and, Chakradhar in the Record Book for orders (Ext. Q), wherein the statements of Awadh Kishore and Bhaktipada Banerji (P. W. 1) were recorded. The recorded statements of Jalaluddin and Chakradhar Prasad were sent to the Criminal Court-along with the petition of complaint, as will. appear from the petition of complaint filed by the defendant on 26-4-1943 (Ext. -3), wherein Jalaluddin and Chakradhar were also mentioned as prosecution witnesses.

We get from the judgment of the Criminal Court (Ext. 2) that Jalaluddin and Chakradhar were examined as prosecution witnesses in that case, and, their recorded statements were also exhibited in the case. Bhaktipada (P. W. 1) was examined as a defence witness for the plaintiffs in the criminal case. The criminal court judgment, therefore, supports the evidence of the defendant that the statements of these two clerks were recorded, and, they were sent to the Criminal Court, where they were exhibited in the case.

149. Mr. Das contended that the judgment of the Criminal Court was not admissible for any purpose whatsoever in the Civil Court, except for showing who the prosecutor was, what was the result of the case and when was the judgment pronounced.

150. It is well settled that In every case of malicious prosecution, the Civil Court must hear evidence of both sides and decide for itself independently of the findings of the criminal Court whether or not the prosecution of the plaintiff W.iP without reasonable and probable cause and amiicious, and will not take into consideration the judgment or reasons which may have led the Criminal Court to an acquittal.

It is equally well settled that in such an action, it is no part of the duty of the Judge of the Civil Court to criticise the judgment of the Criminal Court acquitting the plaintiff, and, that be must consider the evidence produced before him calmly and carefully, and then decide the question as to whether the plaintiff had made out a case against the defendant or not, and, he should not bother himself with the view taken by the Criminal Court.

The judgment of the Criminal Court is in no way binding upon the Civil Court in such a case and it cannot be pleaded as a bar to prevent the defendant from proving that the charge made by him against the plaintiff was in fact true, and, that on that ground the plaintiff’s prosecution could not be considered to be malicious so as to entitle him to damages. Such a judgment is evidence, and a conclusive evidence, merely to show the acquittal of the plaintiff as a fact in issue; Sail Chaturbhuj v. San Mauji Ram, AIR 1936 All 537 (T).

But in my judgment, such a judgment is admissible to show who were the witnesses examined by the parties and what documents were produced in that case, when the existence of such j documents and the non-examination of such witnesses, is challenged in the Civil action.

151. Mr. Das contended, however, that, how is it that the statements of Awadh Kishore Narayan and Bhaktipada were recorded in Ext. Q, but the statements of Jalaluddin and Chakradhar Prasad were not recorded in Ext. Q, but on separate sheets of paper? The defendant was asked as to why the statements of Jalaluddin and Chakradhar we’re not recorded in the Book (Ext.

Q). The defendant gave the reason to be that toese two clerks made statements against the plaintiffs.

The situation, therefore, with which the defendant was faced was that two of his clerks, namely, Awadh Kishore and Bhaktipada (P. W. 1) supported the plaintiff No. 1, whereas the other two clerks Jalaluddin and Chakradhar Prasad made statement’s against the plaintiffs and the other two clerks. In such circumstances I do not find any unnatural conduct on the part of the defendant in recording the statements of Chakradhar and Jalaluddin on separate sheets of paper, because, on their statements, the prosecution of the plaintiffs was justified, and, therefore, in support of the prosecution only their statements could be sent to the Criminal Court, and not the statements of the other two clerks, who supported the plaintilfs.

That was a very good reason for recording the statements of Jalaluddin and Chakradhar Prasad not in Ext. Q, but separately on separate sheets of paper. It will appear from the evidence of D. W. 3 that before he asked Jalaluddin to give his statement, he did not know what he was going to say, and, therefore, the first question that he put to him was; Why the plaintiffs were in the office? and, he told him that they were taking copies of confidential papers, and, on hearing this, he drew a separate sheet of paper to record his statement.

Similarly, the defendant did not anticipate what Chakdradhar would say, who was examined thereafter, and, after his statement to a similar effect, his statement was also recorded on a separate sheet of paper. Therefore, the defendant had good reasons for not recording their statements in the Record Book, although there was sufficient space therein. In my opinion, therefore, the criticism of Mr. Bas on this account must be rejected.

This will be further clear from Ext. 3 itself, wherein the defendant cited only Jalaluddin and Chakradhar, besides himself, as prosecution witnesses and sent their statements in support of the prosecution. It is not the duty of a prosecutor to examine the witnesses who, or to send documents which, would support the accused. In my opinion, the explanation given, for not recording the statements of Jalaluddin and Chakradhar in the Book (Ext. Q). and in not sending the statements of Awadh Kishore and Bhakti-pada along with the petition of complaint (Ext. 3) is quite consistent, with the conduct of a bona fide prosecutor.

152. Mr. Das then contended that if the plaintiffs were guilty of obtaining copies of confidential papers, the head clerk. Awadh Kishore was mere guilty, and, yet. Awadh Kishore was only removed from the defendant’s office to another office, but he was not removed from service. It will appear from Ext. Q itself that departmental enquiry was started against Awadh Kishore and Bhaktipada, and, thereafter, they were removed from the office of the Price Control Office from 17-4-1943, on account of serious allegations which were prima facie proved against them.

Awadh Kishore Narayan was working in another department, and, he was brought to this department with mutual consent of the officer concerned, and, therefore, the defendant had no power to dismiss the head clerk from service, and the only thing which he could do was to remove him from his own office, and, to send him back to the office from where he came.

153. Mr. Da.s further contended that Bhakti-pada (P. W. 1) committed no wrong, because he stated the truth; and, yet, he was removed from the defendant’s office. His assumption that Shaktipada told the truth, when he supported the plaintiffs, is obviously wrong, because, the explanation given by Bhaktipada for the plaintiffs’ presence in the office was false to the knowledge of the defendant himself, and, therefore, the defendant was the best person to say whether Bhalitipada, (P. W. 1) was telling the truth or no.

The defendant was satisfied that he was not telling the truth, and was colluding with the plaintiffs, and trying to shield them from the criminal prosecution. The defendant was, therefore, perfectly justified in removing him from his office.

154. It was vehemently urged that Jalaluddin and Chakradhar were rewarded for giving statements against the plaintiffs, because they were promoted and appointed as paid clerks on the 4th May, 1943, although Chakradhar was previously not a regular clerk, but an honorary clerk. It will appear from Ext. 7 (c), which is a. note submitted by the defendant to the Additional District Magistrate through the Senior Deputy Collector, that he recommended Chakradhar Prssad and Jalaluddin for being appointed as paid clerks.

This recommendation of -the defendant was approved by the Additional District Magistrate on the 4th May, 1943. In my opinion, there was nothing unnatural with the conduct of the defendant in doing so, because he found that these two clerks did not go out of their way to support the plaintiffs, but spoke out the truth, and he was impressed by their work and general character, as reported by him in Ext. 7 Cc).

155. For these considerations, and in such circumstances, in my judgment, any reasonable man would have come to the same conclusion as the defendant did that there was a reasonable end probable cause for prosecution of the plaintiffs. The defendant satisfied himself by an enquiry and the best enquiry which, in the circumstances, could be, was to ascertain the facts not only from plaintiff Etwari Sahu, himself, but also from his four clerics, who were there.

Therefore, the statements of Jalauddin and Chakradhar in presence of the plaintiffs, and the other two clerks, coupled with the fact that plaintiff Etwari Sahu was arrested while coming out of the office after office hours, in my opinion, rightly moved the defendant from the region of suspicion, and “out of the zone of contemplation …. into the valley of decision.” It would not have been human if the defendant would not have come to the conclusion that there was not an absence of reasonable and probable cause.

The existence of these circumstances would “justify” an honest man in saying “I am entitled to use a criminal law to vindicate the position which, I think, is the right position of law”, and, that is how prosecution started in the present ease. The above mentioned circumstances, which operated on the state of mind of the defendant when he embarked on the prosecution of the plaintiffs, justify the view that, as a reasonable man he could not have acted otherwise in the interest of purity of administration of justice.

The sense of duty which impels a citizen in a case where there is reason to suppose that ar offence has been committed is often a duty which

owes to the State and also to those who are under his control or in his service. The defendant being a Government servant and Price Control Officer, and being specially in charge of “en-quiries relating to profiteering,” as will appear from Ext. 10, the order of the District Magistrate dated 21-3-1943, was in duty bound to bring to book persons guilty of tampering with confiden-tial papers in his office, and, to launch prosecution against such persons, if prima facie found guilty.

158. In those circumstances, I would say that there was reasonable and probable cause for prosecution of the plaintiffs.

157. Burden of Proof : Mr. Das then argued with great emphasis, and considerable force, that the plaintiffs have to prove a negative, and, a negative cannot be proved except by giving slight evidence which the plaintiffs in the instant case have done, and, therefore, that evidence of the plaintiffs is sufficient to shift and throw the burden on the defendant; and, the defendant could have discharged his onus by proving the affirmative only by calling Chakradhar and Jalaluddin. but the defendant has not done so, and, therefore, the defendant has failed to prove affirmatively that there was reasonable and probable cause for the prosecution of the plaintiffs. Mr. Das developed his argument in this way.

He submitted, to put his argument in his own words, that (1) the defendant arrested the plaintiff No. 1 under Section 64 of the Code of Criminal Procedure, and, thereby he affirmed that the offence was committed in his presence; (2) in the petition of complaint, he does not say that the offence was not committed in his presence, on the other hand, he names himself as the first prosecution witness which suggests that the offence was committed in his presence; (3) although the plaintiffs committed civil trespass, he committed no criminal trespass, unless there was evidence that the plaintiffs entered into the office with some criminal intent; (4) there is absolutely no evidence in this case that there was any criminal intent.

The plaintiff 1’s evidence together with that Of Bhaktipada (P. W. 1) established prima facie that the plaintiffs entered the office in connection with the outstanding bill. The defendant has no evidence on the point. The plaintiffs’ evidence, therefore, throws the burden on the defendant, and, the defendant can discharge his onus only by examining Jalaluddin and Chakradhar, and, there is no explanation as to why they were not examined, and, therefore, the defendant has not established that he had reasonable and probable cause to prosecute the plaintiffs; and. (5) the entire conduct of the defendant shows malice, because the defendant refused to send the statements of the head clerk Awadh Kishore and Bhaktipada (P. W. 1) to the Magistrate along with the petition of complaint (Ext. 3).

158. Relying on these circumstances, Mr. Das contended that the plaintiffs had discharged their onus, because they had given slight evidence, and, therefore, the onus shifted to the defendant, and, it is impossible to say that the defendant has established existence of reasonable and probable cause, because there was no evidence whatsoever to show this; and, as such, the plaintiffs’ suit had been rightly decreed.

159. As stated earlier, the question of onus Is only a rule for deciding, on whom the obligation of going further, if he wishes to win, rests. Lord Sumner in Lek v. Matthews (1927) 29 LI.

L. Rep. 141 (U), decided by the House of Lords,
sale at page 164 that :

“On a civil issue I do not think more is required than a correct appreciation of the incidence and the shifting of the onus of proof and a reasonable estimate of the correct pro and con of the various parts of the evidence.”

160. This statement of Lord Sumner about the standard of proof was adopted in Hornal v. Neoberger Products Ltd. (1956), 3 All E. R. 970. (V). In this case, Hodson, L. J., referred with, approval to the following idea expressed by Denning, L. J., in Bater v. Eater, (1950) 2 All E. R. 458 (W), at p. 459 :.

“The difference of opinion which has been. evoked about the standard of proof in these cases may well turn out to be more a matter of words than anything else. It is true that by our law there is a higher standard of proof in criminal cases, than in civil cases, but this is subject to the qualification that there is no absolute standard in either case.

In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases. The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard.

The degree depends on the subject-matter. A Civil Court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion.”

161. The noble Lord Justice expressed his complete concurrence with the words used by Denning, L. J., in the passage which I have cited, and, further observed that :

“Just as in civil cases the “balance of probability may be more readily tilted in one case than in another, so in criminal cases proof beyond reasonable doubt may more readily be attained in some cases than in others.”

162. In the instant case, it was for the “plaintiffs to establish want of reasonable and probable cause on the part of the defendant. A mere scintilla of evidence would not warrant the court in finding a verdict for the plaintiffs : for there must be so much evidence that a reasonable man might accept it as establishing the issue. The plaintiffs by giving slight evidence, as submitted by Mr. Das, have not, in my opinion, | discharged the initial onus which lay upon them.

It cannot be said that the evidence brought by the plaintiffs, if unanswered, would entitle the plaintiffs to a decree. The plaintiffs have not produced in court the best evidence which they had in their possession, namely, the documents and witnesses to prove the defence that they entered the office of the defendant, simply to demand payment of the outstanding bill and not with any criminal intention.

To make good their explanation for their entry in the office was on the plaintiffs, and if they have failed to produce the best evidence which they had in their possession, in my opinion, it cannot be said that they had made out a prima facie case and discharged the initial burden which

lay upon them, because they were admittedly found in the office after office hours which legally they had no right to do.

163. It is true that the burden of proof is not stationary, and, as the controversy involved in the litigation travels on, the parties from moment to moment may reach points at which onus of proof shifts. Therefore, in an action for malicious prosecution, no doubt, the initial burden of proving absence of reasonable and probable cause and existence of malice on the part of the defendant in launching the prosecution against the plaintiffs rests on the plaintiff, but that burden may shift during the trial.

The amount and nature of evidence required to fulfil the initial burden depends upon the facts and circumstances of each case. In my opinion, even if it be held that the burden of proof lay on the defendant, he had discharged that onus and has proved the existence of reasonable and probable cause for prosecuting the plaintiffs. In my judgment, therefore, the plaintiffs have failed to discharge their onus, and, the defendant has discharged the onus, if any, which lay on him.

164. Mr. Das, then contended very strenuously that the defendant could be said to have discharged his onus, only if he had examined Jalaluddin and Chakradhar Prasad, whose statements he recorded and who gave statements against the plaintiffs, but the non-examination of these two persons must lead to the irresistible conclusion that the defendant has not discharged his onus. I am, however, unable to accept this contention.

It will appear from the ordersheet of the suit, out of which the present appeal arises –order No. 49 dated 17-9-1946, that Chakradhar Prasad, was summoned as a witness for the defendant, and, he filed his attendance in court on that day as a defence witness along with the telegram sent to him. He was again present in court on 6-2-1947, (order No. 75) on which date the plaintiffs put in a petition that Chakradhar Prasad, who was in court, was giving instructions to the lawyers of the defendant.

On the 7th February, (order No. 80), the defendant put in a petition in reply to the petition filed by the plaintiffs the previous day that Chakradhar Prasad had come to give evidence in pursuance of a telegram sent by the Government Pleader, and, that he was not instructing the Government Pleader, but was giving replies to some queries by him.

Later, on the same day (order No. 81), the plaintiffs filed a petition stating that Chakradhar Prasad was going to be examined for the defendant before the plaintiffs’ evidence has closed, and, therefore, they would be much prejudiced if he is examined on that day, because the plaintiffs’ senior lawyer was not prepared to cross-examine Chakradhar Prasad that day.

This prayer of the plaintiffs was allowed, and, they were ordered to be ready to cross-examine him the next day. On 10-2-1947, order No. 88. the defendant put in a petition stating that Chakradhar Prasad was in attendance since 6-2-1947, and was not examined even on 7-2-1947, as the plaintiffs senior lawyer was not prepared to cross-examine the witness that day.

Next day, that is, on the 8th of February, he was again not examined, and, the witness was ordered to be examined on the 10th as will appear from the court’s letter No. 19 to the Price Control Officer at Begusarai. The witness was

present that day, but the plaintiffs’ lawyer did not agree to cross-examine him even that day. The result was that Chakradhar Prasad, although in attendance in court on 6-2-1947, 7-2-1947, 8-2-1947, and 10-2-1947, and, although the defendant wanted to examine him on his behalf, yet due to the refusal of the plaintiffs to cross-examine the witness, he was not examined at all.

On 10-2-1947, P. W. 17 was being cross-examined, and, the plaintiffs closed their oral evidence on 12-2-1947, but due to the objection of the plaintiffs and due to their refusal to cross-examine Chakradhar Prasad, it appears he was not examined at all. It is clear, therefore, that the plaintiffs themselves are responsible for the non-examination of Chakradhar Prasad, and not the defendant.

The plaintiffs cannot now make a grievance about the non-examination of Chakradhar Prasad, who was made available to the plaintiffs for his examination and cross-examination. It is clear that the plaintiffs did not like the idea of Chakradhar being examined. In my opinion non-examination of either Chakradhar or Jalaluddin is not fatal to the defence of the defendant. Nor does the non-production of their statements in this case does in any way hamper the case of the defendant.

Those statements were produced in the criminal case when their production was necessary to strengthen the case of the prosecution, in my opinion non-production of those statements also is immaterial for the Purposes of this case.

165. It may be mentioned here that Awadh Kishore Narayan, the head clerk, who was in. favour of the plaintiffs, should have been examined by the plaintiffs, but the plaintiffs took no steps for the examination. If, therefore, Awadh Kishore has not been examined, the plaintiffs are to be blamed for his non-examination and for non-production of the best evidence in their favour to prove their defence.

166. Principles which will apply : Mr. Das then submitted that as the present case was a case in which the offence was committed in presence of the defendant, because plaintiff’ No. 1 was arrested by the defendant under Section 64 of the Code of Criminal Procedure, and, he named himself as the first prosecution witness in the petition of complaint (exhibit 3), and, the facts were within his personal knowledge, the principles laid down in decisions, such as. Taha-rat Karini v. Malik Abdul Khaliq, AIR 1938 Pat 529 : 19 Pat L T 889 (X); AIR 1943 Pat 167 (K); Maden Mohan Singh v. Bhirgu-nath Singh, AIR. 1952 Pat 283 (Y); Ucha Singh v. Nageshwar Prasad Singh, AIR 1956 Pat 285 (Z); Laxmichand v. Dominion of India, (S) AIR 1955 Nag 265 (21; and (S) AIR 1955 Orissa. 129 (J), should govern the present case.

167. On the other hand, the learned Government pleader argued that the principles laid down in the above mentioned cases will not govern the present case, because in the instant case, the prosecution is based not on facts within the personal knowledge of the defendant, or on an offence committed in his presence, but on informations furnished to the defendant by his two clerks. Jalaluddin and Chakradhar Prasad, and, therefore, the ratio governing such class of cases is that which has been laid down in the three Privy Council decisions in Pestonji Muncherji Mody v. Queen Insurance Co. ILR 25 Bom 332 (PC) (22); AIR 1926 PC 46 (D); and AIR 1944 PC 1 (L). In my opinion, the contention of the learned Government Pleader is well founded, and it must prevail.

168. The principles, which can be extracted from the just mentioned cases cited at the Bar,
may be stated thus :

1. If a man acts on his own knowledge, and if he gives information of the commission of an
offence committed in his presence, and, therefore, the accusation against the plaintiff is in respect
of an offence which the defendant claims to have
seen him committing, and, the trial commenced on acquittal on the merits, the presumption will be not only that the plaintiff was innocent, but also that there was no reasonable and probable cause.

 If, therefore, a man acts   on   his    personal
knowledge, then the fact that the complaint was
a false one will raise a presumption that there
was absence of reasonable and probable cause,
and, that malice'existed, unless it is shown that
his memory was defective, and, that there was
some valid ground for misapprehension.  
 

2. Where, therefore, the charge is of such a nature as must be true or false to the knowledge of the defendant, then no question of reasonable and probable cause can arise. Firstly of the evidence by the prosecutor himself would go to show want of reasonable and probable cause and further go to show malice on the part of the prosecutor.

3. The question of reasonable and probable cause would arise in those cases, where the truth or falsity of the charge depends upon the information which the prosecutor might have received from other persons.

It cannot be laid down as an abstract proposition that an accuser is justified in acting either upon the credited statement of an informant or upon his own memory. The question must always arise according to circumstances whether it was reasonable to trust either one or the other. A person, therefore, who acts upon the information of another, trusts the veracity, memory and the accuracy of that other, in each of which he may he completely deceived, his informant’s veracity may be questionable his memory fallacious and his accuracy unreliable; yet it does not follow that it was unreasonable to believe in his information if he never had cause to doubt, him.

The question of reasonable and probable cause depends in all cases not upon the actual existence, but upon the reasonable bona fide belief in the existence of such a state of things as would amount to a justification of the cause pursued in making the accusation complained of, no matter whether this belief arises out of the recollection and memory of the accuser, or within information furnished to him by another.

169. Following the above principles, therefore, in the instant case, the following facts, which emerge from the evidence on the record, and, which were present before the defendant before he launched the prosecution against the
plaintiffs on the 26th April, 1943, establish, in my opinion, beyond any shadow of doubt that the defendant had reasonable and probable cause for the prosecution of the plaintiffs, and, that he acted in a manner in which any prudent and reasonable man placed in his position would have acted, and if he had not done so, he would have been guilty of dereliction of duty. The undisputed facts are :

1. Prior to the 16th April, 1943, the defendant received informations which led him to believe that confidential informations were leaking out
from his office;

2. The defendant got definite information on the 16th April, 1943 that plaintiff Etwari Sahu was in the office of the defendant and talking to his clerks after office hours;

3. The defendant paid a surprise visit thereafter on the 16th April, 1943, to his office, and then actually found the plaintiffs coming out of his office in the afternoon, which was not public hours;

4. Plaintiff Etwari’s servant, Biranchi Singh, plaintiff 2, slipped away, while the defendant was enquiring and asking for an explanation from plaintiff Etwari Sahu for his entering the office at that hour of the day;

5. The defendant asked plaintiff Etwari Sahu as to why he was there, and found plaintiffs’ explanation to be untrue;

6. The defendant then made enquiries. He asked his Head Clerk, Awadh Kishore Narayan, and therefore, Bhaktipada Banerji P.W. 1, one of his three other clerks, as to why plaintiffs were then in the office;

7. The defendant received an evasive reply from the Head Clerk, and further found that the explanation given by Awadh Kishore Narayan, the Head Clerk, and P.W. 1 Bhaktipada Banerji, was equally false;

8. The defendant then made enquiries from his other two clerks also who were there at that time in the office, namely, Jalaluddin and Cha-kradhar Prasad.

9. Jalaluddin and Chakradhar both stated that the plaintiffs had come there for taking copies of prosecution reports and confidential papers, which confirmed his belief that the plaintiffs had come in his office with a criminal intent.

170. In my opinion, these telling and hard facts and circumstances were such as would operate on the mind of any discreet and reasonable man, and, he would entertain a bona fide belief in the existence of such a state of things as would amount to a justification of the course pursued in making the accusation complained of. The defendant having satisfied himself that the plaintiffs were prima facie guilty of an offence under Section 448 of the Indian Penal Code filed the complaint against the plaintiffs.

It cannot be said that the information supplied to the defendant earlier, which was strongly corroborated by the statements of Jalaluddin and Chakradhar, was not such that the defendant could have acted in any manner other than1 to prosecute the plaintiffs. The defendant was not bound before instituting the proceedings to see that he had such evidence as will be legally sufficient to secure a conviction.

171. The distinction between facts to establish actual guilt, and those required to establish a bona fide belief in guilt should never be lost sight of. Many facts admissible to prove the latter would be wholly inadmissible to prove the former. The mind of the prosecutor at the time when he initiated the prosecution is an important factor in determining the existence of reasonable and probable cause.

172. It is sufficient if he proceeds on such information, as a prudent and cautious man may reasonably be expected in the ordinary affairs of life; and, therefore, it was for the plaintiffs to show that there was want of proper care in testing that infsormation. In my opinion, therefore, the facts mentioned above establish the existence of reasonable and probable cause for the prosecution.

173. I agree with Mr. Das that the history of the parties is essential, and, the conduct of the defendant before and after making the charge
must also be taken into consideration, because the history may establish both malice and want of reasonable and probable cause.

174. This rule of caution was obviously followed by the defendant, because the early history of the parties and the conduct of the defendant prior to and after the 16th April, 1943, as revealed by the facts mentioned above, point only to one conclusion, and one conclusion alone, that the defendant had absolutely no malice against the plaintiffs and that he had reasonable and probable cause for the prosecution of the plaintiffs.

175. Mr. Das is further correct in his argument that if a complainant says that the offence was committed in his presence, and, if it is found that the offence was not committed at all, then that is sufficient to establish want of reasonable and probable cause. But, I am unable to accept His contention that simply because plaintiff Etwari Sahu was arrested by the defendant under Section 64 of the Code of Criminal Procedure, therefore, the offence which was alleged in the petition of complaint must be deemed to have been committed in his presence.

The complaint filed on the 26th April, 1943, was obviously based on information received by the defendant as disclosed by the statement of Jalaluddin and C’hakradhar Prasad Singh, who deposed before the defendant as eye witnesses to the offence committed by the plaintiffs.

176. For the reasons given above, I would therefore, answer the second question also in the negative, and say that there was reasonable and probable cause for the prosecution.

177. For these reasons, on the whole of the facts, therefore, in deference, to the forceful argument of the respondents’ Counsel, and, in view of the importance of the case to the appellant, I have discussed at some length, I have come to the conclusion that there was no evidence on which the Judge of the Court below could come to the conclusion, to quote his own words, that the defendant was
”actuated with worst type of malice and personal grudge against him (Etwari Sahu) and the case under Section 448, I. P. C, under consideration was also brought by Mr. Kumar out of sheer malice and without any reasonable and probable cause”.

The alleged spiteful career of hatred and malice of the defendant, as alleged by Mr. Das, has not been established. In my opinion, therefore, the Judge of the Court below should have decided that there was no want of reasonable and probable cause, nor any malice on the part of the defendant.

178. I may also notice here another argument of the learned Government Pleader that the finding of the Court below on the question of maintainability of the plaintiffs’ suit under Section 80, Code of Civil Procedure is wrong. The Court below has found on a consideration of the evidence that both the notices sent to the defendant on the 11th June, 1944 and the 12th June, 1944 were duly served on him.

I am not prepared to differ from this finding of the learned Additional Subordinate Judge. I would, therefore, affirm the finding of the Court below on the question of service of notice on the defendant under Section 80 of the Code of Civil Procedure, and, hold that the plaintiffs’ suit was maintainable.

179. For the reasons given above, in my judgment, the appeal must succeed, and, the judgment and decree of the Court below set aside, and the plaintiffs’ suit dismissed, as I am unable to find any legal peg on which to hang the trial Court’s award of damages.

180. In the result, the appeal is, accordingly, allowed with costs throughout, payable by Etwari Sahu plaintiff No. 1 only.

B. N. Rai, J.

181. I agree.