IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 820 of 1995(E)
1. THAZHATHE POTHERA EDAVAN KOMAN NAMBIAR
... Petitioner
Vs
1. M.V.SUGATHAN
... Respondent
For Petitioner :SRI.K.V.SOHAN
For Respondent :SRI.M.RAMESH CHANDER
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :14/01/2009
O R D E R
P.N.Ravindran, J.
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S.A. No.820 of 1995
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Dated this the 14th day of January, 2009.
JUDGMENT
The defendant in O.S.No.93 of 1989 on the file of the Court of the
Subordinate Judge of Payyannur is the appellant. The respondent is the
plaintiff therein. The suit instituted by the respondent claiming damages
for malicious prosecution was dismissed by the trial court. On appeal by
the plaintiff, the Court of the District Judge, Thalassery reversed the
decree of dismissal passed by the trial court and passed a decree for
recovery of the sum of Rs.2,000/- as damages, together with interest
thereon at 6% per annum from the date of suit till realisation. Hence this
Second Appeal at the instance of the defendant.
2. The plaintiff, who is the son of sister of the defendant’s wife,
and the daughter of the defendant were on intimate terms. It is also not
in dispute that a child was born to the defendant’s daughter in her
relationship with the plaintiff and that the plaintiff is presently paying
maintenance to the minor child pursuant to the decree passed in
O.S.No.121 of 1991 on the file of the Sub Court, Payyannur, which was
affirmed by this Court in A.S.No.153 of 1995. The respondent instituted
the suit for malicious prosecution on the allegation that he was falsely
prosecuted by the defendant for the offences punishable under Sections
363, 364 and 417 I.P.C., that he was acquitted by the Sessions Court,
SA 820/95 -: 2 :-
Payyannur by Ext.A1 judgment delivered on 25.10.1988, that on account
of the false complaint in which he was ultimately acquitted, he had to
frequently travel from Bombay to Thalassery, that he had to incur
expenses to engage a lawyer and that on account of the false complaint
he suffered mental agony and anguish and also loss of reputation. The
respondent claimed in all the sum of Rs.20,000/- as damages.
3. In the trial court, the respondent was examined as PW1, his
father was examined as PW2 and his neighbour was examined as PW3.
On the side of the defendant, the defendant examined himself as DW1
and his daughter was examined as DW2. The trial court on an analysis of
the evidence oral and documentary available in the case held that the
plaintiff has not succeeded in proving the ingredients required to
successfully claim damages for malicious prosecution. It was held relying
on the decisions of this Court that the judgment of acquittal evidenced
by Ext.A1 cannot be looked into for the purpose of deciding whether the
prosecution was malicious or not and that it can be looked into only for
the purpose of deciding whether the criminal complaint ended in
acquittal or conviction. The suit was accordingly dismissed. On appeal
by the plaintiff, the lower appellate court reversed the decree of
dismissal passed by the trial court and decreed the suit.
4. It is settled law that in a suit claiming damages for malicious
prosecution, the plaintiff must plead and prove that the proceedings
have been initiated and continued by the defendant without reasonable
SA 820/95 -: 3 :-
and probable cause, that he must have acted maliciously and that the
prosecution terminated in favour of the plaintiff. In the instant case,
apart from stating that the prosecution was initiated with the malicious
intention of harassing him and spoiling his bright future and tracing the
history of the criminal case which ended in his acquittal, the plaintiff has
not pleaded that the defendant had a malicious motive to institute and
continue the criminal proceedings against him without reasonable and
probable case. It has come out in evidence that the plaintiff was having
illicit relationship with the defendant’s daughter and that she was
spirited away from her residence. It has also come out in evidence that
DW2, the daughter of the defendant who was spirited away from her
residence had sent Ext.B7 letter to her father the defendant wherein
there is specific reference to the fact that she was forced to go along
with the plaintiff and that out of shame she did not disclose this fact
earlier. In the light of the evidence on record and the findings in Ext.A1
judgment, it cannot be said that the defendant instituted the private
complaint without reasonable and probable case and that the defendant
was motivated by malice when he filed a private complaint in the Court of
the Judicial First Class Magistrate, Payyannur alleging that his daughter
who was a minor, was kidnapped by the plaintiff.
6. A learned Single Judge of this Court has in Bhaskara Menon v.
Ayyappan – 2007 (3) K.L.T. 914 held that the judgment of the criminal
court can be looked into only for the purpose of deciding whether the
SA 820/95 -: 4 :-
criminal complaint ended in acquittal or conviction and that the
judgment of acquittal passed by the criminal court is not sufficient to
prove that the prosecution was malicious. It was held that the fact that
the criminal prosecution ended in acquittal will not automatically lead to
the conclusion that the prosecution was malicious. In the instant case,
the plaintiff has not pleaded or proved that the defendant was motivated
by malice when he instituted the private complaint alleging that the
plaintiff had kidnapped his minor daughter. In the absence of a pleading
to that effect, the lower appellate court was not, in my opinion, right in
proceeding to examine whether on the materials on record, especially the
finding of the criminal court in Ext.A1 judgment, the prosecution was
malicious or not. In the instant case, the plaintiff has not pleaded that
the defendant instituted the criminal complaint solely out of malice. As
his daughter was missing, the conduct of the defendant in filing the
criminal complaint cannot be said to be one actuated by malice or one
filed without reasonable and probable cause. Apart from the mere
allegation that prosecution was malicious, the plaintiff has not pleaded
the details which would enable the court to come to the conclusion that
prosecution was in fact actuated by malice. If the pleadings are not
specific, no amount of evidence can salvage the situation for the reason
that evidence in relation to a plea which has not been raised cannot be
looked into. The lower appellate court therefore erred in law in reversing
the decree of dismissal passed by the trial court and in decreeing the
SA 820/95 -: 5 :-
suit.
7. In the view that I have taken, I hold that the judgment under
challenge is liable to be set aside. The appeal is accordingly allowed and
the judgment and decree passed by the Court of the District Judge of
Thalassery in A.S.No.294 of 1992 are set aside and the suit, O.S.No.93 of
1989 is dismissed. No costs.
P.N.Ravindran,
Judge.
ess 15/1