{"id":267417,"date":"2008-01-15T00:00:00","date_gmt":"2008-01-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mathewkutty-mathew-vs-shaji-jose-on-15-january-2008"},"modified":"2018-05-15T01:55:07","modified_gmt":"2018-05-14T20:25:07","slug":"mathewkutty-mathew-vs-shaji-jose-on-15-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mathewkutty-mathew-vs-shaji-jose-on-15-january-2008","title":{"rendered":"Mathewkutty Mathew vs Shaji Jose on 15 January, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Mathewkutty Mathew vs Shaji Jose on 15 January, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRSA No. 1084 of 2007()\n\n\n1. MATHEWKUTTY MATHEW,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. SHAJI JOSE, S\/O. K.K.JOSE,\n                       ...       Respondent\n\n                For Petitioner  :SRI.SHAJI THOMAS PORKKATTIL\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice M.SASIDHARAN NAMBIAR\n\n Dated :15\/01\/2008\n\n O R D E R\n                  M.SASIDHARAN NAMBIAR, J.\n                   ...........................................\n                   R.S.A.No. 1084              OF 2007\n                   ............................................\n       DATED THIS THE 15th DAY OF JANUARY, 2008\n\n                              JUDGMENT\n<\/pre>\n
      Defendant in O.S.308 of 1999 on the file of Munsiff Court,<\/p>\n
Erattupetta is the appellant.                Plaintiff is the respondent.<\/p>\n
Respondent instituted the suit claiming damages for malicious<\/p>\n
prosecution.      Appellant        admittedly           lodged   Ext.B4 First<\/p>\n
Information Statement alleging that on 24.11.1994, at about 6<\/p>\n
pm, while he was walking through Kollappally-Nelloor road and<\/p>\n
reached in front of Kadanadu village office, four persons<\/p>\n
including respondent wrongly restrained him and voluntarily<\/p>\n
caused hurt to him by beating with a stick and he sustained<\/p>\n
injuries in the hands of appellant. Police, after investigation, on<\/p>\n
the basis of the statement of appellant, lodged Ext.B1 charge<\/p>\n
sheet before Judicial First Class Magistrate, Erattupetta.<\/p>\n
Appellant, along with three others, were tried and finally under<\/p>\n
Ext.A1 judgment, he was acquitted.                   Respondent, contending<\/p>\n
that he was falsely implicated and was prosecuted without any<\/p>\n
probable and reasonable cause and with malice, claimed<\/p>\n
damages for malicious prosecution. He claimed that because of<\/p>\n
the prosecution, he sustained loss of reputation, mental agony<\/p>\n
RSA 1084\/2007                     2<\/span><\/p>\n
and had to meet expenses to defend the case. It was claimed<\/p>\n
that being a member of the Church Committee, his reputation<\/p>\n
has been affected and therefore he is entitled to a compensation<\/p>\n
of Rs.30,000\/- for loss of reputation. Claiming that he had paid<\/p>\n
Rs.6000\/- to the counsel and also met other expenses, Rs.8000\/-<\/p>\n
was claimed as damages, Rs.8000\/- was also claimed as damages<\/p>\n
for mental agony. Towards the notice charges, Rs.300\/- was<\/p>\n
claimed. Respondent sought a total compensation of Rs.44,800\/-.<\/p>\n
Appellant resisted the suit denying the plaint allegation and<\/p>\n
contending that he furnished first information in good faith and<\/p>\n
without any malice. It was contended that respondent has no<\/p>\n
right to file the suit solely based on an order of acquittal for the<\/p>\n
failure of prosecution to prove the case beyond reasonable<\/p>\n
doubt. It was contended that he had given a true statement<\/p>\n
before the police and also before the court that he was attacked<\/p>\n
on 24.11.94 at 6 pm and he was physically assaulted by<\/p>\n
respondents and others and as a result he was treated at<\/p>\n
P.H.Centre, Muttom and police registered the case and after<\/p>\n
investigation lodged charge sheet for the offence under Section<\/p>\n
341, 323 and 324 read with Section 34<\/a> of IPC and the fact that<\/p>\n
RSA 1084\/2007                   3<\/span><\/p>\n
appellant was acquitted will not enable him to claim damages<\/p>\n
for malicious prosecution and the suit is only to be dismissed. It<\/p>\n
was also contended that appellant did not sustain any loss of<\/p>\n
reputation or mental agony or other expenses.\n<\/p>\n
     2. On the evidence of Pws 1 to 4, DW1, Exts.A1 to A8(a)<\/p>\n
and B1 to B5, learned Munsiff found that appellant was not<\/p>\n
anywhere near the place of incident on 24.11.1994 at 6 pm when<\/p>\n
respondent was allegedly attacked by the appellant along with<\/p>\n
others. Learned Munsiff, relying on Ext.A6 to A8, found that<\/p>\n
respondent was working in the Crumb factory and on that date,<\/p>\n
he had jointed duty at 3.20 pm and left the factory after his work<\/p>\n
only at 12.10 am and therefore the allegation of appellant that<\/p>\n
respondent attacked him at 6 pm is an allegation made without<\/p>\n
any reasonable or probable cause. Learned Munsiff also found<\/p>\n
that as evidenced by Ext.A1, respondent was acquitted and as<\/p>\n
evidenced by Ext.B4 F.I.Statement, it was the appellant, who set<\/p>\n
the criminal law in motion. Learned Munsiff, on the evidence<\/p>\n
also found that appellant in fact acted because of the ill will and<\/p>\n
malice against respondent. On the evidence, it was found that<\/p>\n
appellant sustained mental agony as well as loss of reputation.<\/p>\n
RSA 1084\/2007                    4<\/span><\/p>\n
Relying on the evidence of PW2, it was found that appellant,<\/p>\n
along with other co accused, had to meet the expenses and<\/p>\n
granted a total compensation of Rs.39,800\/- as damages inclusive<\/p>\n
of Rs.30,000\/- for loss of reputation, Rs.8000\/- for mental agony,<\/p>\n
Rs.1500\/- towards expenses for defending criminal prosecution<\/p>\n
and Rs.300\/- for expenses for sending notice. Appellant was<\/p>\n
directed to pay Rs.39,800\/- with 6 % interest from the date of the<\/p>\n
suit. Appellant challenged the judgment before Sub Court, Pala.<\/p>\n
Learned Sub Judge, on reappreciation of evidence, confirmed the<\/p>\n
findings of learned Munsiff and dismissed the appeal. It is<\/p>\n
challenged in the second appeal.\n<\/p>\n
     3. Learned counsel appearing for appellant was heard. The<\/p>\n
argument of the learned counsel is that             appellant was<\/p>\n
prosecuted before Magistrate Court not on the basis of a<\/p>\n
complaint filed by appellant but on the basis of the charge sheet<\/p>\n
submitted by police after proper investigation and therefore fact<\/p>\n
that appellant was acquitted for failure of the prosecution to<\/p>\n
prove the charge beyond reasonable doubt is not a ground to<\/p>\n
grant damages for malicious prosecution. It was argued that<\/p>\n
appellant had only stated true facts as seen in Ext.B4 when his<\/p>\n
RSA 1084\/2007                   5<\/span><\/p>\n
F.I.Statement was recorded by the police and police, after<\/p>\n
investigation, lodged the charge and it was based on the<\/p>\n
materials collected at the time of investigation, and therefore it<\/p>\n
cannot be said that appellant maliciously prosecuted respondent.<\/p>\n
Learned counsel also argued that the criminal case was<\/p>\n
conducted by the Public Prosecutor and in such circumstances,<\/p>\n
courts below were not justified in directing appellant to pay<\/p>\n
damages for malicious prosecution.      Learned counsel finally<\/p>\n
argued that the quantum of damages granted by courts below is<\/p>\n
excessive. It was argued that there is no evidence to prove the<\/p>\n
malice and the fact that the criminal case ended in acquittal<\/p>\n
cannot automatically lead to the conclusion that prosecution was<\/p>\n
lodged with malice and in the absence of evidence to prove loss<\/p>\n
of reputation or the quantum of damages, judgments of courts<\/p>\n
below are not sustainable.\n<\/p>\n
     4.    On hearing the learned counsel, I do not find any<\/p>\n
substantial question of law involved in the appeal. Being a suit<\/p>\n
for malicious prosecution, respondent, plaintiff has to prove that<\/p>\n
it was appellant who set the criminal law in motion and that he<\/p>\n
was prosecuted by appellant and that prosecution ended in his<\/p>\n
RSA 1084\/2007                   6<\/span><\/p>\n
acquittal and that appellant acted without reasonable and<\/p>\n
probable cause and he was actuated by malice. The argument of<\/p>\n
learned counsel is that the criminal prosecution was based on<\/p>\n
Ext.B1 charge sheet and appellant had only furnished Ext.B4<\/p>\n
F.I.Statement and therefore it cannot be said that appellant<\/p>\n
prosecuted the respondent. As rightly found by courts below, the<\/p>\n
question is whether it was appellant, who set the criminal action<\/p>\n
in motion. Though respondent was prosecuted on the basis of<\/p>\n
Ext.B1 charge sheet, the criminal prosecution was set in motion<\/p>\n
by appellant by furnishing Ext.B4 F.I.Statement. But for Ext.B4,<\/p>\n
appellant would not have been prosecuted at all. Therefore on<\/p>\n
the evidence, courts below rightly found that it was appellant,<\/p>\n
who set the criminal law in motion and therefore it is the<\/p>\n
appellant, who prosecuted the respondent.       Ext.A1 judgment<\/p>\n
establish that the criminal prosecution ended in acquittal.<\/p>\n
     5. Then the question is whether the criminal prosecution<\/p>\n
was without any reasonable or probable cause. The argument of<\/p>\n
the learned counsel is that finding of courts below is not<\/p>\n
sustainable as appellant, while injured, believed that respondent<\/p>\n
was also one of the persons who attacked him and inflicted injury<\/p>\n
RSA 1084\/2007                   7<\/span><\/p>\n
and as appellant did not act further than furnishing Ext.B4<\/p>\n
F.I.Statement and this relevant aspect was not appreciated. But<\/p>\n
that is not the case. Even after Ext.B4 F.I.Statement, appellant<\/p>\n
continued with his case that it was respondent, along with three<\/p>\n
others, who attacked him and inflicted injury.        Even when<\/p>\n
examined as witness before the criminal court, he asserted that<\/p>\n
appellant was present at the scene of occurrence and inflicted<\/p>\n
the injury. Even in the written statement, appellant asserted<\/p>\n
that it was respondent, along with others, who inflicted injury on<\/p>\n
him. Even from box as DW1 he asserted this case. In such<\/p>\n
circumstances, it cannot be said that appellant is not responsible<\/p>\n
for setting the criminal law in motion or that he implicated the<\/p>\n
respondent with reasonable cause.\n<\/p>\n
      6.  Relying on the records produced from the         Crumb<\/p>\n
Factory, Muttom where appellant was working, trial court and<\/p>\n
first appellate court found that respondent could not have been<\/p>\n
at the scene of occurrence at 6 pm on 24.11.1994 as alleged by<\/p>\n
appellant in Ext.B4 F.I.Statement or before the criminal court or<\/p>\n
in the written statement or at the time of evidence. Ext.A6(a)<\/p>\n
attendance register establish that appellant was on duty on that<\/p>\n
RSA 1084\/2007                   8<\/span><\/p>\n
day. Ext.A7(a) entry in Ext.A7 log book establish that company<\/p>\n
was working in three shifts and appellant was working in the<\/p>\n
third shift. Ext.A8(a) entry establish that appellant joined duty<\/p>\n
on that day at 3.20 pm and left the factory only at 12.10 am after<\/p>\n
midnight. Therefore both courts, relying on the unimpeachable<\/p>\n
evidence, entered a factual finding that respondent would not<\/p>\n
have been anywhere near the place of occurence and appellant<\/p>\n
falsely implicated him as one of the persons who inflicted injury<\/p>\n
on him at 6 pm.      Apart from his own interested testimony,<\/p>\n
appellant did not adduce evidence to contradict this case or to<\/p>\n
prove that there was any probable or reasonable cause for<\/p>\n
alleging that appellant was one of the assailants. In the light of<\/p>\n
the evidence, factual finding of courts below that appellant<\/p>\n
implicated respondent without any reasonable or probable cause<\/p>\n
is perfectly correct.\n<\/p>\n
      7. Relying on the decision of a learned Single Judge of this<\/p>\n
court in Govindji J Khona V.K.Damodaran and others<\/a>(AIR<\/p>\n
1970 Kerala 229) learned counsel argued that there is no<\/p>\n
evidence to prove the malice and unless all the ingredients<\/p>\n
provided for malicious prosecution are established, finding of<\/p>\n
RSA 1084\/2007                   9<\/span><\/p>\n
courts below that respondent was maliciously prosecuted cannot<\/p>\n
stand.    When the evidence establish that respondent was<\/p>\n
working in the factory and could not have been anywhere near<\/p>\n
the scene of occurrence and he was falsely implicated in Ext.B4<\/p>\n
F.I.Statement and the very same version was agitated by<\/p>\n
appellant throughout, the finding of courts below that appellant<\/p>\n
was actuated with malice is a perfectly correct view that could<\/p>\n
be taken on appreciation of the evidence. In such circumstances,<\/p>\n
finding of courts below that respondent established that he was<\/p>\n
maliciously prosecuted by appellant is perfectly correct.<\/p>\n
     8. Then the only question is regarding the quantum of<\/p>\n
compensation. The argument of learned counsel is that there is<\/p>\n
no evidence to prove that respondent is entitled to get<\/p>\n
Rs.30,000\/- as awarded by courts below towards loss of<\/p>\n
reputation. Apart from the evidence of PW1, evidence of PW4<\/p>\n
was also relied on by courts below to prove that appellant was<\/p>\n
earlier a member of the Church committee and because of the<\/p>\n
prosecution, he could not continue the position and respondent<\/p>\n
lost his reputation. The argument of learned counsel is that<\/p>\n
apart from the interested version of PW1, there is no other<\/p>\n
RSA 1084\/2007                  10<\/span><\/p>\n
evidence to prove that fact.    Courts below found that even<\/p>\n
though PW1 was spoken about this aspect, appellant when<\/p>\n
examined as DW1, deposed that he did not know this fact.<\/p>\n
Courts below also relied on the evidence of PW4 that respondent<\/p>\n
sustained loss of reputation. It is on that basis damages was<\/p>\n
awarded for loss of reputation.  In the facts and circumstances<\/p>\n
of the case, quantum of damages awarded cannot be said to be<\/p>\n
excessive, warranting interference in exercise of the powers of<\/p>\n
this court under Section 100 of Code of Civil Procedure.<\/p>\n
Evidence shows that appellant has to engage a counsel and meet<\/p>\n
the expenses and had to appear before the criminal court on<\/p>\n
several occasions, causing great mental agony.         In such<\/p>\n
circumstances, the quantum of compensation granted is also<\/p>\n
proper.\n<\/p>\n
     Appeal is dismissed in limine.\n<\/p>\n
\n
                          M.SASIDHARAN NAMBIAR, JUDGE<\/p>\n
lgk\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Mathewkutty Mathew vs Shaji Jose on 15 January, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM RSA No. 1084 of 2007() 1. MATHEWKUTTY MATHEW, … Petitioner Vs 1. SHAJI JOSE, S\/O. K.K.JOSE, … Respondent For Petitioner :SRI.SHAJI THOMAS PORKKATTIL For Respondent : No Appearance The Hon’ble MR. Justice M.SASIDHARAN NAMBIAR Dated […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-267417","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMathewkutty Mathew vs Shaji Jose on 15 January, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mathewkutty-mathew-vs-shaji-jose-on-15-january-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mathewkutty Mathew vs Shaji Jose on 15 January, 2008 - 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