Judgement

Appeal (No. 5 of 1946) from a judgment and decree of the High Court in its civil appellate jurisdiction (February 1, 1945) affirming a judgment and decree of that- court in its original civil jurisdiction (March 31, 1943) dismissing the appellants suit for damages for malicious prosecution.

Law Rep. 74 Ind. App. 193 ( 1946- 1947) Mohamed Amin V. Jogendra Kumar Bannerjee

128

The following facts are taken from the judgment of the Judicial Committee. In March, 1940, an agreement was entered into between the appellant and the first respondent which was contained in certain letters whereby the appellant agreed to sell certain property to a company which was to be formed by the first respondent. The appellant alleged that subsequently an oral agreement was made between himself and the first respondent containing certain provisions which went beyond the written agreement. The third respondent company was incorporated on April 16, 1940, to carry out the purchase from the appellant, and certain property was transferred by the appellant to such company. Subsequently the appellant took the view that the terms of the oral agreement which he had made with the first respondent had not been carried out, and accordingly he refused to transfer the rest of the property included in the sale to the company. The dispute, as the learned trial judge in this suit had held, was of a purely civil character. On September 16, 1940, the second respondent, acting on behalf of himself and the first and third respondents filed a petition of complaint against the appellant in the court of the Police Magistrate at Sealdah, a suburb of Calcutta, under the provisions of s. 190 of the Code of Criminal Procedure. The petition, after setting out the facts relating to the dispute, alleged that as the accused had refused to deliver the remainder of the properties agreed to be sold he had committed an offence under s. 422 of the Indian Penal Code or s. 406 of the Code in the alternative, and asked that he might be summoned to answer the said charge. The charge was duly registered by the magistrate on September 16, 1940, as a charge of cheating under s. 420 of the Indian Penal Code, and it was not disputed that the charge was intended to be one of cheating under s. 420 or criminal breach of trust under s. 406.

The magistrate, having taken cognizance of the complaint, forwarded it to a Mr. N. N. Mukherjee for inquiry and report under the provisions of s. 202 of the Code. Mr. Mukherjee, by letter dated September 22, 1940, gave the appellant notice that a criminal case had been instituted against him by the second respondent, that it had been referred to the writer for inquiry, and that the inquiry would be held on October 25. For some reason, which had not been explained, Mr. Mukherjee did not hold the inquiry, and the magistrate than referred the matter to a Mr. Bannerjee, who also did not hold the inquiry. Thereupon the magistrate himself held the inquiry in open court. Notice of the inquiry was given to the appellant, who attended with counsel. At such inquiry the first respondent deposed that we have brought this case for cheating us against " the accused Md. Amin." On December 3, 1940, after the completion of the inquiry, the magistrate made an order, which concluded with these words " No case of cheating and, for the " matter of that, no criminal case of any nature could be made "out by the complainant.” He thereupon dismissed the complaint under s. 203 of the Code of Criminal Procedure.

On June 26, 1941, the appellant filed this suit against the respondents. The only effective defendants were Nos. 1 to 3 (respondents Nos. 1, 2 and 3). No relief was claimed against defendants (respondents) Nos. 4, 5 and 6. The plaintiff claimed certain relief arising out of the civil dispute with the respondents Nos. 1-3, but that part of his action was dismissed by the trial judge and was not the subject of appeal. The claim relevant to this appeal was for Rs. 28,500 for