( 1 ) THE material admitted facts are as follows :- son of the plaintiff one Mahadeva Babu (hereinafter called 'rc holder') was the owner of the lorry bearing No. MYA 6526. State bank of India had financed loan for purchasing the vehicle and there was hire purchase agreement between R. C. holder and the bank. RC holder was unable to make profit from the lorry, therefore, entered into agreement with the defendant to ply the lorry. The possession of the lorry was delivered to the defendant along with R. C. book and insurance certificate. The defendant per contra states that a sum of Rs. 10,000/- was advanced to the RC holder. In consideration of which, the vehicle was delivered to the possession of the defendant with some terms and condtions as security for the amount advanced. The defendant alleged to have parked the vehicle in front of his house on the night. On the next day morining, he finds that the vehicle was missing. He suspects the plaintiff and the RC holder have stealthily taken away the vehicle. A complaint was lodged before the basayanagudi police, the police failed to take action. The defendant filed private complaint in PCR No: 41/1975 on the file of the Metropolitan magistrate, IV Court, Bangalore. The magistrate referred the private complaint to police for investigation. The police after investigation, filed B report marked at Ex. P1 stating that the dispute between the parties is of civil nature. The RC holder had also filed a suit in O. S. No. 954/75 for permanent injunction prior to filing of the private complaint. The police in the course of investigation, seized the lorry from the RC holder. The plaintiff and the defendant both made an application before the criminal Court for interim custody u/s. 451 Cr. P. The criminal Court after hearing both the parties, granted interim custody to the defendant.

( 2 ) THE defendant submitted protest petilion to the 'b' report. The Court on the basis of sworn statement of the witnesses, took cognizance and issued summons to the plaintiff and his son. The criminal case went on for about 4 years. The RC holder died during the pendency of the criminal case. On 5-12-85, a criminal complaint was dismissed for non- prosecution since the complainant was absent. The suit is filed seeking damages for malicious prosecution.

( 3 ) THE trial Court allowed the suit and granted damages of Rs. 30,000/- The defendant being aggrieved by the decree, has filed this appeal.

( 4 ) IN the case of Sachindra Nath Bhanja chowdhury v. Labangalata Sarkar, AIR 1980 calcutta 121, in para 15 it is observed as follows :-

"in view of the above decision of our High court and of the Privy Council I regret my inability to rely upon the views of the Patna high Court and the Orissa High Court that from an acquittal on merits in a case in which the defendant claimed to have seen commission of the offence, a presumption of absence of reasonable and probable cause is to be drawn. In the case of Muchiosta it has specifically been laid down that the finding of the criminal case is not conclusive upon this matter in the civil suit for damages for malicious prosecution and that the onus of proof was upon the plaintiff that the prosecution was commenced without reasonable and probable cause, The Privy Council was also in the cases discussed laid down that it was a heavy onus upon the plaintiff to prove that the prosecution was lodged without just and reasonable cause. The judgment in the case of Surendra nath Sahoo also lays down the selfsame principle and only qualifies the principle by laying down that if the plaintiff has discharged the initial burden by giving such evidence which it not answered, would entitle him to succeed the burden shifts to the defendant to establish the contrary"

.

( 5 ) IT is well settled that in case of action for malicious prosecution, the plaintiff has to prove the institution and the termination of criminal proceedings in his favour. The termination need not be necessarily by way o

Click Here to Read the rest of this document