In an action for malicious prosecution, the plaintiff must prove that the prosecution was malicious, without reasonable and probable cause, and resulted in damages to the plaintiff.

PADMA KHASTGIR, J.

( 1 ) THIS suit has been filed by Chouthmal Agarwalla against (1) Halar Salt and Chemical Works, (2) Harjivandas Vithaldas, (3) Jamnadass Madhawji (4) Gordhandass Madhawji Thakkar, (5) Patalia Saratchandra Jethalal and (6) Haridas Dwarkadas for a decree for Rs. 1,00. 000, in the alternative an enquiry in respect thereof, costs, injunction and other reliefs on 27th April 1959.

( 2 ) THE case of the plaintiff is that he carried on 'business as an importer and exporter in salt, iron and general merchandise, order suppliers in Calcutta for a long time and has good reputation. The plaintiff carried on the said business as a partner of Sri Bajrang Trading and Supply Company at No. 22, Bartala Street, Calcutta.

( 3 ) THE defendant No. 1 is a firm, inter alia, carrying on business in salt at No. 1, Amratala Lane, Calcutta and the defendants Nos. 2 to 4 are partners. The defendant No. 6 is the Branch Manager of the defendant No. 1. On 26th November 1957 the defendant No. 6 under the instruction and/or advice, directions and/ or orders of his masters being defendants Nos. 2 to 5 maliciously without reasonable and probable cause preferred in the Court of the Additional Presidency Magistrate. Calcutta a complaint against the plaintiff under Ss. 406 and 420 of the Indian Penal Code and thereby caused the said Court to issue process against the plaintiff. The defendants Nos. 2 to 5 caused the proceedings to be initiated through the defendant No. 1 and unequivocally ratified and/or admitted the said acts of the defendant No. 6. The plaintiff had to appear before the said court on various days between 27th November 1957 till 25th September 1958 and had to stand in the prisoners' dock as an accused during the trial in the said court along with other criminals. On 25th September 1958 the plaintiff was acquitted under Section 258 of the Code of Criminal Procedure on the ground that there was no mens rea on the part of the accused. It is further the case of the plaintiff that by reason of the aforesaid malicious prosecution and malicious abuse of the process of the Court the plaintiff has been injured in his credit and business reputation and suffered from mental agony (SIC) pain. The plaintiff was compelled to appear in the court from time to time and was thereby prevented from transacting his business for a long time. The plaintiff has examined himself and also examined two other witnesses being plaintiff's witnesses Nos. 2 and 3 to prove that as a result of the said malicious prosecution the plaintiff lost credit and/or confidence of other customers and suppliers and considering him to be a bad man and/or criminal they ceased to do any business with the plaintiff on credit. The plaintiff in paragraph 11 has claimed a total sum of Rs. 1,00,000 towards the damages that he is alleged to have suffered. A written statement was filed on behalf of the defendants denying the claim of the plaintiff and trying to justify their own conduct. The plaintiff in his examination-in-chief stated there were various dealings and transactions between the plaintiff and the defendant for a long time. In the course of such transaction on 9th October 1957 the plaintiff gave 4 cheques in favour of the defendant No. 1. Out of 4 cheques 2 were passed by the bankers for payment and subsequently as the plaintiff found that salt supplied by the defendant No. 1 was short, as such he wrote to the banker stopping the payment in respect of other 2 cheques. Those 2 cheques were for the sums of Rs. 4,537. 50 and also for Rs. 3,000. At that time the plaintiff had with the defendant a total sum of Rs. 3,000 in deposit. The defendant No. 1 was holding that sum of Rs. 3,000 to the credit of the plaintiff as a deposit. At the time when the plaintiff issued the said 2 cheques, the plaintiff had an overdraft facility with the bank for a sum of Rs. 70,000. On the day when the plaintiff issued notice stopping payment of the said two cheques the plaintiff had also ove

Click Here to Read the rest of this document