Back
High Court Of Madhya Pradesh
U.N.Bhachawat and A. R, Navkar, JJ.
BHARAT BHUSHAN BHARGAVA
Versus
CHANDRA MOHAN L SANT PRASAD TANDON
Decided On : Nov 30,1981
To succeed in an action for damages for malicious prosecution a plaintiff must prove (1) the prosecution by the defendant of a criminal charge against the plaint ff before a tribunal into whose proceedings the civil Courts are competent to enquire; (2) that the proceedings complained of terminated in his favour, if from their nature they were capable, of so terminating; (3) that the defendant instituted or carried on such proceedings maliciously, (4) that there was an absence of reasonable and probable cause for such proceedings; (5) that the plaintiff has suffered damages.
(Para 12)
Reasonable and probable cause may be defined to be an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.
It is necessary for the person instituting the prosecution to believe that he had evidence which would, if accepted, establish the guilt of the accused.
The following propositions are now clearly settled; the reasonab1e man would take the following steps; (i) he or his advisors would take reasonable steps to inform himself of the true state of the case; (ii) he or his advisors would finally consider the matter on admissible evidence only; (iii) in all cases, he would lay the facts fully and fairly before counsel of standing and experience in the relevant branch of law and receive the advice that a prosecution is justified.
If a party lays all facts of his case fairly before counsel, and acts bona fide upon the opinion given by that counsel (however erroneous that opinion may be) he is not liable to an action of tort.
(Para 13)
(2) Practice (Civil)-burden of proof-all evidence laid on record-burden of proof when material.
The burden of proof has very little say in the matter when both the parties have led the evidence to prove their claims. Only when the evidence of the parties is equally-balanced, then the question on whom the burden of proof lies will tilt the balance.
(Para 14)
(3) Tort-malicious prosecution-reasonable and probable cause-existence of right of civil action-does not show malice.
If the defendant had a reasonable and probable cause for setting the criminal law in motion the mere fact that he might have pursed a civil remedy cannot render him liable for malicious prosecution.
(Para 14)
(4) Civil P.C., 1908 - O. 41, R. 27 - application to produce additional evidence in appeal-application belated-the evidence having no clinching effect on the case-application cannot be allowed.
(Para 18)
( 1. ) THIS is an appeal under section 96 of the Code of Civil, procedure against the judgment and decree dated 3-3-1970, passed by the district Judge, Gwalior in Civil Suit No. 11- A of 1962.
( 2. ) THE facts giving rise to this appeal are that the plaintiff filed a suit for recovery of Rs. 1,80,274. 40 with the allegations that on 2-9-1958, at barabanki, the defendant filed a complaint against the plaintiff under section 420 of the Indian Penal Code and on the basis of the said complaint, got a warrant of arrest issued against the plaintiff. The warrant was served on the plaintiff at Gwalior, but he was released on bail at Gwalior. On 15-1-1959, the plaintiff appeared before the Court of Shri M. M. Mishra, magistrate at Barabanki and again executed a bail bond for appearance before, the Criminal Court at Barabanki till the disposal of the case. On 9-11-1959, the Criminal proceedings terminated successfully in favour of the plaintiff and the plaintiff was discharged by the order of the said Magistrate on 9-11-1959. The defendant brought the aforesaid criminal complaint against the plaintiff, knowing that there was no reasonable and probable cause for the action, but it was out of a malice. To show the malice, certain facts are alleged by the plaintiff in his plaint and they are that on 24-12-1951, the plaintiff entered into a contract with the defendant for the supply of 10 Tons Ice Plant under an agreement dated 24-12-1951. Under the terms of the agreement, the defendant was to pay to the plaintiff, a sum of Rs. 2,000 after completion of the erection of the plant. The dispute arose between the parties about the sum of Rs. 2,000 as it was alleged that the contract was not completed within time stipulated and as such, the plaintiff is not entitled to recover Rs. 2,000. When the defendant refused to pay the said amount, the plaintiff filed a civil suit at Gwalior on 21-12-1954 for the recovery of the amount of Rs. 1,800. The suit was contested by the defendant, but it was decreed for Rs. 1,800 with costs. An appeal was preferred by the defendant against the decree, but it was dismissed on 9-2-1960.
( 3. ) IN July, 1958, the defendant threatened the plaintiff at Gwalior asking him to withdraw the civil suit at Gwalior, otherwise, the defendant being an influential man and once an honorary Magistrate at Barabanki, would put the plaintiff into trouble by filing against him some sort of false criminal case.
( 4. ) THE goods under the contract were supplied to the defendant in march-April, 1952 and on 2-9-1958, the defendant, as a retaliatory measure to the civil suit, filed by the plaintiff and to harass and put undue pressure on the plaintiff, so that he may withdraw the civil suit, filed a criminal complaint, mentioned above. The criminal complaint was filed under section 420 of the indian Penal Code. To further strengthen the plea of malice, it is alleged by the plaintiff that the objections regarding late completion of the plant or supply of a compressor which was not according to contract, was not raised by the defendant in the written statement he has filed in the civil suit, which was pending against him in the Court at Gwalior.
( 5. ) FURTHER, the plaintiff has stated that the whole object of the defendant was to put the plaintiff to humiliation, insult and to harass and to put undue pressure on him so that the plaintiff may withdraw the suit and stop the plaintiff from recovering the money through the process of law. The plaintiff suffered mental worries and humiliation on account of defendants aforesaid wrongful action and due to its effect, he could not sleep properly for several weeks and also could not attend to his business properly. While the criminal case was pending, the aunt of the plaintiff also suffered in her health and ultimately, because she was not attended properly, she died. The plaintiff could not attend her on last days and hours as he was to be present at Barabanki and this had a great effect on h
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
