1983 Supreme(MP) 442

M. D. Bhatt, J.
Indra Bhan Singh v. Ram Milan
S. A. No. 434 of 1977 (J); Decided on 21-10-1983.

Headnote:(1) Criminal P.C., 1973 -- Ss. 107 and 116 -- termination of proceedings due to legal flaw or defect -- termination is in favour of accused.

        (2) Tort -- malicious prosecution -- suit for damages -- plaintiff has to prove absence of reasonable and probable cause for initiation of criminal proceedings.

        (3) Tort -- suit -- for damages on ground of malicious proceedings -- initiation of criminal proceedings not found false -- suit rightly dismissed.

        Proceedings under section 107 read with section 116 of the Code of Criminal Procedure, 1973, having been terminated, without any further inquiry and decision, the plaintiffs and Kedarsingh filed a civil suit for damages, which has given rise to their present appeal. This suit for damages was based on the ground of malicious prosecution. It was alleged that the complaint filed by the defendant Ram Milan before the SDM Bandhavgarh was false to the defendants own knowledge and was without any just and sufficient cause. The defendant, on his part, contended that be genuinely believed in the truth of the facts mentioned by him in his complaint or the petition submitted before the SDM for proceeding under section 107/116 of the Code of Criminal Procedure, 1973 and that such a petition had not been made out of any malice or with any ulterior motive. The trial Court dismissed the claim of the present appellants-plaintiffs principally on the ground that the proceedings again them under section 107/116 of the Code had not been terminated in their favour but had actually been terminated due to an altogether independent factor viz. the technical defect relating to the expiry of one year period of the bond as mentioned in the show-cause notice under section 111 of the old Code. The lower appellate Court too, dismissed the appeal; and, hence, now, the plaintiffs, present appeal.

        Held : I have considered the arguments in the light of the material on record. The learned SDM admittedly had terminated the proceedings under section 107/116 of the Code due to expiry of the period of one year mentioned in the show-cause notice. No doubt, such termination of proceedings was not on merits but was consequent to procedural flaw or defect; but all the same, termination or the proceedings even due to technical defect has to be deemed to be termination of the proceedings in flavour of the accused persons viz. the present plaintiffs; and as such, hold accordingly.

        Now, in a suit for damages for malicious prosecution the law is well settled that the onus is on the plaintiff to prove the absence of reasonable and probable cause and the facts involved in it; and not on the defendant to prove that he had reasonable and probable cause for prosecution of the other side. The issue regarding the absence of the probable cause is one of fact and the conclusion in this regard has to be drawn from the circumstances emanating from the record. Where it does not appear that the defendant had no belief in the plaintiffs guilt, the plaintiff must show that the defendants conduct was unreasonable in the circumstances. On the other hand, if it is found that the defendant has placed the particular information regarding the allegations on the other side quite fairly before the police or before any authorities for purposes of proceeding against other side under section 107/116 of the Code, it would be a circumstance showing the defendants faith on the allegations and the existence of reasonable arid probable cause justifying the action on his part. It would equally be indicative of want of malice on his part.

        Now, in the present case, the evidence on record brings out the particular admitted position that the defendants horse had; on occasion grazed a part of the plaintiff Indra Bhan Singhs crops and that on the oral protest of the latter, the defendant Ram Milan had assured to recompense by getting the portion of the plaintiffs filed re-ploughed by him only. The dispute between the parties was with respect to the date of the incident but not regarding the incident. It was consequent to this incident that the defendant had alleged in his complaint lodged with the SDM that the plaintiffs had started abusing him and threatened him with life. It was equally stated by him that the plaintiffs were obstructing his right of easement to village roads, tank, well etc. and were not allowing him and his family to move out freely in the village. According to the plaintiffs, this was a false complaint and a shrewd device on the part of the defendant to avoid compliance of the particular decision in Panchayat who had directed the defendant to get the field re-ploughed or pay compensation. Since, the initial burden to prove the issue of absence of reasonable and probable cause was on the plaintiffs, it was for them to prove the alleged improper motive of the defendant in initiating the proceedings under section 107/116 of the Code. The plaintiffs have neither produced any Panchas nor proved any Panchayats decision of the particular type as alleged by them. Therefore, there is no material to prove malice on the part of the defendant that he had filed the petition before the SDM with an ulterior motive other than the desire to vindicate public justice. The evidence on record even on the plaintiffs side is more than sufficient to disclose that the plaintiffs and the defendant were not on happy terms since long and had rather mutual ill-will.

        The copies of the order-sheet of the various dates in the criminal proceedings clearly show that the defendant had adduced sufficient incriminating evidence against the plaintiffs in the matter of the proceedings under section 107/116 of the Code and it is for this reason that the learned SDM, instead of discharging these appellants-plaintiffs in the same manner as Kedarsingh, who had equally been proceeded against, was discharged (Ex. P-3), had decided to proceed further, against these appellants-plaintiffs and had then fixed the case for their examination. This circumstance by itself suggest that the complaint filed by the defendant against the plaintiffs before the SDM, was not primafacie false. It had substance and some inculpating evidence also had come, being satisfied with which, the SDM, rather than discharging these appellants-plaintiffs, had proceeded further in the proceedings, for examination of these appellants-plaintiffs and for recording the defence evidence. It was the good fortune of the plaintiffs, that the proceeding had come to be terminated due to technical and procedural flaw. It may also be incidentally stated that the learned SDM, after the filing of the complaint under section 107/116 by the defendant, had got the inquiry made independently through the police and that report too had primafacie substantiated the allegations as made by the defendant in his complaint. These circumstances, looking to the evidence on record, and the attending circumstances and so also the conduct of the defendant throughout, malice and absence of reasonable and probable cause are not found to be established at all; and on the contrary the satisfactory evidence on the other side shows that the defendant had not filed the false complaint, knowing it to be false, with any ulterior motive and that the facts in the complaint were true to the knowledge of the defendant and it was because of the defendants faith in such allegations, that be had initiated the proceeding under section 107/116 of the Code in the larger interest of maintenance of public peace. The lower appellate Court, therefore, was right in dismissing the plaintiffs claim. 1962 MPLJ SN 255 relied on. Appeal dismissed.