S.A.(MD).No.170 of 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 14.06.2023

CORAM

THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE

S.A.(MD).No.170 of 2017

and

C.M.P.(MD).No.2978 of 2017

V.Yesudoss

... Appellant/Appellant/Plaintiff

Vs.

1.C.Manikandan

2.Subbaiah,

Sub Inspector of Police,

Prohibition and Excise Wing,

Kottar, Nagercoil,

Kanyakumari District.

...Respondents/Respondents/Defendants

Prayer: Second Appeal is filed under Section 100 of CPC to set aside the

judgment and decree of the Lower Appellate Court dated 15.11.2016 passed in

A.S.No.52 of 2014 on the file of the Subordinate Judge, Kuzhithurai,

confirming the judgment and decree of the Trial Court dated 07.02.2014 passed

in O.S.No.366 of 2010 on the file of the I Additional District Munsif Court,

Kuzhithurai and allow the present Second Appeal.

For Appellant

: Mr.M.R.Sreenivasan

For R-1

: Mr.A.Balakrishnan

for Mr.K.P.Narayanakumar

For R-2

: No appearance

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S.A.(MD).No.170 of 2017

JUDGMENT

This Second Appeal has been filed challenging the concurrent findings of

the Courts below. The appellant is the plaintiff in the suit O.S.No.366 of 2010

on the file of the I Additional District Munsif Court, Kuzhithurai. The

respondents are the defendants in the said suit.

2. The suit was filed for malicious prosecution and the plaintiff had

claimed in the suit damages at Rs.50,000/- from the defendants for the alleged

malicious prosecution. According to the plaintiff, on 10.05.2004, the first

defendant lodged a false complaint against the plaintiff before the Kuzhithurai

Police Station as if the plaintiff and three others had assaulted him with their

hands on chest, back of chest and lower part of abdomen by legs. According to

the plaintiff, based on the said complaint, the Police issued a receipt No.347/04

to the first defendant and a case was registered under Section 323 IPC read with

190(1)b of CrPC. Subsequent to the filing of the charge sheet, the criminal case

was numbered as S.T.C.No.1900 of 2004. According to the plaintiff,

subsequently, during the course of trial, based on a memo filed by the Assistant

Public Prosecutor of the Judicial Magistrate Court No.1, Kuzhithurai, the case

was altered to a charge framed under Section 324 IPC against the plaintiff and

the case was numbered as C.C.No.181 of 2005. According to the plaintiff, the

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S.A.(MD).No.170 of 2017

second defendant has not properly investigated the case and the second

defendant ought to have advised and protested to the acts of the Assistant

Public Prosecutor as the case was not a fit case for alteration of charge to one

under Section 324 IPC from Section 323 IPC.

3. The plaintiff was convicted and sentenced to undergo imprisonment

till the rising of the Court (ITRC) and to pay a fine of Rs.1000/- and in default,

to undergo simple imprisonment for one month for the offence under Section

324 IPC by the Trial Court, namely, the Judicial Magistrate Court No.1,

Kuzhithurai, by its judgment and decree dated 08.01.2007 in C.C.No.181 of

2005. Aggrieved by the said conviction, the plaintiff filed a Criminal Appeal

before the Sessions Court at Nagercoil, Kanyakumari District in C.A.No.32 of

2007. The Appellate Court on 28.08.2009 in C.A.No.32 of 2007 allowed the

criminal appeal filed by the plaintiff by acquitting the plaintiff by giving the

benefit of doubt to him.

4. On his acquittal, the plaintiff has filed the suit O.S.No.366 of 2010 on

the file of the I Additional District Munsif Court, Kuzhithurai for malicious

prosecution against the defendants, who are the defacto complainant and

complainant and has sought for damages in the said suit. The Trial Court,

namely, the I Additional District Munsif Court, Kuzhithurai, by its judgment

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S.A.(MD).No.170 of 2017

and decree