1913 Present: Pereira J.

FERNANDO v. PERERA.




470-0. R. Negombo, 19,796.

False charge of theft-Action by accused against complainant for damages consequent on seizure of property by police at the instance of complainant-Proof of malice not necessary.


Defendant charged the plaintiff before the police with the theft of two cart wheels and caused the police to seize and remove the wheels. The plaintiff was acquitted by the Police Court on the charge of theft. In an action by the plaintiff against defendant to recover damages consequent on his being temporarily deprived of his wheels-

Held, that it was not necessary to prove malice in the defendant to entitle the plaintiff to recover damages.

THE facts appear sufficiently from the judgment.

Mahadeva with him Bawa, K.C., for the plaintiff, appellant.- Plaintiff sues for damages resulting from the temporary deprivation of the use of the wheels. Under the circumstances plaintiff need

not prove malice to succeed in this action. (De Alwis v. Murugappa Chetty.1) Bona fides is no defence to an action for damages resulting from injury to property. If, for example, A breaks B's watch in the belief that the watch is his, A is nevertheless liable in damages to B.

A. St. V. Jayewardene (with him De Alwis), for the defendant, respondent.-The facts of this case are very different from the facts in De Alwis v. Murugappa Chetty.1[(1909) 12 N. L. R. 353.] There the Fiscal seized the goods when pointed out by the defendant, who was the judgment-creditor. The Fiscal had no option but to seize the property pointed out. The act of the Fiscal was the act of the judgment-creditor.

In this case the police seized the wheels on a complaint made by the defendant. The police officer must exercise his discretion before seizing property said to be stolen. The act of the police officer is not the act of the defendant. Counsel cited 3 Nathan, sections 1648-1650.

Mahadeva submitted Austin v. Bowling[(1870) 5 C. P. 540.]

Cur. adv. vult.

February 6, 1913. PEREIRA J.-

In this case the plaintiff says that the defendant caused the police to seize and remove the two wheels of a two-wheeled cart belonging to the plaintiff; that subsequently the defendant charged the plaintiff before the Police Court with the theft of those two wheels; that the plaintiff was tried by the Police Court on the charge preferred by the defendant and acquitted; and that he (the plaintiff), by reason of these acts of the defendant, sustained damage, which he now claims from the defendant. The damage claimed is not damage consequent on any injury to the plaintiff's honour, reputation, or feelings, but damage consequent on his being temporarily deprived of his property, and on his being obliged to incur expense in connection with the litigation that ensued. The Commissioner dismissed the plaintiff's claim on the ground that he had not averred, nor was he prepared to prove, malice on the part of the defendant in acting as he did, and from this decision the plaintiff has appealed. I may at once say that the plaintiff's counsel confined his claim to only so much damage as was sustained by the plaintiff by reason of the defendant's action in having the plaintiff's two wheels seized and detained by the police, and did not press his claim to damages caused by reason of any action by the Police Court after the defend ant had preferred to it his charge against the plaintiff. The question is whether the wrong committed by the defendant in moving the police to act as mentioned above is actionable, unless it can be shown that the defendant was actuated by malice or evil intention. Now, a wrong or injuria is, generally speaking, an infringement of one's

right to inviolability of person and property. In a more specific  sense it was applied to any word or deed calculated to hurt the  feelings of another, or to injure him in his honour, dignity, or reputation. It is in this l