1913 Present: Pereira J. and Ennis J.

DIONIS v. SILVA.

353-D. C. Galle, 11,212.

Malicious prosecution-Actio de injuria-Burden of proof that the plaintiff was innocent-Nature of evidence required to prove innocence.

On a complaint made by the defendant against the plaintiff the Magistrate refused to issue summons. The plaintiff brought the present action against the defendant claiming damages for malicious prosecution.

Held, that there was no prosecution inasmuch as the Magistrate refused summons. Where a Magistrate refuses summons, having gone through the preliminaries required by the Code, the proceeding must not be regarded as a prosecution. To constitute a prosecution the accused should be before the Court.

Held further, that since there was no prosecution and a consequent acquittal or discharge of the accused, the Police Court proceedings are not of much avail to the plaintiff to establish his innocence. He must do so aliunde.

THE facts are set out in the judgment of the learned District Judge (L. W. C. Schrader, Esq.) : -

1. This is an action for malicious prosecution. The first defendant lodged a criminal charge against the plaintiff for having cut him. To maintain the action the charge must have been false in fact, and so determined by the proper Criminal Court before which it came. The Court in this case did not even entertain the charge. It cannot be said that it adjudicated that it was false.

2. The onus in an action of this sort is on the plaintiff to prove that he was innocent (9 N. L. R. 276). He has not done so. The  evidence of the vaccinator does not cover the whole of the row, in fact he witnessed only the beginning of it. Williamhamy, who gave evidence in the Gansabhawa case, did not wait even till the arrival of the vaccinator. And Pinhamy, who has given evidence in this case, is not mentioned before in Salman's case. No reliance can therefore be put on his evidence, nor would it prove that plaintiff was not there. He says he saw a crowd. For that case it is not likely he took in every body and could say plaintiff was not present.

3. As a general rule, if a false charge is presented in the Police Court against a second party, which the Police Magistrate does not entertain, it can hardly be said that the accused party has any cause of complaint. He might possibly charge his accused with defamation, but from the false prosecution he obviously has suffered no wrong.

In regard to the police inquiry, all that occurred was that place was detained at the police station in custody that day pending inquiry. That was an actionable wrong, if in point of fact he has proved charge maliciously false. Now, Salman's evidence is very un satisfied . He says that he became unconscious and cannot say

whether the plaintiff came or not, and he could not say how the quarrel  ended. That is too much for the Court to believe, and it makes it impossible to hold that plaintiff never was there.

5. Case dismissed with costs.

The plaintiff appealed.

E. W. Jayewardene, for the plaintiff, appellant.-The plaintiff was arrested by the station house officer and detained in the police station. Subsequently he was charged in the Police Court and acquitted. Proof of the mere presence of the plaintiff on the scene did not justify the suspicion on the part of the defendant that plaintiff caused the hurt. Malice may be inferred from the circumstances.

If an acquittal is proved, the onus of proving that plaintiff caused the hurt is shifted on to the defendant {de Villiers de injuriis 208). [Pereira J.-The fact that plaintiff is acquitted does not throw on the defendant the onus of justifying the prosecution. Plaintiff must still prove his innocence (Corea v. Pieris 1[(1906) 9 N. L. R. 276.]).] That is so, but the acquittal gives rise to a very strong presumption of innocence.

A. St. V. Jayewardene, for the defendant, respondent.-It is for the plaintiff to prove h