Selvathurai V. Somasunderam

1929  Present: Fisher C.J. and Drieberg J.

SELVATHURAI v. SOMASUNDERAM.

116-D. C. Trincomalee, 1,284.

Malicious prosecution-Reasonable and probable cauuse-Mere honest belief in facts of charge-No basis for criminal charge-Malice.

In an action to recover damages for malicious prosecution, a mere honest belief on the part of the defendant in certain facts, which afford no basis for a criminal charge, coupled with the laying of a charge, cannot be regarded as reasonable and probable cause for making the charge.

Where, despite the dismissal of the charge by the Magistrate, the defendant endeavoured to reopen proceedings by petitioning the Attorney-General,-

Held, that persistance in the charge amounted to malice on the part of the defendant.

THIS was an action to recover damages from the defendant for having falsely and maliciously charged the plaintiff in the Police Court of Trincomalee with the offence of cheating. The circumstances under which the charge was laid are set out in the judgment. The learned District Judge held that there was reasonable and probable cause for instituting the charge and dismissed the plaintiff's action.

R. L. Pereira, K.C. (with Subramaniam), for plaintiff, appellant.- The facts proved do not disclose the offence of cheating. The mere honest belief on the part of the complainant that the accused has committed the offence is insufficient when the essential elements of the offence are not disclosed (Nathan, vol. III. para. 1646), Attempt to recover money by threat of criminal prosecution when there was only a civil remedy is malice (3 Nathan, para. 1645).Persistence in a charge after a competent trial had acquitted amounts to malice (3 Nathan, para. 1650).

H. V. Perera (with Rajakariar), for defendant, respondent.-The question is whether the defendant has acted bona fide. The evidence leaves no doubt as to that. If he acted bona fide then the action

cannot be maintained. The defendant has altered his position to his prejudice in parting with the cheque for Rs. 1,000. There is no  evidence of malice at- all. The defendant honestly thought that he had been cheated.

October 14, 1929. FISHER C.J.-

This action was brought by the plaintiff to recover damages from the defendant for having on November 2, 1927, falsely and maliciously and without any reasonable and probable cause brought a charge of cheating against him under section 400 of the Ceylon. Penal Code. The defendant, in his statement to the Magistrate, when applying for process after discribing himself as a moneylender, said: " The accused owes me about Rs. 2,000 for which he gave me a cheque on August 24, 1927, drawn on the Chartered Bank. I sent the cheque to be cashed. It was returned dishonoured. I informed the accused that the cheque had been dishonoured and returned. He has not paid the amount yet. He has cheated me. I produce the cheque." The charge formulated against the accused was: " That you did at Trincomalee, within the jurisdiction of this Court, on or about August 24, 1927, issue the cheque marked A for Rs. 2,000 in favour of a certain V. K. Somasunderam or order, promising and undertaking to deposit the amount mentioned therein on September 23, 1927 whereas you have not done so either on that day or subsequently, and thereby you have fraudulently and dishonestly cheated the said Somasunderam and that you have thereby committed an offence punishable under section 400 of the Ceylon Penal Code."

The offence of cheating is defined by section 398 of the Ceylon Penal Code as follows: "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likel

Click Here to Read the rest of this document