Ramen Chettiar V. Punchiappuhamy

1937 Present: Moseley J. and Fernando A. J.

RAMEN CHETTIAR v. PUNCHIAPPUHAMY.

259-D. C. Kandy, 44,132.

Malicious prosecution-Burden of proof-Plaintiff not bound to prove his innocence-Roman-Dutch law.

In an action for malicious prosecution the plaintiff is not bound to prove his innocence or the falsity of the charge apart from proving the termination of criminal proceedings in his favour.

Moss v. Wilson (8 N. L. R. 366); Corea v. Peiris (9 N. L. R. 276) referred to.

APPEAL from a judgment of the District Judge of Kandy.

H. V. Perera, K. C. (with him Molligoda), for defendant, appellant.

N. E. Weerasooria (with him Ranawake, Cyril Perera and Wikramanayake), for plaintiff, respondent.

November 25, 1937. FERNANDO A. J. -

This was an action for malicious prosecution, and the learned District Judge was of opinion that in order to succeed in. such an action, the plaintiff had to prove-(1) that he was prosecuted, (2) that he was acquitted, (3) that the defendant was actuated by malice express or implied, and (4) that the defendant had no reasonable and probable cause for prosecuting the plaintiff. It was common ground that the plaintiff was prosecuted, and the prosecution against the plaintiff was withdrawn by Proctor for the defendant. On the question of malice, the learned District Judge held that there was implied malice, and that express malice could also be inferred against the defendant. On the question of reasonable and probable cause, the learned Judge held that the defendant had no justification in making the charge or persisting in it. He accordingly entered judgment for the plaintiff in a sum of Rs. 500 and costs.

On the evidence, the learned Judge held that a number of persons, entered upon a land which was in the possession of the defendant, that they ejected the defendant's agent, and his labourers, and that they plucked tea from the land. He also held that there was no evidence on which the defendant who was not present at the time could have entertained any reasonable belief that the plaintiff took part in the activities of the crowd.

Counsel for the appellant at the beginning of the argument stated that the main defence of the defendant was that he had accepted a statement made to him by Palaniandy and that in prosecuting the plaintiff, he acted in good faith, on that statement. As the learned District Judge points out, the defendant in his evidence before the Police Magistrate, did not state that he was acting on a statement made by Palaniandy. Palaniandy in his evidence did not state that the plaintiff formed one of the members of the unlawful assembly which had driven out his coolies. It was suggested that his evidence in the District Court had been coloured by the fact that there had been litigation between himself and the

defendant, but no such suggestion can be made with regard to the statement P 5 which was recorded at the Police Station. It appears from P 5 that Palaniandy came to the Police Station with the defendant and all he could say was that he saw about 15 persons come to the land and pluck tea. He mentions a conversation with Y. L. Appuhamy who had sent the people, but says nothing at all about the plaintiff. In fact the only name mentioned by him is that of Y. L. Appuhamy. In the Police Court, however, the defendant charged seven persons by name the second of them being this plaintiff, and the evidence given by the defendant was direct evidence against the plaintiff. It is impossible to believe that Palaniandy at the Police Station would not have given details as to the persons and events to which he could testify, and it seems clear that the defendant in charging these seven persons could not have been relying entirely on the statement made to him by Palaniandy.

In an action for malicious prosecution the plaintiff must prove that a charge was made to a Judicial Officer, that the charge was

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