Varghese v. Joseph Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 23RD DAY OF NOVEMBER 2016/2ND AGRAHAYANA, 1938** **RSA.NO. 912 OF 2016 (A) -----------------------** **AGAINST THE JUDGMENT AND DECREE DATED 31-03-2016 IN A.S. NO. 34 OF 2013 OF THE IV ADDITIONAL DISTRICT COURT, THODUPUZHA** **AGAINST THE JUDGMENT AND DECREE DATED 19-03-2013 IN O.S. NO. 38 OF 2010 OF THE MUNSIFF'S COURT, DEVIKULAM** ## **APPELLANT/APPELLANT/ DEFENDANT:** **---------------------------------** **VARGHESE, AGED 63 YEARS, S/O VARKEY, PUTHAYATHU HOUSE, ADIMALI P.O., MANNAMKANDAM VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT, PIN 685 561.** **BY ADV. SRI.T.K.SAJEEV** ## **RESPONDENT/RESPONDENT/ PLAINTIFF:** **------------------------------------** **JOSEPH THOMAS, AGED 55 YEARS, S/O THOMAS, PADINJAREMURIYIL HOUSE, ADIMALI P.O., NOW RESIDING AT THODUPUZHA KARA, KATTAPPANA VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN 685 561.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23-11-2016, ALONG WITH R.S.A. NO.913 OF 2016(A), R.S.A. NO.914 OF 2016 (A), R.S.A. NO.915 OF 2016(A) & R.S.A. NO.916 OF 2016(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **DST** **==> picture [158 x 16] intentionally omitted <==** **= = = = = = = = = = = = = = = = = = = = = R.S.A.Nos. 912, 913, 914, 915 & 916 of 2016** **- - - - - - -- - - - - - - - - - - - - - - - - - - -** Dated this the 23rd day of November, 2016 ## **J U D G M E N T** The appellants are common, though the respondents are different persons. The matters in issue involved in all these appeals are one and the same. Hence, these appeals are heard together and disposed of accordingly. 2. The parties are referred to as in O.S. No.40 of 2010. In O.S. No.40 of 2010, the plaintiff is a Lawyer and he claims that he is a respectable person. In O.S. No.36 of 2010, the plaintiff is a former Panchayat member. In O.S. No.37 of 2010, the plaintiff is a business man. In O.S. Nos.38 of 2010 and 39 of 2010, the plaintiffs are businessmen at Thodupuzha. They have filed the aforesaid original suits against the appellants herein, claiming **R.S.A.Nos. 912, 913, 914, 915 & 916 of 2016** ## **-: 2 :-** damages for malicious prosecution against them. 3. The defendant filed a complaint before the Judicial First Class Magistrate Court, Adimali, alleging that the plaintiffs have committed the offence punishable under Sections 465, 468, 471 and 420 of the Indian Penal Code _(hereinafter referred to as 'the IPC')_ and the said complaint was forwarded to the Police under Section 156(3) of the Code of Criminal Procedure, 1973. The police registered Crime No.100 of 2006 and conducted the investigation. After investigation, the police referred the case as false. But, the defendants filed a protest complaint and proceeded further. The said protest complaint is numbered as C.M.P. No.209 of 2006. After recording the sole statement of the defendant, the complaint was taken on the files for the offences punishable under Sections 465, 468, 471 ## **R.S.A.Nos. 912, 913, 914, 915 & 916 of 2016** ## **-: 3 :-** and 120B of the IPC and summons had been issued to all the plaintiffs. 4. According to the plaintiffs, the defendant had no genuine ground or reasonable or probable cause to prosecute them. The defendant was well aware of the fact that the case put forward by him is false. The plaintiffs appeared before the court on receipt of summons and faced the trial. There were 22 postings in connection with the trial of the complaint. Finally, the learned Magistrate discharged the plaintiffs and others on 15.01.2010. In the judgment, it was specifically observed that the defendant had failed to produce any document in support of his contentions which, if unrebutted, could warrant conviction. According to the plaintiffs, the complaint was filed only to harass and humiliate the plaintiffs and due to the **R.S.A.Nos. 912, 913, 914, 915 & 916 of 2016** ## **-: 4 :-** aforesaid malicious prosecution, the plaintiffs have suffered a lot, personally and professionally. They have spent a substantial amount to defend their case. Hence, the plaintiff in O.S. No.40 of 2010 claimed an amount of `50,000/- from the defendant. The plaintiffs in O.S. Nos.36 of 2010, 37 of 2010, 38 of 2010 and 39 of 2010 have claimed `15,000/each from the defendant, as damages. 5. In the written statement, the defendant admitted the prosecution initiated against the plaintiffs as alleged by the plaintiffs and they were discharged on 15.01.2010. It is also admitted that in the judgment discharging the plaintiffs from the alleged offence, the learned Magistrate observed that even though the offence of forgery is alleged, the complainant had failed to produce the documents alleged to be forged by the accused. The defendant **R.S.A.Nos. 912, 913, 914, 915 & 916 of 2016** ## **-: 5 :-** further contended that the plaintiffs have failed to disclose the circumstances of the case and the allegations in the complaint filed against them. According to him, he was the owner in possession of 2½ Acres of property comprised in Sy.No.1166 of Mannarkandam Village as per sale certificate No.113 of 1976, Devikulam Land Tribunal. The brother of the defendant also got some extent of property in the very same survey number as per sale certificate No.114/1976 of Devikulam Land Tribunal and both properties are lying together. The defendant's brother executed a joint power of attorney pertaining to 46.100 cents of property in favour of the 1[st] accused. 6. The plaintiff in O.S. No.40 of 2010, has contended that the said power of attorney was cancelled in the year 1995. The 1[st] accused executed **R.S.A.Nos. 912, 913, 914, 915 & 916 of 2016** ## **-: 6 :-** sale deed No.1676 of 1995 of SRO Devikulam, whereby he sold 3.33 cents to the 2[nd] accused, 2 cents to the 3[rd] accused, 1.665 cents to the 4[th] accused, 1.655 cents to the 5[th] accused with the full knowledge that he has no right to execute such documents in favour of the accused. Thereafter, the 2[nd] accused sold his property to the 6[th] accused. The documents were executed with the assistance of the 7[th] accused, the Sub Registrar of Devikulam. It was in the above circumstances, the complaints were filed. According to him, the complaint was filed on a belief that the accused in furtherance of the common intention have forged the above sale deeds, so as to criminally trespass into his property having an extent of 8.6 cents comprised in Sy.No.1166 of Mannarkandam Village. According to him, the prosecution was initiated on a _bona fide_ belief that they have **R.S.A.Nos. 912, 913, 914, 915 & 916 of 2016** ## **-: 7 :-** committed the alleged offence. So the cause of action alleged against them in the suit is unfounded and damages claimed without any basis. 7. The parties went on trial on the aforesaid rival pleadings. The evidence consists of oral testimonies of PW1 to PW4, Exts.A1 to A19 and Exts.B1. No oral evidence was adduced by the defendant. After considering the aforesaid evidence on record, the trial court decreed the suit and awarded different amounts as damages to the plaintiffs in each case. In appeal, the lower appellate court also re-appreciated the evidence on record and concurred with the findings as such and dismissed the appeals. Thus, the legality and correctness of the concurrent findings are assailed in these Regular Second Appeals. 8. Before considering the legality of the **R.S.A.Nos. 912, 913, 914, 915 & 916 of 2016** ## **-: 8 :-** findings whereby the trial court decreed the suits and the appellate court dismissed the appeals, let us have a look at the law governing malicious prosecution settled by judicial precedents. In _**Govindji J. Khona v. Damodaran and others**_ **[1969 KLT 551]** , this Court held as follows:- _“It is a tort maliciously and without reasonable and probable cause to initiate against another criminal proceedings which terminate in is favour and which result in damage to his reputation, person, freedom or property. It is a remedy for misuse of legal procedure. In other words, the basis for the action is the abuse of the process of court by wrongfully setting the law in motion. It is intended to discourage the use of the machinery of justice for improper purposes. The law relating to it has evolved from a compromise of two rules of law both of which are equally important. One is that all men have the freedom to bring criminals to justice. In that is involved the liberty of the citizen. The other is that in public good it is necessary that false accusations against innocent persons have to be prevented. In the harmonious blending of these two principles some restrictions have been made in_ ## **R.S.A.Nos. 912, 913, 914, 915 & 916 of 2016** ## **-: 9 :-** ## _making a successful claim for malicious prosecution.”_ 9. It now stands well settled that the plaintiff in such a suit claiming damage for malicious prosecution can succeed on proof of following points: (1) that he was prosecuted by the defendant; (2) that the prosecution ended in plaintiff's favour; (3) that the defendant acted without reasonable and probable cases; (4) that the defendant was actuated by malices. All the above four requirements have to concur or unite. If any of them is found lacking, the suit must fail. The above view is supported by **AIR 1926 Privy Council 46, AIR 1944 Privy Council (1)** and **AIR 1961 KLJ 1313** . Therefore, the question to be considered in this Regular Second Appeal is whether the courts below are justified in finding that the plaintiffs have succeeded in the test conducted under the **R.S.A.Nos. 912, 913, 914, 915 & 916 of 2016** ## **-: 10 :-** proposition of law settled by judicial precedents. It is trite law that merely on the reason that the defendant in a suit claiming damage for malicious prosecution had lodged a criminal complaint against the plaintiff and failed, he cannot sue the defendant claiming damage for malicious prosecution. It is incumbent upon him to prove the requirements as contemplated in the decisions referred above. In the instant case, it is the case of the plaintiffs that the defendant prosecuted them with an intention to harass and humiliate them and by the prosecution against them they have suffered a lot, financially and mentally. It was also pleaded that the defendant had initiated prosecution against them after knowing fully well that the allegation against the plaintiffs was false. In the criminal complaint the allegation against the plaintiffs was that the first **R.S.A.Nos. 912, 913, 914, 915 & 916 of 2016** ## **-: 11 :-** accused, who is the plaintiff, O.S.No.36/2010 had executed sale deeds, in favour of the other accused, who are the plaintiffs in the other suits, in his capacity, as Power of Attorney holder of one Elias, the brother of the defendant, and the said sale deeds were executed after the cancellation of the Power of Attorney in the year 1995 and thereby the act done by the accused would constitute the offence punishable under forgery. The execution of the sale deeds by the plaintiff in O.S.No.36/2010, in favour of the other plaintiffs in the other suits, is not disputed. In view of the allegation in the complaint, it was incumbent upon the defendant to prove that the Power of Attorney executed by the said Elias was cancelled in the year 1995 and sale deeds were executed after the cancellation of the Power of Attorney. It is pertinent to note that the **R.S.A.Nos. 912, 913, 914, 915 & 916 of 2016** ## **-: 12 :-** specific date of cancellation of Power of Attorney is not pleaded and no evidence had been adduced by the defendant in this regard. It has come out in evidence from Exts.A15 to A19 sale deeds produced by the plaintiffs that the said sale deeds were executed by the first accused in favour of other accused in the early part of the year 1995 and in the absence of any evidence to prove the cancellation of the said Power of Attorney it could be reasonably inferred that the sale deeds were executed prior to the revocation of the Power of Attorney. Thus, in the criminal prosecution the defendant has failed to prove the very foundation of the criminal complaint against the plaintiffs. 10. The defendant has no case that he asserted his right and title over the properties sold on the basis of the said Power of Attorney, through civil **R.S.A.Nos. 912, 913, 914, 915 & 916 of 2016** ## **-: 13 :-** court. As rightly observed by the courts below, if the properties were conveyed by the above sale deeds executed by the plaintiffs in O.S.No.36/2010, where the properties were of the defendant, he would have had the opportunity to recover it by appropriate proceedings through civil court and that was not seen done by the defendant and the defendant has no such case. It follows that the criminal prosecution has been launched maliciously without good faith. All the plaintiffs, except the plaintiffs in O.S.No.36/2010, were examined and all the sale deeds executed by the plaintiff in O.S.No.36/2010 in favour of the other plaintiffs in the other suits were produced and marked in evidence. 11. On the other hand, Ext.B1 is the only available evidence on the part of the defendant. Ext.B1 is the certified copy of the order dated **R.S.A.Nos. 912, 913, 914, 915 & 916 of 2016** **-: 14 :-** 31.1.2010 in Crl.M.C.No.3023/2008 of this Court. The said petition was filed by the 7[th] accused, the Sub Registrar who registered sale deeds, to get the criminal proceedings before the Judicial First Class Magistrate's Court, Adimaly quashed. This Court passed an order directing the 7[th] accused to raise the plea of discharge before the Magistrate's Court and the Criminal Miscellaneous Case was disposed of accordingly. It cannot be held that it was an order passed obviously for the interest of the accused. Subsequently, the accused as directed by this Court, approached the trial court under Section 245(1) of the Cr.P.C. and as per Ext.A5 order he was discharged from prosecution. The courts below are justified in finding that Ext.B1 would in no way help the defendant to discredit the case of the plaintiffs. This Court is of the view that from the **R.S.A.Nos. 912, 913, 914, 915 & 916 of 2016** ## **-: 15 :-** evidence available on record in various suits it could be inferred that the plaintiffs were prosecuted maliciously without any _bona fides_ with an intent to humiliate and harass them. 12. That apart, when the plaintiffs succeeded in proving that the defendant acted without reasonable and probable cause, it was incumbent upon the defendant to rebut the said evidence by adducing evidence. As noted above, there is no evidence except Ext.B1 and the defendant has stayed away from entering the witness box so as to offer himself for cross-examination as to his alleged reasonable and probable cause for prosecuting the plaintiffs. In the above context, the courts below can be justified in drawing the presumption under Section 114(g) of the Indian Evidence Act,1872 also against the defendant. Thus, the plaintiffs have succeeded in **R.S.A.Nos. 912, 913, 914, 915 & 916 of 2016** ## **-: 16 :-** proving the malicious intention and the damages caused to them by the said prosecution initiated without any reasonable or probable cause. 13. Coming to the quantum of compensation, the amount awarded by the trial court is just and reasonable and there is no reason to interfere with the quantum of compensation. I do not find any illegality or impropriety in any of the findings whereby the courts below decreed the suits and dismissed the appeals. No question of law arises for consideration in these Regular Second Appeals. In the result, these Regular Second Appeals are dismissed. All pending interlocutory applications will stand closed. Sd/- **K. HARILAL,** **JUDGE** DST/OKB //True copy// P.A. To Judge