H.N. Jayachandra Reddy S/O Narayana Reddy Vs. M.V.S. Nanjappa S/O Venkatagiriyappa - Court Judgment

SooperKanoon Citationsooperkanoon.com/844690
SubjectMotor Vehicles
CourtKarnataka High Court
Decided OnNov-06-2006
Case NumberR.F.A. No. 34/2004
JudgeK. Sreedhar Rao, J.
Reported inILR2007(2)Kar2181; 2007(3)KCCR2009; 2007(4)AIRKarR482
ActsCode of Criminal Procedure (CrPC) - Sections 451
AppellantH.N. Jayachandra Reddy S/O Narayana Reddy
RespondentM.V.S. Nanjappa S/O Venkatagiriyappa
Appellant AdvocateN.G. Sreedhar, Adv.
Respondent AdvocateG. Papi Reddy, Adv.
Cases ReferredSachindra Nath Bhanja Chowdhury v. Labangalata Sarkar and Ors.
Excerpt:
- tort. suit for damages: [k. sreedhar rao, j] appeal against decree for damages held, in a case of action for malicious prosecution, the plaintiff has to prove the institution and the termination of criminal proceedings in his favour. the termination of the proceedings need not be necessarily by way of acquittal and it may be of any kind. further, the plaintiff should prove that the prosecution was launched against him without probable cause and malice. on facts, the plaintiff had produced all necessary documentary material pertaining to the transaction and the criminal case and has given oral evidence that the complaint filed against him is a false complaint. the plaintiff has discharged the burden. the findings of the trial court that there was no reasonable and probable cause to launch the case against the plaintiff is well founded. k. sreedhar rao, j.1. son of the plaintiff one mahadeva babu (hereinafter called 'rc holder') was the owner of the lorry bearing no. mya 6526. state bank of india had financed loan for purchasing the vehicle and there was hire purchase agreement between r.c. holder and the bank. rc holder was unable to make profit from the lorry, therefore, entered into agreement with the defendant to ply the lorry. the possession of the lorry was delivered to the defendant along with r.c. book and insurance certificate. the defendant per contra states that a sum of rs. 10,000/- was advanced to the rc holder. in consideration of which, the vehicle was delivered to the possession of the defendant with some terms and conditions as security for the amount advanced. the defendant alleged to have parked the vehicle in front of his house on the night. on the next day morning, he finds that the vehicle was missing. he suspects the plaintiff and the rc holder have stealthily taken away the vehicle. a complaint was lodged before the basavanagudi police, the police failed to take action. the defendant filed private complaint in pcr no. 41/1975 on the file of the metropolitan magistrate, iv court, bangalore. the magistrate referred the private complaint to police for investigation. the police after investigation, filed b report marked at ex.p1 stating that the dispute between the parties is of civil nature. the rc holder had also filed a suit in o.s.no. 954/75 for permanent injunction prior to filing of the private complaint the police in the course of investigation, seized the lorry from the rc holder the plaintiff and the defendant both made an application before the criminal court for interim custody under section 451 cr.p.c. the criminal court after hearing both the parties, granted interim custody to the defendant.2. the defendant submitted protest petition to the 'b' report. the court on the basis of sworn statement of the witnesses, took cognizance and issued summons to the plaintiff and his son. the criminal case went on for about 4 years. the rc holder died during the pendency of the criminal case. on 5.12.85. a criminal complaint was dismissed for non-prosecution since the complainant was absent. the suit is filed seeking damages for malicious prosecution.3. the trial court allowed the suit and panted damages of rs. 30,000/- the defendant being aggrieved by the decree, has filed this appeal.4. in the case of sachindra nath bhanja chowdhury v. labangalata sarkar and ors. : air1980cal121 , in para 15 it is observed as follows:in view of the above decision of our high court and of the privy council i regret my inability to rely upon the views of the patna high court and the orissa high court that from an acquittal on merits in a case in. which the defendant claimed to have seen commission of the offence, a presumption of absence of reasonable and probable cause is to be drawn. in the case of mushiest it has specifically been laid down that the finding of the criminal case is not conclusive upon this matter in the civil suit for damages for malicious prosecution and that the onus of proof was upon the plaintiff that the prosecution was commenced without reasonable and probable cause. the privy council was also in the cases discussed laid down that it was a heavy onus upon the plaintiff to prove that the prosecution was lodged without just and reasonable cause. the judgment in the case of surendra nath sahoo also lays down the self fame principle and only qualifies the principle by laying down that if the plaintiff has discharged the initial burden by giving such evidence which if not answered, would entitled him to succeed the burden shifts to the defendant to establish the contrary5. it is well settled that in case of action for malicious prosecution, the plaintiff has to prove the institution and the termination of criminal proceedings in his favour. the termination need not be necessarily by way of acquittal. the termination of the proceedings of any kind is also a well founded ground. secondly the plaintiff should prove that the prosecution was launched against him without probable cause and malice. the termination of the proceedings even in the nature of acquittal will not necessarily give raise to the presumption that the prosecution was founded on reasonable and probable cause. the burden is on the plaintiff to establish that the prosecution was launched without reasonable and probable cause in addition to acquittal or discharge. the plaintiff when once discharges the burden, the onus is on the defendant to prove that he had reasonable and probable cause for launching prosecution.6. launching criminal prosecution by the defendant and the discharge of the plaintiff for non-prosecution by the absence of the plaintiff on the hearing date is not a disputed fact. exs p 1 to p 10 are the certified copies of the proceedings of the criminal case. it is also admitted by the plaintiff that the interim custody of the vehicle was granted to the defendant after hearing the rc holder i.e., son of the plaintiff. in para 4 it is stated that the plaintiff and his son were together in the lorry when it was seized by the police on 23.12.1975. the seizure was reported to the criminal court. the rc holder had contested and set up the counter claim. after hearing both the parties, the interim custody is ordered in favour of defendant.7. the contents of 'b' report discloses that the i.o. had recorded the statement of neighbourers and some witnesses who had some personal information relating to the dispute between the rc holder and the defendant. their version before the police only discloses that there were some monetary transactions between the rc holder and the defendant. the vehicle was delivered to the custody of the defendant by the rc holder. on the day in question, the vehicle parked in front of the house of the defendant was found missing.8. the seizure of the vehicle by the i.o is one of the material circumstances which requires serious attention. it is submitted that when the plaintiff and his son (rc holder) were in possession of the vehicle at mysore, the vehicle was seized by the police on 23.12.75. the counsel for the appellant strenuously argued that the seizure of the vehicle from the custody of the plaintiff and his son will fully corroborate the defendant's contention that the plaintiff and his son committed the theft of the vehicle. the said circumstance is canvassed as a reasonable and probable cause for lodging the complaint against the plaintiff.9. the thorough scrutiny of the facts and material collected in the criminal case discloses that the defendant had transaction only with the rc holder. the vehicle was seized on 23.12.1975 when the plaintiff and the rc holder were together in the vehicle. the rc holder had set up a rival claim for interim custody. the criminal court after hearing defendant and the rc holder had granted interim custody to the defendant. it is also established in evidence that the rc holder had delivered the rc book and the insurance certificate to the defendant as per the terms of contract. as a fact it is established that the defendant was entrusted with the possession of the vehicle along with rc book and insurance certificate.10. the fact whether the rc holder committed theft of vehicle from the custody of the defendant is the moot question to be decided by the criminal court. before the trial court could commence, the rc holder died. therefore, the case against him abated. in so far as the plaintiff is concerned, there is nothing on record to show that the plaintiff connived with rc holder in committing theft. the suit for injunction was filed by the rc holder. the plaintiff is not a party to the proceedings. the commission of theft of the vehicle is not witnessed by any body. only on the basis of fact that the plaintiff and the r.c holder were together found in the vehicle when it was seized by the police cannot be considered as a prima facie circumstance to infer that the plaintiff is also party to the theft and that he is a co-culprit. except the self serving sworn statement of the defendant and his self serving evidence in this case, there is no independent corroborative material to prove that the defendant had reasonable and probable cause to believe that the plaintiff is guilty of theft. the criminal case has ended in discharge of the plaintiff. the plaintiff has produced all necessary documentary material pertaining to the transaction and the criminal case and has given oral evidence that the complaint filed against him is a false complaint. in the cross examination of the plaintiff, nothing is elicited to show his complicity in committing theft along with r.c. holder merely because the rc holder and the plaintiff are the father and son, the common intention of commiting theft cannot be inferred in law. therefore, without hesitation i hold that the plaintiff has discharged the burden. on the otherhand, the defendant has failed to discharge the onus by placing material to show that the plaintiff had complicity in committing the offence along with the rc holder. therefore, the findings of the trial court that there was no reasonable and probable cause to launch the case against the plaintiff is well founded. on the quantum, 1 feel that a sum of rs. 30,000 appears to be excessive. the proceedings pertain to the year 1975 to 1985. the money value was quite high compared to the present days. therefore, keeping in view the equities of both the parties, 1 find that grant of damages at the rate of rs. 20,000/- appears to be just and reasonable. accordingly, the appeal is partly allowed with proportionate costs. the rest of the trial court decree is confirmed.
Judgment:

K. Sreedhar Rao, J.

1. Son of the plaintiff one Mahadeva Babu (hereinafter called 'RC holder') was the owner of the lorry bearing No. MYA 6526. State Bank of India had financed loan for purchasing the vehicle and there was hire purchase agreement between R.C. holder and the Bank. RC holder was unable to make profit from the lorry, therefore, entered into agreement with the defendant to ply the lorry. The possession of the lorry was delivered to the defendant along with R.C. book and insurance certificate. The defendant per contra states that a sum of Rs. 10,000/- was advanced to the RC holder. In consideration of which, the vehicle was delivered to the possession of the defendant with some terms and conditions as security for the amount advanced. The defendant alleged to have parked the vehicle in front of his house on the night. On the next day morning, he finds that the vehicle was missing. He suspects the plaintiff and the RC holder have stealthily taken away the vehicle. A complaint was lodged before the Basavanagudi police, the police failed to take action. The defendant filed private complaint in PCR No. 41/1975 on the file of the Metropolitan Magistrate, IV Court, Bangalore. The Magistrate referred the private complaint to police for investigation. The police after investigation, filed B report marked at Ex.P1 stating that the dispute between the parties is of civil nature. The RC holder had also filed a suit in O.S.No. 954/75 for permanent injunction prior to filing of the private complaint The police in the course of investigation, seized the lorry from the RC holder The plaintiff and the defendant both made an application before the criminal court for interim custody Under Section 451 Cr.P.C. The criminal court after hearing both the parties, granted interim custody to the defendant.

2. The defendant submitted protest petition to the 'B' report. The Court on the basis of sworn statement of the witnesses, took cognizance and issued summons to the plaintiff and his son. The criminal case went on for about 4 years. The RC holder died during the pendency of the criminal case. On 5.12.85. a criminal complaint was dismissed for non-prosecution since the complainant was absent. The suit is filed seeking damages for malicious prosecution.

3. The trial court allowed the suit and panted damages of Rs. 30,000/- The defendant being aggrieved by the decree, has filed this appeal.

4. In the case of Sachindra Nath Bhanja Chowdhury v. Labangalata Sarkar and Ors. : AIR1980Cal121 , in para 15 it is observed as follows:

In view of the above decision of our High Court and of the Privy Council I regret my inability to rely upon the views of the Patna High Court and the Orissa High Court that from an acquittal on merits in a case in. which the defendant claimed to have seen commission of the offence, a presumption of absence of reasonable and probable cause is to be drawn. In the case of Mushiest it has specifically been laid down that the finding of the criminal case is not conclusive upon this matter in the civil suit for damages for malicious prosecution and that the onus of proof was upon the plaintiff that the prosecution was commenced without reasonable and probable cause. The Privy Council was also in the cases discussed laid down that it was a heavy onus upon the plaintiff to prove that the prosecution was lodged without just and reasonable cause. The judgment in the case of Surendra Nath Sahoo also lays down the Self fame principle and only qualifies the principle by laying down that if the plaintiff has discharged the initial burden by giving such evidence which if not answered, would entitled him to succeed the burden shifts to the defendant to establish the contrary

5. It is well settled that in case of action for malicious prosecution, the plaintiff has to prove the institution and the termination of criminal proceedings in his favour. The termination need not be necessarily by way of acquittal. The termination of the proceedings of any kind is also a well founded ground. Secondly the plaintiff should prove that the prosecution was launched against him without probable cause and malice. The termination of the proceedings even in the nature of acquittal will not necessarily give raise to the presumption that the prosecution was founded on reasonable and probable cause. The burden is on the plaintiff to establish that the prosecution was launched without reasonable and probable cause in addition to acquittal or discharge. The plaintiff when once discharges the burden, the onus is on the defendant to prove that he had reasonable and probable cause for launching prosecution.

6. Launching criminal prosecution by the defendant and the discharge of the plaintiff for non-prosecution by the absence of the plaintiff on the hearing date is not a disputed fact. Exs P 1 to P 10 are the certified copies of the proceedings of the criminal case. It is also admitted by the plaintiff that the interim custody of the vehicle was granted to the defendant after hearing the RC holder i.e., son of the plaintiff. In para 4 it is stated that the plaintiff and his son were together in the lorry when it was seized by the police on 23.12.1975. The seizure was reported to the criminal court. The RC holder had contested and set up the counter claim. After hearing both the parties, the interim custody is ordered in favour of defendant.

7. The contents of 'B' report discloses that the I.O. had recorded the statement of neighbourers and some witnesses who had some personal information relating to the dispute between the RC holder and the defendant. Their version before the police only discloses that there were some monetary transactions between the RC holder and the defendant. The vehicle was delivered to the custody of the defendant by the RC holder. On the day in question, the vehicle parked in front of the house of the defendant was found missing.

8. The seizure of the vehicle by the I.O is one of the material circumstances which requires serious attention. It is submitted that when the plaintiff and his son (RC holder) were in possession of the vehicle at Mysore, the vehicle was seized by the police on 23.12.75. The counsel for the appellant strenuously argued that the seizure of the vehicle from the custody of the plaintiff and his son will fully corroborate the defendant's contention that the plaintiff and his son committed the theft of the vehicle. The said circumstance is canvassed as a reasonable and probable cause for lodging the complaint against the plaintiff.

9. The thorough scrutiny of the facts and material collected in the criminal case discloses that the defendant had transaction only with the RC holder. The vehicle was seized on 23.12.1975 when the plaintiff and the RC holder were together in the vehicle. The RC holder had set up a rival claim for interim custody. The criminal court after hearing defendant and the RC holder had granted interim custody to the defendant. It is also established in evidence that the RC holder had delivered the RC book and the insurance certificate to the defendant as per the terms of contract. As a fact it is established that the defendant was entrusted with the possession of the vehicle along with RC book and insurance certificate.

10. The fact whether the RC holder committed theft of vehicle from the custody of the defendant is the moot question to be decided by the criminal court. Before the trial court could commence, the RC holder died. Therefore, the case against him abated. In so far as the plaintiff is concerned, there is nothing on record to show that the plaintiff connived with RC holder in committing theft. The suit for injunction was filed by the RC holder. The plaintiff is not a party to the proceedings. The commission of theft of the vehicle is not witnessed by any body. Only on the basis of fact that the plaintiff and the R.C holder were together found in the vehicle when it was seized by the police cannot be considered as a prima facie circumstance to infer that the plaintiff is also party to the theft and that he is a co-culprit. Except the self serving sworn statement of the defendant and his self serving evidence in this case, there is no independent corroborative material to prove that the defendant had reasonable and probable cause to believe that the plaintiff is guilty of theft. The criminal case has ended in discharge of the plaintiff. The plaintiff has produced all necessary documentary material pertaining to the transaction and the criminal case and has given oral evidence that the complaint filed against him is a false complaint. In the cross examination of the plaintiff, nothing is elicited to show his complicity in committing theft along with R.C. holder merely because the RC holder and the plaintiff are the father and son, the common intention of commiting theft cannot be inferred in law. Therefore, without hesitation I hold that the plaintiff has discharged the burden. On the otherhand, the defendant has failed to discharge the onus by placing material to show that the plaintiff had complicity in committing the offence along with the RC holder. Therefore, the findings of the trial court that there was no reasonable and probable cause to launch the case against the plaintiff is well founded. On the quantum, 1 feel that a sum of Rs. 30,000 appears to be excessive. The proceedings pertain to the year 1975 to 1985. The money value was quite high compared to the present days. Therefore, keeping in view the equities of both the parties, 1 find that grant of damages at the rate of Rs. 20,000/- appears to be just and reasonable. Accordingly, the appeal is partly allowed with proportionate costs. The rest of the trial court decree is confirmed.