Theyyunni Nayak vs Mohammed Rowther and others

Sengottuvelan, J.—The ingredients to be established for maintaining an action for malicious prosecution came up for consideration in this second appeal. The appellant herein is a Sales Tax Officer of the Kerala State. At the relevant time he was the Intelligence Officer of the Agricultural income tax and Sales Tax in Kerala State at Palghat. In view of large scale evasion of sales-tax at the inter state borders between Kerala and Tamil Nadu, the Kerala Government appointed the appellant as Intelligence Officer to check the vehicles passing the border within 100 meters and see whether the sales tax leviable had been paid. The first respondent is a merchant dealing with groundnuts residing at Mappillaigoun-danpudur, Pollachi Taluk. The second respondent is an employee and the purchaser in charge under the first respondent. On 2-9-1973 in pursuance of (he directions of his superiors the appellant along with his subordinate K. Sreedharan, intelligence Inspector of Agricultural Income Tax and Sales Tax at Palghat, Kerala State, intercepted the lorry MDE 7626 at Nadupuni in Tamil Nadu about 100 meters from the Kerala Check Post, checked it and found it to contain 114 bags of groundnuts. The lorry driver, the second respondent herein, and one Sathar, who were inside the lorry and in the course of the employment of the first respondent were asked to pay a security amount of Rs. 288 for the evasion of sales -tax payable on the unauthorised transport of the groundnuts from Menonpara in Kerala State to Erode, and on such payment being made the appellant gave the carbon copy of the printed receipt duly signed by him acknowledging the collection of the amount. The said receipt dated 2-9-1973 is marked as Ex. B1. Thereupon the first respondent sent a petition to the Minister of Finance, Kerala Government, marked as Ex. A1, on 17-9-1973, with copies marked to the officers of the Sales tax Department, Kerala demanding the refund of the security amount collected from his agent, the second respondent herein, on the ground that the appellant and his subordinate had no legal authority to levy tax on the groundnut transported within Tamil Nadu State. The case of the appellate is that thereafter the first respondent instigated the second respondent, his subordinate, to file a complaint before the Sub Magistrate. Pollachi. Accordingly he filed a complaint before the Sub-Magistrate, Pollachi on 12-11-1973, charging the appellant with commission of the offences of wrongful restraint, extortion and criminal intimidation. The learned Sub-Magistrate, Pollachi, took the case on file in C.C.No. 2167 of 1973 and issued summons to the appellant and his subordinate to answer the charge. On enquiry the learned Sub-Magistrate came to the conclusion that the prosecution launched was not maintainable for want of previous sanction of the Kerala State Government and discharged the appellant. The second respondent preferred a revision petition in C.R.P. No. 2 of 1974, before the Additional Sessions. Judge, Coimbatore, against the orders of the learned Sub-Magistrate, Pollachi and the learned Sessions Judge also came to the same conclusion. The appellant herein filed the suit O.S. No. 5 of 1976 on the file of the District Munsif of Pollachi, for damages for malicious prosecution. According to the appellant himself and his subordinate had acted honestly and in legitimate discharge of their official duties and the criminal case was launched against them by the second respondent at the instigation of the first respondent maliciously without any probable or reasonable cause. The appellant claimed a sum of Rs. 5,000 as damages. The case of the first respondent is that he did not transport 144 bage of groundnut from Menonpara in Kerala State to Erode as alleged by the appellant. On 1-9-1973, 165 bags of groundnuts were purchased by the second respondent in Kanalpudur and Komarapalayam in Pollachi Taluk and bad been brought in bullock carts to the main road, from where they were loaded in the lorry No. M.D.E. 7626. The said lorry proceeded along the main road towards Mappillatgoundenpudur at about 2.30 a.m on 2-9-1973 at a place about one kilometre east of the Kerala Check post the appellant and his subordinate, who came from Pollachi side in a jeep stopped the lorry and demanded the bills. The second respondent produced the bills and told the appellant that the groundnuts were purchased from Kanalpudur and Komarapalayam within Tamil Nadu State. However, the appellant insisted upon payment of security amount and prevented the lorry from proceeding further and he also threatened to arrest the driver and the second respondent and take them to the check post. To avoid being illegally arrested and detained, the second respondent had to pay Rs. 288, for which the appellant issued a receipt. Under the threat of arrest and detention the appellant took the signatures of the second respondent the driver and Sathar in blank sheets apparently for the purpose of fabricating statements. The learned Sub Magistrate, Pollachi, did not go into merits of the case, but discharged the appellant on the technical ground of want of sanction from Kerala Government to launch a prosecution against a public servant. The appellant and his subordinate stopped the lorry and checked it within the limits of Tamil Nadu and their acts cannot be considered to be in discharge of their official duties. The allegation that the appellant has suffered serious damage and reputation on account of the prosecution is denied. The first respondent is not at all vicariously liable for the prosecution launched by the second respondent. The second respondent acted with reasonable and probable cause in launching the prosecution against the appellant and he honestly believed that there are justifiable grounds for making the complaint. The second respondent did not have any intention to defame the appellant by launching the prosecution against him.

The learned District Munsif of Pollachi on a consideration of the evidence, documentary and oral, came to the conclusion that the second respondent had been actuated by malice in launching the prosecution against the appellant in C.C.No. 2167 of 1973 on the file of the Sub Magistrate'' Court, Pollachi. The trial Court also held that the malice in launching the prosecution by the second respondent will have to be imputed to the first respondent, his employer, since the first respondent is vicariously liable on account of the fact that the prosecution was instituted by his agent under his authority express or implied. On the above findings considering the status of both the parties awarded a sum of Rs. 2,000 as damages.

As against the said judgment the respondents herein filed A.S. No. 50 of 1977 on the file of the Subordinate Judge, Udumalpet. The learned Subordinate Judge on a reappraisal of the evidence came to a different conclusion for the following reasons.

There is no acceptable evidence to show that the lorry in question passed through the three check posts in Nadupuni and as such it cannot be said that there is no reasonable and probable cause for the second respondent to launch the prosecution;

Even the appellant had admitted that there is no ill-will or misunderstanding between him and the second respondent and hence it cannot be said that the complaint made by the second respondent is actuated by malice;

In any event the person who can be sued for malicious prosecution is the one who instituted the prosecution and the first respondent cannot be made liable on the ground that he instigated the second respondent to set the law in motion.

In view of the above reasoning the learned Subordinate Judge allowed the appeal and dismissed the suit. This second appeal is filed challenging the legality and correctness of the judgment of the learned Subordinate Judge.

Natarajan, J. as he then was, formulated the following substantial question of law for decision in this second appeal: -

Whether the lower appellate court is right in holding that defendants 1 and 2 were not actuated by malice in launching the prosecution against the plaintiff and that the criminal action can be justified on the ground of reasonable and probable cause for institution?

The only question that arises for determination in this second appeal is whether the second respondent acted maliciously without reasonable and probable cause in instituting the prosecution against the appellant and the first respondent is also liable for the same. The ingredients to be established for maintaining an action for malicious prosecution are-

That the Appellant was prosecuted by the defendant;

That the proceedings complained of terminated in favour of the Appellant and from their nature they were capable of so terminating;

That the prosecution was instituted against him without any reasonable or probable cause;

That it was due to malicious intention of the respondents and not with a mere intention of carrying the law into effect.

In the present case it is not disputed the first two ingredients out of four ingredients viz., the plaintiff/appellant was prosecuted by the second respondent and that the proceedings complained of terminating in favour of the appellant, are present.

We will have to decide whether the appellant has been able to prove that he was prosecuted without any reasonable and probable cause and whether the action of the second respondent in initiating the prosecution is malicious. Mr. G.M. Nathan, learned counsel for the appellant, contended that when once it is established that the prosecution was launched without reasonable and probable cause it automatically follows that it was done maliciously. In support of his contention he relied upon the case reported in Karruppanna v. Haughton 43 L.W. 727=A.I.R. 1936 Mad. 547., where it has been held that when a person prosecutes another knowing fully well that such another has not committed the offence however laudable the motive may be, the prosecution so launched being without reasonable and probable cause amounted to malice in law. Relying on this observation he contended that when once it is established that the prosecution launched is without reasonable and probable cause then such a prosecution was done maliciously also stands proved. The judicial opinion in this regard is not uniform. Winrield on Torts refers to the distinction between the reasonable and probable cause and malice at page 757 (6th Edition) as follows:-

At one time malice was not always kept distinct from lack of reasonable and probable cause, but a cogent reason for separating them is that, however spiteful an accusation may be, the personal feelings of the accused are really irrelevant to its probable truth. The probability or improbability of having stolen my purse remains the same however much may dislike X. And it has long been the law that malice and lack of reasonable and probable cause must be separately proved. Want of reasonable and probable cause may be evidence of malice in cases where it is such that the jury may come to the conclusion that there was no honest belief in the accusation made. If there was such an honest belief, the plaintiff must establish malice by some independent evidence, for malicious motives may co-exist with a genuine belief in the guilt of the accused.

The distinction between the absence of reasonable cause and malice is also pointed out by the Privy Council in the case reported in AIR 1944 1 (Privy Council) in the following terms:-

In order to succeed in an action for malicious prosecution the plaintiff must in the first instance prove two things:

(1) that defendant was malicious and

(2) that he acted without reasonable and probable cause. Malice has been said to mean any wrong or indirect motive, but a prosecution is not malicious-merely because it is inspired by anger. However wrongheaded a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be the initiator of a malicious prosecution. But malice alone is not enough there must also be shown to be absence of reasonable and probable cause.

In the case reported in S.T. Sahib v. Hasan Ghani AIR 1957 Mad. 646., a single Judge of this Court while emphasising that both the abovesaid elements should be present defines malice as follows:-

Malice is the last ingredient in a suit for malicious prosecution. That the defendant was actuated by malice in prosecuting the plaintiff has also got to be proved by the plaintiff. Malice means the presence of some improper and wrongful motive that is to say an intent to use the legal process in question for some other than its legally appointed and appropriate purpose. It means an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill-will; it may be due to a desire to obtain a collateral advantage. The malice necessary to be established in a suit for malicious prosecution is not even malice in law such as may be assumed from the intentional doing of a wrongful act, but malice in fact-malus animus-indicating that the party was actuated either by spite or ill-will towards an individual, or by indirect or improper motives. though these may be wholly unconnected with any uncharitable feeling towards anybody. A prosecution is not malicious merely because it is inspired by anger. However wrong-headed a prosecutor may be, if he honestly thinks that accused has been guilty of a criminal offence he cannot be the initiator of a malicious prosecution. The law only renders him responsible where malice is combined with want of probable cause.

In the case reported in Herniman v. Smith 1938 A.C. 305. the House of Lords observed as follows:

It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is reasonable and probable cause for a prosecution. Circumstances may exist in which it is right, before charging a man with misconduct, to ask him for an explanation; but no general rule can be laid down, and where a person is satisfied, or has apparently sufficient evidence, that he has in fact been cheated, there is no obligation to call on the chest and ask for an explanation, in as much as to ask for this may only have the effect of causing material evidence to disappear or be manufactured.

In the case reported in Tims v. John Lewis & Co. Ltd. 1951-2 K.B. 459., it has been held as follows:-

The question in an action for malicious prosecution whether there was an absence of reasonable cause for the prosecution has not be determined subjectively; it is a question which the court has to determine objectively on the evidence before it; that is to say, the question is not what, on the evidence known to the prosecutor, he did in fact think, but what, as a reasonable person, he sought in the view of the court, to have thought.

In the case reported in Tempest v. Showden 1952-1 K.B. 130 at 139, Denning, L.J. has observed as follows:

It is sometimes said that, in order to have reasonable and probable cause there must be an honest belief in the guilt of the accused. But I do not think that should be regarded as a universal proposition applicable to all cases. It depends on the particular case. There are many justifiable prosecutions where the prosecutor has not himself formed any concluded belief as to the guilt of the accused. If he is a very fair-minded man he may well say to himself "The case is so black against the man that I feel I must prosecute, but I am not going to believe him to be guilty unless the Court finds him to be so". Such a man would. I should have thought, have reasonable and probable cause for instituting a prosecution even though he did not affirmatively believe the man to be guilty. It is said sometimes that in order to have reasonable and probable cause there must be an honest belief that there was reasonable ground for prosecuting .This again is by means always necessary. Let me given another illustration. Take the case of a fairminded man who is personally convinced that the man is guilty but does not himself think the evidence sufficient to justify a prosecution. His solicitor advises him that the evidence is sufficient. He may well say to himself ''I do not myself believe there is sufficient evidence, but my solicitor says there is, so I feel justified in going on''. If the Judge afterwards takes the same view as the solicitor, then I should have thought that such a man would have reasonable and probable cause for instituting a prosecution, even though he did not himself affirmatively believe that there were reasonable grounds for it.

Malice which is the last ingredient in a suit for malicious prosecution is stated to be an intent to use the legal process in question for some purpose other than its legally appointed and appropriate purpose. It means an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill will; it may be due to a desire to obtain a collateral advantage. The malice necessary to be established in a suit for malicious prosecution is not even malice in law such as may be assumed from the intentional doing of a wrongful act, but malice in fact-malus animus-indicating that the party was actuated either by spite or ill will towards an individual, or by indirect or improper motives, though these may be wholly unconnected with any uncharitable feeling towards any body.

Malice as stated already has to be proved as well as want of reasonable and probable cause in an action for malicious prosecution. The principle that no action will lie for the institution of legal proceedings however destitute of reasonable and probable cause unless they are instituted maliciously is recognised in the cases reported in Abu Bucker Ebrahim v. Megan Lal K. Javeri 51 L.W. 635=A.I.R. 1940 Madras 683., and AIR 1944 1 (Privy Council) But if there is malice alone, that too is not sufficient. There must be concurrence of malice and want of probable cause. A person actuated by the plainest malice may never the less have a justifiable reason for prosecution. On the other hand substantiating of the accusation is not essential to exonerate the accuser from liability to an action, for he may have had good reason to make the charge, and yet be compelled to abandon the prosecution by the death or absence of witnesses, or the difficulty of producing adequate proof. The law therefore only renders him responsible where malice is combined with want of probable cause. It is also well settled law that the reputation of the plaintiff and the defendant will be relevant factors in deciding the existence or absence of probable cause. In the case reported in Sheo Singh v. Ranjit Singh AIR 1983 Allahabad 105., a single Judge of the Allahabad High Court observed that in order to succeed in a suit for damages for malicious prosecution, existence of malice and absence of reasonable and probable cause have to be established as separate facts. It cannot be inferred from the mere absence of reasonable and probable cause for a prosecution that its malicious. Similarly, from, the mere fact that a prosecution is actuated by malice, it cannot be inferred that there was no reasonable and probable cause, though the two, do devitail into each other. In the case reported in G.J. Khona v. K. Damodaran AIR 1970 Kerala 229., it has been observed as follows:-

"Malice has been kept separate from lack of reasonable and probable cause because ''however spiteful an accusation may be, the personal feelings of the accuser are really irrelevant to its probable truth'' and ''malicious motives may co-exist with a genuine belief in the guilt of the accused.'' A person actuated by malice may never the less have a justifiable cause for launching the prosecution.

Want of reasonable and probable cause is an item to be taken into account in considering malice but from the presence of malice want of reasonable and probable cause cannot be inferred."

In the case reported in D.A. Nand v. S.L. Master 1965 Allahabad Law Journal 317., a Division Bench of the Allahabad High Court held that malice and absence of reasonable cause, which are two separate ingredients, must be proved in a suit for compensation for malicious prosecution. It has also been held that the absence of reasonable and probable cause does not lead to any presumption that person in filing complaint must have acted maliciously. The above principles have also been reiterated in the decision reported in S.T. Sahib v. Hasan Ghani AIR 1957 Madras 646.

On a consideration of the reported decisions, cited above, the position of law appears to be that in a case like this the absence of reasonable and probable cause and malice will have to be proved independently. At the same time absence of reasonable and probable cause may be indicative of malice if the complaint is not actuated by a bona fide motive of enforcing the legal rights available to him. In other words if at the time of the institution of the complaint the complainant bona fide believed that there is a cause for the complaint then no malice is made out even if he is not able to substantiate the complaint by adducing proper evidence. Malice will have to be inferred from the state of mind of the complainant at the time of the institution of the complaint.

The above principles will have to be applied to the facts of this case and a conclusion arrived at. In my view both the courts below had not understood the law in the proper perspective and applied the same to the facts of the case. The trial court in granting a decree for damages seems to have mainly relied on the acquittal of the appellant. It has not considered whether there is reasonable or probable cause for the second respondent for instituting the prosecution and whether the second respondent is actuated by malice. The lower appellate Court on the other hand refers to the failure on the part of the appellant to check the records available in the check-posts both in Kerala and Tamil Nadu through which the lorry was alleged to have passed and the prompt representation made by the first respondent to the Kerala Government and observed that there is probable cause for the second respondent to launch the prosecution. The lower appellate court also referred to the admission of the appellant as P.W. 1 that there is no misunderstanding or ill-will between him and the second respondent. On a consideration of these aspects the lower appellate court came to the conclusion that there is reasonable and probable cause for the second respondent to institute the complaint and malice is not established.

The proper thing that will have to be done in a case like this will be to analyse the state of mind of the complainant at the time of instituting the prosecution with a view to see whether the complaint was launched without reasonable and probable cause and in a spite of malice. Both the courts below have not approached the facts of this case in the proper perspective. In the present case the lorry M.E.D. 7626 belonged to the first respondent and driven by the second respondent was intercepted at Nadupuni and a sum of Rs. 288 was collected as security for sales tax that might have been payable by the first respondent. According to the second respondent, the complainant, the above said lorry was only plying from one place in Tamil Nadu to another place in Tamil Nadu and it had never proceeded from Kerala State with the load of groundnut bags. If really the lorry had proceeded only from one place in Tamil Nadu to another place in Tamil Nadu and the same had been intercepted by the appellant, detained and penalty collected and if the second respondent bona fide felt that he was wronged then a complaint is justifiable even if the same had been ultimately thrown out. On the other hand if there are facts which show that the second respondent ought to have been aware of the fact that the load of groundnut bags had been transported from Kerala to Tamil Nadu and yet he instituted the complaint then such an action will be one without reasonable and probable cause and the said complaint cannot be said to be made to vindicate his legal rights but one made to spite the appellant from which the element of malice can be inferred.

The evidence in the case will have to be analysed in the proper perspective and a conclusion arrived at. According to the appellant the lorry with the load of groundnut bags proceeded from Menonpara to Erode. The appellant had also deposed that the second respondent as well as another person in the lorry had given statements to that effect. The lorry in question is said to have passed through three check-posts viz., one relating to civil supplies and two relating to Commercial Tax of both the Kerala State and the Tamil Nadu State. The alleged statements recorded and the records of the above said check-posts are places of evidence that will have to be considered in ascertaining the state of mind of the complainant at the time of instituting the complaint. At the time of the interception of the lorry the second respondent and the other occupant of the lorry is alleged to have made a statement which was recorded by the appellant. The statement had not been produced. The registers maintained in the three check-posts also had not been summoned. These are the materials that may be necessary to infer the state of mind of the second respondent at the time of launching the prosecution. In so far as malice is concerned the appellant as P.W. 1 has stated that there is no misunderstanding or ill-will between him and the second respondent and the lower appellate court has taken that statement to infer that there is no malice. As observed in the above decisions the existence of enmity or ill-feeling between the two is not the criterion. The court is bound to see whether in instituting the complaint the complainant was actuated by any other motive except the vindication of his legal rights. It is obvious that the pivot upon which almost all actions for malicious prosecution turn is the state of the mind of the prosecutor at the time he institutes the prosecution. It may be observed that to shut one''s eyes to the obvious is not to act reasonably. The essential matters are; did he genuinely and honestly believe in the existence of facts on which he acted, that is commenced, the prosecution of the plaintiff and whether the facts which he so believed amount to reasonable and probable cause for believing the accused guilty. In order to ascertain this state of mind of the second respondent the following questions will have to be asked. Had it been proved that the second respondent commenced and proceeded with the prosecution without any honest belief that the plaintiff was guilty? Has it been proved that the second respondent failed or neglected to take reasonable care to inform himself of the truth of the facts before commencing or proceeding with the prosecution? If the answers to both the questions are in the affirmative the third question arises viz., Has it been proved that the second respondent in commencing or proceeding with prosecution was actuated by any other motive than a desire to bring to justice to one whom he honestly believed to be guilty? The reasonableness of the accuser''s belief in the existence of facts of which he acted was a question of fact to be proved. In this case we have only the testimony of P.Ws. 1 and 2 from which the state of mind of the complainant at the time of the institution of the complaint will have to be ascertained. The earlier statement of the second respondent recorded by the appellant, and the records maintained in the three check posts will go long way in establishing the state of mind of the complainant at the time of instituting the complaint. The said documents had not been filed. In so far as the first respondent is concerned he had stated as D.W. 2 that he had not instigated the second respondent to institute the complaint in question. But before the criminal court he had stated Having made such a statement in the criminal court he cannot absolve himself of the liability by stating that he had not instigated the second respondent. I am of the view that proper materials have not been placed to ascertain the third and fourth ingredients viz., the absence of probable and reasonable cause and malice. In view of the presence of the first and second ingredient, this is a fit case where an opportunity will have to be given to the appellant to adduce the documentary and other evidence to enable the court to arrive at a just and proper conclusion, by ascertaining whether the complainant at the time of the institution of the compliant had a reasonable and probable cause for lodging the complaint, and whether he was actuated by any other motive except the vindication of his rights under law .In the result the judgment and decree of the lower appellate court are set aside and the matter is remitted back to the trial court for fresh disposal in the light of the observations made above. There will be no order as to costs. The court-fee paid on the memorandum of second appeal is directed to be refunded to the appellant.