Yalamanchilli Venkataramiah vs Garikipati Janapaiyya and Another

Raghava Rao, J.—The defendant in a suit for damages for malicious prosecution is the appellant before me in this second appeal. The

malicious prosecution alleged pertains to certain proceedings u/s 144, Criminal P. C., initiated by the defendant against one Ramabrahmam and

certain others with reference to an obstruction which he alleged had been caused to him in the matter of his possession of the property that had

been contracted to be sold to him by Ramabrahmam. It would appear that on 31st May 1943 the appellant obtained the ex parte order that he

sought in the proceeding u/s 144 which he had initiated by then. On 4th June 1943, four days after the date of the ex parte order, a settlement took

place between the appellant and Ramabrahmam by which he was enabled to sell the properties to one Sobhanadri for a higher price than had been

agreed to be paid by the defendant and had been in fact paid by him, Certain of the other persons against whom the proceedings had been

initiated, all supporters of Ramabrahmam, felt that the settlement that he had entered into with the defendant was not quite all right and therefore

they moved the criminal Court to rescind the ex parte order of 31st May 1943. The matter however did not reach the stage of final adjudication by

the Court on the merits, because it would appear that the appellant here actually reported to the Court that there had been a settlement between

himself and Ramabrahmam and invited the Court accordingly to rescind the ex parte order which had been made earlier. There was an order

accordingly made by the criminal Court rescinding the ex parte order. The plaintiffs thereafter instituted the suit out of which this second appeal

arises for damages foe malicious prosecution. The suit was decreed by both the Courts below and the defendant accordingly appeals

It is contended by Mr. N V. B. Shankar Rao for the appellant that the findings of the lower Courts on the material points which are required to

be found in favour of the plaintiff in a suit for damages for malicious prosecution are wrong. I am not prepared to accept this contention in its full

length. The findings which enter into the decision of a case instituted for damages for malicious prosecution are essentially questions of fact. But it is

contended by Mr. Shankar Rao that there is a legal point which does arise for consideration even on the findings of the Courts below. What the

learned counsel says is that the withdrawal by his client of the reseeding which had been initiated u/s 144, Criminal P. C., is a circumstance which

relieves him of the liability for damages, even if otherwise the cast of the plaintiff were well founded. What he urges is that a withdrawal due to a

settlement, does not by any means still leave it open to the opposite party who has settled with the prosecutor to make a claim for damages for

malicious prosecution. The proposition of law as stated in the form in which it has been pressed upon my attention is no doubt unexceptionable.

The real trouble in the way of the application of the proposition of law to the facts of the present case arises in this way The settlement that was

reported to the criminal Court and as a result of which that Court was invited to dismiss the criminal proceeding was one effected between the

present appellant and Ramabrahmam only, as is clear from line 5 of p. 5 of the pleadings papers which contain the relevant part of the written

statement of the defendant. It looks to me that if the settlement is not found to have been effected between the defendant and the actual

respondents here who are some of the persons accused in the criminal proceeding, the argument must necessarily fail. There has been undoubtedly

no finding in favour of the appellant in regard to this aspect of the matter, and his own written statement does not leave any doubt but that the

settlement was only between himself and Ramabrahmam. Mr. Shankar Rao has drawn my attention to a very interesting passage in Halsbury''s

Laws of England, Hailsham Edn., Vol. XXII, p. 12 where it is pointed out that although it was at one time held that the entry by the Attorney-

General of a nolle prose-qui to an indictment would not be a sufficient termination of the proceedings in favour of the accused to enable him to

bring an action, the current of modern authority seems opposed to this. This passage, of course, does not help Mr. Shankara Rao. But what he

relies upon is a footnote at p. 13 wherein it is pointed out that there is really no English authority on this point, but that in the Supreme Court of new

South Wales it has been held that a nolle prosequi by the Attorney-General or a refusal to continue a prosecution actually commenced is a

sufficient termination for the purposes above mentioned, and that also in America the question has been discussed and there are conflicting views,

but it would seem--and that is the part of the statement of law which contains the exception on which Mr. Sankara Rao naturally lays his emphasis

--

that the prevailing opinion is that a nolle prosequi is a sufficient termination of the proceedings; but it has, with some exceptions, been generally

held that the rule does not apply where the nolle prosequi has been entered by the procurement of the person prosecuted or by his consent or by

way of compromise or on account of irregularity or informality in the proceedings.

This part of the passage above underlined (here italicized), on which stress is laid by the learned advocate for the appellant does not, however,

assist him in the view that I have taken that the settlement in question ought to have been a settlement between the defendant on the one hand and

not merely Ramabrahmam, but the present respondents who were some of his supporters, on the other.

Mr. Shankara Rao has also drawn my attention to a decision in Nalliappa Goundan v. Kailappa Goundan, 24 Mad. 69. There, in a suit for

damages for malicious prosecution, the plaintiff, with the object of proving the falsity of the charge which the defendant had preferred against him,

filed the order of the Magistrate dismissing the charge u/s 209, Criminal P. C., and adduced oral evidence; but the latter was not accepted as

reliable, the falsity of the charge being, however, taken as established solely by the said order of dismissal. It was held by the Court on those facts

that this was insufficient, the onus being on the plaintiff to prove that he was innocent and that his innocence had been pronounced by the Tribunal

before which the accusation had been made. It is contended by Mt. Appalanarasayya, the learned advocate for the respondent, that some doubt

has been thrown upon that decision on the matter with reference to which it has been relied on by Mr. Shankara Rao in a case reported in

Gopalakrishna v. Narayana, (1919) 34 M.L.J. 517: AIR 1919 Mad. 1039. It is true that there are observations in the latter case which throw

some doubt upon the earlier decision with reference to certain aspects of it. But it is not necessary for me to consider whether the doubt so cast

really touches the point under consideration. For, assuming that as ruled in Nalhappa Goundan v. Kailappa Goundan, 24 Mad, 59, the mere

dismissal of a charge of the kind referred to in that decision would not be sufficient to establish the innocence of the plaintiff, which it is incumbent

upon him to establish, it does not follow that that decision can possibly cover the present case in which what happened was not the dismissal of the

charge, but a withdrawal of a criminal proceeding which the defendant had himself initiated. In the case of such a withdrawal the relevant

consideration is really what I have already indicated above, viz., whether the settlement was between the appellant on the one hand and the present

respondents and not Ramabrahmam on the other. The principle which the case in Nallipapa Goundan v. Kailappa Goundan, 24 Mad. 59 lays

down does not therefore apply to the present case. In these circumstances I have no hesitation in repelling the argument advanced by Mr.

Shankara Rao in an able and interesting way and dismissing this second appeal with costs.

No leave.