Plaintiff Need Not Undergo 'Second Agnipariksha' In Suit For Malicious Prosecution; Defendant Must Discharge Onus Once Shifted To Him: Madras High Court

A Single Bench of Justice GR Swaminathan observed,

"He (plaintiff) can only depose that the allegation against him was false. A plaintiff in a suit for malicious prosecution need not demonstrate that he was innocent of the charge upon which he was tried."

The Judge observed that there is no doubt that the initial burden of proof lay only on the Plaintiff. Mere acquittal in the alleged false case by itself is not sufficient and he is obliged to prove that the prosecution was without any "reasonable and probable cause" and that it was instituted with a malicious intention and that he suffered damage.

However, the plaintiff cannot be called upon to prove the negative. It observed,

"As regards the non-existence of reasonable and probable cause, the onus will shift to the defendant after the plaintiff asserts in the witness box that the complaint against him was false and after he adduces evidence demonstrating the existence of malice on the part of the defendant."

Reliance was placed on Satdeo Prasad v. Ram Narayan, AIR 1969 Pat 102, where it was held that when the accusation against the plaintiff was in respect of an offence which the defendant claimed to have seen him commit and the trial ends in an acquittal on merits, the presumption will be that there was no reasonable and probable cause for the accusation.

In the instant case, the defendant had set the criminal law in motion against the Plaintiff by accusing the Plaintiff of entering his shop, brandishing a knife at him and threatening him.

After acquittal, the Plaintiff instituted a suit for malicious prosecution which came to be dismissed by the trial Court but was allowed by the first Appellate Court, following which the instant appeal was preferred by the Defendant-Appellant.

The original Plaintiff (Respondent herein) alleged that he was implicated in a false criminal case by the Defendant (Appellant herein) due to animosity on two counts:

• The Plaintiff had questioned the manner in which the local mosque was being administered and the Defendant happened to be the brother-in-law of the Mosque' President;
• The Defendant had approached the plaintiff with regard the matrimonial dispute of Plaintiff's son but the Plaintiff rebuffed the efforts at mediation.

The Defendant (Appellant herein) submitted that the plaintiff has the legal burden to establish that the prosecution was vitiated by malice and that the defendants did not have any reasonable or probable cause for making the complaint.

The Plaintiff (Respondent herein) on the other hand argued that even according to the defendants, the relationship between the parties was already bitter. According to him, the element of malice is apparent and therefore, the first appellate Court rightly reversed the decision of the trial Court.

On a reading of the evidence adduced on either side before the Court, the Single Bench concluded that the Defendant had no cause at all for giving the complaint, let alone reasonable and probable cause.

It noted that as per the allegation, the Plaintiff had entered the Defendant's shop to threaten him. "Since the occurrence spot is a shop, it would have definitely attracted notice and a complaint would have been lodged before the local police immediately thereafter. But, the first defendant approached the District Superintendent of Police only on the next day and the written complaint given by the first defendant was sent through post," it observed.

Further, the Defendant had claimed that the occurrence was witnessed by other defendants who had visited the shop to accompany the Defendant to the Mosque. "But, only the 6th defendant was examined as DW.2. But DW.2 did not utter a word about the occurrence in question. He deposed only regarding the strain between the parties caused by the matrimonial dispute between the plaintiff's son and daughter-in-law. In other words, in support of the criminal charge, except the testimony of the first defendant, there was no corroboration forthcoming."

The Single Bench opined that it is also impossible to believe that at 09.00 P.M, the other defendants came to the shop of the first defendant for the purpose of accompanying to the mosque for offering namaz and incidentally happened to witness the occurrence.

"As already observed, the plaintiff can only state that neither he nor his son went to the shop of the first defendant or threatened him. He can only depose that the allegation against him was false. A plaintiff in a suit for malicious prosecution need not demonstrate that he was innocent of the charge upon which he was tried," it held.

It further observed,

"It is obvious that the mosque management wanted to teach the plaintiff a hard lesson. There was no cause at all for giving the complaint, let alone reasonable and probable cause. The twin reasons mentioned above culminated into a false complaint. The first appellate court rightly found that the plaintiff had proved all the ingredients of malicious prosecution."

The High Court also set held that a suit for malicious prosecution will lie only against that person at whose instigation the proceedings commenced, and not the witnesses.

"The question is who was the prosecutor. In the case on hand, it was only the first defendant who gave the complaint against the plaintiff and his son. The other defendants no doubt supported the prosecution but they merely figured as witnesses.

D1 to D6 did not set the law in motion. By no stretch of imagination, they can be said to have prosecuted the plaintiff. If according to the plaintiff they had committed perjury, the course of action to be taken against them will have to be different. I hold that the plaintiff did not have any cause of action against defendants 2 to 6," the order stated.

The appeal was thus dismissed qua the first Defendant.

Case Title: M. Abubaker & Ors. v. Abdul Kareem

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