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Case Number

Second Appeal No. 1285 of 1983

Advocates

Mrs. Hem a Sampath Advocate for Appellant
B. Sivakamasundari Advocate for Respondent

Judges

P. Sathasivam, J.

Acts

Articles 74 and 75 of the Limitation Act, 1963.Article 74.Description
709. Articles 24 and 25 of the old Limitation Act
Articles 24, 25 and 36 of Limitation Act, 1908,
Articles 74 and 75 of the new Limitation Act.
Article 74 or 75 of the Limitation Act,
sections 406, 420 and 120(B) I.P.C
Article 76 of the Limitation Act,
Section 75 of the Limitation Act,
Art. 75 of the Limitation Act.

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Smart Summary

Concise and Structured Summary of the Opinion

Factual and Procedural Background

The plaintiff (respondent in this appeal) conducted business as a pawnbroker under the name "Murugan Financiers" at Kallakurichi. The defendant (appellant) lodged a complaint dated 27.7.1976 to the Sub Inspector of Police, Kallakurichi, invoking sections 406, 420 and 120(B) of the Indian Penal Code. The police registered a criminal case (Crime No. 648 of 1976) and, as a result of the complaint and a newspaper item in Daily Thanthi (dated 5.8.1976), the plaintiff applied for and obtained anticipatory bail and attended court hearings. The plaintiff alleged mental agony and expenses of about Rs. 1,500 and valued damages at Rs. 1,000; the plaint sought Rs. 2,500 as compensation for expenses and damages by way of defamation.

At trial, the plaintiff testified as P.W.1 and produced Exhibits A-1 to A-8. The defendant filed a written statement denying that a false complaint was lodged, asserting the suit was not maintainable and was barred by limitation; the defendant did not adduce oral evidence or documents. The District Munsif dismissed the suit. The plaintiff appealed (A.S. No. 294 of 1981) to the Subordinate Court, Vridhachalam, which reversed the trial court, found the defendant liable (holding there was malice / lack of reasonable and probable cause) and decreed the suit as prayed.

The defendant filed the present second appeal. This Court framed the substantial question of law: “Whether the finding of the lower appellate court regarding malice in prosecuting the plaintiff is not sustainable in law?” The Court heard submissions on both malice (and adequacy of pleading) and limitation and thereafter delivered the impugned opinion.

Legal Issues Presented

Whether the lower appellate court's finding that the defendant acted with malice (and thus without reasonable and probable cause) in prosecuting the plaintiff is sustainable in law.
Whether the plaint contains the necessary and specific averments of malice required for an action for malicious prosecution.
Whether the suit is barred by limitation — specifically the applicability of Article 74 (malicious prosecution) and Article 75 (libel/defamation) of the Limitation Act, 1963 — to the facts and dates in this case.

Arguments of the Parties

Appellant's (Defendant's) Arguments

The lower appellate court erred in decreeing the suit because the plaintiff had not made out a case warranting relief.
There is no specific pleading in the plaint alleging malice; the plaint lacks the necessary specific averments for malicious prosecution.
The suit is barred by limitation (the defendant referenced Article 75 and also Article 74 / 75 and noted dates in Ex. A-2 and Ex. A-8 to argue the suit should have been filed earlier).
Ex. A-8 shows the matter was a "mistake of fact"; there was no libel by the defendant, and the defendant had a genuine grievance (refusal to return pledged jewels despite payment) supporting the complaint.
The defendant denied responsibility for the publication in Daily Thanthi and contended he did not effect that publication.
The police had not arrested the plaintiff nor required him to go to the police station, according to the defendant's account.

Respondent's (Plaintiff's) Arguments

The plaintiff relied on the pleadings and the oral and documentary evidence (Exs. A-1 to A-8) to show a false complaint, resulting defamation and expenses, and mental agony; therefore the lower appellate court correctly decreed the suit.
The plaintiff asserted that the complaint and the newspaper publication caused enquiry by relatives and public, thereby defaming him and causing mental suffering and expenditure for anticipatory bail.
The respondent contended that, in the absence of any evidence (oral or documentary) from the defendant, the defendant could not successfully impugn the decree granted by the lower appellate court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
CAmbalam v. SJagannatha, AIR 1959 Mad. 89	Reiterated the four essential ingredients for an action for malicious criminal prosecution: (1) prosecution by defendant; (2) prosecution ended in plaintiff's favour; (3) defendant acted without reasonable and probable cause; and (4) defendant was actuated by malice.	The Court relied on the principle that all four ingredients must be proved. Using this authority, the Court found plaintiff had not pleaded or proved malice or the necessary specific averments to meet these requirements.
G.J Khona v. K. Damodaran, AIR 1970 Ker. 229	Affirmed that in malicious prosecution suits all four requirements must concur; if any is lacking the suit fails.	The Court invoked this decision to support the proposition that the plaintiff's failure on any of the four ingredients (here, particularly malice/proper pleading) required dismissal of the malicious prosecution claim.
Harnam Singh v. Doola Singh, AIR 1937 Lah. 709	Court (Lahore High Court) interpreted provisions of the old Limitation Act (Articles 24 and 25) and enunciated views consistent with the requirement for malicious prosecution suits; noted equivalence between old Articles and current Articles 74 and 75.	The opinion used this authority to show consistency of the law on limitation periods and to explain the correspondence between old and new Articles (i.e., Articles 24 & 25 of old Act similar to Articles 74 & 75 of the Limitation Act, 1963) when considering limitation defenses in malicious prosecution and libel suits.

Court's Reasoning and Analysis

The Court proceeded in a stepwise analysis, applying the governing legal principles (as stated in the cited precedents) to the record before it.

Evidence and documentary record: The Court examined Exhibits A-1 (newspaper publication, Daily Thanthi dated 5.8.1976), A-2 (the defendant's complaint dated 27.7.1976), A-3 (FIR / case sheet extract), A-7 (investigation report), and A-8 (order of the Sub Divisional Judicial Magistrate closing the case as "mistake of fact" — recorded as 13.12.1976 in the record).
Whether defendant acted without reasonable and probable cause: The Court analysed the substance of Ex. A-2 and found the defendant had an asserted grievance — that the plaintiff refused to return pledged jewels even after receipt of the loan amount and that the defendant held a receipt. The existence of a genuine grievance and the police investigation resulting in a "mistake of fact" conclusion (Ex. A-7) and the Magistrate's closing order (Ex. A-8) led the Court to conclude it could not be said the defendant acted without reasonable and probable cause in lodging the complaint.
Sufficiency of pleadings as to malice: The Court reiterated the settled law (per the cited precedents) that all four ingredients of malicious prosecution must be present. It examined the plaint and found that averments were general and there were no specific pleadings setting out malice; therefore the plaintiff failed to plead the necessary ingredient of malice with requisite specificity.
Publication and responsibility for newspaper item: The Court noted that the plaintiff did not produce evidence that the defendant was responsible for the publication in the Daily Thanthi. The appellate court properly found that the defendant could not be held liable for the newspaper publication in the absence of such proof.
Limitation analysis: The Court considered Articles 74 and 75 of the Limitation Act, 1963. For malicious prosecution (Article 74) the period of limitation runs from the date when the prosecution is otherwise terminated — here identified by the Court as Ex. A-8 dated 13.12.1976 — so a suit filed on 7.12.1977 would be within one year. For defamation (Article 75) limitation runs from the date of publication — Ex. A-1 dated 5.8.1976 — and a suit filed on 7.12.1977 would be barred by the one-year period if the claim were purely for defamation. The appellate court characterized the plaintiff's suit as seeking relief for both malicious prosecution and defamation; however, because the Court found the malicious prosecution claim unsustainable on merits, the limitation point did not save the plaint.
Standard of intervention in second appeal: The Court observed that a finding not supported by acceptable evidence or based on a misconception can be interfered with in a second appeal. Applying that principle, the Court found the lower appellate court's conclusion (that the defendant acted without reasonable and probable cause and with malice) was not supported by acceptable evidence and was therefore erroneous.
Conclusion of analysis: In view of (a) the absence of specific pleadings of malice, (b) the presence of evidence showing a genuine grievance and a police investigation culminating in a "mistake of fact" finding, and (c) the appellate court's misapprehension of the evidentiary record, the Court concluded the plaintiff had failed to make out a case for malicious prosecution or defamation as pleaded.

Holding and Implications

Holding:

Second appeal allowed; the judgment and decree of the lower appellate court are set aside; the judgment and decree of the trial court are restored; accordingly, the suit filed by the plaintiff is dismissed.

Immediate consequences:

The decree in favour of the plaintiff granted by the Subordinate Judge (lower appellate court) is set aside.
The trial court's dismissal of the suit is restored; the plaintiff's claims for damages (total Rs. 2,500 claimed) are dismissed.
The second appeal was allowed with costs (i.e., costs awarded to the appellant/defendant as per the opinion).

Broader implications:

The opinion does not announce a new or novel precedent; it applies established principles regarding the ingredients of malicious prosecution, the necessity of specific pleadings of malice, and the proper application of Articles 74 and 75 of the Limitation Act to the facts. The Court exercised the appellate power to interfere in a second appeal where a lower appellate finding was considered unsupported by acceptable evidence or based on misconception.

(This summary is prepared strictly from the contents of the provided opinion. No information not contained in the opinion has been added.)

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Thangavel Udayar v. R.K Raju Mudaliar

1. Defendant in O.S No. 52 of 1978 on the file of District Munsif, Kallakurichi, is the appellant in the above appeal. The respondent, plaintiff in the said suit filed the same for recovery of Rs. 2,500 being the expenses and damages by way of defamation.

2. The case of the plaintiff as seen from the plaint is briefly narrated hereunder:—

The plaintiff is a pawn broker. He is carrying on his business as “Murugan Financiers” at Kallakurichi. He belongs to a respectable and noble family. The defendant has lodged a false complaint against the plaintiff before the Sub Inspector of Police, Kallakurichi, on 27.7.1976 under sections 406, 420 and 120(B) I.P.C The police have registered a criminal case against the plaintiff in Crime No. 648 of 1976. On account of the complaint, the plaintiff has to obtain anticipatory bail from the Sessions Judge, Cuddalore, and the plaintiff attended the Court of Judicial Sub Divisional Magistrate at Ulundurpet for a number of hearings. Finally the complaint was referred by the Station House Officer, Kallakurichi, as mistake of fact on or about 27.4.1977 The plaintiff underwent much mental agony, and he has spent more than Rs. 1,500 for his release. He values damages at Rs. 1,000 and therefore he prays for a decree as claimed.

3. The defendant filed written statement wherein he has admitted that the suit as framed is not maintainable. It is also barred by limitation. The defendant has not lodged false complaint against the plaintiff and the plaintiff has not suffered mental agony. The defendant is not liable to pay the expenses incurred by the plaintiff in the criminal case. There is no cause of action. With these averments, he prays for dismissal of the suit.

4. Plaintiff himself was examined as P.W 1 and he has produced and marked Exs. A-1 to A-8 in support of his case. On the other hand, the defendant has neither examined any one in support of his case nor marked any document. The learned District Munsif, after framing necessary issues and in the light of the evidence available on record, dismissed the suit. Against the dismissal of the suit, the unsuccessful plaintiff filed appeal in A.S No. 294 of 1981 before the Sub Court, Vridhachalam. The learned Subordinate Judge, after re-apprising the whole evidence, dis-agreed with the findings of the trial court, allowed the appeal and decreed the suit as prayed for.

5. Against the decree granted by the lower appellate court, the defendant has filed the present appeal before this court. While entertaining the second appeal, this Court has framed the following substantial question of law for consideration:—

“Whether the finding of the lower appellate court regarding malice in prosecuting the plaintiff is not sustainable in law?”

6. In the light of the substantial question of law framed, Mrs. Hema Sampath, learned counsel for the appellant, submitted that the lower appellate court committed an error in decreeing the suit when the plaintiff has not made out a case. In other words, she contended that there is no specific pleading regarding “malice”. She further contended that at any rate, the suit filed by the plaintiff is clearly barred by limitation, and prays for interference in this appeal. On the other hand, Miss. B. Sivakamasundari, learned counsel for the respondent submitted that on the basis of proper pleadings and evidence, the lower appellate court rightly granted decree as prayed for. She also submitted that in the absence of any evidence either in the form of oral or documentary, it is not open to the defendant to raise any objection with regard to the decree granted by the lower appellate court. I have carefully considered the rival submissions.

7. Admittedly the plaintiff is a pawn broker and he is carrying on his business as “Murugan Financiers” at Kallakurichi. He is an in-come tax assessee. It is the case of the plaintiff that on 27.7.1976 under Ex.A-2 a complaint was lodged by the defendant to the Sub Inspector of Police, Kallakurichi. Ex.A-3 is the First Information Report and Ex.A-1 is the paper publication made in “Daily Thanthi” newspaper on 5.8.1976 In the light of Exs. A-2 and A-3, the plaintiff applied for anticipatory bail on 4.8.1976 and he was granted bail. Ex. A-3 is the case sheet extract. It is the case of the plaintiff that the complaint was given on 27.7.76, the said fact was intimated to the plaintiff on 27.12.1976 and the suit was filed on 7.12.1977 According to the plaintiff, as per Article 76 of the Limitation Act, the suit is filed within the period of one year. Due to the news item in Daily Thanthi, as borne out by Ex.A-1, it is the contention of the plaintiff that his relatives and friends approached him and enquired about the same. The plaintiff was defamed among his relatives and the public and the plaintiff underwent much mental agony. The false complaint lodged by the defendant against the plaintiff was the cause for all things. Totally he has claimed a sum of Rs. 2,500 as damages. According to the plaintiff, he values the damages for the false complaint at Rs. 1,000 and Rs. 1,500 towards the expenses spent forgetting anticipatory bail and for producing sureties before the Sub Divisional Judicial Magistrate for his release on bail. On the other hand, it is the case of the defendant that he has given a true complaint to the Sub Inspector of Police, Kallakurichi. The defendant has not made any publication in the Daily Thanthi and he was not responsible for the same. The present suit as framed is not maintainable. The suit is not for malicious prosecution and there is no averment in the plaint about malice. It is the further case that Ex. A-2 is dated 21.1.16 Under Section 75 of the Limitation Act, according to the defendant, the suit is to be filed on or before 21.1.16, however, the present suit was filed only on 7.12.1977 Hence, according to the defendant, the suit as framed is not maintainable and barred by limitation. The defendant has also contended that there is no libel and it is only mistake of fact and not a false complaint. Ex.A-8 shows that it is only a mistake of fact. He has also further contended that neither the police have arrested the plaintiff, nor asked the plaintiff to go to the police station.

8. The trial court, in the light of Ex. A-8, namely, the order of Sub Divisional Judicial Magistrate, Ulundurpet, holding that it is only a mistake of fact and there is no record to show that it was given out of malice, dismissed the suit. However, the lower appellate court after referring to Ex. A-2 complaint and in the light of Ex.A-7, came to the conclusion that the defendant acted without reasonable and probable cause in lodging Ex.A-2 complaint against the plaintiff and therefore, the defendant is liable to pay damages as claimed in the suit, accordingly, decreed the suit as prayed for. With regard to-the limitation, the lower appellate court came to the conclusion that the suit has been filed by the plaintiff not only for defamation but also for malicious prosecution.

9. In order to explain the case, it is better to re-produce the relevant portion in Ex.A-2 complaint, which is extracted hereunder-

In pursuance of Hx.A-2 complaint made by the defendant, toe police nave investigated the matter and ultimately referred the case as mistake of fact. It is also useful to mention the conclusion of the police as seen from Ex.A-7. The said portion is extracted hereunder:—

It is seen that under Ex.A-2 dated 27.7.76 the above referred complaint was lodged by the defendant to the Sub Inspector of Police, Kallakurichi. Ex.A-3 is the copy of First Information Report. Ex.A-1 is the paper publication of Daily Thanthi newspaper which is dated 5.8.1976 In pursuance of the complaint and publication effected in Daily Thanthi, according to the plaintiff, he obtained an order of anticipatory bail under Ex.A-4 on 3.8.1976 Due to the publication effected under Ex.A-1, it is the case of the plaintiff that his relatives and friends approached him and enquired about the same, which defamed him among his relatives and the public, hence the plaintiff underwent much mental agony. The plaintiff has spent Rs. 1,500 for getting orders of anticipatory bail and for producing sureties and he has also added another Rs. 1000 towards damages for the false complaint. Altogether the plaintiff has claimed Rs. 2,500 towards damages from the defendant. On the other hand, it is admitted by the defendant that he has given a true complaint to the Sub Inspector of Police, Kallakurichi. He has denied the allegation that the defendant has made publication in Daily Thanthi. In other words, the defendant contended that he has not made any publication as per Ex.A-1. It is the further case of the defendant that the present suit is not maintainable, since there is no averment in the plaint about malice and there is no reasonable cause. The other important contention of the defendant is even as per Article 74 or 75 of the Limitation Act, the suit filed on 7.12.1977 is barred by limitation and the suit ought to have been dismissed on this ground.

10. It is not disputed by the defendant that he has made a complaint to the police. We have to find out whether the defendant had any genuine cause or grievance against the plaintiff. It is seen from Ex.A-2 that since the plaintiff refused to return his jewels even after discharge of loan amount only on the ground that he has failed to bring his friend, viz., Munusamy who, according to the plaintiff, introduced for the loan transaction. It is the further grievance of the defendant that he has received the loan by pledging his jewels and he is having receipt, hence in those circumstances, the plaintiff has to retum the jewels after receipt of necessary loan amount. In other words, he contended that on the refusal by the plaintiff he has a genuine grievance which necessitated him to file the present complaint under Ex. A-2. After receipt of the complaint from the defendant, the police after investigation, found that it is a “Mistake of Fact”. On the basis of the final report under Ex.A-7, the Inspector of Police obtained an order from the Sub Divisional Judicial Magistrate, Ulundurpet, for closing the case as “Mistake of Fact” under Ex.A-8 on 13.12.1976 In those circumstances, namely, perusal of Ex.A-8, investigation report by the Inspector of Police and the ultimate order of the Magistrate for closing the case as mistake of fact under Ex.A-8 it cannot be said that “the defendant had acted without reasonable and probable cause in lodging Ex.A-2 complaint against the plaintiff in the suit”. It is also incorrect to state that the “allegations against the plaintiff made in Ex.A-2 complaint are false to the knowledge of the defendant. As stated by me earlier, in view of genuine grievance, namely, even after payment of loan amount, the plaintiff refused to release the pledged articles to the defendant only on the lame excuse of not discharging the other loan amount obtained by his friend viz., Munusamy. The plaintiff as a pawn broker on receipt of proper payment of the entire loan and on production of proper receipt, he has no other go except to release or return the pledged articles. In those circumstances, the defendant was justified in making a complaint against the plaintiff and it cannot be termed as false complaint or he acted without reasonable and probable cause. Even on a perusal of the documents filed by the plaintiff's side itself clearly shows that the finding of the lower appellate court cannot be sustained.

11. The other aspect of the learned counsel for the appellant is that there is no specific pleading in the plaint regarding malice. On the other hand, learned counsel for the respondent submitted that there are necessary averments in paragraphs 4 and 5 of the plaint regarding malice. It is settled law that an action for malicious criminal prosecution the plaintiff must prove the following points:—

(1) that the plaintiff was prosecuted by the defendant;

(2) that the prosecution ended in plaintiffs favour;

(3) that the defendant acted without reasonable and probable cause; and

(4) that the defendant was actuated by malice.

Now we have to find out first whether there are necessary ingredients in the plaint and whether the plaintiff has proved all the above mentioned four conditions in order to succeed in his attempt. As rightly pointed out by the learned counsel for the appellant, I am unable to find specific pleadings on par with the necessary ingredients referred to above in the plaint. In other words, the averments in the plant are general in nature, hence the contention of the learned counsel for the appellant is well-founded.

12. With regard to publication in the ‘Daily Thanthi’ as seen from Ex. A-1, it is the definite case of the defendant that he is not informed regarding the complaint made against the plaintiff. It is equally admitted by the lower appellate court that there is no evidence on the side of the plaintiff that the defendant gave any information for publication in the news-paper “Daily Thanthi', hence the appellate court was right in holding that the defendant cannot be held for effecting publication in Daily Thanthi.

13. Regarding malicious prosecution, in a decision reported in CAmbalam v. SJagannatha, AIR 1959 Mad. 89, learned single Judge of this court after reiterating the four points referred earlier, has held that in an action for malicious criminal prosecution the plaintiff must prove all the above mentioned four ingredients in order to succeed in his case. Since the above said principles have been well established, I am not discussing the facts in that case. The very same principles have been spoken to in another decision reported in G.J Khona v. K. Damodaran, AIR 1970 Ker. 229. In the said decision, after pointing out the above mentioned four ingredients, the Division Bench has held that in a suit for malicious prosecution, all the above said four requirements have to concur or unite. If any of them is found lacking the suit must fail. While interpreting Articles 24, 25 and 36 of Limitation Act, 1908, the Lahore High Court has enunciated similar view as that of Kerala and Madras in Harnam Singh v. Doola Singh, AIR 1937 Lah. 709. Articles 24 and 25 of the old Limitation Act are similar to Articles 74 and 75 of the new Limitation Act. In the light of the above mentioned legal position, after perusing the various averments in the plaint, I am of the view that the plaintiff has not made out a case for malicious prosecution.

14. Coming to the other argument of the learned counsel for the appellant, namely, the present suit is barred by limitation. It is useful to refer Articles 74 and 75 of the Limitation Act, 1963.

“Article 74.

Description of Suit Period of limitation Time from which period begins to run 74. For compensation for malicious prosecution One year When the plaintiff acquitted or the prosecution is other wise terminated.

Article 75

For compensation for libel. One year When the libel is published.

In order to file a suit for malicious prosecution under Article 74, the limitation in the present case starts from the second clause as pointed out in the said Article, viz., one year when the prosecution is otherwise terminated. Here in this case, the prosecution is terminated as seen from Ex.A-8 on 13.12.76 Admittedly the suit has been filed on 7.12.77, hence if the plaintiffs case is for malicious prosecution, then the suit filed on 7.12.77 is within the time. On merits I have already held that the plaintiff has failed to make out a case for malicious prosecution. If the present suit is for damages, then Article 75 is applicable and if it is so, one year period commences from the day when the libel is published. In this case, as seen from Ex.A-1, the libel is published in the Daily Thanthi on 5.8.1976 The suit has been filed on 7.12.77 In other words, if the present suit is only for defamation, the suit filed on 7.12.77 is clearly barred by limitation as per Art. 75 of the Limitation Act. However, for the reasons best known to the appellate court, it came to the conclusion that the plaintiff has filed the present suit not only for malicious prosecution, but also for defamation. However, in view of my earlier conclusion on the merits of the case, the suit filed by the plaintiff has to be dismissed. The conclusion of the lower appellate court based on Exs.A-2 and A-7 is erroneous. It is well settled law that the finding which is not supported by acceptable evidence or based on mis-conception, this court can interfere in second appeal. Accordingly, the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are restored. The net result, the suit filed by the plaintiff is hereby dismissed. The second appeal is allowed with costs.

ALS/VA

Thangavel Udayar v. R.K Raju Mudaliar

Concise and Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Defendant's) Arguments

Respondent's (Plaintiff's) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Thangavel Udayar v. R.K Raju Mudaliar

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