Leading Judgment on meaning and ingredients of malicious prosecution
On the other hand, the learned counsel appearing for the first respondent bank would contend that when the suit is filed for malicious prosecution, in order to succeed, it is incumbent upon the plaintiff to prove the essential ingredients, viz., i) that the plaintiff was prosecuted by the defendant; ii) that the prosecution ended in plaintiff's favour; iii) that the defendant acted without reasonable and probable cause and iv) that the defendant was actuated by malice. The learned counsel further contended that the first defendant bank had only lodged the complaint with the police based on the letter received from British Bank and sought for investigation into the matter since the card and the signature of the card holder were forged with the connivance of the merchant. The learned counsel would draw the attention of this Court to the FIR Ex.P7 and would submit that there is no mention about the plaintiff's name, but merely mentioned that a bill was received from M/s.Sangam and subsequently, when the customer's account was debited, the customer came back to them with his travel details and stated that he was not available in India on that date, but being present at Sultanate of Oman. Therefore, the defendants merely set the criminal law into motion. Hence, the defendants have acted with reasonable and probable cause in order to find about the real culprits and since it appears that a gang is involved in such fraudulent activities with the connivance of merchants and that the defendants were not actuated by malice. He submitted that the entire action was taken by the Investigating Officer in pursuant to the complaint supported by the letter sent by the British Bank under Ex.P5 which in turn was supported by the complaint from Mr.Yegneswaran Kumar, who was the card holder. He also contended that the prosecution did not end in honorable acquittal, but only on the ground that the charges were not proved beyond reasonable doubt, but giving the benefit of doubt and therefore, the plaintiff cannot maintain the suit for malice prosecution.
In order to succeed in a suit for malicious prosecution, the plaintiff has to establish that the defendant had acted without any reasonable and probable cause, but maliciously. The meaning and ingredients of malicious prosecution are widely considered by Hon'ble Apex Court in the case of West Bengal State Electricity versus Dileep Kumar Ray reported in AIR 2007 SC 976. The relevant paragraphs are re-produced as under:
'MALICIOUS PROSECUTION" is a prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or its bound to know are wrong and against the dictates of public policy.
In malicious prosecution there are two essential elements, namely, that no probable cause existed for instituting the prosecution or suit complained of, and that such prosecution or suit terminated in some way favorably to the defendant therein.
"When it comes to the knowledge of anybody that a crime has been committed, a duty is laid on that person as a citizen of the country, to state to the authorities what he knows respecting the commission of the crime, and if he states, only what he knows and honestly believes he cannot be subjected to an action of damages merely because it turns out that the person as to whom he has given the information is after all not guilty of the crime. In such cases to establish liability the pursuer must show that the informant acted from malice, i.e., 'not in discharge of his public duty but from an illegitimate motive, and must also prove that the statements were made or the information given without any reasonable grounds of belief, or other information given without probable cause;
The performance of a duty imposed by law, such as the institution of a prosecution as a necessary condition precedent to a civil action, does not constitute "malice". (Abbott v. Refuge Assurance Co., (1962) 1 QB 432).
(Emphasis added)
As regards the judgment rendered in C.C.No.2863 of 2000 by the Chief Metropolitan Magistrate, is concerned, the findings made therein, are not binding on Civil Court. The judgment, is a fact, which can be taken note of. However, a perusal of the Ex.P1, it is clear that learned Magistrate has merely held that the prosecution has not proved the case beyond reasonable doubt and thus, the benefit of doubt was given to the accused. After all, investigation and filing the final report is the role of the police for which neither the defendants have any role to play. Therefore, this Court does not find any of the parameters which are required for a righteous claim for malice prosecution, in the present case. Merely because the criminal proceedings concluded with an acquittal by itself is not sufficient to label the proceedings as malicious prosecution.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.09.2016
C O R A M :
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
CIVIL SUIT No.347 of 2012
C.Kishin Chand
Versus
City Bank N.A.
https://www.lawweb.in/2016/09/leading-judgment-on-meaning-and.html
In order to succeed in a suit for malicious prosecution, the plaintiff has to establish that the defendant had acted without any reasonable and probable cause, but maliciously. The meaning and ingredients of malicious prosecution are widely considered by Hon'ble Apex Court in the case of West Bengal State Electricity versus Dileep Kumar Ray reported in AIR 2007 SC 976. The relevant paragraphs are re-produced as under:
'MALICIOUS PROSECUTION" is a prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or its bound to know are wrong and against the dictates of public policy.
In malicious prosecution there are two essential elements, namely, that no probable cause existed for instituting the prosecution or suit complained of, and that such prosecution or suit terminated in some way favorably to the defendant therein.
"When it comes to the knowledge of anybody that a crime has been committed, a duty is laid on that person as a citizen of the country, to state to the authorities what he knows respecting the commission of the crime, and if he states, only what he knows and honestly believes he cannot be subjected to an action of damages merely because it turns out that the person as to whom he has given the information is after all not guilty of the crime. In such cases to establish liability the pursuer must show that the informant acted from malice, i.e., 'not in discharge of his public duty but from an illegitimate motive, and must also prove that the statements were made or the information given without any reasonable grounds of belief, or other information given without probable cause;
The performance of a duty imposed by law, such as the institution of a prosecution as a necessary condition precedent to a civil action, does not constitute "malice". (Abbott v. Refuge Assurance Co., (1962) 1 QB 432).
(Emphasis added)
As regards the judgment rendered in C.C.No.2863 of 2000 by the Chief Metropolitan Magistrate, is concerned, the findings made therein, are not binding on Civil Court. The judgment, is a fact, which can be taken note of. However, a perusal of the Ex.P1, it is clear that learned Magistrate has merely held that the prosecution has not proved the case beyond reasonable doubt and thus, the benefit of doubt was given to the accused. After all, investigation and filing the final report is the role of the police for which neither the defendants have any role to play. Therefore, this Court does not find any of the parameters which are required for a righteous claim for malice prosecution, in the present case. Merely because the criminal proceedings concluded with an acquittal by itself is not sufficient to label the proceedings as malicious prosecution.
DATED : 07.09.2016
C O R A M :
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
CIVIL SUIT No.347 of 2012
C.Kishin Chand
Versus
City Bank N.A.
https://www.lawweb.in/2016/09/leading-judgment-on-meaning-and.html
