TMI Blog1972 (5) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent. The respondent wrote to Messrs. P. L. Sahni and Co., Property Dealers, on March 16, 1960, wherein he stated, that he had paid a sum of ₹ 6,862.25 as the price of the plot, that the dealers commission would be 2 per cent. only, that the costs involved in registration and transfer of plot will be paid by the purchaser, and that- In view of the time and the money involved in coming over to Chandigarh for the transaction it will be much appreciated that the transfer may be completed by the property dealers on my behalf on behalf on receipt of a letter of authority from me. He may kindly be requested to send me a pro forma to be filled up, and if necessary to be countersigned by a Magistrate. It was also mentioned that if these terms and conditions were acceptable to the dealers, the respondent would have no objection to release the plot at the quoted price of ₹ 7,500/-. Messrs. P. L. Sahni and Co., Property Dealers while answering the queries made by the respondent, mentioned as follows in their letter dated March 19, 1960:-- (2) Since the site above said is not yet registered with the Government, it can be transferred to the purchaser party on aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent be debarred from selling the plot to anybody else. On August 3, 1960, the respondent wrote back to the Property Dealers and in this letter it was mentioned, inter alia as follows:-- 'With above background of not having received any correspondence, from your end, your letters seem to be rather impolite and unbecoming of a business concern of your standing. There has been no reluctance on my part to finalise the case while the deal had not been completed, some other party had independently offered me better price for the plot and since you were handling the deal the matter was referred for further consideration. In your opinion, as stated in your letter of July the 18th, it was not legally and morally right for me after having accepted the earnest money. The cheque, even today has not been encashed by me and as such, no liability accrues on me on this account. The non-encashment of the cheque would be evident to you from your bank account returns. As stated by Major Gian Singh, a copy of his letter enclosed by you, that he had deposited full price of the plot with you, was not duly notified to me. 4. The property Dealers replied to this communication of the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hermal Power Station, Post Office Durgapur Steel Project, District Burdwan (West Bengal) do solemnly affirm that I want to transfer my title in the No. 57, Sector, 9-A, (R. P. No. 168), Chandigarh Capital, to Major Gian Singh son of Shri Kahan Singh of village and post office Dakha, District Ludhiana, and will have no claim over the site after its transfer. No Profiteering is involved in this transaction. I have not drawn any loan under any scheme sponsored by the Government. Dated the 16th August, 1960. (Sd-) S.P. Batra (S. P. Batra) Deponent. The application filed by the appellant runs as follows:-- To The Estate Officer, Capital Project, Chandigarh. Sir, Application for the transfer of plot No. 57 street Sector 9-A, R. P. No. 168. It is submitted as under:-- That I have purchased the rights and title in the above cited plot from Shri S. P. Batra with consideration. That I have paid whole of the consideration money to the transferor named above. That no profiteering is involved in this transaction. Under the circumstances explained above, the plot cited above may kindly be transferred in my favour and oblige. Yours faithfully, (S/d-) Major ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequence of the application purported to have been made by the respondent. the Estate Officer was naturally not in a position the accede to either of the requests made by the respondent in his letter D/- April 1, 1961. On June 15, 1961, the respondent preferred a complaint under Section 420/417/409, Indian Penal Code in the Court of Sub-Divisional-Magistrate Asansol against the appellant (described as respondent No. 1) and Shri B. S. Dhillon of Messrs P. L. Sahni Co., the property Dealers, (described as respondent No. 2). The relevant portions of this complaint run as follows:-- 2. That the accused No. 1 in collusion with the accused No. 2 approached the complainant for the sale of the aforesaid plot of land and the complainant agreed to transfer the land at a price of ₹ 7,500/- and it was further settled that the complainant was to get a net sum of ₹ 7328.06 after deducting the commission charges etc. 3. That in order to create confidence in the mind of the complainant the accused No. 1 through the accused No. 2 gave a Sum of ₹ 500/- initially and requested the complainant to give in writing the fact of transfer of the aforesaid land in the name of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venience and loss of reputation a claim of ₹ 10,000/- was made. The appellant, however, scaled down his claim to ₹ 25,000/- in order to save court-fee. In the written statement, the respondent alleged that he was unaware of what transpired between the appellant and the Property between the appellant and the Property Dealers, Messrs P. L. Sahni Co., nor did he know that the appellant and had paid any amount to them. It was further submitted that the affidavit of transfer dated August 16, 1960, only expressed the desire of the respondent to transfer the plot but it itself was not a document actually authorising the transfer of the plot to the appellant. The actual transfer of the plot t in the books of the Estate Officer, if any, was wrongful and unauthorized. The cheque sent by the Property Dealers in respect of the sale money was dishonoured. The respondent bore no illwill or malice against the appellant. He had no influence over the learned Sub-Divisional Magistrate nor did he get the complaint marked for investigation by the police. He did not get the appellant arrested either. It was further alleged that Messrs. P. L. Sahni Co., were merely advised to find out a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by him for defending himself in the criminal case instituted at Asansol, the loss of earnings because of the appellant failing to get re-employed, and the damages on account of mental worries. In this manner, the amount of damages on account of mental worries and expenses incurred by the appellant on his defence were calculated at ₹ 6,150/- only. No damages for loss of re-employment were awarded because it was regarded to be an uncertain matter. The matter contained in Issue No. (5) was covered by Issue No. (4) and as such no separate finding was given upon it. Issue No. (6) was decided against the respondent and as a consequence of the decision given by the learned Trial Court on these issues the suit of the appellant was dismissed. 10. In appeal it has been urged before us that the appellant having been prosecuted on the basis of false allegations and having been discharged on account of non-existence of prima facie proof was entitled to claim damages at least to the extent of ₹ 6,150/- only. In The Law of Torts by Salmond, Fourteenth Edition (1965) at page 588, it has been stated as follow:-- In order that an action shall lie for malicious prosecution or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransfer. It was not made clear in the application that the consideration money had been paid to the Property Dealers as agents of the respondent. (g) The Estate Office, Chandigarh, did effect the transfer of the plot in favour of the appellant, who, in due course, apprised the respondent of this fact, and requested him to send the necessary documents, including the payment receipts. (h) The respondent of this stage treated the transfer as an accomplished fact and did not lodge any protest to the appellant as to how this transfer had been collected in his favour in the absence of any written authority given by him to Shri Ahuja, an employee of the Property Dealers. He merely requested the appellant to use his good offices with the Property Dealers and to make them send him the consideration money. (j) The Property Dealers, on being asked by the appellant, did send a cheque for ₹ 6,828/- to the respondent after deducting from the sale consideration their commission and the earnest money to the tune of ₹ 500/- already received by the respondent. (k) The respondent filed a criminal complaint against the appellant and Shri B. S. Dhillon, the partner of the said P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the contention advanced by the learned counsel for the respondent. A defendant in a suit for prosecution can escape liability only if he places true and correct information before the Police or a Magistrate having jurisdiction to take cognizance of the offence charged against the plaintiff. Where a defendant conceals the material facts or distorts them to an unreasonable extent, he cannot be allowed to urge that he was not the prosecutor. In Balbhaddar Singh v. Badri Sah, AIR 1926 PC 46, it was observed as follows:-- In any country where, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the word could not be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. And if that is done and trouble caused an action will lie. But it must be kept in view that, so far as the police were concerned, there was ample cause for the initiation of prosecution proceedings. 14. It has already been noticed that on some of the material points the respondent had made deliberate false averments in the complaint. In this view of the matter it canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution, the burden of proving that the proceedings were initiated without any reasonable and probable cause lies on the plaintiff who seeks damages. It is no doubt true that the acquittal of the plaintiff in the earlier proceedings may sometimes give rise to a presumption that there was no reasonable and probable cause for his prosecution, but this presumption is rebuttable. The defendant in such a suit has merely to prove that the facts and circumstances did exist which gave rise to a belief in his mind that the other party was guilty. These facts and circumstances do note have to be viewed or weighed as would be done by a Court of law, for otherwise in all those cases in which the prosecution fails the complainant or the prosecutor would become liable for damages. All the four conditions mentioned by Shri John Salmond must co-exist before a defendant in a suit for malicious prosecution can be burdened with liability. Again, in the case of such a transaction in which fraud is alleged the person defrauded remain in ignorance of all or some of the attendant circumstances of the case till a late stage. If a person could visualise or foresee what is going to happen in future, he would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence exists or not. The most important circumstances in this case were: firstly, that the property was transferred in favour of the appellant on the basis of an application which was neither signed by the respondent nor by his duly appointed attorney, and secondly that the appellant represented to the Estate Officer that the consideration money had been paid to the respondent. The appellant can also derive little benefit from the fact that when he informed the respondent about the completion of the transfer of the plot in his favour the respondent never raised any protest. The respondent was living at Asansol at the material time and probably he did not know anything about the other documents which were filed before the Estate Officer along with the affidavit sent by him for effecting the transfer of the plot. The existence of reasonable and probable cause has to be judged in relation to his state of mind at the time when he initiated the proceedings. 16. There is yet another way of looking at the case. So far as Shri B. S. Dhillon, a partner of the firm of the said property Dealers is concerned there cannot be any dispute that the respondent had been deceived by him. He was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... malicious prosecution. 18. The circumstance that the proceedings were instituted at Asansol instead of being instituted at Chandigarh also does not help the appellant. It is the admitted case of the parties that the negotiations regarding the sale of the plot were made with the respondent while he was posted at Asansol. The cheque in respect of the sale price was also sent to him and was dishonoured at Asansol. In K. Satwant Singh v. State of Punjab, AIR 1960 SC 266, it was held that whereas the misrepresentation by the accused was at Simla and the consequence was at Lahore as the Government of Burma was induced by the misrepresentation to deliver property at Lahore, the offence of cheating by the accused could have been tried either at Lahore or at Simla. In Narain Das v. Prem Chand, (1931) 132 Ind Cas 864 (Lah), 'A' owed 'B' a certain sum of money. He sent a letter insured for ₹ 400/- to 'B' through the Post Office addressed to a place in the Gujarat District intending to use the receipt given to the Post Office by 'B' as proof to discharge of the debt. 'A' filed a complaint against 'B' in the Court of a Magistrate at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priate purpose. It means an improper or indirect motive other than a desire to indicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill-will; it may 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 an 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 initiator of a malicious prosecution. 21. Absence of reasonable and probable cause may sometimes entitle the Court to draw an inference of malice but where the prosecution is found to be based on a reasonable belief no inference whatsoever of malice can be drawn against the prosecutor. In short, the circumstances of this case show t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
