AKBAR J.—Sundaram o. Kanakapulle.
1991Present: Akbar J.
SUNDABAM v. KANAKAPULLE.
105—C. R. Panwila, 7,548.
Malicious prosecution—Pefendant charged with giving false information—Plea of guilt—Not conclusive on the issue of malice.
In an action to recover damages for malicious prosecution, the fact thatthe defendant had pleaded guilty, in a prosecution under sections 180and 208 of the Penal Code, in respect of the original charge preferred byhim, is not conclusive on the issue whether such charge was false andmalicious.
^^PPEAL from a judgment of the Commissioner of Bequests, Panwila.
E. Navaratnam, for defendant, appellant.
S. L. P. Abeysekere, for plaintiff, respondent.
October 30, 1931. Akbar J.—
This is an action for malicious prosecution. Two issues were framed,namely:—
Did defendant act falsely and maliciously in charging the plaintiff
and others with assault and robbery in P. C., Panwila,No. 16,735?
At the beginning of the trial the learned Judge recorded certainadmissions by both parties, one being that the defendant charged theplaintiff and others in the case above mentioned with assault and robberyand that the plaintiff and others were acquitted; the second admissionbeing that the defendant was in turn charged by the Police under sections180 and 208 of .the Penal Code and that he pleaded guilty as his witnessesdid not support him and that he was sentenced to imprisonment till therising of the Court and that further the defendant was also charged inconnection with the same transactions with using abusive words os aprevious day and that he was convicted and fined on this charge.Further, it appears that there are four other cases pending against thedefendant for damages in connection with the P. C-, Panwila, No. 16,735,'and that these four cases have been set aside to be decided on the result
AKBAR J.—Sundaram «. Kanakapulle.
in thic case. In my opinion this case should go back for a retrialbefore another Judge, not only on the two issues framed in thiscase but also on a further issue whether the defendant actedwithout reasonable and probable cause in instituting P. C., Panwila,No. 16,735. I say that this case should be retried for the followingreasons. After the framing of the issues the learned Commissioneron the authority of Ratnayake v. Fonseka1 held that the fact that thedefendant had pleaded guilty when he was charged under sections180 and 208 C. P. C. was conclusive on the 1st issue, namely, that thedefendant Jsad acted falsely and maliciously in charging the plaintiff inP. O.. Panwila, 16,735, and he allowed evidence to be led only on thequantum of damages. In fact, before the defendant gave evidence, hemade it quite clear that he would not permit any question on the meritsof .the previous P. C. cases and that the defendant could only giveevidence- in mitigation of damages. So that the first issue was decidedagainst the defendant because he had pleaded guilty under sections 180and 208 of the Penal Code and he was debarred from leading anyevidence on that issue to rebut malice. In spite of the Judge disallowingquestions with regard to the P. C. cases he imported his own knowledgeof the cases in his judgment, because it appears that the learned Judgehimself decided the three Police Court cases referred to by me above.It has been held in the case of Patterson v. Samudiri 2 by the SupremeCourt that depositions in the Police Court cases could be admitted in theirentirety only by consent of parties and that, under no circumstancecould the reasons for the acquittal or discharge of the accused be regardedas relevant or admissible in the subsequent action for malicious prosecu-tion. The Supreme Court referred to section 154 of the Civil ProcedureCode and the judgment proceeded as follows:—“ The entire body of theproceedings before the Police Court was in my opinion wrongly admittedin evidence and it must have influenced the Judge’s decision on the facts.
It may be necessary to read in evidence the formal order of acquittatlif the defendant denies the plaintiff was acquitted. In the present caseeven that was unnecessary as the defendant admitted in his answer thatplaintiff had been acquitted by the Police Magistrate. ” According tothese remarks, it was deemed undesirable that a trial Judge in an actionfor malicious prosecution should even look at the reasons for the acquittedor discharge in the criminal proceedings, because such reasons mighttend to prejudice the Judge’s mind against the defendant. It will beobvious therefore that when a trial Judge in a malicious prosecution casehappens to be the very Judge who tried not only the criminal case whichled to the action for malicious prosecution but also two other cases, goingto the. root of the issues to be tried, the prejudice to the defendant musthave been incalculable. The following extract will show the extentof the prejudice:—“ According to my recollection, the defendant, instating in his answer that his witnesses did not support him, has endea-voured -to camouflage the true state of affiairs, this part of his pleadingsis, to put it mildly, a veiy gross under-statement of the truth. Notmerely did his witnesses not support him, they gave him the lie direct',flatly contradicting biin in various material points, with- the result that'29N.L.R. p. 397.‘ 8 L. R.p. 32.
AKBAB J.—Sundaram v. Kanakapulle.
his then legal adviser deeided to lead no further evidence, and all theaccused were acquitted and the case held not to be true
” Further, in the counter-case, for using obscene words arising out- of thesame incident—which case was fought out to the bitter end by this defend-ant as accused—another person was charged and pleaded “ guilty.” anddefendant, who pleaded not guilty ” and gave evidence on his own behalf(and, I believe, called two witnesses) was disbelieved and convicted.Defendant was subsequently charged by the Poli'ce in P. C.. Panwila,case No. 16,843, under sections 180 and 208 C. P. C., neither in that casenor in the case on the charge of using obscene words did he take anyobjection to the case being heard by me.” Justice must not only be donein a case but it must seem to have been done.
As regards the case reported in 29 N. L. R., p. 397, on which theJudge ruled that the defendant could not lead evidence in his favouron the first issue, I do not think that case has any application becausethat case was not an action for malicious prosecution as usually under-stood. There the plaintiff was a convicted criminal, who asserted andtried to prove, in an action for damages that his conviction was obtained■by fraud and collusion and the Supreme Court gave effect to the Englishprinciple of law that such an action could not be brought so long as theconviction stood unreversed. This case is quite a different one. This•is an action for malicious prosecution where the plai'ntiff was acquittedand he cannot succeed unless he proves malice (see the case of Corea v.Pieri&y In the case of Pedris v. The Manufacturers Life Insurance Co.,Ltd.2, it was held by the Supreme Court .that a conviction was only primafacie evidence of guilt. It is true that, according to the judgment of the2U N. L. B. case, in the special circumstances of that case, namely, wherethe plajntiff is a convicted criminal and is seeking to recover damages,on the ground that his conviction was wrongly obtained, the Courtupheld the principle that, in such a case, a conviction was conclusiveproof of guilt; but this exceptional principle cannot be applied in thecircumstance of this case to close the mouth of the defendant, especiallywhen his plea of guilty appears to have been a qualified plea. The principleenunciated ?n the 19 N. L. R. case should, I think, be followed here.Further, in an action for malicious prosecution it is incumbent on theplaintiff to prove malice on the part of the defendant in instituting thecriminal proceedings against him. The fact that the defendant pleadedguilty when he was charged under sections 180 and 208 of the Penal Codeis, no doubt, an element against- him, but it is still open to him to provethat he had no malicious intent in instituting the criminal case againstthe plaintiff. As a matter of fact, on the admission recorded in this casethe defendant pleaded guilty under sections 180 and 208 because hiswitnesses would not support him. I think that the judgment in thiscase should be set aside and the case sent back for a retrial before anotherJudge on the three issues I have indicated. The appellant is entitledto the costs of this appeal, but the costs incurred so far in the lower Courtwill abide the result of the retrial.
1 9 N. L. R. p. 276.
19 N. L. R. p. 321.
SUNDARAM v. KANAKAPULLE