Ghouse and Samsudeen.
1944Present: Howard C.J. and Keuneman J.GHOUSE, Appellant, and SAMSUDEEN, Respondent.
38—D. G. Colombo, 14,125.
Malicious prosecution—Defendant gives informationto Police—Policetake the
initiative in charging the plaintiff—No cause of action against defendant.
Where,in anactionfor maliciousprosecution itisproved that the
defendantmerelystatedcertain factsto the Policeinthe form of a
complaint and that the Police acted on their own responsibility and tookthe initiative in charging the plaintiff,—
Held, that the defendant had not instituted the prosecution and thatthe plaintiff had no cause of action against him.
PPEAL from a judgment of the District Judge of Colombo.
H. V. Perera, K.C. (with him H. W. Thambiah), for the defendant,appellant.
N. E. Weerasooria, K. C. (with him E. G. Wichremenayalce), for theplaintiff, respondent.
Cur. adv. vult.
1 4 N. L. JR. 328 at 333. J14—S.'S. A 93349 (11/49)
2 1 S. C. C. 9.
* 16 N. L. R. 321.
HOWARD C-J-—Ghouse and Sainsudeen.
July 27, 1944. Howard C.J.—
In this case the defendant appeals from the decision of the DistrictJudge awarding the plaintiff by way of damages a sum of Rs. 765 forcausing the plaintiff to be arrested, detained and prosecuted maliciouslyand without reasonable and probable cause. In eoming to this decisionthe learned Judge held that (1) the defendant set the law in motionleading to the arrest and prosecution of the plaintiff, (2) the plaintiffis innocent of the charge for which he was arrested and prosecuted,
there was a want of reasonable and probable cause, ~(4) the proceedingswere instituted in a malicious spirit.i*-
In Corea v. Peiris 1 it was held by Laseelles A.C.J. that the'1 law inCeylon with regard to action for malicious prosecution is the same asthat in force in England. When Corea v. Pieris came before TheirLordships of the Privy Council (12 N. L. B. 147) Lord Atkinson, at page148, accepted the conclusion arrived at by the Supreme Court that theprinciples of the Roman-Dutch Law on the essentials for an action formalicious prosecution are practically identical with the principles ofEnglish law. This conclusion has always been followed by the SupremeCourt of Ceylon. One of the leading English cases on actions for maliciousprosecution is Abrath v. The North-Eastern Railway Company2. In hisjudgment at page 455 Bowen L.J. stated that the burden of proofimposed on a plaintiff in such an action was as follows: —
“ This action is for malicious prosecution, and in an action formalicious prosecution the plaintiff has to prove, first, that he wasinnocent and that his innocence was pronounced by the tribunal-before which the accusation was made; secondly, that there was awant of reasonable and probable cause for the prosecution, or, as itmay be otherwise stated, that the circumstances of the ease were suchas to be in the eyes of the Judge inconsistent with the existence ofreasonable and probable cause; and, lastly, that the proceedingsof which he complains were initiated in a malicious spirit, that is,from an indirect and improper motive, and not in furtherance ofjustice. All those three propositions the plaintiff has to make out,and if any step is necessary to make out any one of those three pro-positions, the burden of making good that step rests upon the plaintiff.”This dictum of Bowen L.J. was followed in Ramen Ghettiar v. Punchi-appuhamy3 where it was held that in an action for malicious prosecutionthe plaintiff is not bound to prove his innocence or the falsity of thecharge apart from proving the termination of criminal proceedings in hisfavour. Mr. Perera has argued that, though the plaintiff was acquittedby a competent Court, yet he was in fact guilty, such guilt being a neces-sary inference from his action and statement to the Police. He was,however, – acquitted by the Court and is entitled to the full benefit of suchacquittal. I am of opinion, therefore, that the learned Judge was correctso far as this conclusion was concerned.
The question as to whether the learned Judge came to a correct con-clusion with regard to his other findings is not an easy one to decide.
1 9 N. L. R. 276.2 H Q- B. D 440.
3 40 N. L. R. 118.
HOWAJRD C.J.—Ghouse and Samsudeen.
We cannot lose sight of the fact that the learned Judge had the oppor-tunity of seeing the witnesses called by the plaintiff .and adjudicating upontheir . credibility after studying their demeanour in the witness box.In this connection it also has to be borne in mind that the defendantdid not go into the witness box and state on oath the source of his in-formation, his belief in such information and that he had no indirectmotive when he made his complaint (P 3) to the Police on IVIay 12, 1942.In these circumstances we should hesitate before we come to the con-clusion that the learned Judge’s findings of fact are incorrect. Theburden of satisfying the Court that there was a want of reasonable carelies u^oq the plaintiff because the proof of that want of reasonable -careis a necessary part of the larger question, of which the burden of prooflies upon him, namely, that there was a want of-reasonable and probablecause to institute the prosecution. The burden also of proving that thedefendant had not taken reasonable care to inform himself of the truefacts of the case lay on the plaintiff. It is conceded by both sides thatthe proceeds of the two cheques drawn on the Chartered Bank of Indiaby the defendant in favour of the plaintiff on May 4, 1942, were to beemployed so far as Rs. 2,000 were concerned as a deposit with the Munici-pal Authorities and the remaining Rs. 1,000 for expenses in re-openingthe Pilawoos Hotel. It is not denied by the plaintiff that on May 12,1942, the two cheques had been cashed and no deposit had been madewith the Municipal Authorities. It was in these circumstances that thedefendant made his complaint to the Police. In holding that the plaintiffhas proved the absence of reasonable and probable cause, the learnedJudge says in his judgment that the defendant in his statement to thePolice, has made an incorrect statement when he says he had not beenable to see the plaintiff up to the date on which he complained to thePolice. The learned Judge comes to this conclusion because the evidenceof the plaintiff that the defendant came to see him on May 11, 1942,at 6 p.m. is supported by the witness Bhari. IB' xlso draws to inferencethat the defendant did pay this visit because of tne evidence of Mohideenwho says that he conveyed certain information to the defendant about5 or 5.30 p.m. and such information, according to the learned Judge,would cause him to go to the plaintiff. With regard to the evidenceof the plaintiff and Bhari on this point, the learned Judge has not ad-dressed his mind to the question as to whether such evidence can beaccepted. Having regard to the statement made by the plaintiff to thePolice, any evidence tendered by him could only be received with the"reatest hesitation. The learned Judge seems also to have been un-mindful of a very grave discrepancy between the evidence of the plaintiffas given in Court with regard to this alleged visit of the defendant onthe 11th and the statement he made to the Police. To the Police he saidthat about 6 p.m. he saw the defendant at his (the defendant’s) houseand informed him of what had happened to the money and told himhe would repay him the money due on the pro'-note and the defendantsaid “When are you going to repay the money?’’ and he and not plaintiffwent away. To the Court he said as follows: —
On May 11th at about 6 p.m. the defendant ca^-a to my house.
I was talking to Bhari at the time. He came and asked me if I had
HOWARD C.J.—Chouse and Samsudeen.
received a reply. I told him not yet. Then he said that God hadsaved him, that Mukthar had come to know about this business,that in the deed of partnership between Mukthar and himself there wasa clause that if Ghouse joined as partner in any other business, Muktharcan claim damages. He asked me to drop it and asked me to returnthe money. I said its. 1,000 had already been spent and the balancewas with me, that is Us. 2,000. He demanded the Us. 2,000 and Iasked bim for the note. He said the note was in the shop that he hadnot brought it and that I could trust him and give him the money.
I told him as he could not trust me he took the note for its. fj 000and gave me Its. 3,000 and I said give me a receipt acknowledgingreceipt of the Its. 5,000.
With regard to the its. 1,000 he asked me to give it later and I saidthat at his request all these expenses had been incurred and thattherefore I could not return a cent of that money. Then he suggestedthat I should bear Us. 500 and he Its. 500. I did not agree to thatalso. Then he got angry and when I asked for the receipt he wentaway saying I will teach you a lesson.”
In view of this discrepancy I do not think that the learned Judge wasright in accepting the evidence of the plaintiff on the point even thoughBhari testifies to the fact that the defendant visited the plaintiff’s houseabout 6 p.m. on the 11th. Nor do I consider that it was a necessaryinference that the defendant would seek out the plaintiff on receivinginformation from Mohideen. Nor has it been established that thedefendant made no effort to find the plaintiff before making his complaintto the Police. If the defendant had made inquiries of Mr. Kannangaraand Mr. Sherrard, he would still have been in the position of knowingthat his cheques had been cashed and no deposit had been made. Inthese circumstances can it be said that the plaintiff has discharged theburden imposed upon him of proving that the defendant had not takenreasonable care to inform himself of the true facts of the case? Can it besaid that the defendant in going to the Police and stating what he didhas not conducted himself as a reasonable man of ordinary prudence?
I do not think it can. The Judge’s conclusion on this finding cannot,in my opinion, be supported. The question of malice does not, therefore,arise.
Although my finding on the question of reasonable and probablecause is sufficient to decide this appeal, I think it is questionable as towhether in this case it can be said that the plaintiff has proved that thedefendant instituted the prosecution agains.t him. In Saravanamuttu v.Kanagasabai1 it was held that there must be something more than themere giving of information to the Police or other authority who institutedthe prosecution. There must be the formulation of a charge or somethingin the way of solicitation, request or incitement of proceedings. It istrue that the defendant stated certain facts to the Police in the form of acomplaint. The heading to this complaint ‘’Cheating in respect of cashRs. 3,000” must be regarded as the handiwork of the Police and not ofthe defendant. So must P 4, the report made by Inspector Pakeerto the Magistrate. The Inspector in his evidence takes full responsibility
i 43 N. L. R. 357.
KEUNBMAJN T.—Nagaraja and Kana-pathipillai.
for going to the Magistrate and says that he acted on his own initiative.It is said that by lending his car and going in it "he showed an undueinterest in the matter and th&t his actions amounted to more than themere giving of information. I do not think it has been establishedthat he instituted the proceedings.
For the reasons I have given the judgment of the learned Judge isset aside and judgment must be entered dismissing the plaintiff’s claimtogether with costs in this Court and the Court below.
JKerkeman J.—I agree.
GHOUSE, Appellant, and SAMSUDEEN, Respondent