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Kesho Parshad vs Ram Kishen Das

High Court Of Judicature at Allahabad|24 October, 1912


1. This appeal arises out of a suit in which the plaintiff claimed damages for malicious prosecution. It appears that some time in November 1908, the defendant, who deals in sugar at a place called Lukhiserai, sent & consignment of sugar to one Madho Ram at Agra. Madho Ram did not pay him for the sugar, and the defendant came to Agra, and finding the sugar in the shop belonging to the plaintiff's firm, he lodged a complaint against the plaintiff and Madho Ram alleging that he had been cheated by them. Madho Ram and the plaintiff were subsequently arrested on the charge made by the defendant and tried. After a somewhat protracted trial, they were both acquitted, the Court holding that, so far as the plaintiff was concerned, there was no case against him at all and that he had acted perfectly bona fide, and that, so far as Madho Ram was concerned, the matter was of a civil nature.
2. The account given by the plaintiff of the transaction, stated as shortly as possible, is as follows. He says that he had nothing whatever to do with the purchase of the sugar but that the sugar having been purchased by Madho Ram, the plaintiff, in the ordinary course of his business, took over consignment note, advanced money on the sugar and sold it in the ordinary course of his business in the shop. He admits that the defendant came to Agra to inquire about the sugar and the payment of its price; that he gave the defendant all the information that he could and that he showed him his books, told him the amount he had advanced to Madho Ram, and offered, if the defendant would give him a written order, not to pay any more money in respect of the sugar to Madho Ram.
3. The story told by the defendant differs very substantially. He alleges that the sugar was purchased verbally not by Madho Ram alone but by the plaintiff also who came to Lakhiserai with Madho Ram and ordered the sugar; that he understood that he was selling the sugar to these two persons; that when he came to Agra and searched in vain for the shop of Madho Ram, he discovered from the Railway authorities that delivery had been made to the firm of which the plaintiff Kesho Parshad is proprietor; that he went to the, shop, saw Kesho Parshad and Madho Ram, who at once made themselves scarce; that one Murlidhar, father of the plaintiff, pretended to know nothing about the sugar and ordered him out of the shop; that thereupon he returned to Lakhiserai and, after about a week's interval, lodged a complaint. He contends that, under these circumstances, he had reasonable and probable cause to institute the criminal complaint against Kesho Parshad and Madho Ram.
4. The learned Subordinate Judge seems to have been of opinion that the defendant had a reasonable and probable cause for lodging the complaint or, at any rate, that the plaintiff has not proved the absence of such reasonable and probable cause. He has apparently accepted the statement made by the defendant and believed that Kesho Parshad really dill accompany Madho Ram to Lakhiserai and that he, in fact, ordered the sugar.
5. We are quite unable to agree with the learned Subordinate Judge. Certain letters were produced both in the criminal case and also in the present suit which, to our mind, demonstrate that the order for the sugar was not a verbal order at all but an order given in writing by Madho Ram. The defendant admitted a letter which was obviously written before the sugar was ordered. This was a letter in which the defendant points out that he has ascertained that Madho Ram was in the habit of purchasing sugar at Lakhiserai and he asks that if more sugar is wanted, it may be purchased from him. Another letter, which the plaintiff does not admit to be in his hand-writing but which he has not the hardihood to suggest did not issue from his firm, admits the receipt of a letter ordering the very consignment out of which the criminal charge which he made arose. This letter clearly shows that the order for the sugar was a written order contained in the letter which he admits having received. It, therefore, appears that the defendant made a deliberate mis-statement when he stated that Kesho Parshad came and gave a verbal order for the sugar. This is a matter of very great importance. In the first place, if Kesho Parshad never ordered the sugar from the defendant, it takes away in a very great measure the reasonable and probable cause that the defendant alleges he had for making the complaint. The matter is also important when we come to consider whom we ought to believe in the conflict in the evidence between the plaintiff and the defendant. If we find that the defendant has told a deliberate falsehood in one matter, it is a just ground for doubting his evidence in other respects where it conflicts with the evidence of the plaintiff. We have already mentioned the account that Kesho Prashad gave of the visit of the defendant to Agra when he was inquiring about his sugar. He admits that the defendant came to his shop and he has told us what he said to the defendant and what the defendant said to him. The defendant never contradicted this part of his evidence. It is alleged that there was an implied contradiction in the allegation of the defendant that Kesho Parshad made himself scarce as soon as he arrived in Agra. We cannot look upon this as by any means a satisfactory answer to the detailed statement of the plaintiff. The inferences to be drawn from certain admitted facts are also strongly in favour of the truth of the plaintiff's story. For example, the demand for the price of the sugar was made to Madho Ram and not to Kesho Parshad. Furthermore, we think that had the defendant come to Agra and been convinced, as he alleges, that he had been swindled by Kesho Pershad and Madho Ram, he would in all probability have gone to the Police in Agra and not waited a whole week before making a complaint in the Court at Monghyr. He admits in his deposition that he made no complaint to the Police at Agra. In our opinion, the plaintiff's evidence is entitled to far more credit than the evidence of the defendant. In addition to this, as already stated, the facts themselves render the story of the plaintiff much more probable.
6. The result is that we accept the plaintiff's story, namely, that the charge was made by the defendant without any ground whatever except the mere fact that the property when discovered by the defendant was in his (plaintiff's) charge. In our opinion, this fact, would, in no way, constitute reasonable and probable cause so as to justify the defendant in making the serious charge that he did against an apparently respectable merchant. We think, therefore, that the plaintiff ought to have had a decree; and it only remains to consider what damage should be awarded to him. Here, again, his statements go almost uncontradicted. He swears that he paid Rs. 1,135 to Pleaders to defend the suit. He gives his Railway fare to the place of trial (Monghyr) and back for self and witnesses as amounting to Rs. 475. It appears that he had to go to Monghyr on many occasions. He gives his expenses at Monghyr and on the way at Rs. 500. He further claims Rs. 2,000 for bodily and mental pain and Rs. 1,000 for loss of business. These last two items are somewhat vague but it is clear that there must have been some loss in respect of business and the plaintiff must also have suffered a considerable amount of worry and trouble. Taking all circumstances into consideration, we have decided to award him a lump sum of Rs. 3,500 (three thousand and five hundred rupees) to cover all claims in respect of the present suit. We accordingly set aside the decree of the Court below and make a decree in plaintiff's favour for the sum of Rs. 3,500 with full costs in both Courts including in this Court fees on the higher scale.
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Kesho Parshad vs Ram Kishen Das


High Court Of Judicature at Allahabad

24 October, 1912
  • H Richards
  • Banerji