SELVATHURAI v. SOMASUNDERAM

081-NLR-NLR-V-31-SELVATHURAI-v.-SOMASUNDERAM.pdf


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1029
Present: Fisher C.J. and Drieberg J.
SELVATHURAI v. SOMASUNDERAM.
116—D. C. Trincomalee, 1,284.
Malicious prosecution—Reasonable and probable cauuse—Mere honestbelief in facts of charge—No basis for criminal charge—Malice.
In an action to recover damages for malicious prosecution, amere honest belief on the part of the defendant in certain facts,which afford no basis for a criminal charge, coupled with thelaying of a charge, cannot be regarded as reasonable and probablecause for making the charge.
Where, despite the dismissal of the charge by the Magistrate,the defendant endeavoured to reopen proceedings by petitioningthe Attorney-General,—
Held, that persistance in the charge amounted to malice on thepart of the defendant.
T
HIS was all action to reco-er damages from the defendant forhaving falsely and maliciously charged the plaintiff in the
Police Court of Trincomalee with the offence of cheating. Thecircumstances under which the charge was laid are set out in thejudgment. The learned District Judge held that there' was reasonableand probable cause for instituting the charge and dismissed theplaintiff’s action.
R. L. Pereira, K.C. (with Subramaniam), for plaintiff, appellant.—The facts proved do not disclose the offence of cheating. Themere honest belief on the part of the complainant that the accused hascommitted the offence is insufficient when the essential elements ofthe offence are not disclosed (Nathan, vol. 111. para. 1646). Attemptto recover money by threat of criminal prosecution when there wasonly a civil remedy is malice (3 Nathan, para. 1645).Persistence ina charge after a competent trial had acquitted amounts to malice(3 Nathan, para. 1650).
H. V. Per era (with Rajakariar), for defendant, respondent.—Thequestion is whether the defendant has acted bona fide. The evidenceleaves no doubt as to that. If he acted bona fide then the action
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cannot be maintained. The defendant has altered his position to hisprejudice in parting with the cheque for Rs. 1,000. There is noevidence of malice at all. The defendant honestly thought thathe had been cheated.
October 14, 1929. Fisher C.-J.—
This action was brought by the plaintiff to recover damagesfrom the defendant for having on November 2, 1927, falsely andmaliciously and without any reasonable and probable cause broughta charge of cheating against him under section 400 of the. CeylonPenal Code. The defendant, in his statement to the Magistrate,when applying for process after discribing himself as a moneylender, said: “ The accused owes me about Rs. 2,000 for whichhe gave me a cheque on August 24, 1927, drawn on the CharteredBank. I sent the cheque to be cashed. It was returned dis-honoured. I informed the accused that the cheque had beendishonoured and returned. He has not paid the amount yet.He has cheated me. I produce the cheque.'* The charge formu-lated against the accused was:" That you did at Trincomalee,
within the jurisdiction of this Court, on or about August 24, 1927,issue the cheque marked A for Rs. 2,000 in favour of a certainY. K. Somasunderam or order, promising and undertaking todeposit the amount mentioned therein, on September 23, 1927whereas you have not done so either on that day or subsequently,and thereby you have fradulently and dishonestly cheated thesaid Somasunderam and that you have thereby committed anoffence punishable under section 400 of the Ceylon Penal Code."
The offence of cheating is defined by section 398 of the CeylonPenal Code as follows:“Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so deceived to deliverany property to any person, or to consent that any person shallretain any property, or intentionally induces the person so deceivedto do or omit to do anything which he would not do or omit if hewere not so deceived, and which act or omission causes or is likelyto cause damage or harm to that person in body, mind, reputation,or property, or damage or loss to the Government, is said to* cheat/ " and section 400 provides that “ whoever cheets shall bepunished with imprisonment …. for a term which mayextend to one year, or with fine, or with both."
The plaintiff proved that he was acquitted on the charge madeagainst him, thereby complying with the first requirement in anaction for malicious prosecution. He had to prove further, inas-much .as there is a presumption that the prosecution was dulyinstituted, (1) that the defendant had no reasonable and probablecause for instituting criminal proceedings,, and (2) – that he wasactuated by malice in so doing. With regard to (1), the date on
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Sclcathuraiv. Somasun-deram
( 298 )
1929
1'isiuai C!.J.
Selvathurai
Somtuvn-
'hram
which the offence is alleged to have been committed is August 24,1927, and in considering whether the plaintiff discharged the onuswhich lay upon him, we have, in my opinion, to concentrate ourattention mainly on what took place, and on what was- in thedefendant’s mind on that day. The events leading up to theinterview which took place on August 24 are as follows: Thedefendant had purchased at a sale under a mortgage decree (actionNo. 1,176) an undivided share in certain property which was thesubject matter of a partition suit in which the appellant wasplaintiff. An order for sale was made in the partition suit and onJuly 9, 1927, the property was put up for sale. The respondentattended the sale and- his account of what happened is as follows:
“ I was present when- the second land was sold. Objection wasraised when I wanted to bid. I showed D 1 (order confirming.the sale in 1,176). I asked the Piscal’s officer to stay the sale.Plaintiff and others talked together and then spoke to me. They■said plaintiff would guarantee payment under writ in 1,176.Plaintiff also said that he would pay that amount. Canagasaba-pathy (the defendant in 1,176) is plaintiff’s brother-in-law.Plaintiff agreed to pay for his brother-in-law. I agreed to this.I was asked not to bid or to obstruct the sale. I agreed. Whenmy bid was objected to I asked the other co-owners to keep up theprice. Plaintiff wanted to buy the property. Plaintiff made nocondition about the payment. I was asked to recover from plaintiffthe sum due to my father under 1,176. He gave me the moneyin two cheques, Rs. 1,000 and Rs. 300. The Rs. 300 to be paid aweek later, the Rs. 1,000 in siy weeks’ time. He asked nothingelse. No reference was made to case No. 1,211. I gave a receiptfor the money due on 1,176 after I received the cheques. Icashed the Rs. 300 cheque. Rs. 1,000 was due on August 27.At no time did I make any promise not to proceed in case 1,211.I did not promise not to issue writ. My father had moved forwrit in 1,211 before these cheques were issued.” The action 1,211was an action by the defendant’s father against the plaintiff andhis wife on a promissory note dated August 3, 1925, in which decreefor the principal Rs. 7,000 and interest had been entered in 1927."Both the plaintiff and Mr. Rajaratnam differ from the defendant•as to the conditions under which the cheques for Rs. 1,000 and. Rs. 300 were given and the learned Judge accepted their version•of what took place, but in the view I take of this case I do notthink it is necessary to pursue this matter.
What .took place on August 24 is related in the evidence of theplaintiff, Mr. Rajaratnam, and the defendant.
The plaintiff’s account is as follows: “ I went to Mr. Rajaratnam.Defendant was there. I talked to him. He said his father hadtold him to get Rs. 1,000 on the pro-note decree. He never asked
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me for that before. I agreed, after a talk, to give a cheque forRs. 2,000 and be met on September 28. Rs. 1,000 was for thecheque already in his possession, which he was to return, and thesecond Rs. 1,000 was for the pro-note decree.*'
Mr. Rajarafcnam's account is as follows: “He (plaintiff) cameand met defendant in my office. There was an arrangement about•a Rs. 2,000 cheque. This was to include the previous Rs. 1,000cheque, and the other Rs. 1,000 was to be payment on the decree.The cheque was to be presented about a month later. Plaintiffmade promises of further payments, he requested'to have furthertime. Defendant may have given the impression that he wouldnot press the decree. This would be justified. I advised plaintiffto raise money to pay. ’ *
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Fisher C.J.
SSelvathuraiv. SomaAun-deram
The defendant's account is as follows: “Plaintiff saw me afterI cashed the Rs. 300 at Mr. Rajaratnam's office on August 24, 1927.He asked me not to send the Rs. 1,000 cheque as he had no money-He asked me to wait and he would give me Rs. 2,000 cheque inpayment in addition of money due on 1,211. Mr. Rajaratnamalso asked me to wait. There was no talk of giving time for settle-ment in 1,211. The Rs. 2,000 cheque was to be presented onSeptember 23, 1927," and in cross-examination he said: “OnAugust 24 the Rs. 2,000 arrangement was made in Mr. Rajaratnam'spresence. Until then I did not know that the. Rs. 1,000 wouldnot be met. Mr. Rajaratnam did not tell me plaintiff was annoyed.In the Rs. 2,000, Rs. 1,000 is included as part of 1,211. Thischeque was not to be paid for a month …. Plaintiffmay have thought that I would not go on with execution in 1,211in view of Rs. 1,000 in the Rs. 2,000 cheque.’’
It was suggested in argument that in returning the Rs. 1,000*cheque the defendant altered his position to his own detriment,and that that constituted the necessary element in the offence * ofcheating referred to in the latter part of section 398. But in view"of the defendant’s statement in his evidence that he was expresslytold by the plaintiff that he was unable to meet the Rs. 1,000 chequethat suggestion need not further be considered. It is possible…though hardly likely, that the defendant thought that mere failure-to meet the cheque on the due date constituted cheating. Butthat in itself does not constitute cheating within the meaning ofsection 398, and, even if the defendant honestly believed thatit did, that would not affect the question we are consideringfor as stated in Nathan (vol. III., ch. P., section 1646): ** Themere honest belief in certain facts which afford' no basis what-ever for a criminal charge, coupled with the laying of sucha charge, will not be regarded as reasonable conduct on thedefendant’s part."
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1929
Kibkeh C.J.
• Selvath uraiv. tiomavun-ficram
The evidence of what took place at the interview on August 24shows that $he defendant, who was full}7 aware of the plaintiff'sfinancial position on that day and of his obligations under thedecree in case 1,176 and in respect of his purchase at the sale onJuly 9, gave further time to the plaintiff for paying the Rs. 1,000,in consideration of his agreeing to pay in addition Rs. 1,000 or.account of his debt to the defendant's father in 1,211. There wasno statement by the plaintiff as to his solvency, there was merelythe agreement to pay, while, according to the defendant's ownstory, there was no alteration to his prejudice of his own posi-tion. Nothingtherefore happenedonAugust 24which justified
the defendant in thinking that the plaintiff had committedthe offence of cheating on that day, and his statement to theMagistrate indicates that the failure to pay the amount of theRs. 2,000 cheque was the only thing which operated on hismind in bringing the charge. The evidence therefore in myopinion proves that the' defendant acted without reasonable andprobable cause.
With regard to the question of malice, I think there is evidenceof malice in this case. In applying to the Magistrate for process,the immediate issue of a warrant was pressed for without anyapparent justification. It is also in evidence that notwithstandingthe dismissalof the charge bytheMagistrate the defendant
continued hisendeavours to institute criminalproceedings by
petitioning the Attorney-General to direct the Magistrate to holdan inquiry. In stating the offence in the petition he says: " Hegranted a cheque for Rs. 2,000 which was dishonoured." He alsosuggests that the Magistrate discharged the accused without anyinquiry. Thiswas not the case.Indismissingthe charge the
learned Magistrate said: " After hearing the complainant I findthat the accused cannot be charged for cheating. It appears thatthere have been several transactions between the parties, that oneof civil nature. The cheque on the face of which was to be presentedon September 23, 1927. There is nothing before the Court thatthe cheque was presented on that day. I was under the impressionon the day I allowed process that for money actually lent by thecomplainant to the accused that this cheque was issued. Nowit does not appear so. I refer the complainant to the Civil Court.The cheque is returned, and the accused is discharged." I thinkalso, in view of P 12, that the defendant was using criminal processwith an indirect motive, namely, to bring pressure on the plaintiffto pay his debt. The direct responsibility of the defendant for theinsertion of the account of the proceedings in the newspaper hasnot been proved, and, however material it may be in regard to thequestion of damages, with which we are not now concerned, it isnot material on the question of malice.
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In the result, in my opinion, the learned Judge should havefound for the plaintiff on the issues as to want of reasonable andprobable cause and malice- The appeal is allowed, and the actionwill be remitted for the purpose of determining the amount ofdamages which the defendant ought to pay. The costs of the trialin the District Court will be left to be determined by the Judgewhen he deals with the question of damages. The plaintiff isentitled to the costs of this appeal in any event.
Diueberg J.—I agree.
Appeal allowed.
♦
1929
Fisher C. J.
Setvafhuraiv. Somasun-deram