Roll No 12IP60047

IN THE HIGH COURT OF ORISSA

APPEAL NO. ______/12 UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE

ANTARAJAMI SHARMA (APPELLANT)

V.

PADMA BEWA AND ORS. (RESPONDENTS)

MEMORIAL FOR THE RESPONDENTS 2012

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TABLE OF CONTENTS
Table of Contents................................................................................................... ii List of Abbreviations..............................................................................................iii Index of Authorities...............................................................................................iv Statement of Jurisdiction.......................................................................................vi Statement of Facts...............................................................................................vii Issues Raised.........................................................................................................ix Summary of Arguments.........................................................................................1 Pleadings Advanced...............................................................................................2 Whether the presumption of malice could be extended to respondent no.2 who is not an eye witness and not a prosecutor ........................................................2 Whether the presumption of malice could be extended to respondent no.3 who is not an eye witness and not a prosecutor.........................................................5 Whether the appellant is entitled to the quantum of the claim from respondent no.2 & respondent no.3.......................................................................................6 Prayer for Relief.....................................................................................................7

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LIST OF ABBREVIATIONS S.NO. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. ABBREVIATION AIR App cas Anrs. AC All. BING Cri.L.J. Co. CWR I.L.R. Ltd. MADLW M.P. ORS. Pvt. P.C. PW1 EXPANSION Paragraph Number All India Reporter Appeal cases Anothers Law reports ,Appeal cases (Third series),England & wales. Allahabad Bingham's Common Pleas Reports Criminal law journal Company Ceylon weekly report Indian Law Reports Limited Madras law weekly Madhya Pradesh others Private Privy Council Prosecution Witness no. 1

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19. 20.

Raj QBD

Rajasthan Queens Bench Division

[A]. S.NO. 1. 2.

BOOKS REFFERED AUTHOR & TITLE

OF THE

BOOK

The Law of Torts, Ratanlal & Dhirajlal, 26th edition (Nagpur:Lexis Nexis, 2010) Salmond and Heuston on the Law of Torts, R.F.V. Heuston, 20th Revised edition (Delhi:Universal Law Publishing,2004)

INDEX OF AUTHORITIES I. List of Statutes 1. Code of Civil Procedure, 1908

II. List of Cases S.NO. 1. 2. 3. 4. 5. 6. 7. 8. CASE TITLE Abrath v.The North Eastern Ry. Co Amar Singh v. Smt.Bhagwati Gaya Prasad v. Bhagat Singh Pannalal Anrs. v. Shrikrishna Anrs. Ram Nath v. Bashir-Ud-Din Allen v. Flood Williams v. Taylor Vishweshwar Shankarrao Deshmukh
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CITATION
(1886) 11 App cas 247 : 11 QBD 440

1 2,11 3 4,12 5 6 6 8

AIR 2001 Raj 14 I.L.R.(1908) 30 All. 525 1955 CriLJ 1078 I.L.R. 1954 [1898] AC 1 (1829), 6 BING 183 A.I.R 1973 M.P. 79

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and Anr. v. Narayan Vithoba Patil 9. 10 . Lambodar sahu v. Laxmidhar pani 1972 (1) CWR 370 12 Shanmugha v. Kandasami (1920) 12 MAD LW 117 8

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STATEMENT OF JURISDICTION The appellants have approached to this Honble Court under Section 100 of Civil Procedure Code, 1908. The respondents humbly submit to the jurisdiction of this Honble Court.

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STATEMENT OF FACTS 1. Padma Bewa (Respondent no.1) was employed to work as a maid servant in Mr. Antarajami Sharmas (Appellant) house. Appellant and Mr. A.K. Mishra (Respondent no.2) were not in good terms .The enmity and ill will was from both the sides.
2. Respondent no.1 lodged a Criminal complaint in the court of S.D.J.M. alleging that the

Appellant had tried to rape her while she (Respondent no.1) was sweeping the floor and he (Appellant) the entered the room, he closed the door, pulled her saree and on protesting was dealt with slaps and fist blows on the face which wounded her face.
3. Mr. A.K.Mishra (Respondent no. 2) and Respondent No.3 gave statements before the

investigating officer and appeared as witnesses in the criminal court confirming the allegations of Respondent no.1 against the Appellant.
4. The trial in the criminal proceedings resulted in acquittal of the appellant and on being

acquitted of the criminal charges appellant filed the money suit for malicious prosecution in the trial court claiming compensation from the Respondents (Respondent no.1 ,Respondent no.2 ,Respondent no.3) alleging that Respondent no.2 & Respondent no.3 has set up Respondent no.1due to previous enmity between Appellant and Respondent no.2.Also appellant alleged that lodging of criminal complaint against him caused him mental agony, financial losses and damage to his reputation. 5. All the three Respondents filed a joint written statement denying the allegations of the Appellant and reasserted the allegations on the appellant that he dishonoured Respondent no.1 and that Appellant did not have any prestige in the society.

6. The learned Trial court took cognizance and after taking into account the evidences

held Respondent no.1 liable of malicious prosecution and directed the said respondent to pay Rs.2000 to the Appellant by way of damages. Also the court dismissed the claim of the appellant against Respondent no.2 & Respondent no. 3.

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7. Aggrieved by the decree passed by the subordinate judge partly decreeing his claim, the Appellant claiming that Respondent no.2 & Respondent no.3 should also be held liable for malicious prosecution and thus pay compensation appealed in the honourable High Court of Orissa.

HENCE THE PRESENT MATTER LIES BEFORE THE HONOURABLE COURT.

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ISSUES RAISED

1. WHETHER

THE PRESUMPTION OF MALICE COULD BE EXTENDED TO RESPONDENT NO.2 WHO IS

NOT AN EYE WITNESS AND NOT A PROSECUTOR?

2. WHETHER

THE PRESUMPTION OF MALICE COULD BE EXTENDED TO RESPONDENT NO.3 WHO IS AN

EYE WITNESS AND NOT A PROSECUTOR?

3. WHETHER
NO.2

THE APPELLANT IS ENTITLED TO THE QUANTUM OF THE CLAIM FROM RESPONDENT

& RESPONDENT NO.3?

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SUMMARY OF ARGUMENTS
1. WHETHER
THE PRESUMPTION OF MALICE COULD BE EXTENDED TO RESPONDENT NO.2 WHO IS AN

EYE WITNESS AND NOT A PROSECUTOR?

The only person who can be sued in an action for malicious prosecution is the person who prosecutes and sets the law into motion. Presumption of Malice cannot be extended to Respondent no.2 (eye-witness) merely on the basis of enmity between eye-witness and the Appellant. Appearing as an eye-witness does not make Respondent no.2 the prosecutor.

The onus lies heavily on the Appellant to prove that he was maliciously prosecuted.

2. WHETHER

THE PRESUMPTION OF MALICE COULD BE EXTENDED TO RESPONDENT NO.3 WHO IS

NOT AN EYE WITNESS AND NOT A PROSECUTOR?

Presumption of malice can in no way be stretched to Respondent no.3 since he was a witness to the prosecution and the law was not set into motion at his statement but court also took cognizance before initiating the proceedings.

3. WHETHER
NO.2

THE APPELLANT IS ENTITLED TO THE QUANTUM OF THE CLAIM FROM RESPONDENT

& RESPONDENT NO.3? Merely on the basis of enmity between the parties, set up witnesses, false charge of defamation, conjectures & surmises i.e. speculations based on incomplete evidence and prosecution culminating into acquittal in favour of Appellant malice cannot be inferred. Therefore Respondent no.2 & Respondent no.3 cannot be held liable to pay any compensation.

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PLEADINGS ADVANCED WHETHER THE PRESUMPTION OF MALICE COULD BE EXTENDED TO RESPONDENT NO.2 WHO IS NOT AN EYE
WITNESS AND NOT A PROSECUTOR

Malicious prosecution is an intentional tort designed to provide redress for losses flowing from an unjustified prosecution. It is a remedy for baseless and malicious litigation. Malicious prosecution is malicious institution against another of unsuccessful criminal as in the case of Abrath v.The North Eastern Railway. Co 1 or bankruptcy, or liquidation proceedings, without reasonable and probable cause. The foundation of the action lies in abuse of process of court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose.

In Salmond and Heuston on the Law of Torts2 it has been observed that in order that an action shall lie for malicious prosecution or other forms of abusive processes the plaintiff must prove : 1. That he was prosecuted by the defendant. 2. The proceedings terminated must have terminated in his favour. 3. He must have acted without reasonable and probable cause. 4. He must have acted maliciously. The aforesaid four elements to the tort of malicious prosecution were also adopted in the case of Amar Singh v. Smt.Bhagwati 3.

Considering the first element that Plaintiff should be prosecuted by the defendant. In this case it is clearly established by the criminal court that the prosecutor was Respondent no.1 and not Respondent no.2 who was only an eye witness to the prosecution since it was Respondent no.1 who lodged a complaint against the Appellant and with the evidences at sight it is nowhere proved that Respondent no.1 filed the complaint under the influence of Respondent no.2. In Gaya Prasad v. Bhagat Singh4 it

1 2

(1886) 11 App cas 247 : 11 QBD 440. R.F.V. Heuston, Salmond and Heuston on the Law of Torts, 20th Revised edition 2004, Universal Law Publishing,pg.407. 3 AIR 2001 Raj 14. 4 I.L.R. (1908) 30 All. 525. 2

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was found that if the complainant knowing that the charge is false tries to mislead the police by procuring false evidence for the conviction of the accused, he would be considered to be the prosecutor. Here malice on the part of RESPONDENT NO.1 is already established but the plaintiff has failed to establish the same against Respondent no.2.
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The Second element which needs to be proved to establish malicious prosecution says The proceedings terminated must have terminated in plaintiffs favour. In Pannalal Anrs. v. Shrikrishna Anrs.5 High court reversed the judgement of the trial court stating that mere acquittal of the plaintiff in the criminal charge should not be alone enough to prove the charges of malicious prosecution against him. Although in this case Malice on part of RESPONDENT NO.1 is proved but by no stretch of imagination it can be extended to Respondent no.2 who is not involved in the institution and prosecution of the proceedings directly but is merely an eye-witness.

The third element talks about Defendant must have acted without reasonable and probable cause. Here Respondent no.2 reasonably believed and submitted in joint written statement that the allegations made against appellant were true to his knowledge and the appellant was a person with no reputation and prestige in the society and he could commit such heinous act of attempting rape. Nowhere, the Appellant has tried to establish, by written submission, that he is a person with prestige and reputation. In Ram Nath v. Bashir-Ud-Din6 it was given in writing by the plaintiff that he is a respectable citizen of Delhi and so no such allegations demeaning his character could stand.

The last element talks about The malicious intent of the Defendant. The lack of objective and reasonable cause is not an evidence of malice but lack of honest belief is an evidence of malice. In Allen v. Flood7 a general rule was propounded that an act lawful in itself does not merely become unlawful because of the bad motives of the actor and some of their lordships in the House of Lords suggested that malicious prosecution was not really an exception to this rule. The settled rule is that malice is the gist of the action for malicious prosecution and must be proved by the plaintiff in the first instance. In

5 6

1955 CriLJ 1078. I.L.R. 1954. 7 [1898] AC 1. 3

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Williams v. Taylor8 it was held that laying information before a magistrate is sufficient to prove an action, no action lies for institution of legal proceedings, however malicious, unless instituted without reasonable and proper cause. Malice is not sufficient since, because a person actuated by the plainest malice may nonetheless have a justifiable reason of prosecution. Here too even if malice is presumed on the basis of enmity between parties still malicious prosecution cannot be proved since Respondent no.2 had justifiable reason as well as reasonable and probable cause to be a witness as already discussed in the above paragraphs.
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The Presumption of malice can in no way be extended to eye witness since there is no precedent available for such assumption. In this case since Respondent no.2 strongly believed that the Appellant did not have any reputation and the contrary was not proved by the appellant so possibly he construed whatever he saw to be against the Appellant. Also since malice on part of RESPONDENT NO.1 is proved it is also possible that she had thatched a conspiracy against the appellant and created a situation which made Respondent no.2 believe that allegations of RESPONDENT NO.1 was true.

It cannot be inferred from the evidences that Respondent no.2 (eye-witness) committed perjury since nowhere in the evidence it is mentioned that the windows of the room where the alleged act was done were closed. In the case of Vishweshwar Shankarrao Deshmukh and Anr. v. Narayan Vithoba Patil9 it was admitted by the defendant that when he was beaten up by the plaintiff the room and windows were closed and no one was around and so it was held that the evidence of the eye witness that he saw the incident cannot be accepted as trustworthy. Here in this case no such revelation against eye-witness was proved. Also it is established in the case of Shanmugha v. Kandasami10 that a witness cannot be held liable for malicious prosecution if he commits perjury, the only remedy against the person who gives false evidence is a prosecution for perjury. perjury in this case is not established.

The allegation of appellant that Respondent no.2 has set up RESPONDENT NO.1 has not been proved. Also since enmity is from both the sides there could be a possibility that

8 9

(1829), 6 BING 183. A.I.R 1973 M.P. 79. 10 (1920) 12 MAD LW 117. 4

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PW1 who is a witness from the Appellants side has committed perjury at the request of PW in order to wreak vengeance on Respondent no.2.The ill will of the Appellant against Respondent no.2 can be inferred from the fact that after the learned trial court established considering the facts in hand that Respondent no.2 cannot be held liable for malicious prosecution thereby holding only RESPONDENT NO.1 liable, the appellant moved to the High court to wreak vengeance on Respondent no.2 out of enmity.

10 The argument by the Appellant that Respondent no.2 had earlier filed a criminal suit

against one of the family members of the appellant and that it ended in acquittal of the family members proves enmity of Respondent no.2 towards the appellant. Here it should be noted that although the trial ended in acquittal the suit of malicious prosecution was not filed against Respondent no.2 as it is nowhere mentioned in the evidence and this suggests that there was some substance in the suit although it ended in acquittal.
11 The burden of proof as regards aforesaid essential elements always rests upon the

plaintiff and it never shifts throughout the trial. Therefore no substance in the contentions canvassed on behalf of the appellant can be found. Here only the onus of proving the facts shifts but not the burden of proof. Similar conclusions have been drawn in the case of Amar Singh v. Smt.Bhagwati11 .Thus in light of the above arguments no liability can be fastened on Respondent no.2.

WHETHER THE PRESUMPTION OF MALICE COULD BE EXTENDED TO RESPONDENT NO.3 WHO IS NOT AN EYE
WITNESS AND NOT A PROSECUTOR

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Respondent no. 3, neither in the criminal case nor in the suit has claimed that he saw

the appellant committing the offence alleged. He never claimed to be an eye-witness to the occurrence. He just stated what Respondent no.1 had told him about the occurrence. In Pannalal and ors. v. Shrikrishna and ors12. it is established that mere giving of information does not make the witness a prosecutor, he has not set the law into motion. Also in the case of Lambodar sahu v. Laxmidhar pani13 it has been confirmed that the presumption of malice on part of the prosecutor cannot be extended to the witness after

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AIR 2001 Raj 14. 1955 Cri.L.J. 1078. 13 1972 (1) CWR 370 5

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the criminal suit ends in acquittal in favour of the plaintiff. Thus Respondent no.3 cannot be held liable for malicious prosecution of the plaintiff. WHETHER
THE APPELLANT IS ENTITLED TO THE QUANTUM OF THE CLAIM FROM RESPONDENT NO.2

&

RESPONDENT NO.3

13 In light of the above arguments it has been made out that Respondent no.2 &

Respondent no.3 are not the prosecutors in the criminal suit and held no malicious intent against the appellant. Also Defamation cannot be established since Respondent no.2 had no bad motive and enjoyed qualified privilege in supporting a woman on whom allegedly rape was attempted by the appellant and he strongly believed that appellant was a man without reputation and the contrary was not proved by the appellant and so he could commit such scornful act. Merely because the criminal suit ended in acquittal of the appellant does not prove malicious prosecution and defamation charges against Respondent no.2 & Respondent no.3. Therefore Respondent no.2 & Respondent no.3 cannot be held liable to pay any compensation.

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PRAYER FOR RELIEF Wherefore in the light of facts stated, questions presented, authorities cited and pleadings advanced, it is most humbly prayed before the Honourable Court that it may be pleased to: Dismiss the appeal.

And pass any orders that it deems fit in the interests of justice, equity and good conscience, all of which is respectfully submitted.

Date: 11/10/2012 Place:

s/d 1.......................... SONAL MISHRA Counsel ID: 12IP60047 (COUNSEL FOR THE RESPONDENTS)