Derbyshire, C.J.@mdashThis is an appeal from a judgment and decree of (sic) J., given and made on March 31st, 1943, whereby he dismissed the suit of the Plaintiff. The Plaintiff is the owner of a Chemical Works which in 1940 he agreed to sell with its equipment to a Company which was about to be formed by Jogendra Kumar Banerjee and to be called the Sun Chemical Works, Limited. The second Defendant Priolal Banerjee is the son of Jogendra Kumar Banerjee and he together with his father became a director of the Company when formed. The other Defendants Mohamed Sharif, Moqbul Ellahi, and Abdul Jalil, were joined but they took no part in the suit.
2. The Company was formed on April 16th. 1940, and shortly afterwards the Plaintiff transferred certain machinery to the Company under an agreement by which he was to receive payment for them and the other assets he transferred, by way of shares in the new Company. Shortly after this machinery was transferred there arose differences between the Plaintiff, and the two Banerjees with regard to the Plaintiff''s position both as director of the Company and as partner in the managing agency which was to operate the Company. The Plaintiff believed that he had suffered from a breach of the contract and refused to transfer any more machinery. The Defendant, Priolal Banerjee, presumably acting on behalf of the Company, thereupon made a complaint to the Magistrate at Sealdah. It was in the form of a petition and it purported to have reference to sec. 422 of the Indian Penal Code. It set out what the Banerjees considered to be their cause of complaint and ended :
Under the circumstances as the accused has refused to deliver the remainder of the accessories of the firm as stated above he has committed offences under sec. 422, I. P. C. or sec. 406, I. P. C., in the alternative and he may be summoned to answer the said charge.
3. When the Magistrate at Sealdah got that petition he requested a Mr. Banerjee to make an enquiry pursuant to sec. 202 of the Code of Criminal Procedure. Mr. Banerjee did not take up the enquiry with the result that the Magistrate held the enquiry himself. Notice of the enquiry was given to the Plaintiff, Mohamed Amin who attended with his Counsel. At the enquiry the evidence of Jogendra Kumar Banerjee was given and also of his son Manilal Banerjee and one other witness. It does not appear that there was any cross-examination by Mohamed Amin or his Counsel. The Magistrate made a written order in which he reviewed the evidence that had been given by the witnesses and said :
No case of cheating and for the matter of that no criminal case of any nature could be made out by the complainant. On the other hand it appears that a great fraud was going to be committed on the alleged accused who timely detected it and stopped the complainant from taking all his property concerning the Sun Chemical Works. The case appears to have been brought baselessly and frivolously. It is dismissed under sec. 203, Cr. P. C.
4. The Plaintiff, Mohamed Amin, brought this suit against the Defendants named, claiming that the agreement had never been carried out, that he was entitled to the cash value of the property he had delivered which he put at Rs. 2,656 and that the agreement for the allotment of shares and payment for the assets of the Company that he had supplied and was due to supply, be declared void. He also claimed damages for malicious prosecution in respect of the proceedings before the Magistrate. His claim was as follows :
The Plaintiff has in consequence been greatly injured in his character and reputation and to incur expenses in defending himself and suffered great loss and damages--the particulars of which are as follows:--
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(1) Costs and expenses incurred by the Plaintiff in defending the said criminal prosecution .. .. .. |
Rs. 1,000-0-0 |
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(2) Loss of business from 22nd September, 1940, till 3rd December, 1940 |
Rs. 2,500-0-0 |
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(3) Loss of credit and reputation .. |
Rs. 25,000-0-0 |
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Rs. 28,500-0-0 |
5. Gentle, J., before whom the suit came decided against the Plaintiff on his claim for rescission of the alleged agreement and payment of money in respect of the assets delivered. He also decided against the Plaintiff on his claim for damages for malicious prosecution.
6. On appeal before us the Plaintiff, the Appellant, abandoned his appeal with regard to the first part of the claim and contented himself with an appeal against the refusal of the learned Judge to give him damages for malicious prosecution.
7. The learned Judge decided that there was absence of reasonable and probable cause for the proceedings taken by the Defendants before the Magistrate, that there was not the slightest justification for filing a criminal complaint and from those two conclusions he found that the filing of the complaint was actuated by malice, but he was of the opinion, following the decision of this Court in Golap Jan v. Bhola Nath Khettry I. L. R. 38 Cal. 880 (1911) that there was in fact no prosecution. He said :
Golap Jan v. Bhola Nath Khettry I. L. R. 38 Cal. 880 (1911) was an appeal from a decision of Mr. Justice Pugh sitting on the Original Side of this Court and this authority is binding upon me. In that case it was held that when a Magistrate directed an enquiry under sec. 203 of the Code to be made by a Police officer and subsequently the complaint was dismissed, no prosecution had been commenced and no suit for malicious prosecution was maintainaible. I am unable to find any difference in principle between an enquiry toy a Magistrate or by police officer either of which can be directed under sec. 202. An enquiry by either a Magistrate or a police officer is to ascertain the truth or falseness of the complaint before process is issued by way of summons or warrant to investigate the charges made in the complaint against the alleged accused. An enquiry of the same nature cannot be a prosecution when conducted by a Magistrate if it is not so when it is held by a police officer.
The decision of this Court to which reference has been made was quoted in the case of K. Sheik Meeran Sahib v. Ratnavelu Muddali I. L. R. 37 Mad. 181 (1912). In that case the enquiry was held by a Magistrate and following the Calcutta decision it was held that no prosecution had commenced when the complaint was dismissed after the enquiry by the Magistrate under sec. 202 of the Code.
The opposite view has been taken in Bishun Persad Narain Singh v. Phulman Singh 19 C. W. N. 935 (1914). This is a decision of an Appellate Bench of this Court dealing with an appeal from the moffusil. I am bound and must follow the decision given in Golap Jan v. Bholanath Khettry I. L. R. 38 Cal. 880 (1911) and must hold that the filing of a complaint and an enquiry held under sec. 202 of the Criminal Procedure Code followed toy dismissal of the complaint is not a commencement of a prosecution and it must therefore follow that the Plaintiff is unable to succeed in his claim for damages for malicious prosecution.
8. The learned Judge seems to have been inclined to the view that had he not felt compelled to follow that case, he might have decided otherwise in which event the damages that he would have awarded would have been Rs. 1,000 in respect of the costs to which the Plaintiff was put in connection with the filing of the complaint. He added :
I am not satisfied that any alleged loss of business has been established.
9. It has been contended before this Court that the case of Golap Jan v. Bhola Nath Khettry I. L. R. 38 Cal. 880 (1911) was wrongly decided and that of Bishwn Persad Narain Singh v. Phulman Singh 19 C. W. N. 935 (1914) should be followed in preference to the former case. I am unable to agree. Golap Jan''s case I. L. R. 38 Cal. 880 (1911) was decided in 1911 after consideration of the relevant authorities. It has been followed in this Court and other Courts. For my own part, I respectfully agree with the decision in Golap Jan''s case I. L. R. 38 Cal. 880 (1911) and in my opinion it is correct. It appears to me that Bishun Persad''s case 19 C. W. N. 935 (1914) was based on the special facts of the case and I am not prepared to follow it in preference to Golap Jan''s case I. L. R. 38 Cal. 880 (1911). The only essential difference between Golap Jan''s case I. L. R. 38 Cal. 880 (1911) and the present case is that in Golap Jan''s case I. L. R. 38 Cal. 880 (1911) the enquiry was held by the police under sec. 202 of the Code and in the present case the enquiry was held by the Magistrate himself. In my view no prosecution of the Plaintiff was begun in the present case. It was not begun because there were no possible grounds for such a prosecution. The Magistrate found that whilst acting under the provisions of sec. 202, it has been held in several cases under sec. 202 of the Criminal Procedure Code that it is not necessary that the person against whom a complaint is made should be present at the enquiry under sec. 202. It has also been held that he ought not, if he is present, to be allowed to ask questions at the enquiry. It may be that out of misconception of the position the Magistrate allowed the Plaintiff to be present at the enquiry. It is probable that out of caution the Plaintiff attended and took with him a lawyer. But that was not necessary. In my view the claim for damages for malicious prosecution has failed. Consequently, there being no other issue under appeal, this appeal must be dismissed with costs. We allow one set of costs as between the Company and Priolal Banerjee, Respondent No. 2. Certified for one Counsel.
Lodge, J.
I agree.
