Virji v Gangji (C.A. No. 28/1936) [1936] EACA 144 (1 January 1936)

APPELLATE CIVIL

Before Horne, J.

BHANJI VIRJI, Appellant (Original Plaintiff)

AKBAR ALI JAMAL GANGJI BY HIS GUARDIAN ad litem JAMAL GANGJI, Respondent (Original Defendant)

C. A. No. 28/1936

Malicious prosecution—Evidence—Absence of reasonable and probable cause-Plaintiff bound over to keep the peace-Order binding over quashed on appeal—Cross-examination of plaintiff as to character and in mitigation of damages—Depositions or notes of evidence at the prosecution of plaintiff.

In October 1934 the appellant was summoned, under section 47 of the Criminal Procedure Code, to show cause why he should not be bound over to keep the peace. The summons was issued upon the sworn complaint of the respondent alleging that on the 10th September the appellant had threatened to kill the respondent with a knife. After hearing evidence the Resident Magistrate ordered the appellant to give a bond in the sum of Sh. 500 to keep the peace for one year. On appeal to the Supreme Court this Order was discharged.

The appellant sued the respondent for damages for malicious prosecution.

Held (10-11-36).—That, the plaintiff had not discharged the onus of showing an absence of reasonable and probable cause; that cross-examination of the plaintiff directed to show bad character or to mitigate damages shoul have been allowed; that the refusal to admit the Court files of the prosecution and the appeal was right.

Newsam v. Carr (2 Stark, 69), Lea v. Charrington (5 T. L. R. 219), Carder<br>v. P. & O. Steam Navigation Co. (8 T. L. R. 335) and Herniman v. Smith (2 A. E. L. R. 1377) referred to.

Hopley for appellant.

Modera for respondent.

JUDGMENT.—The onus of showing an absence of reasonable and probable cause for instituting the proceedings is upon the appellant. The only evidence that he adduced was that the affidavit on which the respondent had instituted the proceedings was untrue, that upon that affidavit he was called upon to show cause why he should not be bound over, that he appeared before the Resident Magistrate, was bound over, and that afterwards the Supreme Court set aside the order of the Magistrate. The appellant also attempted to put in evidence the whole of the file of the case before the Magistrate and of the proceedings on appeal, but that was not allowed, and properly so: I will deal with this matter later.

Upon the evidence given by the appellant in examination-in-chief. I do not think he has given sufficient evidence to shift the onus to the respondent. What has to be deduced from the fact that the Magistrate, . after hearing evidence, bound the appellant over to keep the peace

is that *prima facie* at least there was reasonable and probable cause for applying for the issue of the notice to show cause. There was, in the Magistrate's opinion, not merely a *prima facie* case but on the evidence given before him something more than a prima facie case: a conclusive case; but the Court of Appeal took the view, evidently, that there was not in all the evidence sufficient to afford that certainty which has got to be present in all criminal cases. Therefore, although the proceedings terminated in favour of the appellant, that is no ground for implying a want of reasonable and probable cause. The appellant, finding that he could not put in the record, could have called further evidence or applied for an adjournment in order to do so, but he was content to leave the decision upon the question of want of reasonable and probable cause to be given upon the evidence as it then stood. I do not think he has cause for complaint.

Some evidence given in cross-examination of the appellant is inadmissible. It was submitted at the trial that the cross-examination was as to credibility, but the learned Resident Magistrate ruled that the cross-examination was as to damages. The result of it was to show that the appellant's reputation, i.e. character in the legal sense, was bad. He had been boycotted by his community. How far the appellant's character is admissible as showing the state of the respondent's mind, as to whether the latter had reasonable and probable cause, is not in doubt: Newsam v. Carr (2 Stark, 69). Nor is such evidence admissible in mitigation of damages. Evidence of the character of the appellant is only admissible where the amount of the damages may be dependent upon it, e.g. in breach of promise and defamation, certainly not in malicious prosecution where the damage done is the gist of the action. But although this evidence brought to the knowledge of the learned Resident Magistrate the feuds between the parties and may have inclined him somewhat against the appellant, nevertheless the other evidence tendered by the appellant was not in my opinion sufficient to establish even a prima facie case of want of reasonable and probable cause. All he could say was that the respondent's affidavit was untrue which in the light of the result of the proceedings is not enough.

I now turn to the question whether the depositions or notes of evidence of the witnesses at the hearing before the Magistrate who ordered the appellant to be bound over, can be put in evidence by him in the action for malicious prosecution. The only two cases upon which it might be assumed that the evidence given in the prosecution could be evidence in the action for malicious prosecution are Lea $v$ . Charrington (5 T. L. R. 219) and Carder v. P & O Steam Navigation Co. (8 T. L. R. 335). In each of these cases the depositions were put in evidence. In the first case, because it was objected that the plaintiff was being cross-examined as to whether witnesses for the prosecution had not said certain things put to her, it being contended that the proper method was for the defendant to put in the depositions. This was ruled in the defendant's favour, but after adjournment, Grantham, J., after consultation with Cave, J., came to the conclusion that unless the plaintiff put in the depositions he would be nonsuited, because the onus of showing the absence of reasonable and probable cause was upon him and this could only be shown from the depositions. He cited an un-named and un-reported case tried by Hawkins, J., who had non-suited the plaintiff on this ground, which decision had

been upheld by the Court of Appeal. This decision was followed in Carder v. P & O Steam Navigation Co. (supra), but in the recent case of Herniman v. Smith (2 A. E. L. R. 1377), Greer, L. J. stated that "neither of these cases establishes the proposition that the facts stated by the prosecution in the depositions can be given in evidence at the trial." It appears to me, that the issue whether or not there was an absence of probable cause cannot be made to depend upon evidence given subsequently to the institution of the proceedings, but that what is required is evidence of facts which existed at the time before the charge was laid which show the state of mind of the respondent in relation to his act of instituting the proceedings. Apart from that there is ample authority that notes of evidence in earlier proceedings beween the same parties are not admissible, unless the witness is dead, unable to attend or to give evidence, or for other reasons which are now set out in the Indian Evidence Act, section 33. See also Mayor of Doncaster v. Day (3 Taun. 262).

The records of the case in the Magistrate's Court were, therefore, properly excluded. Had the respondent not admitted the results of these proceedings the formal orders could of course have been put in.

The appeal is dismissed with costs.