Bombay HC: Advocate Casting Aspersions On Woman's Character Upon Instructions From Client Is Discharging His Duty, Not Insulting Her Modesty

 Reliance is placed upon the decision in the case of Navin Parekh vs. Madhubala Shridhar Sharma & Ors. MANU/MH/0883/1992 : 1992 Mh.L.J. 1409, in the backdrop that the lawyer had forwarded certain letters on behalf of his client where it was alleged that he had acted in highly unprofessional and unethical manner and he was sought to be prosecuted for alleged defamation, since the words used in the letter were per se defamatory. It is in these facts, it was held that where a party on the basis of sufficient material arrives at a conclusion and states its case and the contemplated course of action in the legal correspondence, it would be wholly inappropriate to allege that an offence of defamation is committed. Justice M.F.Saldanha held that, "in the case of an Advocate where express malice is absent, a Court having due regard to public policy would be extremely cautious of depriving him of the protection of Exception 9 to Section 499 Indian Penal Code. The Trial Magistrates would be well advised to be doubly cautious while entertaining complaints against legal practitioners because the law does confer on them certain privileges which are necessary for the conduct of their professional duties. It is, therefore, only in that class of cases where those privileges have been virtually abused alone, the process should be issued. The obligation of making out a case that the accused, who is an advocate had not acted in good faith and that he had acted maliciously is, therefore, a condition precedent and in absence of this necessary ingredient, the prosecution cannot be sustained." {Para 21}

24. In any case, since we find that there was no intention on part of the Petitioner to insult her modesty, as he was only discharging his duty of defending his clients in the remand proceedings and even if he had cast aspersions upon her character, since they were based on the instructions received from his clients, which has reference in the complaint made on-line and its receipt in the police station is not denied, we deem it appropriate to extend the privilege of an Advocate to the present Petitioner and moreso, what we find is, the statement is not unconnected to the case, as it is the case of his client that by using the pressure tactics, they were being coerced to pay the money.

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 3858 of 2024

Decided On: 09.12.2024

Ratnadeep Ram Patil Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Bharati H. Dangre and Manjusha Ajay Deshpande, JJ.

Author: Bharati H. Dangre, J.

 Citation: 2024:BHC-AS:48668-DB, MANU/MH/7471/2024.

Read full Judgment here: Click here.

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Leading Judgment on malicious prosecution

On the other hand, the learned counsel appearing for the first respondent bank would contend that when the suit is filed for malicious prosecution, in order to succeed, it is incumbent upon the plaintiff to prove the essential ingredients, viz., i) that the plaintiff was prosecuted by the defendant; ii) that the prosecution ended in plaintiff's favour; iii) that the defendant acted without reasonable and probable cause and iv) that the defendant was actuated by malice.  The learned counsel further contended that the  first defendant bank had only lodged the complaint with the police based on the letter received from British Bank and sought for investigation into the matter since the card and the signature of the card holder were forged with the connivance of the merchant.  The learned counsel would draw the attention of this Court to the FIR Ex.P7 and would submit that there is no mention about the plaintiff's name, but merely mentioned that a bill was received from M/s.Sangam and subsequently, when the customer's account was debited, the customer came back to them with his travel details and stated that he was not available in India on that date, but being present at Sultanate of  Oman. Therefore, the defendants merely set the criminal law into motion. Hence, the defendants have acted with reasonable and probable cause in order to find about the real culprits and since it appears that a gang is involved in such fraudulent activities with the connivance of merchants and that the defendants were not actuated by malice. He submitted that the entire action was taken by the Investigating Officer in pursuant to the complaint supported by the letter sent by the British Bank under Ex.P5 which in turn was supported by the complaint from Mr.Yegneswaran Kumar, who was the card holder.  He also contended that the prosecution did not end in honorable acquittal, but only on the ground that the charges were not proved beyond reasonable doubt, but giving the benefit of doubt and therefore, the plaintiff cannot maintain the suit for malice prosecution.  
 In order to succeed in a suit for malicious prosecution, the plaintiff has to establish that the defendant had acted without any reasonable and probable cause, but maliciously. The meaning and ingredients of malicious prosecution are widely considered by Hon'ble Apex Court in the case of West Bengal State Electricity versus Dileep Kumar Ray reported in AIR 2007 SC 976. The relevant paragraphs are re-produced as under:
'MALICIOUS PROSECUTION" is a prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or its bound to know are wrong and against the dictates of public policy.
In malicious prosecution there are two essential elements, namely, that no probable cause existed for instituting the prosecution or suit complained of, and that such prosecution or suit terminated in some way favorably to the defendant therein.
"When it comes to the knowledge of anybody that a crime has been committed, a duty is laid on that person as a citizen of the country, to state to the authorities what he knows respecting the commission of the crime, and if he states, only what he knows and honestly believes he cannot be subjected to an action of damages merely because it turns out that the person as to whom he has given the information is after all not guilty of the crime. In such cases to establish liability the pursuer must show that the informant acted from malice, i.e., 'not in discharge of his public duty but from an illegitimate motive, and must also prove that the statements were made or the information given without any reasonable grounds of belief, or other information given without probable cause; 
The performance of a duty imposed by law, such as the institution of a prosecution as a necessary condition precedent to a civil action, does not constitute "malice". (Abbott v. Refuge Assurance Co., (1962) 1 QB 432). 
(Emphasis added)
 As regards the judgment rendered in C.C.No.2863 of 2000  by the Chief Metropolitan Magistrate, is concerned, the findings made therein, are not binding on Civil Court.  The judgment, is a fact, which can be taken note of. However, a perusal of the Ex.P1, it is clear that learned Magistrate has merely held that the prosecution has not proved the case beyond reasonable doubt and thus, the benefit of doubt was given to the accused. After all, investigation and filing the final report is the role of the police for which neither the defendants have any role to play.  Therefore, this Court does not find any of the parameters which are required for a righteous claim for malice prosecution, in the present case. Merely because the criminal proceedings concluded with an acquittal by itself is not sufficient to label the proceedings as malicious prosecution.

  IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :  07.09.2016

 C O R A M :

THE HONOURABLE MR.JUSTICE M.M.SUNDRESH

CIVIL SUIT No.347  of 2012
C.Kishin Chand
Versus

City Bank N.A.

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