APPEAL from the Circuit Court of Franklin County; the Hon.
GEORGE KASSERMAN, Judge, presiding.
MR. JUSTICE KUNCE DELIVERED THE OPINION OF THE COURT:
Plaintiff appeals from a summary judgment entered by the Circuit Court of Franklin County in favor of defendant in an action for malicious prosecution.
Plaintiff is a used-car dealer who obtained financing from defendant bank. The financing was accomplished by plaintiff's executing and delivering to the bank a bill of sale, a trust receipt and a negotiable promissory note. By the bill of sale, plaintiff conveyed certain automobiles to the bank, and by the trust receipt he agreed to hold those automobiles in trust for the bank. The trust receipt recited that plaintiff was to report the sales of the automobiles to the bank on the date of the sale, to keep the proceeds from the sale separate from plaintiff's own funds, and on the day of sale to transmit the proceeds from the sale to the bank. It appears that around September 1975 plaintiff failed to separate these sale proceeds from his own funds and to deliver the sale proceeds immediately to the bank. In fact, he owed the bank for some 12 cars which he had sold.
Subsequently, a Franklin County grand jury returned bills of indictment growing out of these transactions charging plaintiff with violations of the following Illinois statutes:
(a) "Theft. A person commits theft when he knowingly: (a) obtains or exerts unauthorized control over property of the owner." (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(a).)
(b) "Theft. A person commits theft when he knowingly: * * * (b) obtains by deception control over property of the owner." (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(a).)
(c) "It is unlawful for a debtor under the terms of a security agreement * * * (b) who has a right of sale or other disposition of the collateral and is to account to the secured party for the proceeds of any sale or other disposition of the collateral, to sell or otherwise dispose of the collateral and wilfully and wrongfully to fail to pay the secured party the amount of said proceeds due under the security agreement." Ill. Rev. Stat. 1977, ch. 26, par. 9-306.01.
The record sheet in each of the criminal cases brought pursuant to the above indictments contained the following docket entry:
"On motion of the special prosecutor, William Meehan previously appointed by the court, and at the request of the complaining witness and in view of the fact that full restitution has been made to the complaining witness and because of the state of ill health of the defendant, Robert Ewing, and for other good cause shown the above case is dismissed upon motion of said special prosecutor."
1-3 The essential elements for a malicious prosecution cause of action are: commencement of legal proceedings by the defendant against the plaintiff; the bona fide termination of the proceedings in favor of the plaintiff; the absence of probable cause for such proceedings; malice on the part of the defendant; and damages resulting to the plaintiff. (Ritchey v. Maksin (1978), 71 Ill.2d 470, 376 N.E.2d 991.) With respect to the "bona fide termination of the proceedings in plaintiff's favor" element we note that it is not essential that there have been a trial and a verdict of acquittal rendered upon the charge preferred against the plaintiff. (Gilbert v. Emmons (1866), 42 Ill. 143, 145.) When the prosecution of a criminal action is dismissed at the instance of the prosecuting attorney and the defendant is discharged from custody, such proceeding constitutes a termination of the case, and the defendant may maintain an action for malicious prosecution (Reell v. Petritz (1922), 224 Ill. App. 65, 72); however, where termination of the criminal case has been brought about by procurement of the defendant or by a compromise of the parties, there can be no action for malicious prosecution. Ewe v. Angland (1945), 325 Ill. App. 677, 689.
The defendant's motion for summary judgment attached plaintiff's discovery deposition and an affidavit by an officer of defendant bank. A counteraffidavit and motion in opposition were filed by plaintiff. The court granted defendant's summary judgment motion "for the sole reason that there is no bona fide termination of criminal actions in favor of the plaintiff." The portion of plaintiff's deposition which, according to defendant, establishes, as a matter of law, that the criminal proceedings against plaintiff were terminated pursuant to an agreement between plaintiff and the prosecutor:
A. "I can't tell you all the conversations, you know, that I had with them [bank personnel]. I mean, they had me arrested and I went in and talked to them, and still seeing if I couldn't make some kind of arrangement to pay this debt that I owed. And I talked to Mr. Davis and Mr. Wagner and Mr. Newcom at various times.
Q. Were these had after you were indicted or before you were indicted?
A. That was after I was arrested and after I was indicted.
Q. As to those conversations, can you tell me the substance of any of them?
A. Well, they had me indicted for theft and they had me indicted for fraud, and what I wanted to do was to pay the bank what I owed them, but I wanted these indictments, well, I wanted these charges ...