Delhi District Court
Sh. Bharat Bhushan vs Sh. Kamal Baugh on 2 March, 2015
IN THE COURT OF SHRI RAJ KUMAR: ADDL. DISTRICT
JUDGE09: TIS HAZARI COURTS : DELHI
Suit No. 401/14 (Old Suit No. 87/05)
Unique Case ID No. 02401C0346172005
Sh. Bharat Bhushan
S/o Late Sh. R.L. Wasisht
R/o A3/32D, Paschim Vihar,
New Delhi. ........... Plaintiff.
VERSUS
Sh. Kamal Baugh,
S/o Late Sh. P.C. Baugh,
R/o K4/13, Model Town,
PartII, Delhi. ......... Defendant.
Date of institution of the suit : 27.04.2005
Date on which order was reserved : 13.02.2015
Date of decision : 02.03.2015
SUIT FOR RECOVERY OF RS. 6 LACS TOWARDS DAMAGES
FOR DEFAMATION
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the plaintiff is the partner of the real brother of the defendant. It has been further stated Suit No. 401/14 (Old Suit No. 87/05) Page No. 1/29 that the plaintiff is in the business of Forwarding and Clearing Agent and the plaintiff is also enjoying a good reputation in the society. It has been further stated that the plaintiff is also a reputed businessman and he was the former Joint Secretary of Joint Association of Forwarding and Clearing Agents and Traders. It has been further stated that the defendant has always harassed and blackmailed the plaintiff. It has been further stated that the defendant, in due discharge of his legal liability, issued three cheques amounting to Rs. 24 Lacs in favour of the plaintiff, his partner Sh. Ashok Baugh and Sh. Parikshit Baugh (son of Sh. Ashok Baugh), but all the three cheques were dishonoured on presentation. It has been further stated that the plaintiff, Sh. Ashok Baugh and Sh. Parikshit Baugh initiated criminal complaint cases U/s 138 of the N.I. Act, which are pending disposal since the year 1999. It has been further stated that the defendant has been pressurizing and threatening the plaintiff and other complainants as well to withdraw the said complaint cases U/s 138 of the N.I. Act. It has been further stated that the defendant, on 18.03.2002, reported to the police that some unknown persons allegedly had thrown acid on him. It has been further stated that on 08.07.2002, the defendant tried to persuade and threaten the plaintiff and his real brother Sh. Ashok Baugh and even made telephonic calls to them asking them to withdraw their complaint cases U/s 138 of the N.I. Act. It has been further stated that on the refusal of the plaintiff to do so, Suit No. 401/14 (Old Suit No. 87/05) Page No. 2/29 the defendant threatened the plaintiff to falsely implicate him in the aforesaid incident dated 18.03.2002. It has been further stated that when the defendant failed to pressurize the plaintiff and his brother Sh. Ashok Baugh to withdraw the cases U/s 138 of the N.I. Act, he lodged a false complaint to the SHO PS Model Town, Delhi on 08.07.2002 and to the DCP, NorthWest District, Delhi on 11.07.2002 with the sole motive to defame and pressurize the plaintiff and his partner Sh. Ashok Baugh. The plaintiff has alleged that deliberately and knowingly with a view to injure the reputation of the plaintiff and his partner Sh. Ashok Baugh, the defendant levelled false allegations against the plaintiff and his partner to the effect that the plaintiff and his partner had tried to kill the defendant by throwing acid on him. It has been further stated that the plaintiff and his partner Sh. Ashok Baugh were arrested in FIR no. 153/2002 U/s 337/307/506/34 IPC PS Model Town, Delhi and the plaintiff and his partner had to remain in jail for three days till they were bailed out. It has been further stated that the chargesheet U/s 173 of the CrPC was filed by the police before the Court concerned and the matter was committed to the Court of Sh. A.K. Garg, the then, Ld. ASJ, Delhi. The plaintiff has alleged that he himself and his partner Sh. Ashok Baugh had to defend themselves in the said criminal case, had to pay the professional fees of the lawyer, had to attend several hearings in the Court and as such, the plaintiff and his partner suffered mental agony and harassment on Suit No. 401/14 (Old Suit No. 87/05) Page No. 3/29 account of the false imputation levelled by the defendant. It has been further stated that the Court of Sh. A.K. Garg, the then, Ld. ASJ, Delhi in Session Case No. 180/2004 titled as State Vs. Ashok Baugh discharged the plaintiff and his partner at the stage of the framing of the charges on 14.07.2004 and the judgment was passed in the presence of the defendant. The plaintiff has alleged that he himself and his partner had to remain in custody for three days on account of which the personal liberty of the plaintiff and his partner was curtailed for no fault of theirs. It has been further alleged that the plaintiff suffered loss of his reputation in the society, mental agony and harassment apart from the financial losses and expenses incurred by him in order to defend himself from the malicious and false imputation initiated by the defendant. It has been further stated that the plaintiff and his partner feel shy in moving in the society and they also avoid to mixup with their friends on account of the abovesaid false and frivolous allegations. It has been further stated that the plaintiff sent a legal notice to the defendant dated 22.02.2005, which was duly served upon the defendant on 24.02.2005, but the defendant neither sent any reply to the said legal notice, nor, complied with the same. The plaintiff has claimed an amount of Rs. 2 Lacs on account of illegal confinement in jail for three days, Rs. 2 Lacs on account of loss of reputation in the society, Rs. 1.5 Lacs on account of mental agony and harassment, Rs. 50,000/ on account of expenses incurred for traveling, Suit No. 401/14 (Old Suit No. 87/05) Page No. 4/29 payment of the professional fees to the Advocate etc. and as such, the plaintiff has claimed an amount of Rs. 6 Lacs in total.
2. On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree for an amount of Rs. 6 Lacs as compensation together with the pendentelite and future interest @ 24% per annum. The plaintiff has also prayed for the costs of the suit.
3. Written statement has been filed on record by the defendant stating therein that the present suit has been filed malafidely by the defendant with a view to blackmail and harass the defendant and as such, the same is liable to be dismissed. It has been further stated that the plaintiff wants to take advantage of his own wrongs and the present suit is also without any cause of action. The defendant has taken the stand that on 18.03.2002, he was coming from his inlaws house situated at Tagore Garden, Delhi to his residence at K4/13, Model TownII, Delhi by driving his own case bearing registration No. DL8CF5159. It has been further stated that at about 10:30 am, when the defendant reached near Naini Jheel, Model Town, Delhi, the plaintiff alongwith his friend and brother of the defendant came on a motorcycle while chasing the defendant and finding an opportunity, they threw acid upon the defendant from a container. It has been further stated that the defendant suffered deep burn injuries on his face, eyes, head, right shoulder and other parts of the body. It has been further stated that the plaintiff and his friend Sh. Suit No. 401/14 (Old Suit No. 87/05) Page No. 5/29 Ashok Baugh intentionally and deliberately threw acid upon the defendant with an intention to kill him. It has been further stated that the plaintiff and his friend Sh. Ashok Baugh, after throwing the acid upon the defendant, managed to escape and ran away from the spot. It has been further stated that the vision of the defendant was blurred as a result of falling of the acid drops in his eyes and the defendant was in great agony and pain. It has been further stated that the defendant rushed to a nearby nursing home i.e. Khanna Nursing Home for immediate medial aid, but, the defendant was advised to be taken to some other hospital. It has been further stated that the defendant contacted his brotherinlaw namely Sh. Ashish Karnakar from the said nursing home, who reached there and the defendant was got admitted in Tirth Ram Shah Hospital, Rajpur Road, Delhi at about 12:15 noon on 18.03.2002 by the aforesaid brotherinlaw of the defendant. It has been further stated that on account of the precarious and deleterious condition of the defendant, he was unfit for making any statement and he remained admitted in the said hospital till 28.03.2002. It has been further stated that the investigating officer/ SI namely Sh. R.N. Chobey from PS Model Town, Delhi attended the call, lodged DD no. 8A dated 18.03.2002 and thereafter, registered an FIR no. 153/2002 u/s 337 of the IPC in collusion and conspiracy with the plaintiff and his friend Sh. Ashok Baugh. The defendant has alleged that the police officials, being in collusion with the plaintiff and his friend Sh. Suit No. 401/14 (Old Suit No. 87/05) Page No. 6/29 Ashok Baugh did not record the correct version of the plaintiff and as such, merely Section 337 of the IPC was invoked and FIR was not lodged U/s 307 of the IPC. It has been further stated that even after the discharge from the hospital, the defendant remained confined to his bed at his house and during that period, the police officials manipulated the facts in conspiracy and collusion with the plaintiff and his friend Sh. Ashok Baugh. It has been further stated that when the defendant recovered from his burn injuries, he lodged the complaint against the plaintiff and his friend Sh. Ashok Baugh. It has been further stated that after a lapse of about five months, on 28.08.2002, the plaintiff and his friend Sh. Ashok Baugh were arrested by the police and the defendant identified them. It has been further stated that the police filed chargesheet against the plaintiff and his friend Sh. Ashok Baugh on the basis of the manipulated facts U/s 337/307/506/34 of the IPC, but the police officials failed to prosecute the matter in active connivance with the plaintiff and his friend resulting into the discharge of the plaintiff and his friend from the Court of Sh. A.K. Garg, the then, Ld. ASJ, Delhi vide orders dated 14.07.2004. The defendant has alleged that the defendant, who was the victim was not called for giving his statement by the prosecution and the defendant was totally kept in dark by the prosecution. It has been further stated that the prosecution did not file any appeal or revision against the said orders dated 14.07.2004 passed by the Court of Sh. A.K. Garg, the then, Ld. Suit No. 401/14 (Old Suit No. 87/05) Page No. 7/29 ASJ, Delhi, but the defendant preferred a revision petition bearing no. 449/2005 before the Hon'ble High Court of Delhi against the orders dated 14.07.2004, which is pending disposal. The defendant has taken the further stand that he had no knowledge as to what statement was made or written by the police officials themselves on 19.03.2002 as he was declared unfit to make statement by the doctors on duty. The defendant has denied that he got recorded the statement on 19.03.2002. The defendant has taken the stand that the alleged statement recorded on 19.03.2002 was neither signed by the defendant, nor the same was read over and explained to him. The defendant has alleged that he had disclosed the names of the plaintiff and his friend Sh. Ashok Baugh as assailants, but the police officials knowingly and deliberately helped the plaintiff and his friend in collusion with them. The defendant has alleged that the Court of Sh. A.K. Garg, the then, Ld. ASJ, Delhi has wrongly discharged the plaintiff and his friend. The defendant has denied that the plaintiff is a law abiding citizen of India. The defendant has further denied that the plaintiff is enjoying good reputation in the society or in the business circles as well. The defendant has further stated that the plaintiff was serving him till 1999. The defendant has denied that the plaintiff is in the business of Forwarding and Clearing Agent. The defendant has alleged that the plaintiff is a tout and he is doing underhand works at Delhi Railway Station illegally without any recognition of Suit No. 401/14 (Old Suit No. 87/05) Page No. 8/29 Railway Authorities. The defendant has stated that the plaintiff is claiming himself as former Joint Secretary of Joint Association of Forwarding and Clearing Agents and Traders in a self styled manner of a nonentity association. It has been further stated that there is no such association by the name of Joint Association of Forwarding and Clearing Agents and Traders. The defendant has denied that he issued three cheques amounting to Rs. 24 Lacs in favour of the plaintiff, his partner Sh. Ashok Baugh and Sh. Parikshit Baugh. The defendant has alleged that the said cheques were stolen by the plaintiff and his friend Sh. Ashok Baugh, while they were serving the defendant. The filing of the criminal complaint cases U/s 138 of the N.I. Act against the defendant has been admitted by the defendant. The defendant has further stated that in the past as well, prior to the incident dated 18.03.2002, the plaintiff and his friend Sh. Ashok Baugh had been extending various threats, as a result of which, the defendant lodged a police complaint dated 29.05.1999 with PS Model Town, Delhi. The defendant has denied that he ever asked the plaintiff to withdraw his complaint cases U/s 138 of the N.I. Act. The defendant has taken the stand that the complaints made by him on 08.07.2002 and on 11.07.2002 are correct. The defendant has denied that the plaintiff and his friend have suffered mental agony or pain. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with special costs. Suit No. 401/14 (Old Suit No. 87/05) Page No. 9/29
4. Replication has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement filed by the defendant. The plaintiff, in the replication, has denied that he was serving the defendant till 1999. The plaintiff has further stated that it was the defendant, who was not having any proper job and as such, the plaintiff allowed him to do business with him.
5. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 11.05.2006 :
1) Whether the plaint is liable to be rejected U/o 7 Rule 11 of the CPC?OPD.
2) Whether the plaintiff is entitled to a decree in the sum of Rs. 6 Lacs alongwith interest as prayed for?OPP.
3) Relief.
EVIDENCE :
6. The plaintiff has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record his evidence by way of affidavit as Ex. P1, the certified copy of the orders dated 14.07.2004 passed by Sh. A.K. Garg, the then, Ld. ASJ, Delhi in Session case no. 180/04 as Ex. PW1/1, copy of the legal notice as Ex. PW1/2, Suit No. 401/14 (Old Suit No. 87/05) Page No. 10/29 copy of the postal receipt as Ex. PW1/3, copy of UPC as Ex. PW1/4 and the AD card as Ex. PW1/5.
7. The plaintiff has further examined Sh. Krishan Kumar, Junior Judicial Assistant from the Hon'ble High Court of Delhi as PW2 and this witness brought the file of the Session's Case no. 180/04, FIR no. 153/02 PS Model Town, Delhi. He has filed the photocopy of DD No. 8A dated 18.03.2002 as Ex. PW2/1, the copy of the FIR as Ex. PW2/2, copy of the MLC of Sh. Kamal Baugh dated 18.03.2002 issued by Tirath Ram Shah Hospital as Ex. PW2/3, copy of the arrest memo of Sh. Bharat Bhushan as Ex. PW2/4 and the arrest memo of Sh. Ashok Baugh as Ex. PW2/5, copy of the personal search memo of Sh. Bharat Bhushan and Sh. Ashok Baugh as Ex. PW2/6, copy of the bail orders as Ex. PW2/9 and Ex. PW2/10, copy of the statement recorded U/s 161 of the Cr.P.C. of Sh. Kamal Baugh dated 19.03.2002 as Ex. PW2/11 (wrongly mentioned as Ex. PW1/11), copy of the supplementary statement U/s 161 of the Cr.P.C. Dated 15.07.2002 of Sh. Kamal Baugh as Ex. PW2/12, copy of the complaint addressed to SHO, PS Model Town dated 08.07.2002 as Ex. PW2/13 and the copy of the complaint to DCP, Ashok Vihar (North West) as Ex. PW2/14.
8. The defendant has examined Sh. B.S. Raghav, Senior Chief Marketing Inspector, Divisional Railway Manager Office as DW1 and this witness, in his examinationinchief, has filed on record the letter Suit No. 401/14 (Old Suit No. 87/05) Page No. 11/29 dated 13.12.1995. He has filed on record the letter dated 15.01.1996 for staff approval as Ex. DW1/1, the letter dated 13.12.1995 for staff approval as Ex. DW12, request dated 13.12.1995 for staff approval as Ex. DW1/3 and the request dated 12.04.1999 for staff approval as Ex. DW1/4.
9. The defendant has further examined Sh. D.K. Sabharwal, Chief Booking Supervisor, from Old Delhi Railway Station as DW2 and this witness has filed on record the money receipt dated 01.03.2006 as Ex. DW2/1 and the carbon copy of the order issued by Station Manager, which is undated as Ex. DW2/2.
10. The defendant has further examined Sh. Arun Shukla, Senior Station Manager, from Old Delhi Station, Delhi Main as DW3 and this witness, in his examinationinchief, has stated that Ex. PW1/D1 and Ex. PW1/D2 are the money receipts charges by the Railway Authority for using railway premises, which is being charged from the representative of the merchants. This witness has further stated, in his examinationin chief, that in his record, there is no approval for licence as mentioned in the receipt.
11. The defendant has further examined Sh. B.K. Shukla, Divisional Operations Manager, DRM Office, New Delhi as DW4 and this witness, in his examinationinchief, has stated that he issued Ex. PW1/D4 to the plaintiff. This witness has further stated that the plaintiff was not a railway employee and he never worked under him. Suit No. 401/14 (Old Suit No. 87/05) Page No. 12/29
12. The defendant has examined himself as DW4 (it appears that the numbering DW4 has been given wrongly) and in his evidence by way of affidavit Ex. DW4/A on record, he has reiterated and reaffirmed the stand as taken by the defendant in the written statement. This witness has filed on record his affidavit as Ex. DW4/A.
13. The defendant has further examined his brotherinlaw Sh. Ashish Karnakar as DW5 and this witness, in his evidence by way of affidavit Ex. DW5/A on record, has supported the case of the defendant as per the version of the defendant as contained in his written statement.
14. The defendant has further examined SI Vijender Singh, who was the second Investigating Officer in FIR no. 153/2002 dated 18.03.2002 with PS Model Town, Delhi as DW6. This witness, in his examinationinchief, has stated that he was the second Investigating Officer in FIR no. 153/02. DW6 further states that the statement of Sh. Kamal Baugh was recorded by him on 19.03.2002. This witness has further stated that the statement of Sh. Kamal Baugh was signed by him, which is already Ex. PW2/11 on record. This witness has further stated that Ex. DW4/P2 was recorded by him. This witness has further stated that he met Sh. Kamal Baugh at Tirath Ram Hospital on 19.03.2002, but he does not recollect now due to passage of time as to whether there was bandage on both the eyes as well as on the right hand of Sh. Kamal Baugh. This witness has denied the suggestion that Sh. Kamal Baugh was Suit No. 401/14 (Old Suit No. 87/05) Page No. 13/29 neither in a position to read, nor in a position to sign. By way of volunteer, DW6 has stated that after writing his statement, the same was read over to him and thereafter, Sh. Kamal Baugh put his signatures. DW6 further states that he was transferred and investigation was transferred to some other IO and therefore, he cannot say as to whether Ex. DW4/P2 was placed on the judicial file or not. DW6 further states that Ex. DW4/P2 was not bearing any date. DW6 denies the suggestion that he is deposing falsely regarding the document Ex. DW4/P2. DW6 further denies the suggestion that Ex. DW4/P2 was never signed by the defendant Sh. Kamal Baugh.
15. The detailed testimonies of these witnesses shall be discussed in the later part of this judgement.
16. I have carefully gone through the entire material available on record and heard the rival submissions of Ld. counsels for both the parties.
17. My issuewise finding on the abovesaid issues is as under:
Issues No. 1 & 2 :
18. Both these issues are taken up together as the same are connected interse and overlap each other. Issue no. 1 pertains to the objection of the defendant as contained in the written statement and as such, the onus to prove this issue has been placed upon the defendant. Suit No. 401/14 (Old Suit No. 87/05) Page No. 14/29 Issue no. 2 pertains to the prayer clause of the present suit and as such, the onus to prove this issue has been placed upon the plaintiff.
19. The factual controversy involved in the present suit is within a narrow compass in the present suit. It is not in dispute that the plaintiff is the friend of the real brother of the defendant. The plaintiff has filed the present suit for damages on account of the alleged malicious prosecution by the defendant. The suit of the plaintiff is based upon the orders dated 14.07.2004 Ex. PW1/1 on record passed by the Court of Sh. A.K. Garg, the then Ld. ASJ, Delhi in FIR No. 153/02 PS Model Town, Delhi, whereby, the plaintiff and his friend Sh. Ashok Baugh, who is the plaintiff in the other suit bearing no. 400/14 (Old Suit No. 88/05) were discharged at the stage of framing of charges.
20. In the written statement, the defendant has taken an objection that the said orders have been challenged by him by way of a revision petition before the Hon'ble High Court of Delhi, which is pending disposal. However, it has to be seen that the certified copy of the orders dated 31.10.2011 passed in the Revision Petition bearing no. 449/2005 passed by the Hon'ble High Court of Delhi is there on record, which shows that the orders dated 14.07.2004 were upheld by the Hon'ble High Court of Delhi. As such, the orders dated 14.07.2004, whereby, the plaintiff was discharged in the said FIR bearing no. 153/02 have become final.
Suit No. 401/14 (Old Suit No. 87/05) Page No. 15/29
21. The entire case of the plaintiff is based upon the orders dated 14.07.2004 as stated by me hereinabove. Perusal of the said orders dated 14.07.2004 reveals that the Ld. ASJ, Delhi, while discharging the plaintiff, has taken into consideration two statements dated 19.03.2002 and 13.07.2002. The plaintiff has alleged in the plaint that in the first statement recorded on 19.03.2002, he himself and his friend Sh. Ashok Baugh were not named as the perpetrators of the crime by the defendant herein, but in the subsequent statement recorded on 13.07.2002, the plaintiff as well as his friend Sh. Ashok Baugh were deliberately and knowingly named as the perpetrators of the crime.
22. Ld. Counsel for the plaintiff, during the course of the arguments, has relied upon the statement of the defendant recorded on 19.03.2002 Ex. PW2/11 on record. The statement of the defendant recorded on 13.07.2002 U/s 161 of the CrPC Ex. PW2/12, the complaint dated 08.07.2002 lodged by the defendant with SHO PS Model Town, Delhi as Ex. PW2/13 and the complaint dated 11.07.2002 lodged by the defendant with DCP Ex. PW2/14 are on record. Ld. Counsel for the plaintiff has pointed out that there are vital contradictions in all the abovesaid four documents, which are there on record in the form of Ex. PW2/11 to Ex. PW2/14. Ld. Counsel for the plaintiff has further argued that all the ingredients, which are required in a suit for malicious prosecution, are being fulfilled and the malice is writ large on the face of Suit No. 401/14 (Old Suit No. 87/05) Page No. 16/29 the abovesaid documents.
23. Whereas, on the other hand, Ld. Counsel for the defendant has argued that on 18.03.2002, when the defendant was admitted in the hospital, he was unfit for statement. Ld. Counsel for the defendant has argued that the statement of the defendant was not correctly recorded. The defendant has taken the defence, in the written statement, that he had categorically named the plaintiff and Sh. Ashok Baugh as the perpetrators of the crime, but, since he was suffering from burn injuries, he was not able to sign and he was also not able to read his statement. The defendant has categorically alleged that the police officials and the doctors at the hospital as well were in collusion with the plaintiff and his friend Sh. Ashok Baugh and as such, the entire facts were manipulated. It has further argued by the Ld. Counsel for the defendant that it is not in dispute that the relations in between the parties to the present suit were strained and as such, the plaintiff has not been able to prove the malice on the part of the defendant. It has been further argued that the plaintiff manipulated the police and the Medical Authorities as well and that is why, FIR initially was lodged only U/s 337 of the IPC despite the fact that the defendant had suffered burn injuries. It has been further stated that none of the statements recorded by the IO is signed by the defendant. It has been further argued that Ex. DW4/P2 is also a manipulated document. In fact, Ld. Counsel for the defendant has argued that the Suit No. 401/14 (Old Suit No. 87/05) Page No. 17/29 whole sequence was manipulated and as such, the present suit has to be dismissed.
24. The settled law is that in an action of malicious prosecution, the plaintiff is bound to prove the following ingredients:
1) That the plaintiff was prosecuted by the defendant;
2) That the proceeding complaint of was terminated in favour of the plaintiff;
3) That the prosecution was instituted against he plaintiff without any just or reasonable cause;
4) That the prosecution was instituted with a malicious intention, that is, not with the mere intention of getting the law into effect, but with an intention, which was wrongful in fact;
5) That the plaintiff suffered damage to his reputation or to his safety or to the security of his property.
25. The defendant has taken an objection, in the written statement, that the orders dated 14.07.2004 passed by the Ld. ASJ, Delhi are wrong and the plaintiff was wrongly discharged. Ld. Counsel for the defendant has vehemently argued that the police officials and the Doctors at the hospital as well were in collusion with the plaintiff and the whole sequence was manipulated.
Suit No. 401/14 (Old Suit No. 87/05) Page No. 18/29
26. As stated by me hereinabove, the orders dated 14.07.2004 passed by the Ld. ASJ have been upheld by the Hon'ble High Court of Delhi vide orders dated 31.10.2011 in a Revision Criminal Petition bearing no. 449/05. The orders dated 31.10.2011 passed by the Hon'ble High Court of Delhi have not been challenged further by the defendant herein leading to the finality of the orders dated 14.07.2004. As such, I am of the opinion that the findings of the Ld. ASJ, Delhi cannot be assailed by the defendant at this stage when the defendant has already availed remedy against the orders dated 14.07.2004 in accordance with the law. As such, I am of the opinion that at this stage, the defendant cannot be allowed to argue that the whole sequence was manipulated and that the police officials and the doctors as well were in collusion with the plaintiff.
27. Now, coming to the ingredients, which are required in an action of malicious prosecution, the admitted facts are that the plaintiff herein was prosecuted by the defendant by way of lodging an FIR bearing no. 153/02 U/s 337/307/506/34 of the IPC. It is also an admitted fact that the proceedings were terminated in favour of the plaintiff herein. The entire order dated 14.07.2004 passed by the Ld. ASJ, Delhi is based upon the contradictions of the defendant as contained in his statement recorded on 19.03.2002 and 13.07.2002. The Ld. ASJ, Delhi has categorically given the finding that in the first statement recorded on 19.03.2002, the Suit No. 401/14 (Old Suit No. 87/05) Page No. 19/29 defendant had merely expressed a suspicion that the accused persons might be standing at the place of occurrence and the defendant did not say at all that the acid was thrown by the plaintiff herein and his friend Sh. Ashok Baugh. However, the defendant herein named the plaintiff and Sh. Ashok Baugh as the perpetrators of the crime in his statement recorded on 13.07.2002 for the first time. On the basis of the vital contradictions as contained in both the abovesaid statements recorded by the IO, the Ld. ASJ came to the conclusion that the version of the defendant herein was full of inherent contradictions, which rendered him totally unworthy of reliance and as such, the plaintiff and his friend Sh. Ashok Baugh were discharged.
28. It has to be seen that in the first statement recorded on 19.03.2002, copy of which is there on record in the form of Ex. PW2/11, the defendant herein has merely stated that his brother Sh. Ashok Baugh, Sh. Bharat Bhushan and Sh. Parikshit Baugh have been threatening him and on 18.03.2002, when the acid was thrown upon him, his brother Sh. Ashok Baugh and Sh. Bharat Bhushan might be standing there and it might be possible that they have thrown the acid upon him. In the statement recorded on 13.07.2002, the defendant herein categorically named the plaintiff and his friend Sh. Ashok Baugh as the perpetrators of the crime. The statement of the defendant recorded on 13.07.2002 reveals that the defendant has stated that when the acid was thrown upon him, the Suit No. 401/14 (Old Suit No. 87/05) Page No. 20/29 plaintiff herein and his friend were in a car. Whereas, in the first statement, he had got recorded that they were either on a motorcycle or on a scooter. For the first time, in the statement recorded on 13.07.2002, the defendant stated that the car was being driven by Sh. Bharat Bhushan and Sh. Ashok Baugh had thrown the acid upon him. In the first complaint dated 08.07.2002 Ex. PW2/13 on record to SHO PS Model Town, Delhi, the defendant has stated that the plaintiff herein, his friend Sh. Ashok Baugh and Sh. Parikshit Baugh, son of Sh. Ashok Baugh had made it sure that the acid was thrown upon the defendant. To the same effect is the complaint dated 11.07.2002 of the defendant to the DCP, which is Ex. PW2/14 on record. After the said complaints dated 08.07.2002 and 11.07.2002, the statement of the defendant was recorded by the IO on 13.07.2002 and thereafter, the plaintiff and his friend Sh. Ashok Baugh were arrested.
29. Now, coming to the evidence, much of the crossexamination of PW1 has been done on the aspect as to whether the plaintiff was working as Forwarding and Clearing Agent with the Railways as claimed by the plaintiff in the plaint. In the crossexamination, PW1 has stated that the copies of the licences for the period 01.01.2005 to 31.12.2005 and 01.01.2006 to 31.12.2006 are Ex. PW1/D1 and Ex. PW1/D2. PW1 denies the suggestion that he is doing his profession and acting as a tout and doing under hand works in connivance with Railways Officials. PW1, in Suit No. 401/14 (Old Suit No. 87/05) Page No. 21/29 the crossexamination, further states that in the statement of 19.03.2002, the defendant has narrated the incident of 18.03.2002. PW1 denies the suggestion that the defendant on 08.07.2002 did not try to persuade and threaten him as alleged in para no. 12 of his affidavit. PW1 further denies the suggestion that the defendant never threatened to falsely implicate him in the incident dated 18.03.2002. PW1 further denies the suggestion that the defendant had not done any act, which resulted into the lowering down of the reputation of the plaintiff.
30. PW2 is the Junior Judicial Assistant from the Hon'ble High Court of Delhi and he has filed on record the documents from the file of the case pertaining to FIR no. 153/02. The documents, which have been exhibited by PW2, have already been narrated hereinabove.
31. DW1, DW2, DW3 and DW4 are the witnesses from the Railway Department and the said witnesses have been examined by the defendant only on the aspect as to whether the plaintiff was working as a Forwarding and Clearing Agent with the Railways or not.
32. DW4 i.e. the defendant, in his crossexamination, admits it to be correct that he was also issued by the Railways a platform ticket as Forwarding and Clearing Agent. DW4 further states, in the cross examination, that the platform ticket issued to him by the Railways as an agent to see the loading and unloading of goods. DW4 further states, in the crossexamination, that Ex. DW4/P1 is a copy of the ticket issued to Suit No. 401/14 (Old Suit No. 87/05) Page No. 22/29 him by the Railways for the year 1996. DW4 further states, in the cross examination, that he cannot say if similar tickets were issued to the plaintiff. DW4 further states, in the crossexamination, that he had made a statement to the police, which is Ex. DW4/P2. DW4 again states, in the crossexamination, that even though Ex. DW4/P2 bears his signatures at point A, but he had not given any such statement to the police. The Ld. Predecessor of this Court has observed that the said answer was given by the defendant when the defendant was asked by his Advocate to go through the statement and thereafter, reply the question. DW4 admits it to be correct that he had written a letter to the Station Manager, Northern Railways, Delhi Main requesting him not to renew the licence of the plaintiff as he was facing an FIR U/s 307 of the IPC PS Model Town, Delhi. DW4 further admits that Ex. DW4/P3 is the photocopy of the said letter. DW4 further admits, in the crossexamination, that the plaintiff is a resident of Paschim Vihar area and he had written a letter to the SHO of the said police station. DW4 further states that he had not made any complaint against the Investigating Officer to any Senior Police Officer to the effect that IO had not correctly recorded his statement. DW4 admits the complaint dated 08.07.2002 Ex. PW2/13 on record and the complaint dated 11.07.2002 to the DCP, North West Ex. PW2/14 on record. DW4 admits it to be correct that the plaintiff was arrested after his complaint and he had remained in custody. DW4 further states that he does not Suit No. 401/14 (Old Suit No. 87/05) Page No. 23/29 know if the plaintiff had been discharged by the Court of Sh. A.K. Garg, the then Ld. ASJ, Delhi in case FIR no. 153/02 PS Model Town, Delhi. DW4 further admits it to be correct that the entire business community of the plaintiff had come to know about his arrest and detention in jail. DW4 further states that he does not know if the plaintiff is an income tax payee since 198990. DW4 further admits it to be correct that the plaintiff is working as a Forwarding and Clearing Agent with the Railways. By way of volunteer, DW4 states that he is a tout.
33. So far as DW5 is concerned, DW5, in his crossexamination has stated as under : ".....................The fact which I have stated in my affidavit that "on 18.03.2002 after getting Kamal Baugh admitted at Tirath Ram Shah Hospital I came out for parking my car at a proper place and noticed Shri Ashok Baugh and Bharat Bhushan near the entry gate of Hospital on that day". I have not told the aforesaid fact to police in the FIR concerning the incident in question nor I stated this fact anywhere else prior to filing of this affidavit Ex. DW5/A."
34. Going by the abovesaid crossexamination of the defendant himself, it is crystal clear that he did not lodge any complaint against the IO of the case FIR no. 153/02 as has been admitted by the defendant in Suit No. 401/14 (Old Suit No. 87/05) Page No. 24/29 clearcut and unequivocal terms. I have already discussed this aspect of the matter that the orders dated 14.07.2004 passed by the Ld. ASJ, Delhi have become final and the said orders dated 14.07.2004 cannot be assailed at this stage in the present suit.
35. PW1 has been crossexamined at length by the Ld. Counsel for the defendant on the aspect as to whether the plaintiff was acting as a Forwarding and Clearing Agent with the Railways or not. The defendant has also led the evidence of DW1, DW2, DW3 and DW4, who are the officials from the Railway Department on this aspect of the matter, but in the crossexamination, the defendant himself has categorically admitted that the plaintiff is working as a Forwarding and Clearing Agent with the Railways. As such, I have no hesitation to hold that the plaintiff has been able to prove that he was working as a Forwarding and Clearing Agent with the Railways.
36. As stated and discussed hereinabove, the most vital aspect of the matter is as to whether the complaint dated 08.07.2002 Ex. PW2/13 on record and the complaint dated 11.07.2002 Ex. PW2/14 on record, wherein, the plaintiff was named specifically were lodged by the defendant herein out of malice.
37. It has already been discussed that for the first time in the said two complaints, the plaintiff and his friend Sh. Ashok Baugh were named specifically by the defendant as the perpetrators of the crime. Suit No. 401/14 (Old Suit No. 87/05) Page No. 25/29 Orders dated 14.07.2004 passed by the Ld. ASJ, Delhi Ex. PW1/1 on record, in fact are based upon the vital contradictions as contained in the statement of the defendant recorded on 19.03.2002 and the statement of the defendant recorded on 13.07.2002.
38. Perusal of the entire material, to my mind, reveals that the said complaints were actuated by malice on the part of the defendant. I have no hesitation to hold that the complaint dated 08.07.2002, the complaint dated 11.07.2002 and the subsequent statement recorded on 13.07.2002 were lodged by the defendant not with the intention of getting the law into motion, but with an intention, which was wrongful in fact without any just or reasonable cause.
39. Now, coming to the question of damage to the reputation of the plaintiff, it has to be seen that the defendant in clearcut and unequivocal terms, in the crossexamination, has admitted that the plaintiff was arrested after his complaint and remained in custody. The defendant has further admitted, in the crossexamination that the entire business community of the plaintiff had come to know about his arrest and detention in jail. The defendant has further admitted, in the cross examination, that he had written a letter to the Station Manager, Northern Railway Ex. DW4/P3 on record requesting therein not to renew the licence of the plaintiff as the plaintiff was facing an FIR U/s 307 of the IPC PS Model Town, Delhi. The defendant has further admitted, in the Suit No. 401/14 (Old Suit No. 87/05) Page No. 26/29 crossexamination, that he had written a letter to the SHO PS Paschim Vihar Ex. DW4/P4 on record.
40. From the abovesaid crossexamination of the defendant, I have no hesitation to hold that the plaintiff has been able to prove that as a result of the action of the defendant, the plaintiff suffered damages to his reputation and to his safety.
41. In the light of the abovesaid discussion, I have no hesitation to hold that the defendant has utterly failed to prove on record that the plaint has to be rejected U/o 7 Rule 11 of the CPC. Accordingly, issue no. 1 is decided in favour of the plaintiff and against the defendant.
42. So far as issue no. 2 is concerned, I have no hesitation to hold that all the ingredients, which are a sinequanon in a suit for damages on account of malicious prosecution, the plaintiff has been able to prove the same.
43. Now, the question is as to what should be the quantum of damages. The plaintiff has claimed an amount of Rs. 6 Lacs in total on account of damages in the present suit. It has to be seen that the Hon'ble High Court in the authority cited as AIR 2006, Delhi, 300, titled as Ram Jethmalani Vs. Subramaniam Swamy, has held that :
"104. Unfortunately, in India, Law of Damages and in particular in relation to defamation has not developed at the Suit No. 401/14 (Old Suit No. 87/05) Page No. 27/29 same pace as it has developed in the European countries and the Unites States of America. Punitive damages in defamation are not awarded in India. Damages awarded are a recompense to the loss of honour and reputation. Inherently, quantification is a problem as honour and reputation are inherently incapable of being valued in terms of money. More often than not, loss of honour and reputation lowers the image of the person in the eyes of his friends and relatives and he suffers social isolation. If he is a professional, he may not suffer monetary loss as his client would engage him for his professional skill and not his personal character. This appears to be the reason that the plaintiff, in relation to his earnings made no attempt to establish that after the offending words were written and spoken, his earnings suffered a dip."
44. From the abovesaid authority, it is crystal clear that in India, the damages are awarded as a recompense to the loss of honour and reputation and the damages are not punitive in nature. As such, I am of the opinion that the plaintiff is entitled for a sum of Rs. 1 Lac as damages. Issue no. 2 is, thus, decided accordingly in favour of the plaintiff and against the defendant.
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45. So far as the interest is concerned, the plaintiff has claimed the interest @ 24% per annum on the decreetal amount. In the facts and circumstances of the case, the prayer for interest is hereby declined. Relief :
46. In the light of my findings on the foregoing issues, I hereby decree the suit of the plaintiff for an amount of Rs. 1 Lac. Costs of the suit are also awarded in favour of the plaintiff.
Decree sheet be prepared accordingly by the Reader.
File be consigned to Record Room after due compliance.
Announced in the open court (RAJ KUMAR)
on this 02nd day of March, 2015. ADJ09 (Central)
Tis Hazari Courts, Delhi.
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