Delhi District Court
M/S Dcm Financial Services Ltd vs Sh Rajiv Kumar Aggarwal on 19 January, 2007
IN THE COURT OF SH. BABU LAL : ADDL. DISTRICT JUDGE
DELHI
RCA-03/06
M/s DCM Financial Services Ltd Appellant
Versus
Sh Rajiv Kumar Aggarwal Respondent
ORDER
1. Vide this order, I shall dispose of an appeal filed by the appellant DCM Financial Services Ltd against judgment and decree dated 24.10.05 passed by ld Civil Judge, Delhi. Facts leading to filing of the present appeal are that respondent herein had filed a suit for recovery of Rs 1 lac on account of malicious prosecution alleging that appellant herein had instituted two complaint cases U/s 138 N.I.Act against the respondent and Alfagen Computers, Lucknow knowing fully well that respondent was neither partner or employee and otherwise associated with the said Computers Company. In the said complaint case, police had allegedly gone to the house of the respondent to arrest him in execution of NBW, however, at that time he was away on a business tour. When he came back, he was shocked to know about the mishap, therefore, he filed applications U/s 247 and U/s 250 Cr.P.C. in the trial court and appellant herein had not filed any reply thereto. The court of Sh 1 Babu Lal, ld ASJ, New Delhi had also awarded compensation of Rs 3000 to the respondent U/s 250 Cr.P.C. Subsequently, appellant is alleged to have withdrawn those complaints against the respondent. It was case of the respondent due to this incident, his father and family members had suffered a trauma and shock and his father being a heart patient was put under medical observation. Therefore, respondent had prayed for a decree of Rs 1 lacs as damages on account of malicious prosecution.
2. In the written statement, case of the appellant was that plaintiff had stood guarantee for the loan advanced to M/s Alfagen Computers and when the two cheques issued by it got dishonoured, therefore, respondent was jointly and severally liable to pay the amount this is why he was made accused in both the complaint cases. It was also its case that Court of Sh Babu Lal, ld ASJ, New Delhi had awarded compensation of Rs 3000 to the respondent U/s 250 Cr.P.C, therefore, cause of action to file the civil proceedings ceased to exist and also stood waived since the respondent had accepted amount of Rs 3000 towards loss.
3. On the basis of pleadings of the parties, following issues were framed :-
(1) Whether the plaint discloses any cause of action against the defendants and in favour of the plaintiff ? OPP (2) Whether the suit of the plaintiff is not maintainable as he had received Rs 3000 as compensation from the defendant company on 18.1.03 in pursuant to order passed by Sh Babu 2 Lal, ld ASJ, Delhi in complaint case No 2117/98 ? OPD (3) Whether the plaintiff has been maliciously prosecuted by defendant company by way of filing two complaint cases U/S 138 N.I.Act i.e. Complaint case No 2116/1/98 & 468/1/98 in the court of Sh Sanjay Garg ld M.M. And Sh S.S.Rathi, ld M.M. Delhi respectively ? OPP (4) Whether the plaintiff is entitled to a sum of Rs 1 lac being damages on account of malicious prosecution, loss of reputation and mental agony ? OPP (5) Relief.
4. I have heard ld counsels for the parties and have carefully gone through record of the case. My issuewise findings are as under :-
Issues No 2 & 3 Controversy raised by appellant pertains to issue Nos 2 & 3, therefore, they shall be decided together. The fact as disclosed from the record are that appellant had filed a criminal complaint against respondent U/s 138 N.I.Act. That complaint against the respondent was foud to be groundless and exercising its powers U/s 250 Cr.P.C. the criminal court directed the appellant to pay a sum of Rs 3000 by way of compensation to the respondent. The respondent filed the suit against the appellant for recovery of compensation for malicious prosecution claiming compensation of Rs 1 lac. The trial court came to the conclusion that criminal Court vide its order had directed the appellant to pay a sum of Rs 3 000 to the respondent by way of compensation. But award of compensation U/s 250 Cr.P.C. by the criminal court did not debar the respondent from 3 pursuing a civil remedy for recovery of compensation for malicious prosecution. The trial court also held that appellant/ defendant in the civil suit had neither stated anywhere that there was negligence on its part nor had it stated so in the written statement or in evidence nor had tendered apology to the plaintiff, therefore, his conduct in filing the complaint against respondent herein could not be said to be mere mistake or ignorance but was malicious act on its part.
5. It has been argued on behalf of appellant that once compensation of Rs 3000 was awarded by the criminal court to the respondent herein, no suit for further compensation could have been filed by the respondent. It is argued that because of this reason, present suit is bad in law.
6. On the other hand, it has been argued on behalf of respondent that findings of the criminal court does not bar the civil remedy available to the respondent to recover compensation for malicious prosecution. It has been argued that respondent was only a guarantor and he could not have been prosecuted by the appellant U/s 138 N.I.Act, therefore, he had every right to file a civil suit for recovery of compensation under the civil remedy available to him.
7. I am not inclined to accept this contention of ld counsel for appellant. In Section 250 Cr.P.C. It has been provided that the compensation awarded by the criminal court under this section will not debar the aggrieved person to avail the civil 4 remedy for recovery of compensation. Relevant provision of section 250(5) Cr.P.C, is reproduced as under:-
''No person who has been directed to pay compensation under section by reason of such order, be exempt from any civil or criminal liability in respect of complaint made or information given by him. Provided that any amount paid by any accused person under this section shall be taken into account in awarding compensation to such person in any subsequent suit relating to the same matter.
8. The language of this section itself answers the question raised by ld counsel for appellant. Neither invocation of civil or criminal remedy by aggrieved person is barred under this section nor any such bar has been created by the general law. In terms of section 250 ( 5) Cr.P.C. the appellant is only entitled to adjust the amount paid under this section in the amount awarded by the civil Court by way of compensation. Therefore, I come to the conclusion that decree passed in this case is not bad merely because the appellant had been directed to pay compensation of Rs 3000 to the respondent by the criminal court. These issues are accordingly decided.
9. Findings on issue No 4 Issue No 4 is whether plaintiff is entitled to recover Rs 1 lac as damages on account of malicious prosecution, loss of reputation and mental agony. The trial court came to the conclusion that though NBW were issued against the respondent herein by the criminal Court but he was not at home, therefore, neither he was arrested nor he had suffered any shock. Secondly 5 the case of the respondent was that his father and mother had suffered mental shock but he failed to examine them to prove that fact. Therefore, the trial court held that in the absence of any evidence that NBW were ever issued against the plaintiff or he suffered any shock or if at all police official visited his house, he has not been able to prove that he or his parents had suffered mental agony. The trial court also came to the conclusion that the respondent has proved that he was maliciously prosecuted by the appellant. It also came to the conclusion that since the respondent herein had failed to prove that he had suffered mental agony or loss of reputation, he was not entitled to recover Rs 1 lac as compensation. However, it held that since the respondent was maliciously prosecuted by the appellant, he was held to recover Rs 25,000as damages from the appellant.
10. Ld counsel for the appellant has argued that when no harm was caused to the respondent, the amount of Rs 25,000 is on excessive side.
11. On the other hand, ld counsel for the respondent has argued that on six or seven dates, the respondent had to attend court in Delhi, he had to travel from Lucknow to Delhi and spent amount on his journeys by rail apart from spending amount on boarding and lodging, therefore, amount of Rs 25,000 is not excessive.
12. Keeping in view the attendant circumstances of the case, I am of the view that amount of Rs 25,000 can not be said 6 to be excessive. Ld trial court had already held that appellant would be entitled to adjust Rs 3000 already paid to the respondent U/s 250 Cr.P.C. The trial court had also awarded interest @ 12% per annum. In my considered opinion, the interest awarded by the trial court seems to be quite excessive. I am of the view that ends of justice would be met if the appellant is directed to pay simple interest @ 6% per annum on the left out amount of Rs 22,000 to the respondent with proportionate cost. Ordered accordingly. Except this modification, no other interference is called for. Appeal accordingly disposed of. TCR be sent back along with copy of the order. File be consigned to record room.
Announced on the Open Court
on 19.01.07 (BABU LAL)
ADDL. DISTRICT JDUGE
DELHI
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