Punjab-Haryana High Court
Pawan Kumar And Anr. vs Hans Raj on 22 July, 2005
Equivalent citations: (2005)141PLR476, AIR 2006 (NOC) 14 (PUNJ AND HAR) = (2005) 4 REC CIV R 152(P&H)
JUDGMENT M.M. Kumar, J.
1. This order shall dispose of R.S.A. No. 2112 and 2113 of 2003 because in both the cases the challenge is to the common judgment and same question of fact and law is involved. The defendants have filed the instant appeal under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of fact recorded by both the Courts below holding that the defendant-appellants have maliciously prosecuted the plaintiff-respondent with an oblique motive as they had filed a false criminal case against him under Sections 342/448/450/506/34 I.P.C. In the complaint filed before the Sub Divisional Judicial Magistrate it has been concluded in the judgment dated 3.2.1996 (Ex.P.1) that there was no iota of evidence to implicate the plaintiff-respondent in any manner nor any witness had appeared to testify the prosecution version. Eventually, the plaintiff-respondent was acquitted.
2. Facts in brief are that the plaintiff-respondent filed a suit for recovery of Rupees one lac as compensation and damages for malicious prosecution against the defendant-appellant alleging that on 7.11.1989 the father of the defendant-appellants filed a complaint under Sections 342/448/450/506/34 I.P.C. It was alleged that the plaintiff-respondent alongwith certain police officials tress-passed in the house of Ravi Dutt, the father of the defendant-appellant and was armed with lathi. The other accused were alleged to be armed with revolvers. The prosecution version was that Surat Singh, S.H.O., Jagdev Singh, A.S.I. had threatened the complainant with dire consequence and they locked up his house and took him to police station. The plaintiff-respondent also alleged that at that time and place he was not even present and a false and wrong complaint was filed against him and others with an intention to damage the reputation of the plaintiff-respondent who is aged about 80 years. During the pendency of proceedings before the criminal Court father of the defendant appellant Ravi Dutt had died. However, the defendant-appellant who intended to cause loss and damage to the plaintiff-respondent substituted themselves for the continuation of the complaint. On 10.3.1992 both the defendant-appellants as well as the complainant had appeared as a witness in the criminal complaint. The trial ended in acquittal of the plaintiff-respondent vide judgment dated 3.2.1996 and plaintiff therefore claimed damages for malicious prosecution to the tune of rupees one lac by filing civil suit.
3. The defendant-appellants denied that the complaint was filed with any malice or the reputation of the plaintiff-respondent suffered on account of that reason. They resisted the liability to pay any damages. The trial Court upheld the claim and awarded an amount of Rs. 30,000/- while decreeing the suit of the plaintiff-respondent. On appeal, filed by the plaintiff-respondent the amount was increased to Rs. 50,000/-. The appeal filed by the defendant-appellants was dismissed and as a result the instant appeals have been filed. The appellate Court has given a categorical finding that all the four ingredients which constitute the substantive right arising out of malicious prosecution have been fulfilled and proved by the plaintiff-respondent. According to both the Courts below, the plaintiff-respondents has proved (i) that there was prosecution by the defendant-appellant; (ii) that the prosecution resulted in his acquittal; (iii) that the prosecution was without any reasonable and probable cause and (iv) that the prosecution was malicious. Referring to the judgment dated 3.2.1996 delivered by the learned Sub Divisional Judicial Magistrate Samrala in criminal complaint No. 39/1 of 1989 (Ex.P.1), the ld. Lower appellate Court has concluded that the prosecution against the plaintiff-respondent was initiated and continued by the defendant appellants and the same ended in acquittal of the plaintiff-respondent. It is appropriate to mention that the plaintiff-respondent appeared as his own witness (PW1) and deposed on oath that in addition to agricultural land he has got commercial property at Samrala which comprised of five shops. He had rented out a shop to the complainant Ravi Dutt, the father of the defendant-appellants. The rent for 6/7 years was due and in order to avoid the liability to pay rent he had picked up quarrel with him by filing false criminal complaint with mala-fide intention and as a result the plaintiff-respondent had suffered humiliation. The afore-mentioned fact is necessary as it leads in understanding about the false prosecution of the plaintiff-respondent. Both other ingredients have also been found and proved by the learned lower appellant Court. In this regard the observations of the lower appellate Court read as under:
"As regards the next ingredient that prosecution was instituted without any reasonable or probable cause the judgment of the criminal court is crystal clear in that respect, wherein ld. Magistrate observed that Vijay Kumar and Hans Raj had been falsely implicated just to put pressure on them to bring them to table and there was not even an iota of evidence against them. That show that the prosecution was instituted without any reasonable or probable cause and malafide on part of defendant and their predecessor in interest was definite there in doing so. Hans Raj having been acquitted by the criminal Court vide judgment dated 3.2.1996, copy Ex.P.1, obviously proceedings have terminated in his favour."
4. On the basis of the afore-mentioned finding the lower Appellate Court has awarded a sum of Rs. 50,000/- as damages which includes the litigation expenses, loss in business, mental suffering, agony, and insult in general public.
5. Shri Neeraj Sharma, learned Counsel for the defendant-appellants has argued that heavy reliance has been placed by the Courts below on the judgment delivered by the Sub Divisional Judicial Magistrate, Samrala dated 3.2.1996 (Ex.P1). According to the learned Counsel no fact constituting the right to seek damages by malicious prosecution have been proved before the Civil Court by adducing cogent evidence. Learned counsel has maintained that all the four ingredients constitute the right to seek damages for malicious prosecution have been proved. In support of his submission he has placed reliance on a Division Bench judgment of the Calcutta High Court in the case of Bharat Commerce and Industries Ltd. v. Surendra Nath Shukla and Ors., A.I.R. 1966 S.C. 388.
6. Shri G.I. Sharma, learned Counsel for the plaintiff-respondent has argued that the Courts below are within their jurisdiction to consider the judgment of the Sub Divisional Judicial Magistrate dated 3.2.1996 (Ex.P1) as such a judgment would be relevant. Learned counsel has then argued that the findings recorded by the Sub Divisional Judicial Magistrate in criminal proceeding ipso facto have not been accepted and evidence in the suit has been recorded to prove all the four ingredients. He has maintained that it is a different matter that evidence in the civil Court and the findings recorded in the criminal complaint have been read together to reach the conclusion with regard to all the four ingredients.
7. Having heard the learned Counsel for the parties and perusing the judgments of both the Courts below I am of the considered view that there is no room to interference in the concurrent findings of facts recorded by both the Courts below. It is well settled that the four ingredients would require to be proved before the plaintiff could succeed in a claim for damages resulting from malicious prosecution. There is preponderence of authorities with regard to the presence of the four ingredients. In this regard, reference may be made to a Full Bench judgment of the Kerala High Court in the case of T. Subramanya Bhatta v. A. Krishna Bhatta, . The observations of the Full Bench of the Kerala High Court which are relevant to the issue read as under:
"The ingredients to be proved by the plaintiff in an action for malicious prosecution are: (1) that there was prosecution by the defendant; (2) that the prosecution terminated in favour of the plaintiff; (3) that the prosecution was malicious; and (4) that it was without reasonable and probable cause."
Similar view has been taken by the Delhi High Court in the case of R.K. Soni v. S. Singhara Singh, A.I.R. 1992 Delhi 264.
8. The first two ingredients stand fully proved by the judgment dated 8.2.1996 (Ex.P.1) which shows that the criminal prosecution was launched by Shri Ravi Dutt, the father of the defendant-appellants who was tenant of the plaintiff-respondent. It is also evident that after the death of their father, the defendant-appellants moved an application for their substitution as complainant and the same was allowed by the Magistrate on 10.3.1992. The defendant-appellants were not only the complainant but have also appeared as witnesses in support of the complaint which was initially launched by their father but later on continued by them. The judgment dated 3.2.1996 also proved. The second ingredient that the plaintiff-respondent was acquitted by the Magistrate in the criminal complaint. It is no argument to defeat the claim for damages made by the plaintiff-respondent that criminal prosecution was not launched by the defendant-appellants but it was done by their father because if such a course is permitted then the prosecution launched on the information supplied by and the active participation of a defendant then the defendant would not be liable although his name may not have figured as a complainant. These observations have been made by the Full Bench in the case of T. Subramanya Bhatta (supra). In that case defendant had moved the Court of Session in revision and had got himself impleaded. He was later on examined as a witness in the session trial. The relevant observations on this issue are available in paras 9 and 10 which read as under:
"On the facts we have little difficulty in holding that the defendant was the prosecutor even judged by the rigorous standard of active association with the prosecution. He had filed Ex.A.1 complaint. He was not quiescent thereafter. He moved the Sessions Judge in revision against Ext.A.3 order treating the case as a crime case; he sought to get himself impleaded in the criminal revision before the High Court and to intervene in the hearing; and examined himself as a witness in the Sessions trial. These, in our view, are sufficient to make out that he was the real prosecutor in this case.
On the liberal view, the defendant satisfies the test of being the prosecutor. In Gaya Prasad v. Bharat Singh, I.L.R. (1908)30 All. 525 (PC), the passage we have quoted earlier enumerated the categories of cases where it should be unjust to allow a person to escape liability because the prosecution has not, technically, been conducted by him; and the first of these categories is' "If the charge is false to the knowledge of the complainant." (underlining ours). It was this ground of decision which provoked the comment from Winfield in his 1963 Edition of Torts. With the slant in which, we have dissociated, but the general reasonableness of which, was commended by the author himself, as adding to its persuasive authority even in English soil."
9. If the position of a person who has set in motion the machinery of criminal justice by filing a complaint before the police is that of a prosecutor as has been held by the Full Bench of the Kerala High Court then I see no reason to treat the defendant-appellants differently when they themselves filed an application for substitution as complainant which was allowed by the Magistrate on 10.3.1992. Therefore, the first two ingredients stands established.
10. The question then is whether the other ingredients of lack of reasonable and probable cause and the malice action on the part of the defendant have been satisfied or not. The learned Appellate Court has noticed the judgment dated 3.2.1996 Ex.P.1 and has extracted the following para for the purposes of reliance:
"The arguments advanced by the learned Counsel for the accused merits consideration. The entire evidence led by the complainant in the term of PW-1, Raj Gopal, PW-2 Sh. Uttam Chand, Advocate, PW-3 Devinder Kumar and PW-4 Pawan Kumar it is very clear that there is not an iota of evidence to implicate the present accused in any manner because as per statement of PW-4 Pawan Kumar the occurrence was witnessed by PW-3 Devinder Kumar, but when Devinder Kumar appeared as PW-3 he had categorically denied having seen the lock, being cut by Surjit Singh and other accused persons. The apprehension of the complainant that Surjit Singh accompanied by Vijay Kumar and Hans Raj must have committed the crime is ill founded and misconceived. In fact there is not an iota of evidence against the accused Vijay Kumar and Hans Raj and they have been falsely implicated in this complaint just to put pressure on them to bring Surjit Singh to table and infact the complainant has not been able to prove this complaint beyond the shadow of any reasonable doubt and as such the accused are acquitted of the charge framed against them."
11. It has also referred to the conclusion arrived at by the learned Magistrate that the plaintiff-respondent alongwith others was falsely implicated in order to put pressure on them to come on the negotiable table with regard to arrears of rent and there was not even an iota of evidence against them. The afore-mentioned fact has also been stated by the plaintiff-respondent when he appeared as his own witness in the civil suit. He had also examined Prem Kumar son of Devi Dayal as PW-2 and Sardara Singh had appeared as PW-3. All the witnesses have deposed that a false criminal case was initiated by the father of the defendant-appellant and then continued by the defendant-appellants against the plaintiff-respondent. Similar was the statement made by Bagga Singh PW4. Therefore, it cannot be accepted as contended by the learned Counsel for the defendant-appellant that only evidence in the civil suit to prove the various ingredients of the claim of damages for malicious prosecution is the judgment dated 3.2.1996 (Ex.P.1). In addition to the judgment there are witnesses who have independently deposed in support of the claim. Therefore, the other two ingredients that there was no reasonable and probable cause and the prosecution was malicious stand also proved. The object of initiation and continuation of prosecution was only one namely to pressurise the plaintiff-respondent to come on the negotiable table as Ravi Dutt, father of the defendant-appellants, was in arrears of rent.
12. Even otherwise this Court in exercise of jurisdiction under Section 100 of the Code would not embark upon re-appreciation of evidence in order to reach the conclusion different than the one reached by the Courts below unless it unequivocally records a finding that no reasonable person could have taken the view which has been formed by the Courts below. No such thing is present in the instant case. These are pure findings of fact which would not call for interference of this Court in exercise of jurisdiction under Section 100 of the Code. The appeals are wholly without merit.
13. For the reasons recorded above, both the appeals fail and are dismissed.