Delhi District Court
Shri Naresh Kumar vs Mr. Jitender Sharma on 31 May, 2012
IN THE COURT OF MS. NEELAM SINGH,
ADJ02 (SOUTH) SAKET COURT COMPLEX, NEW DELHI.
CS No. 20/2011
Unique Case ID No. 02403C0136882010
1. Shri Naresh Kumar
2. Sh. Mukesh Kumar
3. Sh. Surender Kumar
All three S/o late Shri Shiv Dutt Sharma
4. Smt. Shanti Devi
W/o late Shri Shiv Dutt Sharma
All four residents of 171, Hari Nagar,
Ashram, New Delhi110014.
...Plaintiffs
Versus
1. Mr. Jitender Sharma
S/o late Shri Bhavani Dutt Sharma
H. No. 174/1, Hari Nagar,
Ashram, New Delhi110014.
2. Mr. Rajender Singh
S/o late Shri Dalpat Singh
H. No. 150, Hari Nagar,
Ashram, New Delhi110014.
3. Mr. Badri Narain
S/o late Sh. Bhavani Dutt Sharma
H. No. 176, Hari Nagar,
Ashram, New Delhi110014.
...Defendants
CS No. 20/2011 Page No. 1 of 45
Suit presented on : 26.02.2010
Arguments heard on : 31.05.2012
Judgment on : 31.05.2012
SUIT FOR RECOVERY OF Rs.10,00,000/ (RUPEES TEN
LACS ONLY) ON BEHALF OF THE PLAINTIFFS.
J U D G M E N T
1. Vide this judgment, I shall dispose off the suit for recovery filed by plaintiffs against the defendants as damages for the loss of reputation, health, financial loss and professional loss suffered by the plaintiffs due to ill acts of defendants.
2. It is submitted in the plaint that plaintiff no. 1 to 3 are brothers and plaintiff no. 4 is the mother of plaintiff no. 1 to 3.
3. It is further submitted that on 30.12.1995 the defendant no. 1 had got registered a false FIR No. 1077/95 under Section 452/323/506/34 IPC in PS Sriniwas Puri against all the plaintiffs and father of plaintiff no. 1 to 3 and were falsely implicated in the criminal case with a malafide intention having conspiracy with the defendant no. 2 and 3.
4. It is further submitted that the abovementioned criminal case was instituted against the plaintiffs without any evidence just to malign the plaintiffs and cause harm to their reputation and thereby defame CS No. 20/2011 Page No. 2 of 45 them in the society and locality.
5. It is further submitted by plaintiffs that they were tortured mentally and physically by the PS Sriniwas Puri at the instance of defendants and plaintiffs also remained in policy custody as well as in jail.
6. It is further submitted that the plaintiffs suffered a lot of humiliation and mental agony when they were arrested by the police and due to the lengthy trial for about 1314 years and unbearable circumstances Sh. Shiv Dutt Sharma i.e. husband of plaintiff no. 4 and father of plaintiff no. 1 to 3 died and plaintiffs suffered a lot of financial, mental as well as moral loss.
7. It is further submitted that all the defendants are severally and jointly liable to compensate and pay the claim amount in equal share to all the plaintiffs for a tune of Rs.10,00,000/ details of which is as under:
S. No. Particulars Amount Claimed
1 For the loss of reputation, harassment, mental agony Rs. 4,00,000/
suffered b the plaintiffs for long period i.e. about 14 years 2 For the malicious, false and fabricated prosecution Rs. 2,00,000/ instituted by the defendants and loss of life of Sh. Shiv Dutt Sharma (deceased) due to continuous mental shock and loss of love and affection of the head of experienced Karta of the family of the plaintiffs.
CS No. 20/2011 Page No. 3 of 45 3 For the financial loss suffered by the plaintiffs during Rs. 3,00,000/ lengthy trial as plaintiffs also became mentally and physically disturbed for running their daily work for long time i.e. about 14 years.
4 For the financial loss due to costly litigation for bail, Rs. 1,00,000/ lengthy trial and conveyance charges of the said case during trial TOTAL Rs.10,00,000/
8. It is further submitted that despite receipt of legal notice dated 18.08.2009 for demand of Rs.10,00,000/, the defendants failed to pay the claimed amount to the plaintiffs. Hence, the present suit.
9. Notices were issued to the defendants on 26.02.2010 and they filed their written statement. In their written statement, they submitted that FIR No. 1077/95 under Section 452/323/506/34 IPC in PS Sriniwas was registered at their instance and on the basis of their statement recorded by police on 30.12.1995. It is further submitted that thereafter police investigated the compliant and a chargesheet was filed against five persons namely, Naresh Kumar, Mukesh Kumar, Surender Kumar, Shiv Dutt Sharma and Smt. Shanti Devi.
10. It is further submitted that during the trial, Shri Shiv Dutt Sharma expired and the prosecution was abated against him and the trail concluded against the four remaining accused persons.
11. It is further submitted that the court of Shri Naveen Arora, CS No. 20/2011 Page No. 4 of 45 learned ACMM (SouthEast), New Delhi acquitted the accused persons by giving them benefit of doubt with the observation that "in view of abovementioned facts and circumstances, accused persons cannot be held guilty as prosecution has failed to discharge the burden and proven the case beyond the reasonable doubts against them. Hence, accused persons are liable to be acquitted."
12. It is further submitted that the accused persons / plaintiffs have attacked the defendants and after investigation, the police filed the chargesheet and charges were framed against the accused persons. It is further submitted that the complaint lodged by the defendants with the police was with a bonafide intention to carry the law into effect and was not with malicious intentions. It is further submitted that the averments made in the plaint are absolutely baseless to the effect that the criminal case was falsely constituted against the defendants without any evidence malign the plaintiffs and cause harm to the reputation of the plaintiffs in the society.
13. It is further submitted that defendant no. 2 and 3 are sheer witnesses of the occurrence and their testimony is also supporting the case of the prosecution and the only contradiction is in the name i.e. Naresh or Mukesh but on the basis of this contradiction, they cannot be said to have entered into criminal conspiracy to falsely implicate the CS No. 20/2011 Page No. 5 of 45 plaintiffs in the criminal case.
14. It is further submitted by the defendants that the plaintiffs are not able to show that the complaint made by the defendant no. 1 was malicious and without any reasonable or probable cause. It is further submitted that facing of trial as per law and procedure cannot be termed as malicious prosecution if a person is acquitted in the case.
15. It is further submitted that Shri Shiv Dutt Sharma, father of plaintiff no. 1 to 3, has given in writing that he will not hurled a filthy abuses and will not lodge any false case against the defendants. It is further submitted that the case of the plaintiffs be hereby dismissed being an abuse of process of law.
16. Thereafter, the plaintiffs have filed replication reiterating the facts of their case and refuting the facts submitted by the defendants in their written statement.
17. From the pleadings of the parties, following issues were framed vide order dated 10.01.2011:
1. Whether the plaintiff is entitled to decree of Rs.10 lakhs along with interest @ 24% p.a.? OPP
2. Whether suit is maintainable as per law? OPP
3. Relief.
CS No. 20/2011 Page No. 6 of 45
18. The plaintiffs led evidence by way of affidavit and examined plaintiff no. 1 Sh. Naresh Kumar as PW1, Sh. Rajender Kaushik as PW2 and Sh. Shree Kishan as PW3. They were cross examined at length by the defendants' counsel.
19. The relevant extract of cross examination of PW1 Sh. Naresh Kumar is reproduced as under:
"...I am 42 Years old. I was running a tea stall in Pragati Maidan at the time of said incident. It was a stall of my father and I used to accompany him. I have studied till 9th Class in a Govt. School, Hari Nagar, Ashram. My father was running this tea stall till his death on 26.03.2006. Till that time, I was working with my father. Thereafter, the stall was closed. From 2006 onwards, I am working in catering business. I used to supply food as a part of my work. I used to prepare the food in Pragati Maidan in some shop. I have worked with many caterers one of them was Hori Lal of Food Plaza. I only know Hori Lal with whom I have worked and I am not aware about the owner of food plaza. I can not produce any documents regarding the above said work of catering with Hori Lal CS No. 20/2011 Page No. 7 of 45 Vol. this work was used to be during the festival seasons in Pragati Maidan. I also used to go Bombay and Hyderabad in connection with my work of catering. It is correct that I have no permanent work. It is further correct that I have no fixed income and I used to work just like a casual worker. Today, I am working with a property dealer in partnership. I have no permanent source of income till today..."
"...It is wrong to suggest that my father and Surender was arrested from the place of occurrence on 30.12.1995. Vol. there was no dispute on that day with my father and my father and brother Surender were not arrested on that day. Again said, my brother Surender was arrested by police officer on the saying of Sh. Jitender Sharma and later on, around 9.00 pm, my father was also called and arrested. After around two months, I surrendered myself in the court in this case vide FIR No. 1077/95 PS Sri Niwas Puri. My brother Mukesh was also implicated in this matter by the defendants. My brother Mukesh has also surrendered in the court after about two months of CS No. 20/2011 Page No. 8 of 45 the said incident. My mother was not arrested in this case and she was granted anticipatory bail by the court after about two months of the said incident. My father and Surender were granted bail after about seven days by the court. During that time, I was working at the tea stall of my father. My brother Mukesh was attending his official duties during that time. After the arrest of my father and brother, we have made a complaint to the Commissioner of Police and I am having a copy of the same today also in the court. The photocopy of the complaint is taken on record as mark D1. The complaint is made by my brother Mukesh on 13.08.1996. Before this complaint, we have also lodged various complaints before the DCP concerned. I can produce the copy of the same. It is correct that I surrendered before the court as the police was searching me out. It is wrong to suggest that I was hiding myself from the police during the period of incident and my surrendered Vol. I was working in my tea stall. I surrendered before the court voluntarily and I am not aware whether the police came for my arrest or not. The CS No. 20/2011 Page No. 9 of 45 same is the case with Mukesh regarding his surrender. I surrendered before the court as police was torching my other family members. I have made complaint regarding the police officers and the SHO before higher authorities and as per my knowledge SHO was called by the authorities and was transferred. I have not made a complaint regarding any particular officer who was investigating my matter before any authorities civic as well as judicial. I have not filed any case in the court for quashing of the said FIR on the ground of being false. The trial in the said FIR begin from 1997 onwards before a Magistrate. After the trial, I did not make any complaint against any police officer or defendant as I had faith in the court. I have not any filed any revision against the charges framed against me in the said FIR. At the time of framing of charge, I pleaded before the court "to forgive me without any wrong on my part" but the defendant still want a trial..."
"...It is correct that my house is opposite to the defendant no. 1 Sh. Jitender Sharma. Before this incident, there was CS No. 20/2011 Page No. 10 of 45 no quarrel of any kind between us. I did not make any complaint to any authority including police before the said incident in 1995 against the defendants. Although, I and my family have no fight to the defendants but the defendants used to make our arrest at any time by the police even before this incident. They used to call the police and arrest us as opposite to our house to the defendant no. 1 is running a guest house and they also want to purchase my property and used to send property dealers for that. However, my father could not make any complaint in this regard to any of the authority as he was illiterate. They used to make offers to my father regarding the sale of my house but my father used to refuse them as he was not interested in sale of my house. Other than this, there was no reason for any type of dispute at that time Vol. defendant no. 1 has also send a person named Kamal Singh who injured me severely and I can produce a medical certificate to this effect which I am having today in the court. The copy of medical certificate is taken on record mark D2..."
CS No. 20/2011 Page No. 11 of 45
"...It is correct that Gyan Dutt, Surender Kumar, Mukesh Kumar are my brothers. I am putting up along with Surender Kumar and Mukesh Kumar. Around 1990, Gyan Dutt started living separately from us. Surender is 8th class passed he has done Diploma in ITI and doing welding works from home. Still he is doing welding works. There is only one tenant in my house. I am not aware whether police has recorded statement of Rajender Kaushik and Sree Krishan at the day of incident as I was not present there at that time. It is wrong to suggest that my brother Surender is a drunken. It is further wrong to suggest that he is not doing any work. It is further wrong to suggest that in the state of drunkenness he fights with people and disturb the people in vicinity. I am not aware about the contents of document mark 'A'. It is wrong to suggest that my brother Surender still fights among the people in the vicinity after taking drinks. Mr. R.K. Kaushik and Sree Krishan are now my relatives. It is wrong to suggest that since both of these are my relatives so they deposed false in my case Vol. Sh. CS No. 20/2011 Page No. 12 of 45 R.K. Kaushik was not my relative in the year 1995. I am not aware if any criminal case is pending against Sh. R.K. Kaushik including a rape case in FIR No. 126/2004 U/s 376 (State Vs. Rajender Kaushik) in PS Lajpat Nagar. I am not aware whether IO has recorded any statement from any neighbour about the incident. I have told before the Judge that at the time of framing of charge that no such incident has taken place. My counsel was with me on that day. I have not preferred any revision against framing of charge against me..."
"...We have not made any compliant on the same day to any higher authority about this false case as my brother was made to sit in the PS. When my father went to PS around 9.00 pm he was also made to sit there. My mother was at home. I was at Pragati Maidan, tea stall and my brother Mukesh was in his office. It is correct that I came to my home along with my father at 9.00 pm. I did not visited the PS at that time and remained at home. No police officials came to my home at that day after 9.00 pm. It is correct that I and my mother were at my home CS No. 20/2011 Page No. 13 of 45 after 9.00 pm. It is wrong to suggest that anticipatory bail for my brother is rejected on the ground of tempering in the attendance register maintained in the office. It is wrong to suggest that I used to disturb Jitender Sharma by making noise and also used to disturb with the sound of "Hurr Hurr" with pigeons. It is wrong to suggest that my brother namely Surender is a drunken man and also admitted in the drug deadiction centres. It is wrong to suggest that I am deposing falsely in this case. Rajender Singh and Badrinarayan are the permanent witnesses of Jitender Sharma since about 1989. Both are also witness in a case against me. Rajender Singh has deposed false against my father in a case of theft of cooler. Other than this case and in FIR No. 1077/95 they are not witness in any case against me. They also have not made any complaint against me. There is no social enmity of Sh. Rajender Singh and Badrinarayan against us. As they have deposed false against me so I filed the present suit against them. I am not aware whether they were police witness in case FIR no. 1077/95..." CS No. 20/2011 Page No. 14 of 45
"...We have not made any complaint to the higher authorities regarding forcible purchase of the house in order to remove us from the place where we are residing. I have deposed in my SA about the fact of forcible purchase of the house in order to remove us by the defendants. I am not aware whether I make any statement to the effect in the case FIR No. 1077/95 that Rajender Singh and Badrinarayan are the permanent witnesses. I am not aware whether my submissions regarding this false case is accepted by the police or not and proceeded with the case. It is wrong to suggest that the police did not accepted my submissions as it was not a false case and that is why chargesheet was filed..."
"...There was no immediate cause to implicate us on the day of incident as the defendants had already planned since along to implicate us. It is wrong to suggest that I have instituted this case in order to harass the defendants. It is wrong to suggest that all the complaints made by Jitender Sharma against us were genuine. It is wrong to suggest that I have been prosecuted as per law. It is CS No. 20/2011 Page No. 15 of 45 wrong to suggest that I am deposing falsely in this case. It is wrong to suggest that the trial court has acquitted me only because of benefit of doubt and that is why there is no cause of action to file this present suit..."
20. The cross examination of PW2 Sh. Rajender Kaushik is reproduced as under:
"Plaintiff is my neighbour since my birth. I am related to the plaintiff and the relationship started in 1999 as my son and plaintiff no. 1 are cobrothers. Defendant no. 1 made a false complaint against my son in PS Shriniwaspuri about creating nuisance because of loading and unloading of tent house articles. This loading and unloading was done during the night time when the people in the vicinity used to sleep. It is wrong to suggest that defendant made a request to me and to my son not to create disturbance as his wife is suffering from high blood pressure and the louder noise may effect her health. It is correct that once PCR also come which was called by defendant no. 1. It is wrong to suggest that local police/ PCR warned me and my son not to create disturbance CS No. 20/2011 Page No. 16 of 45 because of loading and unloading of tent house articles. Vol. we stopped the work of tent house thereafter. It is correct that defendant no. 1 never made any complaint against any other person of the vicinity..."
"...We are the only two neighbour of defendant in the vicinity. Vol. there are other people residing but they do not want to go to the authorities for taking action against the defendants. It is correct that government servants are also residing in the locality but they are not very high officials. It is correct that one Mr. Goswami is also our neighbour who is working at a high post but his house is at the back side of the defendants residence. It is wrong to suggest that the house of Mr. Goswami opens at the side of defendant no. 1's residence only..."
"...He has also depose false against one Shri Jaggan. The brother of defendant falsely implicate Shri Jaggan u/s 354 IPC and in that case defendant no. 1 deposed false against him. I am not aware whether defendant no. 1 is also booked in this case or not..."
"...It is correct that FIR, Mark A2 was recorded on the CS No. 20/2011 Page No. 17 of 45 complaint made by one Mr. Rajiv Sharma, nephew of defendant no. 1. I have no knowledge about Mark A5. It is wrong to wrong to suggest that I have knowledge about document Mark A5. It is further wrong to suggest that on the basis of document Mark A5 the husband of complainant Shri Shiv Dutt Sharma admitted before me that it is a false case and thereafter withdrew the same. At this stage, a document in the above said matter is shown to the witness and the witness has identify the signature at point X and the same is Exhibit PW2/D1. Vol. I signed on Exhibit PW2/D1 in good faith on a blank paper on pretext of defendant no. 1 for making complaint for cleaning etc. It is wrong to suggest that I was not in cordial relation with defendant no. 1 since 1989 onwards..."
"...As per my knowledge 30.12.1995 was a holiday and not a working day and I was at my house around 3.45 to 4.00 PM. The distance between my house and the defendant is 50 to 60 sq. feet. It is incorrect to suggest that house of defendant is on main road and my house is CS No. 20/2011 Page No. 18 of 45 in the adjoining street. It is further wrong to suggest that I am not able to view the house of defendant no. 1 from my house. It is wrong to suggest that I deposed before the criminal court that on 30.12.1995 I was on full day leave and today I am making false statement that it was a holiday. I have not made any complaint to police authorities regarding false complaint about the incident of 30.12.1995 nor I met with any police officials in this regard.
At present plaintiff no. 1 is doing small property dealings. Plaintiff no. 1 and his father were never the owner of Tea stall, they used to run from a stone in the corner outside Pragati Maidan. I had relation with plaintiff no. 1 since 18.02.1999 and before that I knew him being neighbour and was not having any intimate relation. My visit in the house of plaintiff no. 1 before 18.02.1999 was minimal just once or twice. It is correct that I was not aware about the mental and physical condition of plaintiff no. 1 before 18.02.1999. My saying so in the affidavit in para 6 is on the basis of hearsay. It is correct that I am not CS No. 20/2011 Page No. 19 of 45 aware about the fact that how much money was spent by plaintiff no. 1 and other family members on hiring the counsel. I visited plaintiff no. 3 Surender and his father in the jail along with mother and uncle of plaintiff no. 1. I am not aware about the details of case under which the plaintiffs were booked. Vol. I heard that it pertains to revolver. I came to know that case is false from the people in the vicinity. My saying so that it is a false case depends upon my reasoning that when a person is not having sufficient means to eat his bread from where he can keep the revolver. It is correct that I am not aware about the income of plaintiff no. 1 and his father. My personal knowledge I mean how can a person say on his personal knowledge that one case is false, concocted, malicious and fabricated it is only on the saying of other people only one can say that case is a false, concocted, malicious and fabricated. It is wrong to suggest that since I am not aware about the nature of the case so I cannot say that because of this plaintiff no. 1 suffered hardship as it is a false case. It is wrong to suggest that I CS No. 20/2011 Page No. 20 of 45 am deposing falsely on the pretext of plaintiff no. 1. I appended my signature on Exhibit PW2/A in Patiala House court around 56 months before."
21. PW3 Shree Kishan was examined and his examination is reproduced as under:
"I am running my shop of floor mills. It is correct that the contents of para 2 of my affidavit is factually correct. It is correct that I had a quarrel with Badri and not with other defendants. I never made any complaint to the police regarding any quarrel against defendant no. 2. I never made any complaint regarding 30.12.1995 the false implication of plaintiff by the defendant. No statement was recorded by the police on 30.12.1995 and also I did not make any statement to the police on 30.12.1995. I never made any statement to any authority or police before deposing in the court. I can not recollect the date of my deposition in court due to lapse of time.
It is correct that Sh. Shiv Dutt is my real brother and Naresh and Surender are my real nephews and are residing in the same locality. My brother Shiv Dutt was CS No. 20/2011 Page No. 21 of 45 running a tea stall at Pragati Maidan on footpath. Naresh was also attached with his father but sometime he used to do separate his own work. Shiv Dutt was totally illiterate and Naresh and Surender are literate Vol. I am not aware their exact qualification but they are under matric. Surender used to work as welder with some contractor. Surender used to drink occasionally. It is correct that Surender is admitted in Drug Deaddiction Centre. I am not aware as to how many time he has been admitted to Drug Deaddiction Centre. It is wrong to suggest that Surender was quarrelsome nature person and used to quarrel with the neighbours and also used abuses languages and I saved him many times from the neighbourers and settled the disputes amicably. I am aware about the contents of my affidavit of evidence which are prepared in English by my counsel and I am not aware of English Language. It is correct that I myself cannot read my affidavit but the same has been read over to me by my counsel and thereafter, I put my signature. I cannot specifically state as to what has been written in CS No. 20/2011 Page No. 22 of 45 para 1 to 14 of my affidavit however, the same has been dictated to my counsel by me only. I never given any evidence in any case except the present. It is correct that quarrel took places in the Ashram Village and I never stood witness for anyone except this case. It is wrong to suggest that I deposed in this case only just because of plaintiff's are in my real blood relation. It is wrong to suggest that I depose falsely before the court as a defence witness just to save plaintiff's. It is further wrong to suggest that I am an interesting witness in this case. Naresh Kumar, Mukesh Kumar, Surender Kumar and Smt. Shanti Devi had never quarreled with anybody in the locality. I have never paid any fine imposed upon Naresh Kumar and Surender Kumar by the court for causing disturbance of peace and tranquility. I have never been surety to any of the three brothers were plaintiff nos. 1 to 3 in this case. There had been no quarrel between me and Sh. Jitender Sharma, defendant no. 1 herein. It is correct that I have come to know from others regarding Jitender Sharma being habitual in lodging false complaints as I CS No. 20/2011 Page No. 23 of 45 have no personal knowledge of the same. It is also correct that I have come to know from others that such false complaint were made to create heaver and pressure on others though, I have no personal knowledge of it. It is also correct that on what issues there had been quarrel of Jitender Sharma with others and I have no personal knowledge of the same and I have come to know from others. It is correct that I have not been pressurized by defendant no. 1 because of his family being consist of many lawyers and also being influential with local police and I have no personal knowledge of the same, however, I was asked by defendant no. 1 not to go to see my brother who was in jail then. (A copy of Kalandra dated 17.08.2007 is not on record).
There had been quarrel between defendant no. 1 and Sh. Rajender Kaushik on the issue of loading and unloading of the goods used in tent house business as the son of Sh. Rajender Kaushing had a tent house. The distance between the godown of tent and loading of goods of tent was about 30 yards where the house of defendant no. 1 CS No. 20/2011 Page No. 24 of 45 situates. The Gali in which loading and unloading of tempo was done is about 12 feet wide. In case the tempo is parked in the Gali for loading of the goods of tent house then a scooter or an individual person can pass through. It is correct that the goods of tent house were being taken during the night, however, sometime they were taken in day time also. The width of the Gali in front of Sh. Rajender Kaushik's house is about 45 feet and no tempo or other vehicle can reach there for the purpose of loading and unloading of tent house goods that is the reason for loading and unloading of the tempos sometime near the house of defendant no. 1, however, sometime the loading and unloading was done at main road chowk. I do not know whether Rajender Kaushik had any tempo or not. It is incorrect to say that Rajender Kaushink had a tempo and he used to park the same in the premises/land belonging to the defendant no. 1 forcibly. Rajender Kaushik is the son of my maternal uncle. Locality people never came to me to ask as to make Shiv Dutt, his sons and Rajender Kaushik and his sons to understand not to CS No. 20/2011 Page No. 25 of 45 tease or quarrel with defendant no. 1. There had been criminal cases between Rajender Kaushik and Sh. Jitender Sharma such cases are still pending, however, I am not aware as to where such cases are pending. This version I have stated on the basis of hearsay only. I know Shekhar Dutt to his nephew of defendant no. 1. There is no relation between the present case and the case vide FIR No. 1077/95 PS Srinivas Puri. I have no personal knowledge of the documents mark A4 and also of the application U/o 39 Rule 1 and 2 CPC Vol. however, these are regarding the disputes between Ganesh Dutt and Bhawani Dutt. I also do not know regarding the nature of mark A3. I also do not know anything regarding mark A6, A7 and A8. I also do not know anything regarding the document mark A9. I have not read the judgement Ex. PW1/C as such I am not aware of its contents. I also do not know regarding the charge sheet dated 30.12.95 of FIR No. 1077/95 PS Srinivas Puri and also regarding the proceedings held in the court. It is correct that my statement to this effect in para 13 of my affidavit is on the CS No. 20/2011 Page No. 26 of 45 basis of the telling by my nephews Vol. he might be earning something in order to survive himself. I had deposed before the court of Magistrate in the case against the plaintiff's. There is a distance of 72 sq. feet between my house and house of my brother. It is correct that the door of my shop opens towards Mathura road. I was sitting outside my shop at about 4.00 pm. It is correct that Surender has been taken in custody by the police at that time Vol. my Bhabhi has informed me that the police officials told her to send his father to the police station. I am not aware whether my brother was arrested by the police or not on that day. I have no personal knowledge of the incident as the same has been told by my Bhabhi Vol. no quarrel has taken place on that day. It is wrong to suggest that quarrel has taken place. It is further wrong to suggest that I am deposing false in this case. It is further wrong to suggest that my brothers often used to abuse the defendant. It is further wrong to suggest that I am deposing falsely regarding the incident for which my nephews and my sisterinlaw and brother CS No. 20/2011 Page No. 27 of 45 were prosecuted in order to save them and also to support them in the present case. It is further wrong to suggest that the plaintiff's were acquitted in criminal case on benefit of doubt."
Thereafter, PE was closed.
22. In defendants' evidence, defendant no. 1 examined himself as DW1 by way of an affidavit. The relevant extract of his cross examination is as under:
"It is correct that I am a Advocate in Income Tax. My three other family members are also advocates and they practice on Income Tax side. As far as I remember, I have not lodges any other case except the case against the plaintiffs. The Kalandaras or Kalandara have been registered against Surender and Naresh and family only. However, I cannot give exact number of such kalandaras against them on my complaint. I for the first time made a report in the year 1989 against the plaintiff"s family members. I do not recollect whether I have filed any similar complaint against anybody else of the locality as I have very good relations in my neighbor except the CS No. 20/2011 Page No. 28 of 45 plaintiff family. I do not remember whether any case have been registered against the plaintiff family members or any other locality persons on behalf of my any other family member. I gave my statement to police in a case lodged against outraging the modesty of my niece. I do not remember whether I have given any similar statement U/s. 161 Cr.P.C. to the police in any other case. Again stated that I do remember that I made a statement to the police in a case lodged by my nephew Rajiv Sharma against Dhirender Kaushik son of Rajender Kaushik and others. Only one criminal complaint case filed by Smt. Hemlata Kaushik is pending against me and my nephew. One criminal case is pending against my nephew on the complaint of his tenant.
I do not know the other two defendants in the present case have given their testimony in other cases of criminal nature. It is incorrect to suggest that the other two defendants in the present case have testified in other cases on my instigation. It is further incorrect to suggest that those two defendants give their statements /testimony in CS No. 20/2011 Page No. 29 of 45 criminal cases on my saying. It is correct that a kalandara U/s. 107 Cr.P.C. was made against Dhirender Kaushik and other family members. No kalandara was made against me arising out of the same incident in which kalandara against Dhirender Kaushik and other family members was made. In another incident a cross kalandara was made against my nephew and me one side and Dhirender and others on the other side. I cannot place the record of that kalandara against me before this court. It is incorrect to suggest that I am deliberately not placing record the said kalandara in order to hide truth from the court. It is incorrect to suggest that Ex.DW1/A, Ex.DW1/B and Ex.DW1/C are the false and fabricated complaints lodged by me in order to harass the family members of the plaintiff. It is correct that Smt. Shanti Devi filed a criminal complaint case Ex.DW1/D against me and others. VOL. It was a false complaint and was withdrawn by her and it was the same complaint on which Sh. Shiv Dutt Sharma husband of Smt. Shanti Devi gave in writing that same was false and shall be withdrawn and also CS No. 20/2011 Page No. 30 of 45 undertook that in future he will not abuse which is already Ex.PW1/DA. It is incorrect to suggest that the said complaint was based on factual facts. VOL. It was a pressure tactics and a counter blast. It is incorrect to suggest that after my assurance to Smt. Shanti Devi, the said complaint u/s. 452/323/506 IPC Ex.DW1/D was withdrawn by her. It is incorrect to suggest that Ex.PW1/DA is a forged document. It is incorrect to suggest that the witnesses shown in the document is a misuse of the signatures put on it. It is incorrect to suggest that after my assurance the case by Shanti Devi was withdrawn and after withdrawal of said case I broke my promise given to her. It is incorrect to suggest that Ex.DW1/E and F are false complaints. It is correct that I have filed document which is Ex.DW1/PA in which two of the witnesses are defendants in the present case. It is incorrect to suggest that this case was a false case filed in order to pressurize the plaintiffs. Mr. Kamal Singh was my Asstt. Advocate. Again said Mr. Kamal Singh was my office staff and he was doing LLB. It is incorrect to CS No. 20/2011 Page No. 31 of 45 suggest that Kamal lodged false and fabricated FIR at my instance Ex.DW1/PB. VOL. Kamal was attacked by Naresh Kumar with knife as stated by Kamal in presence of police. This incident occurred on the door of my house in my absence. VOL. I came to know about this case when I reached there and I found cut injury in the hand of Sh. Kamal and police has also arrived at that place. Police got medically examined Kamal. I do not remember whether my statement was recorded by police or not or the police took both Kamal and Naresh with them. I do not remember whether Naresh also received any injury in that incident or not. It is incorrect to suggest that Kamal attacked Naresh on my instigation. I do not know whether MLC of Naresh was made. I do not know the outcome of that case. I do not know whether Naresh filed any complaint case stating therein that it was me who instigated Kamal. It is incorrect to suggest that the said FIR was registered under my influence..."
"...It is incorrect to suggest that no incident occurred on 30.12.95 with the plaintiffs. It is incorrect to suggest that CS No. 20/2011 Page No. 32 of 45 I have filed a false and forged complaint against the plaintiffs and Sh. Shiv Dutt Sharma for implicating them in false criminal case. It is incorrect to suggest that false and fabricated FIR bearing no. 1077/95 u/s. 452/323/506/34 IPC was registered by the police of PS S.N. Puri under my influence. It is incorrect to suggest that I was very much aware that I am falsely implicating the plaintiffs and Sh. Shiv Dutt Sharma who is father of plaintiff no. 1 to 3 and husband of plaintiff no.4 while there was no such incident took place as alleged in the FIR. It is incorrect to suggest that defendant no.2 and 3 also given false statement to the police at my instance while both the defendants were also aware that no such incident ever took place as alleged by the defendants. It is incorrect to suggest that a false and fabricated chargesheet was also filed at my instance. In the said incident I got minor injuries on my several body parts. I have shown my injuries to the police officials but since these were minor injuries so my MLC was not prepared. It is incorrect to suggest that I refused for my medical CS No. 20/2011 Page No. 33 of 45 examination since there was no injury at all on my body parts. It is incorrect to suggest that plaintiff Mukesh Kumar was falsely implicated in this case by me while he was on duty. VOL. The tempering in the attendance register was also observed by the court of Sh. H R Malhotra, the then ASJ in his order of anticipatory bail. It is correct that I had gone in the office of plaintiff Mukesh Kumar. I do not remember whether I put my signature, name and address in the entry register in the office of plaintiff Mukesh Kumar. VOL. I accompanied the IO as the person who was summoned was not allowing the IO to enter in the premises. It is incorrect to suggest that I visited the office of Mukesh as his advocate and put cutting marks on his attendance register so that Mukesh may be shown absent in records. VOL. The documents and record were already produced in the court of Sh. H.R. Malhotra, the then ASJ New Delhi before my going to the office of Mukesh Kumar with IO so the question of tempering by me does not arise. I do not remember the date when I visited the office of Mukesh Kumar. I do not CS No. 20/2011 Page No. 34 of 45 remember the date of filing of the office record of Mukesh in the court. It is incorrect to suggest that my saying that I visited the office of Mukesh Kumar after the records of his office were filed in the court is wrong statement. It is incorrect to suggest that because of my false complaint, plaintiff Naresh Kumar, Mukesh, Surender and their father Lt. Sh. Shiv Dutt Sharma were sent to jail in the said case lodged by me. It is incorrect to suggest that because of my influence over the police, the plaintiff Naresh Kumar, Mukesh, Surender and their father Lt. Sh. Shiv Dutt Sharma were tortured in the police custody. It is incorrect to suggest that because of my false complaint the plaintiff Naresh Kumar, Mukesh, Surender and their father Lt. Sh. Shiv Dutt Sharma had suffered mental agony, mental torture and loss of reputation in the vicinity and among relatives and Lt. Sh. Shiv Dutt Sharma underwent depression and died because of this case. VOL. Lt. Sh. Shiv Dutt Sharma was habitual alcoholic and he died of the same due to failure of kidney and liver. I do not have any documentary record for the illness of Lt.Sh. Shiv CS No. 20/2011 Page No. 35 of 45 Dutt Sharma. However, during the time of his death, I came to know the same from the people in the vicinity. It is incorrect to suggest that I am making a false averment regarding the illness of Lt. Sh. Shiv Dutt Sharma in order to avoid the claim of the plaintiffs filed against me and other defendants. VOL. Surender, one of the brother of plaintiff is taking treatment in the drunk deaddiction center. It is incorrect to suggest that I am am making a false averment regarding Surender. It is incorrect to suggest that Surender is under depression because of this case. It is incorrect to suggest that intentionally and purposely in order to convict the plaintiffs, I had deposed before the court falsely while I was aware that no such incident ever took place as alleged in the said case against the plaintiff. It is incorrect to suggest that defendant no.2 and 3 had also deposed falsely in order to convict the plaintiff in false case at my instance. It is incorrect to suggest that plaintiffs are not fully able to perform their work/job due to said false case which was registered against them by me. It is incorrect to suggest CS No. 20/2011 Page No. 36 of 45 that the plaintiffs are not able to seek work which they were earlier doing and nobody is giving them new work. It is incorrect to suggest that Surender being a diploma holder of Electric Welding has not been able to work after the registration of this case. VOL. Surender is alcoholic and not in a condition to work. It is incorrect to suggest that because of the false case the plaintiff had to face lengthy trial of 13 14 years and had to incur huge amount in defending themselves as claimed in the present suit. It is incorrect to suggest that the trial court has acquitted the plaintiffs because the court found it to be a false case. It is incorrect to suggest that the criminal case initiated on my behalf was a malicious prosecution because of which the head of the family Lt. Sh. Shiv Dutt Sharma was lost. It is incorrect to suggest that the claim filed by the plaintiffs is correct. I do not remember whether any notice dt. 18.8.09 was received by me or whether any reply was given by me or not. I do not remember whether I gave the reply of the notice or not. It is incorrect to suggest that I did not give any reply of the notice deliberately as I had no reply to the CS No. 20/2011 Page No. 37 of 45 same. It is incorrect to suggest that the plaintiffs are legally entitled to claim Rs.10 lacs as damages in the suit. It is incorrect to suggest that my affidavit filed before the court today is false one and the documents filed also also false and fabricated. It is incorrect to suggest that I am deposing falsely in order to save myself from the claim."
Thereafter, DE was closed.
23. Heard. Considered. Since issue no. 1 and 2 are interconnected, hence taken together.
ISSUE NO. 1 Whether the plaintiff is entitled to decree of Rs.10 lakhs along with interest @24% p.a.? OPP and ISSUE NO. 2 Whether the suit is maintainable as per law? OPP
24. It is argued by learned counsel for plaintiffs that a police complaint has been lodged by the defendants against the plaintiffs by misusing the State machinery and on that basis, a false case FIR No. 1077/95 under Section 452/323/506/34 IPC in PS Sriniwas Puri was registered against the plaintiffs.
25. It is further argued that due to active involvement of defendants, plaintiffs were being harassed by the police and a false CS No. 20/2011 Page No. 38 of 45 chargesheet was filed in the court of law. The trial went on for a number of years and ultimately the accused persons were acquitted by the court of law. It is further submitted that the accused persons were acquitted by the court of law, is suggestive of the fact that it is with the power and pressure of defendants that a false case was registered, against the plaintiffs because of that plaintiffs have suffered a lot. The lodging of false case against the plaintiffs destroyed the reputation and image of the plaintiffs in the locality and among their relatives.
26. It is further argued that because of this false case, the plaintiffs and their family members were degraded in the society. It is further submitted that during false imprisonment, the plaintiffs remained in jail which further lowered down their image and prestige in the society.
27. It is further argued by learned counsel for plaintiffs that vide judgment dated 12.05.2009, all the accused persons were acquitted by the court with the observations that the story put forward by the complainant were concocted and with a sole motive to involve all the family members of accused family.
28. It is further argued that because of this false and malicious prosecution, the precious and valuable time of about 14 years of plaintiffs has ruined due to illegal act and malicious prosecution instituted by the defendants. It is further argued that because of this CS No. 20/2011 Page No. 39 of 45 illegal act of the defendants, plaintiffs have suffered mentally and physically and also suffered an unnecessary burden of expenses and as such the defendants are liable to pay to the plaintiffs damages to the tune of Rs.10 lacs for their illegal act.
29. On the other hand, it is argued by learned counsel for defendants that defendants have not acted illegally in any manner. It is further submitted by learned counsel for defendants that although the plaintiffs have been acquitted in FIR No. 1077/95 vide judgment dated 12.05.2009 but the observation rendered in the judgment by the Hon'ble ACMM is that the prosecution fails to prove the case beyond reasonable doubt and hence the accused persons are liable to be acquitted. It is argued by counsel for defendants that if some dispute / fight starts with two people then it is the right of a person to call the police by dialing number 100 or by making a complaint before the authorities and once a complaint is made with the authorities, then it is upon the authorities to decide on the basis of investigation whether a case is made out or not. It is submitted that after lodging the complaint by the defendants against the plaintiffs, it was the police authorities who decided to lodge an FIR against the plaintiffs and thereafter to file a chargesheet on the basis of investigation done by the police. It is submitted that the defendants have made statement before the police CS No. 20/2011 Page No. 40 of 45 authorities about the incident under Section 161 Cr.PC and during examination before the court of law, they did not turn hostile rather supported the case of the prosecution. It is further submitted that charges have been framed against the accused persons. It is argued by learned counsel for defendants that the only dispute / contradiction in the trial, recorded by learned ACMM, was with the presence of Naresh or Mukesh on the spot.
30. It is submitted by learned counsel for defendants that it is the police who could not investigate the case on this point and could not collect evidence against Naresh and in the investigation done by the police, there is no fault of the defendants. The defendants come out with the facts of incident which took place on 03.12.1995. So if at all there is any fault in carrying out the investigation then police official may be held liable to create lacunae in the case and not the defendants.
31. My attention has been invited on anticipatory bail order of Mukesh/Naresh wherein while dealing with anticipatory bail application of accused, an observation has been made by learned ASJ that there is an overwriting on the attendance register where Naresh is working. It is submitted by learned counsel for defendants that it may give rise to the suspicion that why the register was overwritten. It is submitted that if police could not make investigation on this point and CS No. 20/2011 Page No. 41 of 45 because of this lacunae learned ACMM had acquitted the accused, then there is no fault of the defendants at all.
32. My attention has been invited to the judgment Radhey Mohan Singh v. Kaushalya Devi & Ors. 105 (2003) Delhi Law Times 678 (DB) DHC wherein it is held by Hon'ble High Court of Delhi that "because of noncorroboration of story by the prosecution if accused person is given benefit of doubt and on basis of findings arrived at by the Trial Court, it cannot be construed there was no reasonable or probable cause of filing complaint. Trial Court came to definite finding that prosecution of appellant by respondent was not malicious prosecution and appellants are not entitled for damages".
33. My attention has also been invited to Vijender Kumar v. Ved Prakash Gupta 141 (2007) Delhi Law Times 814 DHC. Para no. 11 and 13 of the judgment is reproduced as under:
11. Thirdly, it must be borne in mind that this is a State case. No fault can be attributed to the respondent. Fault, if any, must be laid at the door of Investigating Officer. It appears that Investigating Officer did not pursue the case properly. Although, there was enough evidence against the accused / appellant, yet, it was not properly put up CS No. 20/2011 Page No. 42 of 45 before the Court. No attempt was made by the Investigating Officer to get the voice of culprit compared with the admitted voice of the accused / appellant from a voice expert. No expert evidence was produced for the reasons best known to the Investigating Officer. The investigation of this case was done hit or miss. The Investigating Officer is terribly remiss in discharge of his duties. The Investigating Officer should have been made a party in this civil case and the compensation should have been claimed from him.
13. In all cases where benefit of doubt is given by the Court, it is difficult to hold that the complaint which is the basis of the prosecution is false and untenable. There are variety of reasons for which the accused is given benefit of doubt. This by itself cannot lead to a conclusion that the complaint was based on extraneous consideration leading to the entitlement of damages."
34. In para no. (g), it is recorded by Hon'ble High Court that:
"'Malicious prosecution' means that the proceedings which are complained of were initiated from a malicious CS No. 20/2011 Page No. 43 of 45 spirit, i.e., from an indirect and improper motive, and not in furtherance of justice."
35. It was again recorded in para no. (h) by Hon'ble High Court that:
"The word 'malice' in common acceptation means and implies 'spite' or 'ill will'. One redeeming feature in the matter of attributing bias or malice is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record."
36. It is held in Radhey Mohan Singh v. Kaushalya Devi & Ors. 105 (2003) Delhi Law Times 678 (DB) DHC that:
"the complaint filed by respondent on investigation was found to be correct. However because of lapse on part of the prosecution and noncorroboration of story by prosecution, appellant was given benefit of doubt. Claim for damages by appellant for malicious prosecution was rejected".
37. Upon facts and circumstances and on the basis of above discussion, I am of this opinion that although the accused persons had CS No. 20/2011 Page No. 44 of 45 been acquitted in case FIR No. 1077/95 vide judgment dated 12.05.2009 by learned ACMM, but on the basis of above discussion it cannot be said that complaint filed by the defendants were malicious and baseless. The plaintiffs were acquitted as the prosecution was not in a position to establish the case before the court beyond reasonable doubt.
RELIEF:
38. On the basis of above discussion, the suit of the plaintiffs is dismissed. No order as to cost.
39. Decree Sheet be prepared.
40. File be consigned to record room after necessary compliance.
Announced in the open Court.
(NEELAM SINGH) ADJ02, SOUTH, SAKET, NEW DELHI 31.05.2012/ TP CS No. 20/2011 Page No. 45 of 45 CS/20/2011 Naresh Kumar & Ors. v. Jitender Sharma & Ors.
31.05.2012
Present: Counsel for plaintiffs.
Counsel for defendants.
Vide my separate judgment of even date, the suit filed by the plaintiffs is dismissed. No order as to cost. Decree sheet be prepared. File be consigned to record room after necessary compliance.
(NEELAM SINGH) ADJ02, SOUTH, SAKET, NEW DELHI 31.05.2012/ TP CS No. 20/2011 Page No. 46 of 45