Himachal Pradesh High Court
Ram Parkash vs Sat Paul on 31 August, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 297 of 2006 a/w Cross-objections No. 457 of 2006 Reserved on: 22.07.2016 .
Date of Decision: 31.08.2016 ______________________________________________________________________ RSA No.: 297 of 2006 Ram Parkash .....Appellant.
Vs.
Sat Paul .....Respondent.
of
Cross-objections No. 457 of 2006
Ram Parkash .....Non-objector/appellant/
plaintiff.
Vs.
Sat Paul rt .....Objector/respondent/
defendant.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 Yes.
RSA No.: 297 of 2006
For the appellant: Mr. N.K. Thakur, Senior Advocate, with
Ms. Sneh Lata, Advocate.
For the respondent: Mr. Ajay Sharma, Advocate.
Cross-objections No. 457 of 2006
For the objector: Mr. Ajay Sharma, Advocate.
For the Non-
Objector: Mr. N.K. Thakur, Senior Advocate, with
Ms. Sneh Lata, Advocate.
Ajay Mohan Goel, Judge. :
This appeal has been filed by the appellant/plaintiff against judgment passed by the Court of learned Additional District Judge, Una in Civil Appeal No. 49 of 2003 dated 10.04.2006 vide which, learned Whether the reporters of the local papers may be allowed to see the Judgment?
::: Downloaded on - 15/04/2017 21:06:58 :::HCHP 2appellate Court has partly allowed the appeal filed by the defendant, i.e., the present respondent against the judgment and decree passed by the Court of learned Sub Judge 1st Class (I), Amb in Case No. 200/I of 1999.
.
2. The appeal was admitted on the following substantial questions of law:
"1. Whether the learned appellate Court was right in holding that the appellant was entitled to nominal damages when it was undisputed and accepted that of the appellant was prosecuted maliciously by the defendant with the trial lasting more than nine years?
2. Whether the learned appellate Court was correct in reducing the damages by holding that the appellant rt did not have legal representation, when the factum of legal representation stood established from the record?
3. During the pendency of the appeal, respondent-defendant filed Cross-objections under Order 41 Rule 22 of the Code of Civil Procedure. An application was also filed by the respondent, i.e. 4887 of 2016 for framing of additional substantial question of law, which the respondent had prayed to be framed which reads as under:
"Whether suit filed by the plaintiff is beyond the period of limitation and wrong interpretation of the same by the Courts below vitiated the impugned judgments and decrees?"
4. Brief facts necessary for the adjudication of the present case are that the appellant/plaintiff (hereinafter referred to as 'the plaintiff') filed a suit for recovery of damages of `2 lac alongwith future interest for ::: Downloaded on - 15/04/2017 21:06:58 :::HCHP 3 malicious prosecution against the defendant for filing a false Criminal Complaint titled Sat Paul Vs. Nardev Singh etc. against the respondent/defendant (hereinafter referred to as 'the defendant').
.
According to the plaintiff, he was a permanent resident of Village Kalruhi, Tehsil Amb, District Una, H.P. and was having house as well as landed property there. His father and grandfather were respectable persons of the village and had enjoyed good reputation. Plaintiff was having a good academic background as well as good social reputation amongst the of public at large. He had studied in renowned Schools and Colleges and was a graduate from Punjab University, Chandigarh. He was also member rt of many social organizations and was also a renowned Government Contractor of the area. He was also member of Gram Panchayat Vigilance Committee and income tax assessee for the last ten years. According to the plaintiff, in the year 1989, defendant as a Forest Contractor was engaged in extraction of resin and during this period, he committed many illegalities and irregularities, which were reported to the Forest as well as Police Department. However, father of the defendant Sh. Dev Raj was an influential person, who at the relevant time was Pradhan/Namberdar of the village and he used his influence to save the defendant from Police and Forest Departments. Forest Enforcement as well as Police were in fact looking to catch him red handed. On the intervening night of 22nd and 23rd September, 1989, the police party while on their way to the depot of the defendant, joined the plaintiff as a member of the raiding party. At about 3:30 a.m., defendant alongwith truck bearing registration No. HIU-1837 was apprehended by the said raiding party of the police ::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 4 and defendant was found transporting 97 tins of resin without any night transit permit. On these basis, the truck was impounded and the defendant remained in police custody for three days. Defendant was in .
search of taking revenge against the plaintiff and accordingly, he filed a false and frivolous private complaint in the month of October, 1989 against the defendant under Sections 166, 193, 329, 338, 347, 506, 120- B read with Section 34 of the Indian Penal Code. However, as there was no merit or substance in the same, the same was dismissed at the stage of of charge itself. The order so passed was challenged by the defendant by way of revision petition which was also dismissed on 09.07.1998.
rt According to the plaintiff, he had to face the trauma of a false complaint for about 9 years on account of his malicious prosecution by defendant.
According to the plaintiff, during this entire period when he was facing this trauma, he could not maintain his agricultural/diary farm and other domestic affairs and on account of publication of false complaint, plaintiff was not awarded works by the Government officials and the status of the plaintiff was lowered in the esteem of the society and relatives and he suffered humiliation on account of which he could not progress in any sphere. On these basis, the plaintiff filed the suit for damages, which were as under:
"(1) Agricultural loss : 30,000/-
(2) Contractorship work, : 70,000/-
Mental pain, agoney
(3) Lower of status by M
Prosecution : 70,000/-
(4) Litigation expenses : 30,000/-
2,00,000/-
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5
5. In the written statement filed by defendant, the case put forth by the plaintiff was denied. Besides taking the plea that the suit was time barred, defendant denied the factum of his having violated or .
committed any irregularity while working as a Forest Contractor. As per the defendant, a case under Sections 41 and 42 of the Indian Forest Act read with Section 379 of the Indian Penal Code was got registered against him at the instance of the plaintiff on account of civil litigation between the plaintiff and the defendant. The averments which were made of by the plaintiff with regard to filing of false case etc. by defendant against him and the same having been dismissed at the stage of charge itself and rt defendant's thereafter filing a revision petition unsuccessfully against the said order were out rightly denied by defendant by stating that plaintiff had put up a false story.
6. On the basis of pleadings of the parties, learned trial Court framed the following issues:
1. Whether plaintiff is entitled to recovery of damages Rs.2 lacs for malicious prosecution as alleged? OPP
2. Whether suit is not maintainable? OPD
3. Whether plaintiff is estopped from filing suit as alleged? OPD
4. Whether suit is barred by limitation? OPD
5. Whether suit is bad for non-joinder of parties?
OPD
6. Relief.::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 6
7. On the basis of evidence produced on record by the respective parties, the following findings were returned on the said issues by the learned trial Court:
.
"Issue No. 1: Partly yes.
Issue No. 2: No.
Issue No. 3: No.
Issue No. 4: No.
Issue No. 5: No.
Relief: The suit is partly decreed per operative
of
part of this judgment."
8. Accordingly, the suit filed by the plaintiff was partly decreed rt by learned trial Court to the effect that defendant was held liable to pay damages to the plaintiff to the tune of ` 1 lac with costs and future rate of interest @ 6% per annum. It was held by learned trial Court that it stood proved from the record that defendant had been convicted for commission of offences punishable under Sections 41 and 42 of the Indian Forest Act in which plaintiff was a prosecution witness. It was further held by learned trial Court that a private complaint was filed by defendant falsely because plaintiff had refused to depose in his favour during the course of evidence in the case which had been registered against defendant.
Learned trial Court also held that plaintiff had faced prosecution for 9 years as a result of the said false complainant filed by defendant, which was subsequently dismissed. Learned trial Court held that the complaint filed by defendant against the plaintiff was tried by the Court of learned Sub Divisional Judicial Magistrate, Amb, but as no prima facie case was found against the plaintiff, he was accordingly discharged for the ::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 7 commission of alleged offences. The revision petition filed against the said order was dismissed by learned Additional Sessions Judge, Una and it was observed by learned Additional Sessions Judge, Una that complaint .
of defendant was a result of ill will and animosity and was counter blast to case under Sections 41 and 41 of the Indian Forest Act registered against defendant. On the basis of these facts, which were duly substantiated on record, it was held by learned trial Court that the prosecution launched against the plaintiff by defendant was actuated of with the elements of malice. It was further held by learned trial Court that the plaintiff was not able to elaborate the nature of damages caused rt to his agricultural or professional concern on account of prosecution.
Learned trial Court in its wisdom decreed the suit of the plaintiff for ` 1 lac by holding that litigation expenses stated to the tune of `30,000/- and damages on account of mental pain and agony assessed at `70,000/- by the plaintiff appeared to be reasonable and just. On these basis, learned trial Court partly decreed the suit of the plaintiff.
9. This judgment was challenged by the defendant before learned appellate Court. Vide its judgment dated 10.04.2006, learned appellate Court held that there was no ground for grant of damages to the tune of ` 1 lac in favour of the plaintiff as was held by learned trial Court and accordingly, learned appellate Court modified the judgment and decree passed by learned trial Court to the extent that plaintiff was held entitled to nominal charges of `5,000/-, which as per learned appellate Court was sufficient.
::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 810. The judgment so passed by learned appellate Court has been challenged by the plaintiff by way of present appeal.
11. The grant of amount of `5,000/- as damages by learned .
appellate Court in favour of the plaintiff has been challenged by way of Cross objections by the defendant.
12. I have heard the learned counsel for the parties and also gone through the records of the case as well as judgments passed by the learned Courts below.
of
13. The first and foremost question which has to be decided in the present case is as to whether the suit filed by the plaintiff was within rt limitation or not? Issue framed in this regard by learned trial Court was answered in the following terms:
"ISSUE NO. 4:
15. Neither much is argued on this issue nor it is shown as to how suit is barred by limitation. I have perused the plaint with care. The suit is within stipulated period of limitation."
14. A perusal of the grounds of appeal filed before learned first appellate Court also demonstrates that this plea was taken by the appellant therein that the suit was totally time barred. A perusal of the judgment passed by learned appellate Court demonstrates that there is no finding returned on this ground of appeal by learned first appellate Court.
15. According to Mr. Ajay Sharma, learned counsel for the respondent/defendant, the suit filed by the plaintiff was time barred as ::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 9 the limitation to file the suit was to be computed from the date when the complaint filed by defendant was dismissed at the stage of charge by learned trial Court and not from the date when the revision filed against .
the said order had been dismissed by learned Additional Sessions Judge, Una. According to Mr. Sharma, as per the averments made in the plaint, the complaint filed by defendant against the plaintiff in the month of October, 1989 under Sections 166,193,323,330,347,506, 120-B read with Section 34 of the Indian Penal Code was dismissed at the charge of stage vide order dated 20.03.1993. It is further his case that the revision petition filed against order dated 20.03.1993 was dismissed by learned rt Additional Sessions Judge, Una on 09.07.1998, therefore, the suit was time barred. As per Article 74 of the Limitation Act, limitation for compensation for a malicious prosecution is one year from when the plaintiff is acquitted or the prosecution is otherwise terminated. The complaint so filed against the plaintiff was dismissed on 20.03.1993 and revision filed against the said order was dismissed on 09.07.1998. The suit was presented before learned trial Court on 02.08.1999. Therefore, apparently, the suit was not filed within one year from the date of dismissal of the complaint at the charge stage. However, from the date of dismissal of the revision petition, the suit is within limitation because as per the averments made in the plaint and which have not been proved to the contrary by the defendant, though the judgment was passed in revision petition on 09.07.1998, but due to summer vacation, the suit could not be filed in the month of July 1998 on account of holidays and ::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 10 1st August 1998 being Sunday, the suit was filed on 02.08.1999 on the reopening of the Court.
16. The moot issue is whether in the present case limitation is to .
be computed from the date when the complaint was dismissed or from the date when revision filed by the defendant against the order of dismissal of the complaint was dismissed.
17. Article 74 of the Limitation Act fixes two terminus co; one is acquittal and the other is the termination of the proceedings otherwise.
of The words in the 3rd column "when the plaintiff is acquitted", in my considered view, cannot be isolated from the words "or the prosecution is rt otherwise terminated". In other words, if the acquittal of the plaintiff is followed by challenge to the said order by way of revision etc., then it cannot be said that the prosecution stands terminated because the prosecution can be held to be terminated not by the order of acquittal, but by order passed in the subsequent proceedings.
18. Full Bench of High Court of Madras in Soora Kulasekara Chetta and another Vs. Tholasingam Chetty AIR 1938 Madras has held:
"...........The wording 'when the plaintiff is acquitted' cannot be divorced from the words "or the prosecution is otherwise terminated". In our opinion the Article provides that time shall run when the plaintiff is acquitted or when the prosecution comes to an end in some other manner. If the acquittal is followed by other proceedings the prosecution is terminated not by the acquittal but by the order passed in the ::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 11 subsequent proceedings and this construction was placed on the Article by a Bench of this Court consisting, of Bakewell and Phillips JJ. In AIR 1920 Mad 151=57 IC 635."
.
19. If against order of discharge, further proceedings are taken in revision against such an order, then it cannot be said that the prosecution has finally terminated and the same has to be deemed to be continuing. Therefore, during the pendency of the proceedings, its final of termination only would be when the proceedings in revision also come to an end in favour of the plaintiff (See Madho Lal Vs. Hari Shankar 1969 rt All LJ 589, Rama Singh Vs. Balmukund Singh 1965 All LJ 921, Bhagat Vs. Garai AIR 1938 All 49.
20. In case we just see the converse, let us take a case where in a complaint filed, the plaintiff is convicted, but in appeal or revision the said conviction is set aside, then obviously the cause of action for damages against malicious prosecution will start for the plaintiff from the date when the order of conviction is set aside by the superior Court.
21. Not only this, another important aspect of the matter which has to be appreciated is that when the judgment of acquittal passed in a complaint is assailed in a superior Court of law, then the said judgment obviously is in jeopardy till adjudication on the same is made by superior Court of law. In this background also, it is but obvious that the words "prosecution is otherwise terminated" will include in its ambit revision etc. which is filed against the order of discharge or judgment of acquittal passed against the plaintiff.
::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 1222. Incidentally, in the present case, there is one more important aspect of the matter. It is not a case where learned trial Court which was adjudicating upon the complaint filed by the present defendant came to .
the conclusion that a prima facie case was made against the present plaintiff and after trial was held, the present appellant was acquitted. In the present case, the complaint was dismissed at the stage of charge itself. This order vide which the complaint was dismissed at the stage of charge was assailed by way of a revision petition. This revision petition of was dismissed on 09.07.1998 and thereafter, the suit has been filed within limitation.
23. rt Therefore, keeping in view the fact that the plaintiff was not acquitted by learned trial Court as the complaint was dismissed at the stage of charge itself, the prosecution otherwise terminated when the order/judgment was passed in the revision petition filed by the present defendant against the order passed by the Court of first instance dismissing the complaint at pre-charge stage itself.
24. The High Court of Allahabad in B. Madan Mohan Singh Vs. B. Ram Sunder Singh AIR 1930 Allahabad 326 has held:
"The word 'prosecution' has not been defined in any statutory enactment. It is undoubtedly a word of much wider scope than a trial or even an enquiry by a Magistrate. Murray's New English Dictionary explains the word 'prosecution' as meaning in strict technical language a proceeding either by way of indictment or information in the criminal Court in ::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 13 order to put an offender on his trial, the exhibition of a criminal charge against a person before a Court of justice, and in general language the institution and carrying on of legal proceedings .
against a person. The question before us is whether an application for further enquiry and for ordering a retrial under Section 436, in the exercise of the revisional jurisdiction of the Sessions Judge can be deemed to be either a contin.uation of the prosecution or a fresh of prosecution in itself. There are two cases in favour of the view taken by the Courts below and there is no direct authority against that view. In rt Narayya v. Seshayya [1900] 23 Mad. 24, it was held that a suit brought within one year from the dismissal of a revision petition filed against an order of acquittal but more than one year after the acquittal was barred by limitation. The judgment is very brief and no detailed reasons are given.
The case may also perhaps be distinguished on the ground that the District Magistrate to whom the application in revision had been made from the order of acquittal had himself no jurisdiction to order any further enquiry or retrial or set aside the acquittal; at best he could report the case to the High Court., Moreover in a case where the prosecution ended in acquittal the language of Article 23 leaves no room for argument, as it provides specifically that limitation is to run from the date of acquittal. It is not, therefore, necessary to consider when the prosecution 'terminated.' It is only in cases which ended otherwise than in acquittal that it falls to be ::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 14 considered as to when the prosecution terminated. Purushottam Vithal Das v. Raoji Hari A.I.R. 1922 Bom. 209 is a direct authority in support of the view that limitation begins to run .
from the order of the discharge and the subsequent revision proceedings do not in any way affect the matter.
Now there is plenty of authority that the word 'prosecution' has a very wide significance of and does not merely mean an actual trial or an enquiry which may result in a conviction and the imposition of imprisonment or fine. In the case of C.H. Crowdy v. L.O. Reilly [1913] 17 C.W.N. rt 554 it was laid down that an action for damages would lie in the case of an application under Section 107 of the Code and that it was not essential that the original proceeding should have been of such a nature as to render the person against whom it was taken liable to be arrested, fined or imprisoned. The same view was followed by the Calcutta High Court in Bishun Pershad Narain Singh v. Phulman Singh [1915] 19 C.W.N.
935. It was there remarked that the term 'prosecution' should not be interpreted in the restricted sense in which it is used in the Criminal Procedure Code and that if a person maliciously and without reasonable and probable cause sets the machinery of the criminal law in motion, he is responsible for the consequences. This view was accepted by our High Court in Mohammad Nizullah Khan v. Jai Ram [1919] 41 All. 503 where an action was held to lie on ::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 15 account of an application for binding down to keep the peace underSection 107, Criminal P.C. Indeed, there is one case which has .
gone still further. Narendra Nath De v. Jyotish Chandra LalA.I.R. 1922 Cal. 145, was a case where the defendant had applied to the Court of the Munsif underSection 195 of the old Criminal P.C., for sanction to prosecute the plaintiff. Although the application for sanction was a of preliminary or initial stage in a criminal prosecution and was actually filed in a civil Court, the learned Judges held that the claim for damages rt for malicious prosecution was maintainable. They held that as the proceedings for sanction had been instituted maliciously and without just reasonable or probable cause they gave rise to a sufficient cause of action. It seems to us that an application in revision for ordering an enquiry or a retrial is on a much stronger footing than a mere application for sanction to file a complaint. If the latter is deemed to be a prosecution, much more should be the former.
In the case of Gaya Prasad v. Bhagat Singh [1908] 30 All. 525, persons whose names did not appear on the face of the proceedings as complainants but who were directly responsible for the charge and for the production of evidence and for the conduct of the case before the police and in the Court were held to be liable for damages in action for malicious prosecution, Similarly their Lordships of the Privy Council in the case of Balbhaddar Singh v. Badri Sah A.I.R. ::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 16 1926 P.C. 46, held that a man who had given information to the authorities which naturally led to the prosecution, even though he himself was not, in the most literal sense of the word, the .
prosecutor was liable in an action for malicious prosecution for damages on account of the information supplied by him which caused trouble.
When the application under Section of 436 is preferred before a Sessions Judge and notice to show cause has been issued, the Judge has himself power to make further enquiry into the case of the accused person who has been rt discharged or direct any subordinate Magistrate to make such enquiry. While such a proceeding is pending before a Sessions Judge the accused, in our opinion, is being prosecuted and in order to save himself from a retrial he must satisfy the Judge that there is no case against him. Taking the word "prosecution" in its wider sense we fail to see why it should not include a criminal proceeding of this nature before a Sessions Judge or a High Court. If this view were not to be accepted the result would be that the discharged person would be compelled to institute his suit for damages oven though the matter is still sub judice and is being considered by the Sessions Judge or by the High Court. It seems extraordinary that a plaintiff should be compelled to sue while it is yet a question whether his retrial is not going to be ordered. Of course as soon as the order of discharge was passed the ::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 17 prosecution in the Magistrate's Court terminated. If no further proceedings are taken the prosecution must be deemed to have terminated on that date. But if, as a matter of fact, the matter .
is taken up in revision to a higher authority which has power of interference and proceedings sanctioned by the Criminal Procedure Code are being pursued, the prosecution can no longer be said to have finally terminated. Its final termination would be only when the proceedings of in revision have come to an end in favour of the discharged person.
rt One may take the case of a Government appeal from an acquittal as an illustration. The order of acquittal terminates the prosecution for the time being. The filing of an appeal does not ipso facto vacate that order; and yet while the appeal is pending it can hardly be said that the prosecution has terminated. We think that in the same way while a revisional application is pending the prosecution must be deemed to be still continuing and not finally terminated.
It has been suggested that inasmuch as a further enquiry cannot be claimed in revision as of right and as there is no statutory period of limitation fixed for an application for revision, time should not be extended after the order of discharge. As a matter of practice revisions are not admitted when the application is very stale and irrespective of the question whether the Sessions Judge exercises his discretion ultimately ::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 18 or not, the complainant has no grievance if while his application for further enquiry is pending it is considered that his prosecution of the accused is still continuing. It is only after the dismissal of .
such an application that the accused is freed from the worry of the criminal proceedings, and is in a position to think of a civil suit for damages.
As a matter of fact it is conceivable that the original complaint might have been filed of on the basis of information received from certain witnesses or documents believed to be genuine and, therefore, might not be without reasonable and probable cause, in which case no suit for rt damages would lie on account of that. But in the course of the trial it may be disclosed that the oral evidence was false and perjured or that the documentary evidence was forged, resulting in the discharge of the accused. If the complainant persists in taking the matter up to the revisional Court without any reasonable and probable cause there seems no reason why he should not be liable for damages on account of the latter proceedings, though there was no such liability on account of the earlier one. Differing from the views expressed by the learned Judges of the Bombay High Court we would hold that the prosecution finally terminated when the application in revision was dismissed and that the present plaintiff, if he can make out a case of malicious prosecution which was false and without reasonable and probable cause, is entitled to damages not only on account of the ::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 19 proceedings in the Magistrate's Court but also the revisional proceedings before the Sessions Judge. The latter has given him just as good a cause of action as the former. The appeal is allowed, the .
decree of the lower appellate Court is set aside and the suit is remanded under Order 41, Rule 23 to that Court for disposal. The costs will abide the event and will be on the higher scale.
In view of the above discussion and ratio of the judgments of discussed above, in my considered view, the suit filed by the appellant/plaintiff was within limitation.
25. Now, coming to the other aspect of the matter, as to whether rt learned appellate Court was justified in modifying the judgment and decree passed by learned trial Court. In my considered view, learned appellate Court while reducing the damages allowed in favour of the present appellant by learned trial Court from ` 1 lac to `5,000/- erred in not appreciating that award of damages to the extent of `5,000/- for suffering malicious prosecution for a period of almost 9 years was not sufficient. The factum of the appellant having suffered malicious prosecution for about 9 years is a matter of record. The factum of the prosecution having been filed by the defendant against the plaintiff was an act of malice is duly borne out from the records, wherein it stands established that the criminal complaint which was filed by the present defendant against the present appellant was a counter blast of the plaintiff having appeared as a witness in criminal proceedings which were held against the defendant under Sections 41 and 42 of the Indian Forest ::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 20 Act in which the present defendant was convicted. Learned trial Court in its wisdom awarded an amount of ` 1 lac as damages which included litigation expenses to the tune of `30,000/- and damages on account of .
mental pain and agony to the tune of `70,000/-. This has been reduced to `5,000/- by learned appellate Court by holding that the said amount was sufficient as the plaintiff was entitled only to nominal damages and there was no ground for grant of damages to the tune of `1 lac.
26. The ingredients which are to proved by the plaintiff in an of action for malicious prosecution are:
"(1) that there was prosecution by the defendant;(2) (3)
rt that the prosecution terminated in favour of the plaintiff; that the prosecution was malicious; and (4) that it was without reasonable and probable cause.
(See T. Subramanya Bhatta Vs. A. Krishna Bhatta AIR 1978 Kerala 111 Full Bench)."
27. In the present case, all the four ingredients stood proved.
The factum of the appellant having undergone mental agony while facing malicious criminal proceedings initiated against him by the defendant and also incurring expenses while representing himself during the course of said proceedings cannot be disputed. If learned trial Court erred in awarding the amount of `1 lac as damages which according to learned appellate Court was on higher side, then learned appellate Court erred in drastically reducing damages so awarded to the appellant from ` 1 lac to `5,000/-. Both learned Courts below erred in not appreciating that the damages which were required to be awarded to the appellant were to be both reasonable and respectable.
::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 2128. Accordingly, in the facts and circumstances of the present case, the appellant is held entitled for damages to the tune of `50,000/-
alongwith future interest as granted by learned appellate Court till .
realization of entire decretal amount.
29. An amount of `50,000/- is being awarded for damages keeping in view the fact that the appellant obviously defended himself in the complaint and revision petition which were so filed against him by the present respondents and he ought to have incurred expenses during the of course of said proceedings, both on account of engagement of lawyers and also on account of his presence in the course of said proceedings rt which culminated in about 9 years time. As far as the factum of mental pain and agony having suffered by the appellant is concerned, obviously the same cannot be exactly quantified in terms of money, but keeping in view the averments which have been made in the plaint as well as the statement of the plaintiff in which he has clearly deposed that he is an income tax payee and is an educated person and had to undergo lot of mental pain and agony on account of malicious prosecution, therefore, in these circumstances, an amount of `50,000/- is just, reasonable and respectable compensation on account of litigation expenses and mental pain and agony, which the appellant had to undergo on account of malicious prosecution launched against him by the respondent. The substantial questions of law are answered accordingly.
30. In view of the discussion held above, appeal is partly allowed in above terms with costs.
::: Downloaded on - 15/04/2017 21:06:59 :::HCHP 22Cross-objections No. 457 of 2006
31. By way of these objections, objector has challenged the judgment and decree passed by learned appellate Court, whereby learned .
appellate Court has awarded an amount of `5000/- as damages in favour of the present appellant.
32. In view of the findings returned by me in the appeal above, the present Cross-objections do not survive and are accordingly dismissed.
of
(Ajay Mohan Goel)
Judge
August 31, 2016 rt
(bhupender)
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