Punjab-Haryana High Court
Tarwinder Kumar Bedi vs Jit Parkash on 27 October, 2014
Author: Raj Mohan Singh
Bench: Raj Mohan Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
R.S.A. No.5406 of 2014
Decided on: 27.10.2014
Tarwinder Kumar Bedi . . . Appellant
Versus
Jit Parkash . . . Respondent
CORAM: HON'BLE MR. JUSTICE RAJ MOHAN SINGH
Present: Mr. G.C. Rattan, Advocate
for the appellant.
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RAJ MOHAN SINGH, J. (Oral)
Plaintiff has filed a suit for recovery of ` 4,00,000/- as damages on account of loss of reputation, mental agony and harassment etc.
2. It has been pleaded by the plaintiff that he holds a good reputation in the society and the defendant has caused loss of reputation, unwanted harassment, loss of carrier and mental agony to the plaintiff thereby tentatively causing damage to the tune ` 4,00,000/- to the plaintiff. The defendant by moving false application to the authorities had used defamatory and filthy language against the plaintiff and this act has lowered down the reputation and image of the plaintiff in the eyes of the general public, friends and relatives.
3. The suit has been contested by the defendants on number of grounds, claiming that the behavior of the plaintiff was not good. The occurrence dated 24.03.2007 was witnessed by SACHIN SHARMA 2014.11.17 17:05 I attest to the accuracy and authenticity of this document Chandigarh 2 R.S.A. No.5406 of 2014 Satinder Kaur and Amarjit Kaur and the application to the authorities was based on true facts.
4. From the pleadings of the parties, following issues were framed:-
1. Whether plaintiff is entitled to recovery of ` 4,00,000/-
from defendant on the grounds, prayed for? OPP.
2. Whether the suit of plaintiff is not maintainable? OPD.
3. Whether plaintiff is liable to be rejected for want of court fee? OPD.
4. Relief.
5. Both the courts have dismissed the suit of the plaintiff concurrently.
6. In order to succeed in a suit for damages for malicious prosecution, plaintiff has to prove:-
a) that the plaintiff was prosecuted by the defendant;
b) that the prosecution ended in favour of plaintiff;
c) that the defendant acted without reasonable and probable cause;
d) that the defendant was actuated by malice.
7. In the aforesaid context, it is also relevant to mention that mere lodging of FIR cannot be termed as prosecution. The requirement under the law for claiming damages for malicious prosecution is that there must be a prosecution of a criminal case, which is actuated by malice and cause of action would be acquittal in such criminal case. It implies that in an action for malicious prosecution, it has to be proved that the plaintiff was prosecuted by the defendant and that prosecution has ended in favour of the SACHIN SHARMA 2014.11.17 17:05 I attest to the accuracy and authenticity of this document Chandigarh 3 R.S.A. No.5406 of 2014 plaintiff and the defendant has acted without any reasonable and probable cause and was actuated with malice.
8. There is a difference between lodging of FIR and finding the case to be unsustainable during the course of investigation. On the other hand, lodging of case resulted in filing of report under Section 173 Cr.P.C. and ultimately entailed in acquittal. In second situation claim of damages can be sustained. In the present case even FIR has not been registered against the plaintiff. Only lodging of complaint with the authorities cannot tantamount to any prosecution.
9. The language in the plaint though has been couched in such a manner so as to give inference of defamation and malicious prosecution. The material on record particularly in view of the statements of PW3 and PW4 who have been examined by the plaintiff is suggestive of the fact that the relatives of the plaintiff and neighbours used to respect him as they used to respect him earlier to the filing of the complaint. The loss of reputation, as per the aforesaid testimonies could not be elicited from these witnesses. The onus to prove that the proceedings were initiated without any reasonable cause is always on the person who asserts in affirmative i.e. the plaintiff in the present case who seeks damages on account of alleged false accusation. The conditions precedent for filing the suit for malicious prosecutions are the aforesaid conditions which should coexist before the defendant in a suit for malicious prosecution can be burdened with liability. No doubt it is true that the acquittal of a person in a criminal case sometimes SACHIN SHARMA 2014.11.17 17:05 I attest to the accuracy and authenticity of this document Chandigarh 4 R.S.A. No.5406 of 2014 gives presumption that there was no reasonable cause for his prosecution, but this presumption is rebuttable in nature and there cannot be any universally accepted phenomenon that in case prosecution fails then the accused would be entitled for damages. Otherwise in all those cases where prosecution fails, would give rise to damages in favour of the accused. In view of this, it would be more in consonance with justice and equity to weigh the lodging of accusation on the threshold of principles as enumerated above. The question which has been posed for consideration before the court is whether the prosecution lodged against the person before a criminal court of law, if found having been instituted falsely or maliciously can lay the foundation for filing suit for damages for malicious prosecution. The proposition has been seen in the context of complicity whether simply, setting the criminal law in motion on account of presentation of complaint (whether the same is found false subsequently) gives arise to any cause of action. If the action is dismissed by the court in the very inception as the same does not disclose any complicity, then in such eventuality, the finding of the criminal court cannot be presumed to be conclusive in nature. The second situation arises, where acquittal is recorded by the Court or a complaint is dismissed on the ground that it does not disclose any cognizable offence. The findings recorded in such process may or may not have contained a finding that the prosecution case is based on falsehood and is thus frivolous. Recording of such findings are only for the purpose of dismissal of the complaint or criminal SACHIN SHARMA 2014.11.17 17:05 I attest to the accuracy and authenticity of this document Chandigarh 5 R.S.A. No.5406 of 2014 prosecution. A sharp distinction has to be drawn between the aforesaid course and the course which is required for an action for a malicious prosecution. In an action for malicious prosecution if the ingredients as mentioned above are not satisfied, then the courts are not obliged to connect the lis simply on the basis of alleged accusation based on filing of the complaint simpliciter. The court is required to record finding in an action for malicious prosecution on all the aforesaid ingredients with reference to evidence on record. Since the evidence of the plaintiff is missing in all the aforesaid criteria, the failure in that context would definitely end in dismissal of the claim of the plaintiff for damages on account of malicious prosecution. Mere filing of complaint does not give rise to any malicious prosecution resulting in causing loss of reputation in general public, friends, relatives of the person who is so targeted. On this front also in the absence of any evidence in affirmation, no loss can be presumed. Even the witnesses examined by the plaintiff viz PW2 and PW3 have deposed before the court that the relatives and friends used to respect the plaintiff in the same manner as they were respecting him earlier to the occurrence in question. The plaintiff has qualified his claim of damages of ` 4,00,000/- which is pleaded in the plaint. Para No.20 of the plaintiff is relevant to be quoted in this context. Despite claiming qualified damages to the tune of ` 4,00.000/-, effort was made by the plaintiff in pleadings that the damages may be determined by the court after taking into consideration the evidence on record. The plaintiff has pleaded both things so as to escape SACHIN SHARMA 2014.11.17 17:05 I attest to the accuracy and authenticity of this document Chandigarh 6 R.S.A. No.5406 of 2014 payment of requisite court fee. The courts have commented upon Issue No.3 adversely against the plaintiff. In order to come out from the consequence of his pleadings the learned counsel for the appellant has cited 2010(3) RCR (Criminal) 253 titled Gurmukh Singh and another versus Bhagat Singh and others. In the aforesaid case, the defendant filed an appeal whereby suit for damages for malicious prosecution was decreed and the learned courts below awarded the amount of ` 1,00,000/- along with interest in favour of the plaintiff therein. In that context it was held that the damages assessed were the expenses incurred as well as for mental agony suffered by the plaintiff in that case. It was not possible for the plaintiff to lead evidence showing the positive damages suffered due to mental agony. Therefore, for the mental agony, there was no alternate with the learned courts below to assess the damages on guess work keeping in view the status of parties and mental agony suffered by him. In the present case, the plaintiff has claimed qualified amount of ` 4,00,00/- as damages and in the passing reference he also pleaded that the damages may be determined by the court after taking into consideration the evidence on record.
10. In a suit for damages for malicious prosecution the principle of evaluation of suit as in simple suits for recovery of liquidated claim will not apply for the purposes of court fee. Only a tentative valuation can be made and that should be accepted for un-liquidated damages. In such a situation where the Court is unable to say what would be the correct valuation of the relief, it SACHIN SHARMA 2014.11.17 17:05 I attest to the accuracy and authenticity of this document Chandigarh 7 R.S.A. No.5406 of 2014 cannot require the plaintiff to correct the valuation which has been made by him. In such a situation, court had no other alternative except to admit the plaintiff's tentative valuation. Similar is the situation in the case of compensation where there is no objective standard available nor it can be possible to determine the amount to which the plaintiff should value the relief claimed by him. Therefore, the valuation put by the plaintiff has to be accepted being tentative in nature. In this context, the reference can be made to 2005(1) RCC (Civil) 54 titled State of Punjab and others versus Jagdip Singh Chowhan, The learned counsel for the appellant has also cited 2012(2) PLR 64 titled Smt. Munni Devi versus Matroo Lal. Perusal of the aforesaid judgment reveals that the facts are totally different and cannot help the plaintiff in any manner to advance his case. So far as the decision on Issue No.3 is concerned, the same is to be reversed in view of the observation made in Gurmukh Singh's (supra) case and State of Punjab and others versus Jagdip Singh Chowhan 2005(1) RCC (Civil) 54. Since the plaintiff could not substantiate his case with reference to material evidence to prove Issues No.1 and 2, therefore, the fate of Issue No.3 would not make the plaintiff entitled to any damages from the defendant. No law point worth cognizable is involved in the present case. The appeal is accordingly dismissed.
[ Raj Mohan Singh ] Judge 27.10.2014 sachin SACHIN SHARMA 2014.11.17 17:05 I attest to the accuracy and authenticity of this document Chandigarh