Delhi District Court
Harinder Pal Singh Chawla vs Kic Food Products Limited on 5 May, 2016
IN THE COURT OF MS. VINEETA GOYAL, ADDITIONAL DISTRICT
JUDGE - 01, PATIALA HOUSE COURTS, NEW DELHI DISTRICT,
NEW DELHI
Suit No. 281/15
Harinder Pal Singh Chawla
S/o Late S.Gopal Singh Chawla
R/o N258, Greater Kailash - I,
New Delhi ......... Plaintiff
Versus
1. KIC Food Products Limited
Regd. Off B-12, Lawrence Road,
New Delhi - 110 035.
Also at
Administrative Office
29, Hanuman Road,
New Delhi - 110 001.
Also at
Sales Office at 7 Regal Building
Connaught Place,
New Delhi.
2. Sh. N.K. Sawhney
S/o Sh. C.P. Sawhney
R/o D-51, Anand Niketan,
New Delhi. ........ Defendants
Suit presented On : 06.06.2009
Arguments Concluded On : 28.04.2016
Judgment Pronounced On : 05.05.2016
Appearance : Ms. Sangeeta Jain, counsel for plaintiff.
Sh. Shivanshu Kumar, counsel for defendant.
JUDGMENT
1. The plaintiff has filed a suit for recovery of damages for malicious prosecution against defendants.
Suit no. 281/14Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 1 of 19
2. Brief facts as epitomized in the plaint are that the plaintiff, senior citizen is MBA Graduate from Columbia University, New York since 1962 and did his graduation from St. Stephens College, Delhi University. The plaintiff has been running his business of export as well as restaurant in the name of his company Earl Chawla and Co. Pvt. Ltd., and also doing real estate business in the name of his other company namely Vantage Construction Pvt Ltd. The plaintiff is major share holder / promoter and Managing Director of aforesaid both the companies.
2.1 It is averred in the plaint that defendant no. 1 is a public limited company engaged in the business of manufacturing and retailing of Ice cream under brand Quality Ice Cream. The defendant no.2 was General Manager of Defendant no. 1 company.
2.2 It is further averred in the plaint that the plaintiff company Earl Chawla & Co. Pvt Ltd was running a restaurant at 51, Vasant Vihar, New Delhi. The said restaurant including restaurant equipments and premises were purchased from a company namely Evita Food Pvt Ltd and Vishwant Kumar through a Memorandum of Understanding dated 18.03.1994 duly executed between them. The restaurant equipment purchased by the said Earl Chawla and Co. Pvt Ltd included a Kwality Deep Freezer (Ice cream cabinet) alongwith other restaurant equipments.
2.3 It is further averred in the plaint that defendants launched a false complaint on 10.10.1994 to SHO Vasant Vihar, New Delhi. On the the said false complaint a FIR no. 323/1994 u/s 406 of IPC was registered. Plaintiff was summoned by the Court of concerned Ld Metropolitan Magistrate and was charged for offence u/s. 406 IPC. The plaintiff pleaded not guilty and claimed trial. It is alleged that plaintiff faced Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 2 of 19 criminal prosecution in the said FIR case for 14 years and ultimately was acquitted in the said false case on 03.07.2008. The prosecutors / defendants failed to prove charges against the plaintiff.
2.4 It is further averred in the plaint that the defendants have acted without any reasonable and probable cause and lodged the said false complaint with malice, desire, objective, motive and intention to hurt, cause financial loss and loss of goodwill of the plaintiff. On account of false and malicious prosecution launched by the prosecution, the plaintiffs reputation and goodwill in the market was severely impaired, damaged and tarnished. The plaintiff was unnecessarily dragged in the Court by the defendants for 14 years. The plaintiffs suffered non bailable warrants issued by the court and even the plaintiff was arrested by the police and one such occasion was kept in custody.
2.5 It is further submitted that plaintiff belongs to a respectable family in the society. He is son of renowned doctor and his elder brother was Chief Justice of Hon'ble High Court and his another brother is doctor and running his clinic under the name East West at Greater Kailash 1, New Delhi.
2.6 It is further submitted that due to malicious prosecution launched by defendants, both the companies of plaintiff suffered a bad reputation in market which affected not only the business of both the companies but also a result thereof both the companies suffered a severe financial set back. The plaintiff has also suffered great mental trauma. The plaintiff has suffered the following damages on account of said malicious prosecution.
(i) On account of the loss of goodwill & Rs.5,00,000/-
reputation Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 3 of 19
(ii) On account of mental anguish, Rs.2,00,000/-
Trauma, injured feelings and
Deterioration of health
(iii) Legal fee and expenses in Rs.1,00,000/-
Defending and contesting the said
false criminal case
(iv) Financial loss in business in his both Rs.3,00,000/-
the companies / income
Total Rs.11,00,000/
-
2.7 It is further averred that the suit is within the period of
limitation and within the territorial jurisdiction of this Court. On aforesaid grounds, a prayer was made that plaintiff is entitled for recovery of Rs.11 lacs towards damages on account of malicious prosecution from defendant.
3. Joint written statement has filed by defendants inter alia pleading that suit filed by plaintiff is without any cause of action and is barred under the provision of order 7 rule 11 of CPC. There is no loss of goodwill and reputation suffered by the plaintiff. The plaintiff has not suffered any mental anguish trauma, injured feelings and/or financial loss as alleged in the plaint. The suit is also bad for mis-joinder and non- joinder of necessary parties. The defendants simply reported the matter to SHO, PS Vasant Vihar, New Delhi for investigation and taking appropriate action in accordance with law, keeping in view the fact that defendant no.1 had provided a deep freezer cabinet for storage of its products at Vasant Vihar next to Modern Bazar to M/s E.Chawla & Co. Pvt. Ltd. The said supply of cabinet was on the basis of trust and confidence and for limited use of storage of its ice cream with a ultimate object of sale. Since the said company seized to operate as vendors for defendant no.1 company, defendant no.1 accordingly, requested them for return of its deep freezer Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 4 of 19 cabinet but the said company avoided the same and continue to make unauthorized and unlawful use of same for their personal gains and profits. The copy of the said complaint dated 10.11.1994 clearly shows that the defendants have not done any such act and/or defame the plaintiff as alleged by him.
3.1 It is further pleaded by defendant that the matter was simply reported to the SHO concerned against M/s. E.Chawla company and not against the plaintiff. The said complaint was lodged with the sole objective to take appropriate legal action against the accused persons for committing breach of trust and for unauthorized use of deep freezer cabinet. It is on the basis of the said complaint that a local police after inquiries and investigation registered a case u/s 406 IPC.
3.2 It is further pleaded that it is not a defamation to prefer in good faith any accusation against any person to any of those who have local authority over that person with respect to subject matter of accusation. The defendants have not made any imputation against the plaintiff and simply lodged the complaint in good faith with the police for the protection of its interest as the defendants had entrusted the deep freezer cabinet for the storage of its product.
3.3 On merits, the contents of the plaint were denied for want of knowledge and further pleading that the defendant no.1 is no longer in the business of manufacturing and retaining of ice cream under the brand name Kwality Ice Cream. The said business was sold by defendant no.1 to Hindustan Lever under a strategic alliance agreement executed between them. It is also submitted that investigating agency after investigation and inquiry, registered an FIR and filed challan before the Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 5 of 19 court and plaintiff was charged for offence u/s 406 IPC. The plaintiff was acquitted merely on the ground that the deep freezer so recovered from E.Chawla & Co. Pvt. Ltd. and given on superdari to the complainant company was not produced before the court. There is no finding on the merits of the case as the plaintiff was simply acquitted on technical ground. It is further submitted that the defendants have no role to play if the case remained pending in the court of law for 14 years. The plaintiff has not placed on record the order sheets of the said case to substantiate the allegation that he had been regularly appearing before court of law and/or that plaintiff was arrested and kept in custody for one night. The defendant have not done any such act which would have caused loss of reputation and business to him as alleged by him. On the aforesaid grounds, prayer was made that suit filed by the plaintiff deserves dismissal.
4. Replication to written statement was filed by the plaintiff inter alia denying the contents of written statement and re-iterating and re- affirming the averments made in the plaint.
5. From pleadings following issues are framed by the then Ld. Presiding Officer on 16.03.2010.
1. Whether the suit is barred by limitation? OPD.
2. Whether the defendants lodged a false complaints with malice, ulterior motives and intend to hurt, cause financial and loss of goodwill to the plaintiff?OPP.
3. Whether the plaintiff suffered damaged on account of mental anguish, trauma, injured feelings, deterioration of health, financial loss in the business?OPP.
4. Whether the plaintiff is entitled to suit amount if so, at what rate of interest?OPP.
5. Relief.
5.1 In support of its case plaintiff himself stepped in the witness Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 6 of 19 box as PW1 and tendered evidence by way of affidavit as Ex.P1 and placed on record copies of confirmation being graduate as well as MBA degree Ex.CW1/1 (colly), copy of complaint dated 10.10.1996 Ex.CW1/2, copy of FIR No. 323/1994 Ex. CW1/3, copy of complaint dated 02.09.1994 Ex.CW1/4, copy of challan dated 25.10.1994 and 08.10.1995 Ex.CW1/5 and Ex.CW1/6, certified copy of orders dated 03.07.2008 passed by the Court of Ld. Metropolitan Magistrate Delhi Ex.CW1/5, copy of wills dated 13.05.84 and 04.07.1986 Ex.P2 and Ex.P3 respectively. This witness made statement in accordance with the averments made in the plaint and deposed that an amount of malicious prosecution launched at the behest of defendants the plaintiff has suffered damaged tot he tune of Rs.11 lacs. This witness was subject to lengthy cross examination.
5.2 The plaintiff further examined Sh. Hansraj Parihar, Chief Administrative Officer, Delhi Gymkhana Club, who produced summoned record pertaining to membership of plaintiff Sh. Harinder Pal Singh Chawla to the club. Sh. M.K. Juneja, Partner of S.K.Mittal of Co. Chartered Accountant was examined as PW3. He produced summoned record pertaining to balance sheet of companies Vantage Construction Pvt. Ltd. and E.Chawla Co. Pvt. Ltd. along with audit report for the year 1994 to 2000 comprising of 158 pages as Ex.PW3/A. 5.3 Ms. Saleja Laxman, Deputy Manager of Delhi Golf Club, New Delhi was examined as PW4. She produced summoned record pertaining to membership of Mr. E.Chawla and submitted that as on date Mr. E.Chawla continued to be the member of Delhi Gold club.
5.4 Mr. Kamal, Office Assistant, St. Stephen Delhi University was examined as PW5. He produced summoned record pertaining to Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 7 of 19 plaintiff containing original mark sheet register 1958 to 1967 and admission register 1954 to 1962.
5.5 The aforesaid all witnesses were cross examined by Ld. counsel for defendants.
5.6 In defence, defendants examined Sh. N.K. Sawhney as DW1. This witness tendered evidence by way of affidavit as Ex.DW1/A and made statement in accordance with the defence raised by him in written statement.
6. It is pertinent to mentioned here that during the course of proceedings an application u/o 22 rule 3 and 10 r/w section 151 of CPC for substitution of LR's Sh. Harinder Pal Singh Chawla plaintiff along with copy of death certificate dated 05.04.2014 and will dated 03.11.2013 was filed. The said application was disposed of vide order dated 13.01.2016 and the executor of the estate Ms. Kiran Abnashi Chawla and Mr. Vishal Singh Chawla were impleaded for limited purposes i.e. for the purpose of the present suit. It is also observed that the claim so far as estate of the deceased has survived and the rest of the claims have abated.
6.1 Ld. counsel for plaintiff argued that a false case has been registered against plaintiff which not only has caused mental trauma to the plaintiff (now deceased) and but also caused financial loss in the business of companies being run by the plaintiff (now deceased). It is argued that plaintiff (now deceased) belonged to respectable family in the society and was member of various reputed clubs in Delhi including Gym Khana Club and Delhi Gold Club. It is argued that on account of false registration of criminal case against plaintiff (now deceased), he had suffered financial loss in business and also suffered bad reputation in the market. It is next Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 8 of 19 argued that from the statement of PW3 Sh. M.K. Juneja, it has come on record that plaintiff (now deceased) was income tax payee and there was decline in the business being run by plaintiff (now deceased).
6.2 Repelling aforesaid contentions, it is argued that the present suit is bad for non-joinder of necessary parties i.e. company namely E.Chalwa and Co. Pvt. Ltd. and Vantage Construction Co. The plaintiff (now deceased) in his statement dated 21.10.2011 has himself admitted that his name in personal capacity was not mentioned in the complaint filed by defendant no.1 and the complaint was only against E.Chalwa & Co. Pvt. Ltd. It is settled law that company is a separate and distinct entity in the eyes of laws from its Director/Share holders which used in its own name. It is further argued it is also settled law that if a loss suffered by a company, it is company who will sue in its own name for the recovery of alleged losses. Admittedly, in the present case, none of the companies are made party it is late (Sh) Harinder Pal Singh Chawla who has filed the present suit.
6.3. It is next argued that the plaintiff (now deceased) has not placed on record any memorandum of understanding dated 18.03.1994 as alleged in the plaint. The complaint Ex.CW1/2 lodged before concerned police authorities clearly shows that defendants have not done any such act to defame the plaintiff as alleged by him. The complaint filed by defendant no.1 was bona-fide and for protection of its legal right. It is next argued that the plaintiff (now deceased) has not filed any document to show that the companies namely E.Chawla and Co. Ltd. and Vantage Construction Pvt. Ltd. has suffered a loss of Rs.3 lac as alleged by him.
7. I have heard arguments advanced by Ld counsel for parties Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 9 of 19 and gone through record. My issuewise findings are as under:
ISSUE no. 1 7.1 The onus to prove this issue was upon the defendants. It is contended by Ld Counsel appearing for defendants that suit is barred by limitation. On the other hand, it is vehemently argued that suit is within the period of litigation. The plaintiff has filed the suit for recovery of damages for malicious prosecution on the ground of false registration of criminal complaint against him. Record shows that plaintiff was acquitted by the court of Ld Metropolitan Magistrate on 30.07.2008 and present suit has been filed by plaintiff on 06.06.2009 i.e. within the period of one year from the date of acquittal. It is useful to refer Article 74 of the Limitation Act.
Description of suit Period of limitation Time from which period begins to run.
74. For compensation for One year When the plaintiff is acquitted malicious prosecution or the prosecution is otherwise terminated.
7.2 In order to file a suit for malicious prosecution under Article 74, the limitation in the present case starts from the first clause as pointed out in the said article i.e. one year when the plaintiff is acquitted. Here in the present case the plaintiff was acquitted on 03.07.2008 and admittedly the present suit is filed on 06.06.2009 i.e. within the period of limitation. This issue is answered in favour of plaintiff.
ISSUE NOS. 2 AND 3.
7.3 Both these issues are taken up together on account of being interconnected. In the present case, criminal machinery was put into motion when a FIR was registered on the complaint of defendants. It Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 10 of 19 culminates into trial which ended in acquittal on the ground that case property was not produced. In order to succeed in a suit for malicious prosecution, one has to establish that defendant acted without any reasonable and probable cause and maliciously. Reasonable and probable cause may be defined as honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which assuming to be true, would reasonable lead any prudent and conscious man, placed in the position of the accuser, to the conclusion that person charged was guilty of crime imputed.
7.4 The ingredients of malicious prosecution are considered by Hon'ble Apex court in the case of West Bengal State Electricity vs. Dileep Kumar Ray AIR 2007 SC 976. The relevant paragraphs are re-produced as under :
Malice and Malicious Prosecution as stated in the Advance Law of Lexicon, 3rd Edition by P. Ramanatha Aiyar read as follows:
"Malice - Unlawful intent Will; intent to commit an unlawful act or cause harm, Express or actual malice is ill will or spite towards the plaintiff or any indirect or improper motive in the defendant's mind at the time of the publication which is his sole or dominant motive for publishing the words complained of. This must he distinguished from legal malice or malice in law which means publication without law full excuse and does not depend upon the defendant's state of mind.
The intent, without justification or excuse, to commit a wrongful act. II. Reckless disregard of the law or of a person's legal rights. Ill will: wickedness of heart. This sense is most typical in non legal contexts".
"Malice means in law wrongful intention. It includes any intent which the law deems wrongful, and which therefore serves as a ground of liability. Any act done with such an intent is, in the language of the law, malicious, and this legal usage has etymology in its favour. The Latin malitia means badness, physical or moral - wickedness in disposition or in conduct - not specifically or exclusively ill-will or malevolence; hence the malice of English law, including all forms of evil purpose. design, intent, or motive. But intent is of two kinds, being either immediate or ulterior, the ulterior intent being commonly distinguished as the motive. The term malice is Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 11 of 19 applied in law to both these forms of intent, and the result is a somewhat puzzling ambiguity which requires careful notice. When we say that an act is done maliciously, we mean one of the two distinct things. We mean either that it is done intentionally, or that it is done with some wrongful motive."
"Malice in the legal sense imports (I) the absence of all elements of justification, excuse or recognized mitigation, and (2) the presence of either
(a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton and wilful doing of an act with awareness of a plain and strong likelihood that such harm may result.
The Model Penal Code does not use 'malice' because those who formulated the Code had a blind prejudice against the word. This is very regrettable because it represents a useful concept despite some unfortunate language employed at times in the effort to express it."
"Malice" in the legal acceptance of the word is not confined to personal spite against individuals but consists in a conscious violation of the law to the prejudice of another. In its legal sense it means a wrongful act done intentionally without just cause or excuse.
'Malice", in its legal sense, does not necessarily signily ill- will towards a particular individual, but denotes that condition of mind which is manifested by the intentional doing of a wrongful act without just cause or excuse. Therefore, the law implies malice where one deliberately injures another in an unlawful manner.
Malice means an indirect wrong motive.
'Malice' in its legal sense means, malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause."
Malice, in ordinary common parlance, means ill-wiIl against a person and in legal sense, a wrongful act done intentionally, without just cause or reason. It is a question of motive, intention or state of mind and may be defined as any corrupt or wrong motive or personal spite or ill will. 'Malice' in common law or acceptance means ill-will against a person, but in legal sense it means a wrongful act alone intentionally without just cause or excuse.
It signifies an intentional doing of a wrongful act without just cause or excuse or an action determined by an improper motive.
"MALICE", in common acceptation, means, ill will against a person; but in its legal sense, it means, a wrongful act done intentionally without just cause or excuse"
Malice in its common acceptation, is a term involving stint intent of the mind and heart, including the will; and has been said to mean a bad mind; ill-will against a person; a wicked or evil state of the mind towards another; an evil intent or wish or design to vex or annoy another; a wilful intent to do a wrongful act; a wish to vex, annoy or injure another person or as intent to do a wrongful act; a condition of the mind which shows a heart regardless Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 12 of 19 of social duty and fatally bent on mischief.
"MALICE" means wickedness of purpose, or a spiteful or malevolent design against another; a purpose to injure another; a design of doing mischief, or any evil design or inclination to do a bad thing, or a reckless disregard to the rights of others, or absence or legal excuse, or any other motive than that of bringing a party to justice."
"The meaning of the term malice in English law, his been a question of much difficulty and controversy; and those who made through the many disquisitions on the subjects in text- books and judicial opinions are almost tempted to the conclusion that the meaning varies almost infinitely, and that the only sense which the term can safely be predicated not to have in ant given legal context is that which it has in popular language, viz., spite or ill-will. It certainly has different meanings with respect to responsibility for civil wrongs and responsibility for crime; and even with respect to crime it has a different sense according as it is used with reference to murder, libel, or the capacity of an infant to commit crime, expressed by the rule malitia supplet act item." (Ency. of the Laws of England). Ordinarily, the absence of reasonable and probable cause in instituting a proceeding which terminates in favour of the plaintiff, would give rise to the inference of malice.
MALICE has been said to mean any wrong or indirect motive but a prosecution is not malicious merely because it is inspired by anger. However, wrong- headed a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be initiator of a malicious prosecution.
MALICE means the presence of some improper and wrongful motive - that is to say an intend to use the legal process in question for some other than its legally appointed and appropriate purpose. It means an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill-will; it may be due to a desire to obtain a collateral advantage.
MALICE in fact is malue animus indicating that action against a party was actuated by spite or ill will against him or by indirect or improper motives. Malice: hatred: aversion: antipathy: enmity: Repugnance: ill-will: rancour:
malevolence: Malignity: malignancy. Hatred is a very general term. Hatred applies properly to persons. It seems not absolutely involuntary. It has its root in passion, and may be checked or stimulated and indulged. Aversion is strong dislike. Aversion is a habitual sentiment, and springs from the natural taste or temperament which repels its opposites, as an indolent man has an aversion to industry, or a humane one to cruelty. Antipathy is used of causeless dislike, or at least one of which the cause cannot be defined. It is found upon supposition or instinctive belief, often utterly gratuitous. Enmity is the state of persona! opposition, whether accompanied by strong personal dislike or not; as "a bitter enemy."
Repugnance is characteristically employed of acts or courses of action, measures, pursuits, and the like. Ill-will is a settled bias of the disposition. It is very indefinite, and may be of any degree or strength. Rancour is a deep Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 13 of 19 seated and lasting feeling of ill-will. It preys upon the very mind of the subject of it. While enmity may be generous and open, rancour is malignant and private. Malice is that enmity which can abide its opportunity of injuring its object, and pervert the truth or the right, or go out of its way, or shape course of action, to compass its ends. "Malevolence commences with some idea or evil belonging to and connected with the object; and it settles into a permanent hatred of his person and of everything relative to him" - (Gogan) Malignity is cruel malevolence, or innate love of harm for the sake of doing it. It is malice the most energetic, inveterate, and sustained.
Malice in fact. "Malice in fact" means express malice. MALICE IN FACT OR ACTUAL MALICE, relates to the actual state or condition of the mind of the person who did the act. Malice in fact is where the malice is not established by legal presumption or proof of certain facts, but is to be found from the evidence in the case.
Malice in fact implies a desire or intention to injure, while malice in law is not necessarily inconsistent with an honest purpose. Malice in law. 'Malice in law" means implied malice.
"MALICE IN LAW" simply means a depraved inclination on the part of a person to disregard the rights of others, which intent is manifested by his injurious acts.
Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. S.R. Venkataraman v. Union of India (AIR 1979 SC 49, 51).
MALICIOUS. Done with malice or an evil design; wilful; indulging in malice, harboring ill-will, or enmity malevolent, malignant in heart; committed wantonly, wilfully, or without cause, or done not only wilfully and intentionally, but out of cruelty, hostility of revenge; done in wilful neglect of a known obligation.
"MALICIOUS" means with a fixed hate, or done with evil intention or motive; not the result of sudden passion.
Malicious abuse of civil proceedings. In general, a person may utilize any form of legal process without any liability, save liability to pay the costs of proceedings if unsuccessful. But an action lies for initiating civil proceedings. Such as action, presentation of a bankruptcy or winding up petition, an unfounded claim to property, not only unsuccessfully but maliciously and without reasonable and probable cause and resulting in damage to the plaintiff. (Walker) Malicious abuse of legal process. A malicious abuse of legal process consists in the malicious misuse or misapplication of process to accomplish a purpose not warranted or commanded by order of Court - the malicious perversion of a regularly issued process, whereby an improper result is secured. There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employs it for some unlawful Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 14 of 19 object - not the purpose which it is intended by the law to effect; in other words, a perversion of it.
Malicious abuse of process. Wilfully misapplying Court process to obtain object not intended by law. The wilful misuse or misapplication of process to accomplish a purpose not warranted or commanded by the writ. An action for malicious abuse of process lies in the following cases, A malicious petition or proceeding to adjudicate a person an insolvent, to declare a person lunatic or to wind up a company, to make action against legal practitioner under the Legal Practitioners Act, maliciously procuring arrest or attachment in execution of a decree or before judgment, order or injunction or appointment of receiver, arrest of a ship, search of the plaintiff's premises, arrest of a person by police.
Malicious abuse of process of Court Malicious act Bouvier defined a malicious act as "a wrongful act, intentionally done, without cause or excuse."
A malicious act is one committed in a state of mind which shows a heart regardless of social duty and fatally bent on mischiefa wrongful act intentionally done, without legal justification or excuse. 'A malicious act is an act characterised by a preexisting or an accompanying malicious state of mind.
Malicious Prosecution Malice. Malice means an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill-will. It may be due to a desire to obtain a collateral advantage. The principles to be borne in mind in the case of actions for malicious prosecutions are these:Malice is not merely the doing a wrongful act intentionally but it must be established that the defendant was actuated by mains animus, that is to say, by spite of ill- will or any indirect or improper motive. But if the defendant hod reasonable or probable cause of launching the criminal prosecution no amount of malice will make him liable for damages. Reasonable and probable cause must be such as would operate on the mind of a discreet and reasonable man; 'malice' and 'want of reasonable and probable cause.' have reference to the state of the defendant's mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them. OTHER DEFINITIONS OF "MALICIOUS PROSECUTION".
"A judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it."
"A prosecution begun in malice, without probable cause to believe that it can succeed and which finally ends in failure."
"A prosecution instituted wilfully and purposely, to gain some advantage to the prosecutor or thorough mere wantonness or carelessness, if it be at the same time wrong and unlawful within the knowledge of the actor, and without probable cause."
"A prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 15 of 19 knows or is bound to know are wrong and against the dictates of public policy."
The term "malicious prosecution" imports a causeless as well as an ill- intended prosecution.
'MALICIOUS PROSECUTION" is a prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or its bound to know are wrong and against the dictates of public policy.
In malicious prosecution there are two essential elements, namely, that no probable cause existed for instituting the prosecution or suit complained of, and that such prosecution or suit terminated in some way favorably to the defendant therein.
1. The institution of a criminal or civil proceeding for an improper purpose and without probable cause. 2. The cause of action resulting from the institution of such a proceeding. Once a wrongful prosecution has ended in the defendant's favor, lie or she may sue for tort damages - Also termed (in the context of civil proceedings) malicious use of process. (Black, 7th Edn., 1999) "The distinction between an action for malicious prosecution and an action for abuse of process is that a malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to effect - the improper use of a regularly issued process. For instance, the initiation of vexatious civil proceedings known to be groundless is not abuse of process, but is governed by substantially the same rules as the malicious prosecution of criminal proceedings." 52 Am. Jur. 2d Malicious Prosecution S. 2, at 187 (1970).
The term 'malice,' as used in the expression "malicious prosecution" is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives.
As a general rule of law, any person is entitled though not always bound to lay before a judicial officer information as to any criminal offence which he has reasonable and probable cause to believe has been committed, with a view to ensuring the arrest, trial, and punishment of the offender. This principle is thus stated in Lightbody's case, 1882, 9 Rettie,
934. "When it comes to the knowledge of anybody that a crime has been committed a duty is laid on that person as a citizen of the country to state to the authorities what he knows respecting the commission of the crime, and if he states, only what he knows and honestly believes he cannot be subjected to an action of damages merely because it turns out that the person as to whom he has given the information is after all not guilty of the crime. In such cases to establish liability the pursuer must show that the informant acted from malice, i.e., 'not in discharge of his public duty but from an illegitimate motive, and must also prove that the statements were made or the information given without any reasonable grounds of belief, or other information given without probable cause; and Lord SHAND added (p. 940): "He has not only a duty but a right when the cause affects his own Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 16 of 19 property."
Most criminal prosecutions are conducted by private citizens in the name of the Crown. This exercise of civic rights constitutes what with reference to the la of libel is termed a privileged occasion: but if the right is abused, the person injured thereby is, in certain events, entitled to a remedy. (See H. Stephen, Malicious Prosecution, 1888; Builen and Leake, Prec. P1., Clerk and Lindsell. Torts, Pollock, Torts; LQR. April 1898; Vin., Abr., tit.
"Action on the Case" Ency. of the Laws of England.) "MALICIOUS PROSECUTION" means that the proceedings which are complained of were initiated from a malicious spirit, i.e, from an indirect and improper motive, and not in furtherance of justice. [10 CWN 253 (FB)] The performance of a duty imposed by law, such as the institution of a prosecution as a necessary condition precedent to a civil action, does not constitute "malice". (Abbott v. Refuge Assurance Co., (1962) 1 QB 432). "Malicious prosecution" thus differs from wrongful arrest and detention, in that the onus of proving that the prosecutor did not act honestly or reasonably, lies on the person prosecuted." (per DIPLOCK U in Dailison v. Caffery, (1965) 1 QB 348)). (Stroud, 6th Edn., 2000). 'Malice' means and implies spite or ill-will. Incidentally, be it noted that the expression "mala fide" is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. (See Prabodh Sagar v. Punjab State Electricity Board and others. (2000) 5 SCC 630. The legal meaning of 'malice' is "ill will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means "something done without lawful excuse". In other words, "it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is deliberate act in disregard of the rights of others". (See State of A.P. v. Govardhanlal Pitti (2003) 4 SCC 739).
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. In the case of Jones Bros. (Hunstanton) Ltd. v. Stevens (1955) 1 QB 275: (1954) 3 All ER 677 (CA), the Court of Appeal has reliance on the decision of Lumley v. Gye (1853) 2 E&B 216: 22 L.JQB 463 as below: "For this purpose maliciously means no more than knowingly. This was distinctly laid down in Lumley v. Gye (1853) 2 E&B 216: 22 LJQB 463 where Crompton, J. said that it was clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation of master and servant by harbouring and keeping the servant after he has quitted his master during his period of service, commits a wrongful act for which he is responsible in law. Malice in law means the doing of a wrongful act intentionally without just cause or excuse: Bromage v. Prosser Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 17 of 19 (1825) 1 C&P 673: 4 B&C
247. 'Intentionally' refers to the doing of the act; it doe not mean that the defendant meant be spiteful, though sometimes, as for instance to rebut a plea of privilage in defamation, malice in fact has to be proved". (See State of Punjab v. U.K. Khann and others (2001) 2 SCC 330).
Malice in law. "Malice in law" is however, quite different. Viscount Haldane described it in Shearer Shields, (1914) AC 808 as: "A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with the innocent mind: he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of mind is concerned, he acts ignorantly, and in that sense innocently". Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or fro want of reasonable or probable cause. (See S.R. Venkatarcunan v. Union of India (1979) 2 SCC 491) Malice-per common law. "Malice" in common law or acceptance means ill will against a person, but in legal sense means a wrongful act done intentionally without just cause or excuse. (See Chairman and M.D., B.P.L. Ltd v. S.P. Gururaja and others JT 2003 (Suppl. 2) SC 515 and Chairman and MD, BPL Ltd. v. S.F. Gururaja and others (2003) 8 SCC 567).
While it is true that legitimate indignation does not fall within the ambit of malicious act, in almost all legal inquiries, intention, as distinguished from motive is the all important factor. In common parlance, a malicious act has been equated with intentional act without just cause or excuse. (See Jones Bros. (Hunstanton) v. Stevans (1955) 1 QB 275: (1954) 3 All ER 677 (CA)). Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant and others. (2001) 1 SCC 182).
7.5 In the instant case, the defendants had filed a complaint against the plaintiff (now deceased) with police authorities for misappropriation of deep freezer entrusted to the plaintiff (now deceased) as a part of sale promotion of ice cream. It is admitted in the evidence that one deep freezer was actually recovered from the premises of Earl Chawla Co. Pvt. Ltd., The explanation offered by the plaintiff (now deceased) is that the said deep freezer was purchased from Vishwant Kumar and company namely Evita Foods Pvt Ltd through Memorandum of Understanding dated 18.03.1994. It is admitted case of the plaintiff that Earl Chawla and Co. Pvt Ltd retained the possession of Kwality Deep Freezer in question till was seized by police. The plaintiff (now deceased) Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 18 of 19 in cross examination also admitted that he did not produce any document before the police authorities when deep freezer was seized that the same belongs to him. These circumstances shows that while filing complaint with the police, the defendants had reasonable explanation for its grievance about deep freezer. There is no malicious intention to prosecute plaintiff for any other reason which could be discernible from the pleadings. Merely because the criminal proceedings concluded with an acquittal by itself is not sufficient to label the proceedings as malicious prosecution. Applying the principles and definitions laid in the judgment (supra) there is no merits in the contention of plaintiff. The plaintiff is not able to discharge the onus to prove Issue no. 2 and 3 and accordingly these issues are answered against him.
ISSUE NO. 4.
7.6 In view of observation made in issued nos. 2 and 3 that the plaintiff is not able to prove its case, Issue no. 4 is decided against plaintiff.
RELIEF
8. In view of observations made above, since there is no malicious prosecution proved against the plaintiff, the suit of the plaintiff is dismissed. No order as to the cost. Decree sheet be prepared. File be consigned to record room.
Pronounced in open Court on 05.05.2016 (Vineeta Goyal) Additional District Judge-01, NDD/PHC/New Delhi/05.05.2016 Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 19 of 19 Suit No. 281/15 Harinder Pal Singh Chawla vs. KIC Food Products Limited & ors 05.05.2016 Present : Ms. Sangeeta Jain, counsel for plaintiff.
Sh. Shivanshu Kumar, counsel for defendant.
Vide separate judgment of even date the suit of the plaintiff is dismissed. No order as to the cost. Decree sheet be prepared. File be consigned to record room.
(Vineeta Goyal) Additional District Judge-01, NDD/PHC/New Delhi/05.05.2016 Suit no. 281/14 Harvinder Pal Singh Chawla vs. KIC Food Products Page no. 20 of 19