Delhi District Court
Sh. Ved Prakash (Deceased) Through ... vs Ministry Of Communications on 14 September, 2020
IN THE COURT OF SH. SWARANA KANTA SHARMA
PRINCIPAL DISTT. & SESSIONS JUDGE, NORTH DISTRICT,
ROHINI COURTS, DELHI.
CS No. 58368/16
Sh. Ved Prakash (deceased) through legal heirs :
(i) Smt. Anita Devi w/o late Sh. Ved Prakash
(ii) Sh. Madan Mohan s/o late Sh. Ved Prakash
(iii) Sh. Ravi Kumar s/o late Sh. Ved Prakash .........Plaintiff
Vs.
1. Ministry of Communications
Department of Posts
New Delhi110001
2. Chief Post Master General
Meghdut Bhawan, Link Road
New Delhi.
3. Senior Superintendent of Post Officers
Delhi North Division
New Delhi ......Defendants
Date of institution : 24.11.2014
Date of clarification : 04.08.2020 (Through
video conferencing)
Date of pronouncement : 14.09.2020 (Through
video conferencing)
Appearance :
Sh. Suraj Prakash Sharma, learned Counsel for the plaintiff.
Sh. Abhishek Kaushik, learned Counsel for the defendants.
Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 1 of 29
JUDGMENT
1. By this Judgment, I shall decide the present suit filed by the plaintiff against the defendants thereby seeking recovery of Rs. 4,00,000/ along with interest, averring therein that the plaintiff was appointed as an EDBPM by the defendants as per rules on 08.02.1984; that in the year 1990, false allegations for misappropriation of fund of Rs. 7100/ during the period of 1987 to 1990 were levelled against the plaintiff due to which he was put off from his duties; that not only this, defendant no. 3, on a complaint through Sh. M.R. Nega, Superintendent of Post, had got registered an FIR bearing no. 186/1997 at PS Narela against the plaintiff and after investigation, the police had filed chargesheet against the plaintiff and charges u/s 409 IPC were framed against the plaintiff; that during the trial, the prosecution had examined many witnesses, but none of the witnesses had supported the case of the prosecution, the plaintiff was acquitted by the concerned Court.
It is further averred that the State had challenged the said acquittal order of the Court and had filed an appeal bearing CA No. 09/13, but the same was also dismissed by the Appellate Court vide order dated 03.02.2014.
It is further averred that due to the above said acts of the defendants, the plaintiff had suffered huge financial losses, loss of service, loss of reputation and had also sufferred mental torture, pain Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 2 of 29 and agony in jail.
On these allegations, the plaintiff has filed the present suit against the defendants seeking recovery of Rs. 4,00,000/ along with interest towards defamation, mental torture, pain and agony suffered by him due to the above mentioned acts of the defendants.
2. Summons of the suit were issued to the defendants and all the three defendants filed their joint written statement thereby denying the contents of the plaint and taking various preliminary objections to the effect that there is no cause of action in favour of the plaintiff to file the present suit; that the plaintiff has not approached this Court with clean hands and has suppressed true and material facts.
It is further stated that during a surprise visit on 09.11.1990 at Holambi Kalan, EDBO, the then ASP, Delhi North, 1 st Sub Division, Ashok Vihar, Delhi, had seen a passbook of closed SB Account no. 3146029 in which the dates of date stamps were found changed manually and as such, he had made a confidential verification of the past saving bank work done by the plaintiff and had collected some passbooks of account standing at Holambi Kalan, B.O. through mail overseer, Alipur Post Office and had noticed some discrepancies in the same. He had made inquiries from the plaintiff and after being confronted with the passbooks, the plaintiff had admitted that he had Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 3 of 29 misappropriated an amount of Rs. 13,600/ from 7 RD accounts no. 433503, 433489, 433490, 433620, 433540, 433484 and 433527. Thereafter, an amount of Rs. 17,000/ was voluntarily deposited by the plaintiff in government accounts and he was put off from his duties vide SSPOs, Delhi North Division, Delhi110054, vide memo dated 13.12.1990.
It is further stated that after being putting off from the duty, the plaintiff had handed over the charge of EDBPM, Holambi Kalan EDBO, to one Sh. Rohtash Kumar in the afternoon on 18.12.1990. Thereafter the plaintiff was proceeded against under Rule 8 of EDAs Rules which was later on amended as GDS (Conduct & Engagement) Rules 2011 vide memo dated 04.09.1996 and consequently, he was awarded the penalty of dismissal from the services of EDBPM vide memo dated 05.02.1999.
It is further stated that though the plaintiff was acquitted by the Court for the offence he was chaged with, but the competent authority of the defendants after examining the Judgment and orders passed by the disciplinary authority had observed that RD accounts mentioned in the chargesheet issued by the disciplinary authority were different from those which were mentioned in the police complaint, hence, there is no impact of court case on the acquittal of the plaintiff. It is further stated that thereafter the plaintiff had submitted his representations with the defendants on 09.10.2012, Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 4 of 29 12.06.2014 and 04.08.2014 praying the defendants to reinstate him in service which representations were forwarded to Assistant Director (V&I), Delhi Circle, New Delhi110001. Thereafter, the plaintiff preferred an appeal to the Director Postal Services, Delhi Circle, Meghdoot Bhawan, New Delhi, on 26.06.2013 to review the order of his dismissal from the services in the wake of the Judgment passed by the Court, but the said appeal was not accepted by the competent authority on the grounds that the RD accounts mentioned in the FIR (court cases) were different from those mentioned in the chargesheet for which the plaintiff was dismissed from the services of the defendants.
3. The plaintiff did not chose to file replication to the written statement.
4. From the pleadings of the parties, following issues were settled on 12.02.2015 by the learned predecessor of this Court :
(i) Whether discrepancies have been noticed in the passbook of the accounts at Holambi Kalan and the plaintiff had admitted misappropriating a sum of Rs. 13,600/ from seven RD accounts details of which have been given in preliminary/submission no. 1 of the written statement? If so, their effect. OPD
(ii) Whether during the surprise visit on 09.11.1990 at Holambi Kalan by the ASP, the dates of date stamps were found changed manually in saving bank account no. 3146029? If so, their effect. OPD Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 5 of 29
(iii) Whether the plaintiff is entitle to damages for alleged defamation, mental agony and torture. If so, what amount? OPP.
(iv) Whether the plaintiff is entitled to interest @ 24% per annum or any other rate and for what period? OPP
(v) Relief.
5. Thereafter, during the pendency of the present case, the plaintiff expired on 20.10.2015. Accordingly, learned Counsel for the plaintiff moved an application under Order XXII Rule 4 CPC for bringing on record legal heirs of deceased plaintiff, which was allowed by learned predecessor of this Court vide order dated 03.02.2017. Consequently, Smt. Anita Devi (wife), Madan Mohan (son) and Ravi Kumar (son) were brought on record in place of deceased plaintiff Ved Prakash.
6. Smt. Anita Devi and Sh. Madan Mohan i.e. wife and son of the deceased plaintiff appeared in the witness box as PW1 & PW2 respectively and tendered their affidavit as Exs. PW1/A and PW2/A respectively, which are on the identical lines as per the plaint.
7. Besides her affidavit Ex. PW1/A, Smt. Anita Devi relied upon the following documents : "Copy of voter card of PW1 Ex. PW1/1; copy of certified copy of Judgment dated 12.09.2012 Ex. PW1/2; letters dated 04.08.2014, 04.08.2014, 12.06.2014 and 09.10.2012 collectively exhibited as Ex. PW1/4; death Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 6 of 29 certification of the deceased plaintiff Ex. PW1/5; copy of certified copy of the Judgment dated 03.02.2014 Mark A and copies of official orders/letters Mark B (3 pages).
PW2 Madan Mohan relied upon copy of his voter card Ex. PW2/1.
8. During her cross examination, PW1 stated that she has studied up 7th standard and cannot read and write English. The plaintiff was lastly working with the post office. She did not know if any complaint was made against the plaintiff by his department.
PW1 further stated that she did not know what is written in her affidavit Ex. PW1/A. The last posting of her deceased husband i.e. the plaintiff herein was at Holambi Kalan Post Office and the plaintiff was dismissed from service on the basis of false complaint. She did not know in how many accounts, the alleged forgery was committed by the plaintiff. She did not know whether the plaintiff was made accused with respect to misappropriation of seven different accounts. She did not know whether any FIR was lodged against the plaintiff with respect to misappropriation of funds in the accounts. She did not know the details of account number with respect to which the plaintiff was dismissed from service. She denied that account numbers in the FIR are different from the account numbers mentioned in the inquiry initiated by the postal department on the basis of which the plaintiff was dismissed from the service. She did Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 7 of 29 not know whether the plaintiff had handed over his charge to Sh. Rohtash Kumar. She denied that no record pertaining to the account number mentioned in the FIR on the basis of which the plaintiff was dismissed from service, was put on record by her.
PW1 further denied that the plaintiff was dismissed/terminated from the services of the Post Office due to misappropriation of funds done by him in seven different accounts. She further denied that the present suit is false or that same is filed with intention to extort public money from government department.
9. PW2 Sh. Madan Mohan i.e. son of the deceased plaintiff, during his cross examination, stated that he did not know the number of accounts for which misappropriation of funds was done and the departmental case was proceeded against the plaintiff. He was not aware whether any departmental case was initiated against the plaintiff for misappropriation of funds in seven accounts. He did not know whether any detail of FIR registered against the plaintiff was mentioned in his affidavit Ex. PW2/A or not. He did not know whether two separate cases against the plaintiff were initiated i.e. one by way of FIR and the another one via internal departmental inquiry. He did not know whether the trial of misappropriation of funds in accounts are different in both the cases. He did not know whether in the internal departmental inquiry the plaintiff was held guilty or that he had deposited the amount misappropriated by him to the Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 8 of 29 department. He did not know whether RD account no. 433489, 433490 and 433503 are mentioned in the FIR registered against the plaintiff. He did not know whether the plaintiff was held guilty in misappropriation of funds in RD account no. 433484, 433540 and 433620 by the concerned department. He admitted that these facts have not been mentioned in the petition or in his evidence by way of affidavit. He denied that the plaintiff was held guilty by the internal inquiry of the department for misappropriation of funds in three RD Accounts. He was not aware whether the plaintiff had returned some money to the department to compensate the misappropriation in RD accounts. He did not know whether he had mentioned the fact that the plaintiff had made appeal before the higher authorities of the department but the same was also dismissed by the authorities. He denied that he is not entitled to get any damages / claim. He further denied that he is deposing falsely in order to get money from government department.
10. No other witness was examined on behalf of the plaintiff except the above two and accordingly, PE was closed vide order dated 28.11.2019 in view of the separate statement of learned Counsel for the plaintiff.
11. On the other hand, Sh. Suresh Kumar, Superintendent of Post Office, Deptt. Of Post, North Division, Civil Lines, Delhi110054, stepped into the witness box as DW1 on behalf of the defendants Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 9 of 29 and tendered his affidavit as Ex. DW1/A in evidence.
12. Besides his affdavit Ex. DW1/A, DW1 relied upon the following documents :
"The document Ex. DW1/2 is the copy of order dated 05.02.1999; Ex. DW1/3 is the copy of Judgment dated 12.09.2012 passed by learned MM, Rohini Courts, Delhi; Ex. DW1/4 is the copy of letter dated 26.11.2013 sent to SSPO, Delhi North Division; Ex. DW1/5 (colly) is the copy of charge sheet containing account nos. 433484, 433540 and 433620 maintained by the plaintiff and Mark DA is the photocopy of memo dated 13.12.1990".
13. During his cross examination, DW1 admitted that when deceased plaintiff Ved Prakash was put off duty and was dismissed from the services of the defendants, he (DW1) was not working as ASP, Delhi North, 1 Sub Division, Ashok Vihar, Delhi, with the defendants. He was aware about the contents of the Judgment dated 12.09.2012 passed by the Court of learned MM, Rohini Courts, Delhi, in a case bearing FIR No. 186/97 PS Narela. He was not aware as to whether any notice was served upon the plaintiff by the defendants before putting him off from the duty. He voluntarily added that, however, the plaintiff was inquired by the defendants on the issue pertaining to the case. He denied that the defendants did not serve any notice upon the plaintiff prior to putting him off from the duty. He further denied that the plaintiff was put off from duty by the Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 10 of 29 defendants without following the due process of rules and regulations.
DW1 denied that he was not authorized by the defendants to depose before this Court. He further denied that false allegations were levelled against the plaintiff. He further denied that the plaintiff had not misappropriated seven RD accounts bearing no. 433484, 433540, 433620, 433503, 433489, 433490 and 433527. He further denied that the plaintiff was wrongly chargesheeted by the defendants. He further denied that a false complaint was got registered against the plaintiff at PS Narela. He further denied that the plaintiff had suffered mental torture, pain and agony due to false case/FIR against him. He further denied that the family of the plaintiff has suffered financial losses due to false case registered against the plaintiff.
14. No other witness was examined on behalf of the defendants except Sh. Suresh Kumar and DE was closed vide order dated 23.01.2020.
15. I have heard arguments addressed by the learned Counsel for both the parties and have also gone through the entire record carefully.
16. Considering the pleadings, issues settled, evidence led and Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 11 of 29 arguments addressed, my issuewise findings are as under : ISSUES No. (iii) & (iv):
(iii) Whether the plaintiff is entitled to damages for alleged defamation, mental agony and torture. If so, what amount? OPP.
(iv) Whether the plaintiff is entitled to interest @ 24% per annum or any other rate and for what period? OPP
17. Issues no. (iii) & (iv) are being taken up first for determination and adjudication as outcome of these issues will have bearing on the adjudication and outcome of remaining issues.
18. The onus to prove both theses issues was upon the plaintiff.
19. The plaintiff has claimed a sum of Rs. 4,00,000/ including interest towards damages on account of defemation, mental agony, torture and financial losses allegedly suffered by him and by his family due to the said acts of the defendants.
20. In the present case, it is admitted that there was relationship of employer and employee between the parties and defendant no. 3 through its Superintendent of Post Sh. M.R. Nega had got registered an FIR bearing No. 186/1997 at PS Narela against the plaintiff. However, in that case, the plaintiff was acquitted of offence punishable u/s 409 IPC by the Court of Sh. Sandeep Gupta, the then learned MM, Rohini Courts, Delhi, vide Judgment dated Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 12 of 29 12.09.2012. While discharging the plaintiff, learned MM had observed as under :
"In the present matter, PW7 Ms. Jag Roshni and PW8 Mr. Karan Singh have not supported the case of the prosecution. Ms. Jag Roshni, who opened the RD accounts of her sons namely Shiv Prakash and Sudhir vide account nos. 433489 and 433490 in the Holambi Kalan Post Office specifically deposed "it is wrong to suggest that accused Ved Prakash had not deposited several amounts totaling to Rs. 3,600/ in both the said accounts. She denied having made any such statement to the police and did not allege any misappropriation of funds of breach of trust upon the accused Ved Prakash. Same is the case with regard to the testimony of PW8 Karan Singh, who opened the RD account of his son Vinay Kumar in the Holambi Kalan Post Office and he also denied the suggestion that Rs. 3500/ were not entered in the said account by the accused Ved Prakash. Moreover, no original record pertaining to the ledger entries or any other relevant statements has been produced by any of the Post Office witnesses, which could have clearly shown that the various amounts entered in the passbooks of the depositors Sudhir, Shiv Kumar and Vinay Kumar were not consequently entered in the books of accounts of the Post Office, Holambi Kalan. Moreover, the complainant Mr. M.R. Nega, who was the Sr. Superintendent of Post Offices, Delhi, North Division has also not been examined in the present matter. In view of the material witnesses i.e PW7 Smt. Jag Roshni and PW8 Sh. Karan Singh clearly denying the allegations put forth by the prosecution upon the accused Ved Prakash and after scanning the entire record and keeping in view the abovesaid discussions, I have no hesitation to hold that the prosecution has miserably failed to prove the case against the accused for which he has been charged with, beyond reasonable doubt. Accordingly, the accused is acquitted of the said offence under Section 409 IPC".Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 13 of 29
21. Primarily, on the basis of this acquittal order and observations made by the learned MM in the abovesaid criminal case, the present suit for damages for Rs. 4,00,000/ along with interest was filed by the plaintiff (now deceased) claiming that due to the said acts of the defendants, the plaintiff had suffered defamation, mental torture, pain, loss of reputation and agony in jail. However, during the proceedings of the case, the plaintiff Ved Prakash expired on 20.10.2015 and legal heir of the deceased plaintiff were brought on record, as per law, vide order dated 03.02.2017. Out of total three legal heirs of the deceased plaintiff, Anita Devi(wife) and Madan Mohan(son) appeared in the witness box as PW1 and PW2 and filed their affidavits as Exs. PW1/A and PW2/A in evidence respectively and proved various documents on record, as discussed above.
22. Learned Counsel for the plaintiff has argued that the plaintiff was put off from duty by the defendants on false allegations levelled against him. The certified copies of the Judgments dated 12.09.2012 and 03.02.2014 have been proved on record as Ex. PW1/1 and Mark A respectively whereby the plaintiff was acquitted of the charges levelled against him. The acquittal order passed by the learned MM (as reproduced above) has been proved as Ex. PW1/1. Learned Counsel for the plaintiff has further argued that the defendants had caused unnecessary harassment to the plaintiff by filing the said criminal case due to which the plaintiff had suffered mental agony, pain, harassment, inconvenience, monetary loss etc. It is further argued that the Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 14 of 29 defendants had levelled highly serious, mischievous, unfounded, half baked, malicious and defamatory allegations against the plaintiff and unnecessarily dragged the plaintiff in the said false and frivolous litigation without any rhyme or reason. It is further argued that by filing the said false and frivolous criminal case against the plaintiff, the defendants had maligned the plaintiff in the society, relations and had defamed him and his image was tarnished. It is further argued that the defendants, by filing false litigation, had made defamatory allegations against the plaintiff before the public at large.
23. It is further argued by learned Counsel for the plaintiff that though no amount is sufficient to compensate the loss suffered by the plaintiff due to harm caused by the defendants to the reputation/goodwill of the plaintiff, however, in order to get some relief, the plaintiff has claimed a sum of Rs 4,00,000/ along with interest from the defendants towards damages which the defendant is liable to pay to the plaintiff.
24. A perusal of the cross examination of the legal heirs of the deceased plaintiff Smt. Anita Devi PW1 reveals that she has stated that she did not know if any complaint was made against the plaintiff by his department. She did not even know in how many accounts, the alleged forgery was committed by the plaintiff. She did not even know whether the plaintiff was made accused with respect to misappropriation of Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 15 of 29 seven different accounts. She, despite being main witness, did not even know whether any FIR was lodged against the plaintiff with respect to misappropriation of funds in the accounts. It is noteworthy that she is the wife of plaintiff. She did not even know the details of account number with respect to which the plaintiff was dismissed from service. Strangely though she denies even knowing that an FIR was lodged against her deceased husband (plaintiff) which is the very basis of filing the present suit, but in the same breath, she denies that the account numbers in the FIR are different from the account numbers mentioned in the inquiry initiated by the postal department on the basis of which the plaintiff was dismissed from the service. She did not know whether the plaintiff had handed over his charge to Sh. Rohtash Kumar.
25. On the other hand, the defendants have examined Sh. Suresh Kumar, Superintendent of Post Office, North Division, Civil Lines, Delhi110054, who deposed categorically about the surprise visit on 09.11.1990 at Holambi Kalan, EDBO, the then ASP, Delhi North, 1 st Sub Division, Ashok Vihar, Delhi, and misappropriation of Rs. 13,600/ from 7 RD accounts no. 433503, 433489, 433490, 433620, 433540, 433484 and 433527 by the plaintiff and that an amount of Rs. 17,000/ was voluntarily deposited by the plaintiff in government accounts and he was put off from his duties vide SSPOs, Delhi North Division, Delhi 110054, vide memo dated 13.12.1990.
Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 16 of 2926. He has also proved that the plaintiff was proceeded against under Rule 8 of EDAs Rules which were later on amended as GDS (Conduct & Engagement) Rules 2011 vide memo dated 04.09.1996 and consequently, he was awarded the penalty of dismissal from the services of EDBPM vide memo dated 05.02.1999.
27. It is admitted case that the plaintiff had preferred an appeal to the Director Postal Services, Delhi Circle, Meghdoot Bhawan, New Delhi, on 26.06.2013 to review the order of his dismissal from the services in the wake of the Judgment passed by the Court, but the said appeal was not accepted by the competent authority on the grounds that the RD accounts mentioned in the FIR (court cases) were different from those mentioned in the chargesheet for which the plaintiff was dismissed from the services of the defendants.
28. It is also not disputed that the plaintiff was acquitted of the charges by giving him benefit of doubt. The plaintiff claims damages on the ground of malicious prosecution and the mental agony and defamation suffered by him. But this case was not filed within one year from the date when the alleged defamatory allegations were first made. A perusal of the Judgment dated 12.09.2012 Ex. PW1/2 shows that the complaint case was filed in the year 1997 and, therefore, the claim of the plaintiff for an amount of Rs. 4,00,000/ towards loss of reputation is barred by limitation.
Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 17 of 2929. As per Article 75 of the Limitation Act in a suit for damages for libel, the period of limitation is one year and the time from which the period begins to run is "when the libel is published" and since in the instant case, the complaint case was filed by the defendants in the year 1997 and the present suit for damages was filed on 22.11.2014, the suit for compensation for defamation is barred by limitation.
30. However, as per Article 74 of the Limitation Act, in a suit for damages for malicious prosecution, the period of limitation is one year and the same begins to run when the plaintiff is acquitted or the prosecution is otherwise terminated, since in the complaint filed by the defendant herein, the plaintiff was acquitted on 12.09.2012 and the present suit was filed on 22.11.2014, the plaintiff could not pursue for malicious prosecution.
31. It was contended by the learned Counsel for the defendants that since the suit was not being pursued as a suit of malicious prosecution, no separate issue was framed that the prosecution lodged by the defendants was malicious. Since no separate issue was framed by the Court regarding the malicious prosecution, the defendants have not led relevant evidence on the point.
32. On the other hand, it has been contended by learned Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 18 of 29 Counsel for the plaintiff that it is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised, the enquiry should not be so much about the form of pleadings instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found out that the parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise question of absence of pleadings.
33. After hearing both the Counsels on this point, I am of the opinion that in the entire pleadings the word 'malicious' has not been used. No issue was framed regarding malicious prosecution in the absence of the pleadings and even in the affidavits Ex. PW1/A and Ex. PW2/A of legal heirs of the deceased plaintiff, the word 'malicious' does not occur. As no separate suit has been filed for malicious prosecution, it cannot be presumed or ascertained whether the suit for damages is based on malicious prosecution or for defamation.
34. It is well established that in the absence of the pleadings, evidence, if any, produced by a party, cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleadings and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 19 of 29 of pleadings is to enable the adversary party to know the case it has to meet. In order to have a fair trial, it is imperative that the party should state the essential material facts so that the other party may not be taken by surprise. In the instant case, the plaintiff has shifted its stand from defamation to malicious prosecution in order to bring the case within limitation. Therefore, I hold that the plaintiff has to base its case only on the pleadings and it cannot change the stand subsequently as per his convenience.
35. Malicious prosecution is the commonest form of the test of abuse of legal procedure which is available against persons who deliberately abuse the legal process in order to harm another. The Black's Law dictionary defines 'Malicious prosecution' as the institution of criminal or civil proceedings for an improper purpose and without probable cause. In a suit for damages for malicious prosecution, the plaintiff must prove that the defendant acted without reasonable and probable cause and that the defendant was actuated by malice.
36. In a suit for malicious prosecution in order to succeed, the plaintiff must prove that following conditions have been fulfilled : (1)that the criminal proceedings were instituted by the defendant; (2)that in doing so, the defendant acted without any reasonable and probable cause; (3)that the defendant acted maliciously; (4)that the criminal proceedings terminated in favour of the plaintiff in his acquittal or Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 20 of 29 discharge and the defendant was unsuccessful.
37. Therefore, in order to succeed in an action for malicious prosecution, the plaintiff has to prove that the prosecution ended in the plaintiff's favour and that the defendants had acted without any reasonable and probable cause and was actuated by malice in launching the criminal prosecution. Absence of reasonable and probable cause for criminal prosecution is, therefore, an essential pre requisite for action for malicious prosecution.
38. As per the settled propositions, 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 favourably to the defendant therein. The law relating to malicious prosecution, has been elaborately dealt with by the Apex court in "West Bengal State Electricity Board v. Dalip Kumar Ray (AIR 2007 SC 976)", wherein it was held as under :
"Malicious prosecutionMalice 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 collatteral advantage".
39. Thus the principles to be borne in mind in the case of action for malicious prosecution are these : Malice is not merely the doing of a Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 21 of 29 wrongful act intentionally but it must be established that the defendant was actuated by malus animus, that is to say, by spite or ill will or any indirect or improper motive. But if the defendant had 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 defendant's mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them.
40. In the present case, in its Judgment dated 12.09.2012 Ex. PW1/2, learned MM while acquitting the plaintiff observed that the prosecution has miserably failed to prove its case against he accused for which he was charged with, beyond reasonable doubt. The said findings given by the criminal court have no bearing on the civil suit for malicious prosecution and the Judgment of the criminal court can only be used as an evidence to prove the acquittal of the plaintiff and not beyond.
I am fortified in my opinion by "Kishan Singh (D) through LRS v. Gurpal Singh & ors." reported in (2010) 4 JCC 2547 and more particularly at para 19, which reads as under :
"19. Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 22 of 29 case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases, it is preponderance of probabilities while in criminal cases, it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Section 41 to 43 of the Indian Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration."
41. In the past, 'malice' was identified with 'lack of reasonable and probable cause' and often malice was inferred from lack of reasonable and probable cause and vice versa. But the present state of law seems to be that the concept of malice is to be kept distinct from the concept of lack of reasonable and probable cause. Ordinarily, malice denotes spite or hatred against an individual but it is often difficult to infer spite or hatred from the conduct of a person. It is said that the devil does not know the mind of man. Therefore, the ordinary meaning of malice cannot be determined by any subjective standard. Clarke and Lindsell have rightly said in their book on Law of tort, 11th Edition. Article 1444 at page 870 :
'The term 'malice in this form of action is not to be considered in the sense of spite or hatred against an individual, but of malice animus and as denoting that the party is actuated by an improper motive. The proper motive for prosecution is of Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 23 of 29 course a desire to secure an end to justice."
42. In order to show malicious prosecution, it was incumbent upon the plaintiff to prove that the criminal proceedings complained of, were initiated from a malicious spirit i.e. from an indirect and improper motive and not in furtherance of justice. Malice means and implies spite or ill will. Malice can only be appreciated from the records of the case. There are possibly no set guidelines in regard to the proof of malafides or malice and wherever it is alleged it depends on the facts and circumstances of the case.
43. Therefore, to conclude, in my considered view, the findings of the criminal court are not binding upon the civil court and the civil court has to decide the case on the basis of the evidence adduced before the court. The finding given by the criminal court cannot be considered as a remark upon the defendant and cannot be used as universal truth. On the basis of the evidence adduced, this court has to give a finding whether the prosecution launched by the defendants was malicious and then the question of damages would arise. Admittedly, the plaintiff is not claiming damages on the basis of defamation or loss of reputation as hit by Article 75 of the Limitation Act. No sufficient evidence has been brought on record to show that the prosecution launched by the defendants was malicious. The observation made by the learned MM as reproduced above cannot be taken to Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 24 of 29 impute malice on the part of the defendants as there is no categorical finding on this aspect. Learned MM had acquitted the plaintiff but did not proceed further to take any action against the complainant(defendants herein) on the ground that the PW7 and PW8 did not support the case of the prosecution. The observations made by the learned MM cannot be taken to mean that the criminal case was actuated by malice and was for an improper purpose or without any probable cause. The onus to prove that the criminal case was actuated by malus animus was on the plaintiff which he could not discharge since no clinching evidence was led by the plaintiff in this regard. There is practically no evidence to impute any malus animus on the part of the defendants, denoting that the defendants were actuated by ill will or improper and indirect motive.
44. Since the plaintiff had expired during the proceedings of the case, wife of the plaintiff appeared in the witness box as PW1 and son of the plaintiff appeared in the witness box as PW2 and they both filed their affidavits as Exs. PW1/A and PW1/B respectively, in evidence which are on the identical lines as per the plaint. PW1 Smt. Anita Devi relied upon various documents, as discussed above, however, none of the documents relied by PW1, prove mental agony, torture etc. allegedly suffered by the plaintiff or by his family. The statement of PW2 Sh. Madan Mohan is of no help to the case of the plaintiff as PW2 neither relied upon any Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 25 of 29 documents nor gave proper reply to the questions put to him during his cross examination. It is not understood as to how the plaintiff suffered mental agony. The plaintiff has even not brought on record any document to show that he was in constant touch with the defendants for claiming compensation in regard to mental agony, torture and financial losses suffered by him.
45. Learned Counsel for the defendants has further argued that the plaintiff never challenged the Memo dated 04.09.1996 and Order dated 05.02.99 Ex. DW1/2 whereby he was put off from his duties. It is further argued by learned Counsel for the defendants that the legal heirs of the deceased plaintiff, in their cross examination, have stated nothing about these two documents.
46. I have gone through the Order dated 05.02.1999 Ex. DW1/2 whereby the plaintiff was put off from his duties. I have also gone through the plaint as well as the evidence led on behalf of the deceased plaintiff. Neither in the plaint nor in evidence, it is stated that the Order dated 05.02.1999 Ex. DW1/2 was challenged before any competent authority or that the same was found to based on incorrect facts. Even otherwise, the case before the undersigned is not regarding the challenge of termination Order dated 05.02.1999, but only for compensation/damages allegedly suffered by the plaintiff for the wrongful order passed by the defendants vide which the service of the plaintiff were terminated.
Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 26 of 29The law is clear regarding the claim of damages and compensation and I have already discussed above that in the evidence led on behalf of the plaintiff as well as in the entire plaint, the plaintiff has only narrated the facts which led to his termination by the defendants and his acquittal by the criminal court. As per "Kishan Singh (D) through LRS v. Gurpal Singh & ors." reported in (2010) 4 JCC 2547, the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases, it is preponderance of probabilities while in criminal cases, it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Section 41 to 43 of the Indian Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration.
47. The plaintiff has not led any evidence to make out the case for payment of compensation to him as the Order dated 05.02.1999 Ex. DW1/2 of the competent authority vide which the services of the plaintiff were terminated, has neither been set aside nor there is any evidence that the same was challenged Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 27 of 29 before any appellate authority or the Court of Law.
48. Therefore, in my opinion, the plaintiff has failed to prove that he suffered mental agony, torture etc. due to the above said action of the defendants. I do not find any ground to grant damages on account of mental agony, torture etc. to the plaintiff. Issues no. (iii) & (iv) are, therefore, decided against the plaintiff and in favour of the defendants.
ISSUE Nos. (i) & (ii) :
(i) Whether discrepancies have been noticed in the passbook of the accounts at Holambi Kalan and the plaintiff had admitted misappropriating a sum of Rs. 13,600/ from seven RD accounts details of which have been given in preliminary/submission no. 1 of the written statement? If so, their effect. OPD
(ii) Whether during the surprise visit on 09.11.1990 at Holambi Kalan by the ASP, the dates of date stamps were found changed manually in saving bank account no. 3146029? If so, their effect. OPD
49. The onus to prove both these issues was upon the defendants.
50. Since I have already dismissed the prayer of the plaintiff, hence, both these issues are not required to be adjudicated. Even otherwise, both these issues are not the matter of record. So far as the question of dismissal of the plaintiff from the services of the defendants Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 28 of 29 is concerned, this Court is not empowered to decide the cases pertaining to employer and employee relationship.
RELIEF :
51. In the light of above discussions, the plaintiff is not entitled to any relief. Suit is accordingly dismissed. However, parties are left to bear their own costs. Decree sheet be drawn accordingly and file be consigned to Record Room. Digitally signed SWARANA by SWARANA Announced through video conferencing KANTA KANTA SHARMA Date: 2020.09.14 on 14.09.2020 SHARMA 17:54:20 +0530 (Swarana Kanta Sharma) Principal District & Sessions Judge North District, Rohini Courts, Delhi Ved Prakash vs. Ministry of Communications & Ors. CS No. 58368/16 Page 29 of 29