Delhi District Court
Shri Mohan Dass P vs Huges Escorts Communications Ltd on 22 September, 2018
Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 208/2017
UNIQUE CASE ID NO.: 610325/16
IN THE MATTER OF:
Shri Mohan Dass P.
S/o Sh. Sankaran Nair
R/o 380, Income Tax Colony,
North Pitampura,
Delhi110088. ....Plaintiff
VERSUS
1. Huges Escorts Communications Ltd.
(Service to be effected through its
Managing Director/ Principal Officer),
Nirlac Center, IInd Floor,
B25, Qutub Institutional Area,
New Delhi110016.
2. Sh. P.R. Bijlani
S/o Sh. Anand Bijlani
R/o D1/1, Hauz Khas, New Delhi.
3. Sh. Shashi Ullal
16, Kallol Apartments,
I.P. Extension, Patparganj,
New Delhi - 110091. ....Defendants
Suit No. 208/2017 Page 1 of 45
Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
SUIT FOR DAMAGES OF RS.5,00,000/
(RUPEES FIVE LACS ONLY)
Date of institution of the Suit : 06/05/2005
Date on which Judgment was reserved : 28/08/2018
Date of Judgment : 22/09/2018
JUDGMENT
By way of present judgment, this court shall adjudicate upon suit for damages of Rs.5,00,000/ (Rs. Five Lakhs Only) filed by the plaintiff against the defendants. The plaintiff has prayed for a decree of Rs.5,00,000/ alongwith pendentelite and future inter est @ 18% till the date of payments.
CASE OF THE PLAINTIFF AS PER PLAINT Succinctly the necessary facts for just adjudication of the present suit, as stated in the plaint, are as under:
(a) The plaintiff was appointed by the defendant no.1 as Senior Executive Secretary with employee no. 2020 and he served the organization most sincerely, honestly, faithfully, efficiently and diligently and did not give even a single chance of com plaint from August 1994 till June 1999. He was the senior most employee in the Finance Department and used to work at the then main office on the 2 nd floor at International Trade Tower, Nehru Place, New Delhi110019. The company was Suit No. 208/2017 Page 2 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
having a guest house at Hauz Khas for stay and entertain ment of the company's guests which was not meant for the plaintiff's visit stay or any other work. The company has five working days in a week and Saturday and Sunday used to be the holidays for all the employees in routine.
(b) On 05/06/1999, while the plaintiff was enjoying his Saturday being holiday, he received a phone call at his residence in the morning to reach his office from where he was called at the guest house of the company as there was urgent business of the company and his services were required to provide Secre tarial services and accordingly, he reported at the guest house. This was even otherwise a special and unusual order deviating from routine but the plaintiff being a sincere and faithful employee did not utter a word and obeyed the orders. The plaintiff was introduced to certain new person strangers to the company and the plaintiff as C.B.I. officials who had come for investigations. Those persons were in fact, imperson ator and impersonating at the instance of the company in col lusion with the company, defendant no.1, defendant no.2 and defendant no.3 and all of them took the law in their own hands and wrongfully and immorally humiliated, insulted and harassed the plaintiff and caused him mental tortures and agony and even physical injuries. The plaintiff lodged his com plaint with the police and also filed a civil suit for recovery of Rs.4,75,000/ as damages on 14.7.1999 vide suit no.
Suit No. 208/2017 Page 3 of 45Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
225/1999 (new suit no.507/2001) titled as Mohan Dass P. Vs. H.E.C.L. & Ors.
(c) On 07/06/1999, the plaintiff went to the office of defendant no.1 to meet the higher authorities and apprised him about the inhuman and brutal treatment given to him on 05/06/1999 but to this astonishment, his entry to the office was forcibly stopped by the security guard. The plaintiff wrote to the Director Legal with copies to defendant no.2 and Gen eral Manager (H.R.) as well as Managing Director requesting for detailed independent enquiry. Mr. Pranav Roach, Director Legal and Mr. Arun Kumar, Head, Hughes India Operation of the management telephonically assured the plaintiff that he may resume his duties on 08.06.1999 and justice will be done to him. On this, the plaintiff joined his services w.e.f. 08.06.1999 and he was delivered few items snatched from him by the bogus C.B.I. officer on 05/06/1999 out of his wal let. The plaintiff sent email dated 08/06/1999 to Mr.Shashi Ullal, Managing Director of the company.
(d) On 09/06/1999, the plaintiff contacted defendant no.2 and requested that all the rest of the items which were snatched by the so called C.B.I. officer may be restored to him. How ever, defendant no.2 on that occasion disowned the whole in cident and told that he would not be able to help in getting back his property. The plaintiff sent email to all H.E.C.L. em ployees and email to talk management in India and abroad Suit No. 208/2017 Page 4 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
detailing the misappropriation as the plaintiff understood and requesting for independent detailed enquiry or otherwise, he may have to lodge F.I.R. The plaintiff also lodged a written complaint with S.H.O., P.S. Kalkaji on 14/06/1999 and with S.H.O., P.S. Hauz Khas on 15/06/1999. Reminders were sent on 18/06/1999 to the management as well as police but no action was taken. On 23/06/1999, the plaintiff got a legal notice served through advocates of the defendants no. 1 & 2 and Mr. Alok Dubey whereafter the afore mentioned civil suit was filed.
(e) The plaintiff was following up his complaint everywhere but without any response and in the meantime, the defendants no. 1 and 2 in complicity and collusion with S.H.O., P.S. Kalkaji attacked on the plaintiff in order to side track the real issue and all of a sudden on 14/09/1999 while the plaintiff was marking attendance in the office of defendant no.1, the S.H.O. with other police officials, arrested the plaintiff wrong fully and illegally and in order to oblige the defendants out of the way. An antedated complaint dated 11/06/1999 was taken from the management and thereafter, an FIR no. 405/99 under Sections 409/420/468/471/34 I.P.C. was reg istered against the plaintiff and he was produced before the court on 15/09/1999 in the afternoon in the court of Ld. MM, Patiala House Courts, New Delhi and a police remand for 3 days was taken during which period the police tortured the Suit No. 208/2017 Page 5 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
plaintiff very badly and he was taken to the office of defendant no.1 on 16/09/1999 where he was again tortured and beaten in the presence of senior management members and during the remand period on the midnight of 17/09/1999, the plain tiff was also taken to Pitampura at his house with an em ployee of Hughes Network System namely Shri Bhanu Sharma and the plaintiff had to face worst type of vulgar and wild hu miliation insult and harassed at the hands of police and on 18/09/1999 after the completion of police remand, he was sent to judicial custody in Tihar Jail and remained there for two months when finally on 19/11/1999, he was released on bail. On his return, the plaintiff went to resume his duties with the defendant no.1 on 22/11/1999 where again he was refused to enter the office marked his attendance or to meet the senior officers.
(f) The management, in fact, manipulated to obtain resignation of each and every officer or employee working in the Finance department and he was also told that he would have also re signed or agreed to quit, there was no question or getting the criminal case registered against him and there was no occa sion for the plaintiff to face the tortures. The plaintiff had to engage the services of few advocates to get himself released on bail and ultimately, he faced trial before the Court of Sh. S.K. Aggarwal, the then Ld. MM, New Delhi. The police which had acted as a tool in the hands of the defendants no. 1 to 3 in Suit No. 208/2017 Page 6 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
falsely trapping the plaintiff and in torturing him in the police remand at the instance of the defendants no. 1 to 3 and in registering the false case could not produce material worth the name against the plaintiff with the result that on the ar guments on charge by the Ld. counsel for the plaintiff, the Court discharged the plaintiff on 19/07/2004 holding that "Had there been involvement of accused Mohan Dass per his own disclosure statement and that of coaccused, huge money transaction by him would have been collected by the I.O. but none has been revealed in the case in hand as bank account revealed normal transaction as may be expected from a salaried person. Mohan Dass had proposed to purchase the residential apartment in Gurgaon for a total consideration of Rs.13,19,898/ but Ld. APP confirmed that he had given due intimation about it to his employer/ complainant as might be required of him in service rules. It has been strenuously con tended by Sh. Nayyar that Mohan Dass has been made scape goat by Sh. P.R. Bijlani who is the actual culprit of misappro priation of funds of the complainant. The accused being the Secretary of the Vice President (Finance and Administration) of HECL got the sense of the mysterious transaction being done by Mr. Bijlani in complicity with other superior officials to cause loss to the company. He had, therefore, communi cated the facts through email to the executives of HECL in USA. On coming to know all this, the accused was subjected Suit No. 208/2017 Page 7 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
to harassment and even his signatures on blank papers were obtained in threat. The stage is to mature to analyze these facts revealed by the accused nor can the defence be looked into in the perspective in which it has been put forth. The then Ld. MM further held that "I am afraid the case of prose cution against the accused P. Mohan Dass does not fulfill these parameters. Apart from the disclosure statement pur suant whereof no recovery/ incriminating evidence has come on record. There is no material against him. P. Mohan Dass is therefore discharged." After the discharge of the plaintiff, it has been proved that the plaintiff was throughout innocent and he was wrongfully, illegally and unjustifiably arrested, tortured in police remand and confined to jail in judicial cus tody for two months without there being any justification and the prejudices and losses by way of defamation, humiliation in the eyes of family members, near relatives, neighbours, office colleagues and friends and also in the eyes of society, lowered the reputation of the plaintiff and spoiled his existence image. Not only this, his moral and intellectual character has been brought in the state of question mark with the result that he is unable to have the same confidence in himself which he used to have earlier. His reputation in his own eyes has re duced into ashes as he is a man with the black spot on his head who has been to jail on charges of criminal nature while he is pious and religious person and absolute innocent and Suit No. 208/2017 Page 8 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
has never committed any civil wrongs what to talk of commit ting heinous criminal offences alleged against him in the above mentioned FIR. The prospective of future employment in the market of the plaintiff has also reduced as generally public at large feels that even if the plaintiff has been dis charged, he must have done all the wrongs alleged against him. The prosecution of the plaintiff was by all means mali cious and he was deliberately implicated in a false case.
(g) It was a fight between two unequal as the defendant no.1 was a richest multinational company with vast resources to ma nipulate things and it was money power alone which prompted the SHO, P.S. Kalkaji, New Delhi and other staff members who indulged in corruption and malpractices. The result is huge and vast physical and mental sufferings of the plaintiff, his wife and family members as well as all well wish ers. The plaintiff also suffered financial losses and had to spend over Rs.1,50,000/ in defending himself before the Court firstly for getting bail and then for defending the trial. The plaintiff cannot properly and appropriately assess his losses in terms of money as even Rs.10 crores cannot ade quately compensate his losses or reputation, sufferings on ac count of physical and mental tortures suffered during police remand and judicial custody. Loss of family pleasure and knowledge of acute mental tension and tortured suffered by the plaintiff's wife and children while he was absent from his Suit No. 208/2017 Page 9 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
house in police custody and judicial custody, loss of liberty, respect, esteem and social status and loss of salary during that period with pressure to make arrangements for funds to defend himself and loss of only flat booked by the plaintiff much before his arrest at Gurgaon from Unitech which has been lost on account of nonpayment of installments of the sale price of flat and which installments were being paid against the loan arranged by the defendant no.1 and through the defendant no.1. The future residence of the plaintiff has thus being lost so much so that the premium earned during the course of deposit of several installments of the first had also been lost as the Unitech Company who were the flat own ers did not allow sale and transfer of flat by the plaintiff at that stage. The future of the plaintiff has thus been blocked on account of the acts of the company.
(h) The plaintiff has also been defamed by the words spoken and intended to be read and by visible representations and pub lish in F.I.R. as well as challan and all imputations concern ing the plaintiff intending to harm and knowing as also having reason to believe that such imputations will harm the reputa tion of the plaintiff, the defendants have defamed the plaintiff and lowered his prestige. The plaintiff had excellent reputa tion prior to his unwarranted and illegal arrest. All the impu tations directly or indirectly in the estimation of the others have lowered the moral and intellectual character and has Suit No. 208/2017 Page 10 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
positively lowered his character in respect of his following and has lowered his credit as such the imputations are generally considered disgraceful. The imputations were not made in good faith but wish malafide intentions and the prosecution of the plaintiff can be turned as malicious prosecution.
(i) Since the plaintiff was wrongfully arrested, detailed in police custody and sent behind the bar in judicial custody and fi nally, sent to the court for trial without there being any cause of action till such time, the matter was subjudiced before the court. The plaintiff has now acquired a right to claim dam ages from the management and the complainant of FIR, who is the defendant no.2 and who was instrumental in commit ting all the wrongs against the plaintiff although, certain po lice officials whose names and particulars are known to the defendants acted by misusing their authorities and abusing of their position can also be sued but the plaintiff knows that in order to them out where they may be posted today is difficult for him and he will not be able to find out the actual illegal and immoral acts of them and for want of prosecution pro vided to the police officials under Section 140 of the Delhi Po lice Act they may get technical advantages so they are not be ing sued intentionally. Moreover, such persons are still in a position to cause further untold harms to the police by further abusing their powers and connections.
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(j) The plaintiff now assesses his losses of factual financial ex penses at over Rs.1,50,000/ in the criminal case at the stage of bail as well as trial and on incidental expenses and nominal damages of Rs.3,50,000/ against all the tortures, harass ment, defamation, malicious prosecution and loss of flat and several types of sufferings suffered by the plaintiff as well as his family members, the total amount recoverable and which is being claimed is Rs.5,00,000/, which all the defendants are jointly and severally liable to pay.
(k) The plaintiff vide legal notice dated 21/02/2005 served through regd. AD and UPC claimed this amount but the de fendants neither complied with the notice nor sent any satis factory reply. Hence, the present suit.
CASE OF DEFENDANT NO.1 AS PER WRITTEN STATEMENT Summons for settlement of issues were issued to the de fendants and the defendant no. 1 has filed its written statement in the present case. Succinctly, the case of the defendant no.1 is as under:
1. The suit has been filed without any cause of action having arisen in favour of the plaintiff and/ or against the defen dants. The suit is absolutely baseless, false and frivolous and mere discharge on technical grounds in a criminal case does not provide the plaintiff any cause of action. The plaintiff is not entitled to recover any amount as damages, as alleged, or Suit No. 208/2017 Page 12 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
at all. The plaintiff is, therefore, liable to be rejected under Or der VII Rule 11(d) CPC.
2. The present suit is bad for nonjoinder and misjoinder of nec essary parties. Therefore, the suit is liable to be rejected un der order 1 Rule 10 CPC. Certain averments/ allegations made in the plaint are contrary to the evidence already ad duced on behalf of the plaintiff in the proceedings pertaining to Suit No.507 of 2001. The plaintiff has caused a preliminary loss to the defendant company to the tune of Rs.16 Lacs.
3. Due to gravity of the offences committed by the plaintiff, he was suspended and charge sheeted on the basis of evidence which suggested that plaintiff had committed serious criminal offences like forgery, criminal breach of trust, cheating, using forged documents and misappropriating the defendant com pany's money. Due to strong prima facie evidence against the plaintiff, his bail application was repeatedly rejected several times by the Courts before he was finally granted bail. Due to the allegations against the plaintiff, he was issued a charge sheet dated 10/08/1999 by the defendant company. An inde pendent and impartial enquiry officer was appointed to en quiry into the charges leveled against the plaintiff. The en quiry, however, could only be instituted in May 2000 vide let ter dated 05/05/2000 as plaintiff had neither furnished any details of his arrest nor communicated with defendant com pany for several months until MarchApril 2000 when he Suit No. 208/2017 Page 13 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
started sending false and mischievous communications to the defendant company. After a detailed, comprehensive and inde pendent enquiry, the Enquiry Officer submitted his enquiry report and findings dated 09/09/2002 wherein he held that the charges leveled vide charge sheet dated 10/08/1999 against the plaintiff had been duly proved and established. The plaintiff was given the enquiry report and finding dated 09/09/2002 and given an opportunity to make a representa tion against the same to the disciplinary authority. Plaintiff made a representation on 09/10/2002 to the management against the said enquiry report and findings dated 09/09/2002, the entire material on record and the represen tation dated 09/10/2002 and concurred with the enquiry re port and findings dated 09/09/2002 submitted by the En quiry Officer wherein the charges leveled against the plaintiff vide charge sheet dated 10/08/1999 were duly proved and es tablished against the plaintiff.
4. The charges of criminal misappropriation, cheating forgery etc. by the defendant company were proved against the plain tiff. The allegations of the plaintiff unauthorizedly removing 12 cheque leaves from the company cheque book (A/c. No. 2164019 with Citi Bank) were proved. The plaintiff forged the signatures of Mr. Shashi Ullal (President and Managing Direc tor), Mr. Prithvi Raj Bijlani, Vice President (Finance) and Mr. D.P. Vaidya, General Manager (Commercial) on these cheques.
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These cheques were issued in favour of Mr. RadhaKrishnan who was an accomplice of the plaintiff. The details of the forged cheques are as follows: Cheque Date Drawn on Amount Debited by No. (Rs.) Bank on 970590 10Jun96 Radhakrishnan 233,105.00 22.06.1996 970596 3Jun96 Radhakrishnan 89,700.00 02.07.1996 970598 02Jul98 Radhakrishnan 98,500.00 13.07.1998 970592 10Jul98 Radhakrishnan 189.600.00 18.07.1998 970600 15Jul98 Radhakrishnan 135,600.00 06.08.1998 970597 16Jul98 Radhakrishnan 97,500.00 12.08.1998 970591 17Jul98 Radhakrishnan 148,300.00 19.08.1998 970593 18Jul98 Radhakrishnan 82,300.00 04.09.1998 970594 03Aug98 Radhakrishnan 65,100.00 14.09.1998 970595 05Oct98 Radhakrishnan 229,100.00 31.10.1998 284157 11Mar99 Radhakrishnan 192.400.00 09.04.1999 329100 31Marl99 Radhakrishnan 37,250.00 17.05.1999 TOTAL 15,98.455.00
5. The aforesaid forged cheques were deposited by Sh. Radha krishnan in his savings bank account 14660 at State Bank of India, Kalkaji Branch, New Delhi. The plaintiff with a view to cover up these illegal unauthorized transactions posted these Suit No. 208/2017 Page 15 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
entries into the company's accounting system in certain ac counts having a high volume of running debits and credits. As a result of the aforesaid action, the plaintiff herein had dis honestly caused wrongful loss of approximately Rs.16 lakhs to the company and wrongful gain of approximately Rs.16 lakhs himself. The allegations of misappropriation of the defendant company's funds were duly proved against the plaintiff. So far as the criminal proceedings are concerned, the order of discharge has been passed due to lapses and omissions on the part of prosecution. The prosecution/ Investigating officer somehow failed to place the entire and relevant material on record before the Ld. MM. Criminal prosecution being a State case, the defendant company had no opportunity of being heard. In any event, it is an order of discharge and not ac quittal. The entire available material was not placed before the Ld. Court. The vital and incriminating documents, which were not only critical at the time of framing of charge but would have established the involvement of plaintiff in various of fences, were not placed before the Court by the Prosecution/ Investigating Officer. No incident, as alleged by the plaintiff, took place on 05/06/1999.
The emails, if any, sent by the plaintiff must have been an afterthought with a view to create some semblance of a counter case to defend himself from the grave and serious consequences of misappropriating a huge sum of about 16 Suit No. 208/2017 Page 16 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
lakhs from the company's account. All the allegations made by the plaintiff are false and frivolous and are made with a view to exert pressure on the management for not recovering the losses to the tune of Rs.16 Lakhs. It has been prayed to dismiss the suit of the plaintiff with punitive costs; award compensation to the defendant no.1 for frivolous litigation. CASE OF DEFENDANTS NO. 2 & 3 AS PER THEIR WRITTEN STATEMENT
1. The present suit has been instituted with an oblique motive to cause harassment to the defendants. The plaint is absolutely false, mischievous and concocted and has been filed by the plaintiff as an afterthought to cover up his own illegal and criminal activities/ offences for which FIR No. 405/99 was registered by the police at P.S. Kalkaji under Section 409/420/468/471 of the I.P.C.
2. The present suit is abuse of process of law as the averments made in the plaint would result in injustice and the continu ance of this suit would hamper promotion of justice. Certain averments/ allegations made in the plaint are contrary to the averments made in the suit as well as the evidence already adduced on behalf of the plaintiff in the proceedings pertain ing to Suit No. 507 of 2001. The plaintiff is, therefore, not only guilty of 'suggestion falsi' but also liable for perjury.
3. The plaintiff has caused a pecuniary loss to the defendant company to the tune of Rs.16 lacs. No amount much less an Suit No. 208/2017 Page 17 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
amount of Rs.5,00,000/ is due to the plaintiff by any of the defendants. On the contrary, as stated above, the plaintiff is liable to pay to the defendant no.1 a sum of Rs.16 Lacs.
4. The plaintiff was working in the accounts department of the defendant no.1, of which defendant no.2, was the Vice Presi dent (Finance and Administration) at that point of time. In the Finance Department, some financial irregularities were detected where the plaintiff was also working. The manage ment had appointed an independent agency, Global Detective Agency to identify the persons who are responsible for finan cial bungling so that appropriate legal action could be taken against them.
5. Due to overwhelming evidence suggesting the involvement of the plaintiff in the serious criminal offences during the course of his duties, the plaintiff was requested to come to the guest house for an informal meeting so that a fair opportunity could be granted to the plaintiff to narrate his version of the story before the officials of the defendant no.1 company. The plain tiff on being apprised of the purpose of the meeting had ex pressed his willingness to cooperate with the officials of the defendant no.1 company. Defendant no.2, who was present all throughout had introduced the officials of Global Detective Agency to the plaintiff. The defendant no.2 had at no point of time introduced the officials of Global Detective Agency as offi cials of CBI. During the course of meeting, no force, pressure Suit No. 208/2017 Page 18 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
and/ or threat was meted out to the plaintiff. In fact, the plaintiff had all along been cheerful and cooperative. The meeting was conducted in an open room and no threat or manhandling was done by any one present in the room. In fact, even after the meeting was concluded, no complaint was made by the plaintiff stating that he was manhandled or threatened at the guest house.
6. The defendants no.2 and 3 have reiterated almost the same contents which have been submitted by defendant No.1. REPLICATION AND ISSUES Plaintiff has filed the replications controverting the alle gations/ contentions in the written statements of the defendants and contents of the plaint have been reiterated and reaffirmed.
From the pleadings of the parties, following issues were framed vide order dated 24/08/2006:
1. Whether the present suit is liable to be stayed under Section 10 CPC? OPD
2. Whether the suit is bad for nonjoinder of necessary parties? OPD
3. Whether the plaintiff is entitled to the relief prayed for? OPP
4. Relief.
Suit No. 208/2017 Page 19 of 45Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
EVIDENCE OF THE PLAINTIFF AND DEFENDANT AND DOCU MENTS RELIED UPON BY THEM:
Plaintiff, in order to prove his case, led plaintiff evidence and got examined himself as PW1.
PW1 has filed his evidence by way of affidavit wherein he reiterated and reaffirmed the contents of the plaint. PW1 was crossexamined by counsel for the defendant. PW1 in his testimony has relied upon the documents:
a) The certified copy of the Judgment/Order dated 19.7.2004 - Exhibit PW1/1.
b) Legal Notice dated 21.2.2005 sent by the Plaintiff - Exhibit PW1/2.
c) Three Postal Receipts, One UPC Receipt and Two Acknowl edgement Cards -Exhibit PW1/3 to PW1/8 respectively.
The Plaintiff has also summoned the LDC Record Keeper, Patiala House Courts who was examined as PW2 in order to prove Exhibit PW1/1.
The defendants, in order to prove their case, led Defen dant evidence and got examined himself as DW1 Shri Jitendra Ku mar MishraDirector Finance. The defendants have relied upon the following documents:
a) DW1/1 Board Resolution.
b) The documents Ex.DW1/2 to DW1/7 were deexhibited and the same were marked as Mark A to F. Suit No. 208/2017 Page 20 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
This court heard the final arguments as advanced by Ld.counsel for the defendants and the opportunity of the Plaintiff for final arguments had been closed, although, Ld. counsel for the Plaintiff had filed written submissions/ arguments on record. I have perused the material available on record. ISSUE WISE FINDINGS ISSUE NO.1
1. Whether the present suit is liable to be stayed under Section 10 CPC? OPD The aforesaid issue was the germane of the pendency of the earlier/former suit for damages which was filed by the Plaintiff against the defendants. After the decision of the said suit on 31.10.2008, the aforesaid issue has become redundant and there is no requirement to adjudicate the Issue No.1. Moreover, after the de cision of the former suit, the defendants have filed an application under Section 11 CPC on the principles of Resjudicata. The defen dants have relied upon the Judgment and decree dated 31.10.2008 as passed by the Ld. ADJ, Delhi in another former suit between the parties bearing No.CS 225/05/99. The application was dismissed by the Ld. Predecessor of this Court vide detailed order dated 13.11.2003. Accordingly, this issue does not survive for considera tion.
ISSUES NO. 2 & 32. Whether the suit is bad for nonjoinder of necessary parties?
OPD Suit No. 208/2017 Page 21 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
3. Whether the plaintiff is entitled to the relief prayed for? OPP The aforesaid issues are dealt together for the sake of brevity and moreover they are interrelated and interconnected to each other.
PRINCIPLES OF MALICIOUS PROSECUTION:
The Plaintiff and the defendants have filed the written arguments and they have also incorporated the principles of the Malicious Prosecution in their respective written arguments and the same are under: In an action of malicious prosecution, the plaintiff must prove: A. That he was prosecuted by the defendant. B. That the proceeding complained was terminated in favour of the plaintiff.
C. That the prosecution was instituted against without any just and reasonable cause.
D. That the prosecution was instituted with a malicious inten tion, i.e. not with the mere intention of getting law into effect, but with the intention which was wrongful in fact. E. That he suffered damage to his reputation or to the safety of the person, or to the security of his property.
The meaning and ingredients of malicious prosecution are widely considered by Hon'ble Apex Court in the case of West Bengal State Electricity versus Dileep Kumar Ray reported in AIR Suit No. 208/2017 Page 22 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
2007 SC 976. The said Judgment is also relied upon by the defendants. Relevant paragraphs are reproduced as under: '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.
"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;
The performance of a duty imposed by law, such as the institution of a prosecution as a Suit No. 208/2017 Page 23 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
necessary condition precedent to a civil action, does not constitute "malice". (Abbott v. Refuge Assurance Co., (1962) 1 QB 432).
(Emphasis added).
WRITTEN ARGUMENTS OF THE PLAINTIFF The defendants were not able to even show that they had an honest belief in the guilt of the plaintiff based on full convic tion founded upon reasonable grounds, of the existence of circum stances, which assuming them to be true, would reasonably lead any ordinary prudent and cautious man placed in a position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed.
There is ample evidence on record to show that the ac tion of the defendants was based on malice. The law of damages in this regard is well settled that the damages may not necessarily be pecuniary & there could be 3 sorts of damages any one of which could be sufficient to support any action of malicious prosecution viz.
i. The damage to man's fame.
ii. The damage done to a person as where a man is put to danger
of losing his Life, Limb or Liberty.
iii. The damage to man's property as where he is forced to expend
money in necessary charges, to acquit himself of the crime of which he is accused.Suit No. 208/2017 Page 24 of 45
Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
FINDINGS OF THE COURT The issue No.1 was the germane on the pleading of the defendants that the present suit is bad for nonjoinder and mis joinder of necessary parties. Therefore, the suit is liable to be re jected under order 1 Rule 10 CPC.
The perusal of the plaint it demonstrates that the Plain tiff have leveled allegations against the CBI, Police and its officials and the torture which was/were advanced by the said party(s). However, the Plaintiff has not specifically named the police officials and he has not made them the party (s). It is not disputed that offi cials' of defendant No.1 Company had initiated the criminal prose cution against the Plaintiff and even if the Plaintiff has not made the CBI, Police or its officials as party in the present case.
The Ld. Counsel for the defendants has argued that no material on record has been placed on record by the Plaintiffs show ing collusion between the defendants & the police and even the po lice officers are not made a party in the present proceedings. The defendants have also relied upon the Judgment of 'Radhey Mohan Singh vs Kaushalya Devi And Ors., decided on 27 May, 2003, 2003 IV AD Delhi 522, AIR 2003 Delhi 413, 105 (2003) DLT 678, 2003 (69) DRJ 259 the following observations were made by the Division Bench of the Hon'ble High Court of Delhi:
"4. According to the respondent/ defendant the suit of the appellant/ plaintiff is bad for misjoinder and nonjoinder of parties. This issue was decided Suit No. 208/2017 Page 25 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
in favor of the defendant and against the plaintiff. According to the trial court, the investigating officer or any other police official ought to have been im pleaded as a defendant in the suit particularly when there is a clear allegation of active connivance of the police officials with the defendant."
The Ld. Counsel for Defendants has further argued that: (1) It is an admitted case that the state/ police authorities have not been made party to the present lis, although allegations of collusion, connivance, ill treatment, malice have been leveled against the police/ state.
(2) Police is an impartial agency constituted by the State for in vestigation into offences, booking of offenders and bringing them to justice, on their being satisfied by their enquiries that the case is truthful and merits prosecution; therefore, if such an agency prosecuted the offender, it would certainly be a fac tor in favour of the complainant having reasonable and proba ble cause.
(3) There is not an iota of evidence to show that the police au thorities acted in connivance / collusion with the Defendants. (4) In the cross examination dated 17.09.2014, the plaintiff upon being asked to show any complaint which he made in this be half, was not able to show any such document on record. (5) In the cross examination dated 17.09.2014, the plaintiff states, "I do not recollect any complaint having been made by Suit No. 208/2017 Page 26 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
me to the Ld. MM concerned with regard to the alleged incident dt. 16.09.99, 17.09.99 and 18.09.99 as mentioned in para 6 of my affidavit." (In paragraph 6 of affidavit, the plaintiff states about alleged ill treatment at the hands of the police and their collusion with the Defendants).
(6) The plaintiff further states in cross dated 17.09.2014, "I do not recollect any complaint having been made by me even after the expiry of police remand either to the Ld. MM or the senior police officers with regard to the allegations referred herein above." "It is correct that in the present proceedings, I have not placed on record any document referring to any such incident and have filed only the order of discharge dt. 19.07.2014." (7) It is, thus, clear that the police authorities acted in an inde pendent and impartial manner in investigating the cases and that there was no collusion or connivance between the police and the defendants in this behalf.
(8) As per well settled law, in a suit for malicious prosecution, the important question is whether the facts as known to the de fendant or reasonably believed by him at the material time, constituted a reasonable cause for prosecution. (9) The plaintiff is required to show that there was no reasonable and probable cause. It is also to be shown that the defendant did not believe in the plaintiff's guilt and acted with malafide intent.
Suit No. 208/2017 Page 27 of 45Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
(10) Further, in order to be successful in a suit for malicious pros ecution it is imperative for the plaintiff to show that the pro ceedings had been instituted against him for an offence which was groundless and which were instituted against him by the defendant 'without probable cause' and from 'malicious mo tives' i.e. for indirect and improper motive. (11) Only when the plaintiff has led some evidence to this effect, can the defendant be called upon to show the existence of such a cause and the onus lies heavily upon the plaintiff even though the Rule may appear to require the plaintiff to prove a negative, viz., that the defendant had no reasonable and prob able cause for the prosecution.
(12) Further, prosecution can be held to be malicious only if it is found to be vindictive, initiated to malign the plaintiff before the public or guided by purely personal consideration. It was reiterated that if there is an honest belief that the accusation is true, then even though the belief is mistaken, the charge may still be reasonable and probable.
(13) The following material on record duly proves that there was sufficient and reasonable basis for the complaint: a. The various statements/ admissions of the plaintiff in his evidence affidavit/ cross examination clearly show that there was every reasonable and probable cause for making a complaint based on which FIR No.405/1999 was registered. The same are extracted/ reproduced as under: Suit No. 208/2017 Page 28 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
That the deponent was appointed by the defendant no.1 as Senior Executive Secretary with employee no. 2020 (para graph 2, evidence affidavit of the plaintiff); He was the senior most employees in the Finance De partment (Paragraph 2, evidence affidavit of the plaintiff); He was reporting to Finance Head but was working for all the superior officers (XXX dated 28.05.2007); XXX dated 01.02.2008:
It is correct that I had been arrested in case FIR 405/99 PS Kalkaji;
It is also correct that I had been called in the PS in con nection with investigation of the said FIR; It is correct that I was suspended by the defendant com pany on 3.7.1999 It is correct that I had filed a civil suit for recovery of damages against the defendant no.1 after I was suspended. As far as I remember, all the employees of Finance De partment of defendant no.1 had been called to the police sta tion during course of investigation. Vol. Police officials had also come to the office and made inquiries.
I had been called by the police in the police station for purpose of investigation of case FIR 405/99 after police had visited the office.Suit No. 208/2017 Page 29 of 45
Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
Besides myself, Shri Gopal Malhotra and Shri Bhanu Sharma had also been called to the P.S. Besides myself, one Radha Kishan had also been ar rested in case FIR 405/99 It is correct that a charge sheet had been issued to me by the company in August 1999.
The domestic inquiry i.e. inquiry by the company lasted for about two yrs.
It is correct that I used to sign the inquiry proceedings and copies thereof used to be given to me. It is correct that I was represented by Shri S.C. Munjal Adv. In the said inquiry.
It is correct that I had been allowed to lead my evidence during course of inquiry.
It is correct that the witnesses examined on behalf of the company before the inquiry had been cross examined by my self and/or my representative.
I am aware about the inquiry officer having tendered his enquiry report.
Copy of inquiry report had been supplied to me. XXX dated 15.07.2008:
It is correct that I had received suspension letter dated 03.07.1999.
I had also received charge sheet dated 10.08.1999. (Vol. I had even replied to the same);
Suit No. 208/2017 Page 30 of 45Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
It is correct that I had filed a civil suit bearing no. 225/05/99. The said suit was dismissed vide orders dated 31.08.2008.
The aforesaid admissions on the part of the plaintiff show that there was reasonable basis for the defendants to lodge prosecution against the plaintiff.
(14) The onus to prove that the prosecution was malicious was on the plaintiff which he completely failed to discharge. (15) Applying the aforesaid principles, it is evident that the plaintiff failed to prove: that there was no reasonable and probable cause for his prosecution;
that the defendant did not believe in the plaintiff's guilt; the criminal proceedings had been instituted against the plaintiff for an offence which was groundless; that the same were instituted against him by the defen dant 'without probable cause' and from 'malicious motives' i.e. for indirect and improper motive;
that the prosecution of the plaintiff was otherwise mali cious;
that the allegations are found to be vindictive, initiated to malign the plaintiff before the public or guided by purely personal consideration.
Suit No. 208/2017 Page 31 of 45Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
(16) The plaintiff has failed to prove any malice on the part of the defendants. Rather, it comes out clearly that there was rea sonable or probable cause for prosecuting him. (17) The order of discharge has been passed due to lapses and omissions on the part of the prosecution. The prosecution/ Investigating officer somehow failed to place the entire and relevant material on record before the Ld. Metropolitan Magis trate. The relevant excerpts of the order of discharge dated 19.07.2004 are as under: "During the course of investigation, Sh. Shashi Ul lal, President and Managing Director of the com plainant submitted affidavit dated 24.09.999 im parting further information to the IO. It was claimed therein that involvement of Mohan Dass with co accused is established from the opinion of independent handwriting expert in respect of the same of the cheques during which the money was unauthorizedly withdrawn/ transferred from the account of complainant. Ironically the said opinion has not been forwarded to the Court along with charge sheet report."
(18) The defendant company obtained opinion of an independent handwriting expert namely Shri Ashok Kashyap, in respect of the acts of omission and commission by the plaintiff and the expert in his opinion, categorically opined that the handwrit ing on the cheques in question belonged to the plaintiff. These facts were brought to the notice of the Ld. MM during the course of arguments. However, it was observed by the Ld. Suit No. 208/2017 Page 32 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
MM that the said opinion has not been forwarded to the Court along with the charge sheet under Section 173 Cr.P.C. by the Investigating Officer. Hence, it is evident that the order of dis charge was primarily on account of failure of the IO to place on record cogent evidence against the plaintiff, interalia, in the form of the aforesaid handwriting opinion. (19) It is an admitted case that the state/ police authorities have not been made party to the present lis, although allegations of collusion, connivance, ill treatment, malice have been leveled against the police/ state.
(20) Police is an impartial agency constituted by the State for in vestigation into offences, booking of offenders and bringing them to justice, on their being satisfied by their enquiries that the case is truthful and merits prosecution; therefore, if such an agency prosecuted the offender, it would certainly be a fac tor in favour of the complainant having reasonable and proba ble cause.
(21) There is not an iota of evidence to show that the police au thorities acted in connivance / collusion with the Defendants. (22) In the cross examination dated 17.09.2014, the plaintiff upon being asked to show any complaint which he made in this be half, was not able to show any such document on record. (23) In the cross examination dated 17.09.2014, the plaintiff states, "I do not recollect any complaint having been made by me to the Ld. MM concerned with regard to the alleged incident Suit No. 208/2017 Page 33 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
dt. 16.09.99, 17.09.99 and 18.09.99 as mentioned in para 6 of my affidavit." (In paragraph 6 of affidavit, the plaintiff states about alleged ill treatment at the hands of the police and their collusion with the Defendants).
(24) The plaintiff further states in cross dated 17.09.2014, "I do not recollect any complaint having been made by me even after the expiry of police remand either to the Ld. MM or the senior police officers with regard to the allegations referred herein above." "It is correct that in the present proceedings, I have not placed on record any document referring to any such incident and have filed only the order of discharge dt. 19.07.2014." (25) It is, thus, clear that the police authorities acted in an inde pendent and impartial manner in investigating the case and that there was no collusion or connivance between the police and the defendants in this behalf.
(26) There is not an iota of evidence on record to prove the allega tions by the plaintiff that he suffered any kind of physical or mental loss or harassment, or any kind of defamation, or any financial loss, as wrongly alleged by him in the plaint. (27) The plaintiff has also made important admissions in his cross examination dated 17.09.2014 which are as follows: a. "I have not placed on record any document to show the suffering of financial loss by me."
b. "Besides the FIR and the discharge order, I have not placed on record any documentary evidence to show Suit No. 208/2017 Page 34 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
that I have suffered the defamation on account of the al leged acts and deeds of the management"
c. "It is correct that I have not placed on record any docu mentary proof to show my mental and physical suffer ings at the hands of the police officials as alleged by me."
d. "It is correct that besides the FIR and discharge order, I have not placed on record any other documentary proof to show that the management acted in a malafide man ner as alleged by me."
(28) Without prejudice to the fact that the present suit for mali cious prosecution is not maintainable, it is submitted that the aforesaid admissions on the part of the plaintiff show that the plaintiff did not suffer any kind of loss whatsoever as wrongly alleged by him in the plaint, or otherwise. (29) The substance of the complaint with regard to the fraud and embezzlement of funds is not in dispute. Even the plaintiff has admitted the same. He had misused his position of trust and confidence in giving effect to the fraud and the same has also been proved in the domestic enquiry. The complaint had a strong and cogent basis. Plaintiff was not the only person to have been interrogated and questioned. As per his own admis sion almost all the employees of accounts department were called for questioning. The defendants had no control and/ or influence over the state machinery. The registration of the FIR Suit No. 208/2017 Page 35 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
was a necessary incident of the grave and serious allegations against the plaintiff and the defendants cannot be held ac countable for the subsequent events.
(30) The plaintiff is not entitled to claim any damages from the de fendant Co. as complainant of the FIR or otherwise. The plaintiff is not entitled to any sum whatsoever much less a sum of Rs.1,50,000/ lakhs towards any alleged financial ex penses in the criminal case or any alleged nominal damages of Rs.3,50,000/ lakhs against any alleged torture, harassment, defamation malicious prosecution, loss of flat and/or any type of sufferings etc. No independent evidence has been produced with regard to any loss as alleged or otherwise. In fact the pe cuniary loss caused to the Defendant Company as a result of the criminal offences of misappropriation etc. committed by the Plaintiff was to the tune of Rs.16.00 lakhs. The other losses in terms of disruption of work, loss of reputation, ha rassment, malicious prosecution, defamation, mental agony and trauma caused to the Defendant Company are being as sessed and the Defendant Company reserves the right to take the necessary action against the Plaintiff for the same. No amount much less a sum of Rs.5.00 lakhs is payable by the Defendant Company to the Plaintiff as alleged or at all. The Plaintiff is not legally entitled to recover any amount as dam ages from the Defendants jointly and severally. No cause of action has arisen for filing the present suit.
Suit No. 208/2017 Page 36 of 45Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
(31) The Ld. Counsel for the defendants has relied upon the follow ing case law:
(a) The Division Bench of Delhi High Court in Radhey Mo han Singh Vs. Kaushalya Devi AIR 2003 Delhi 413 laying down that there are variety of reasons for which an ac cused is given benefit of doubt and this by itself cannot lead to a conclusion that the complaint was based on extraneous consideration leading to entitlement of dam ages, it was held that else the appellant/plaintiff had been unable to base his claim for damages on the ground of malicious prosecution as he has merely been acquitted for want of any definite conclusion arrived at by the Court in which the appellant/plaintiff was prose cuted.
(b) In the case of 'Gangadhar Padhy V. Prem Singh', RFA No. 269/2013, decided on 15.01.2014, the Hon'ble Delhi High Court held as under: "8. It has been held in S.T. Sahib Vs. N. Hasan Ghani Sahib AIR 1957 Madras 646 that the action for malicious prosecution is not favoured in law and it should be properly guarded and its true principles strictly adhered to, since public policy favours the exposure of a crime and it is highly desirable that those reasonably suspected of crime be subjected to the process of criminal law for the protection of soci ety and the citizen be accorded immunity for bona fide efforts to bring antisocial members to the soci ety to the bar of justice. It was thus held, that to be successful in a suit for malicious prosecution, it is Suit No. 208/2017 Page 37 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
imperative for the plaintiff to show that the proceed ings had been instituted against him for an offence which was groundless as evidenced by the suc cessful termination of the proceedings in his favour, and which were instituted against him by the de fendant 'without probable cause' and from 'mali cious motives' i.e. for indirect and improper motive. It was yet further held that only when the plaintiff has led some evidence to this effect, can the defen dant be called upon to show the existence of such a cause and the onus lies heavily upon the plaintiff even though the Rule may appear to require the plaintiff to prove a negative, viz., that the defendant had no reasonable and probable cause for the pros ecution. It was yet further held that in a suit for malicious prosecution, the important question is whether the facts as known to the defendant or rea sonably believed by him at the material time, con stituted a reasonable cause for the prosecution. The Court quoted with approval Ramaswamy Iyer's Law of Torts opining, that to show that there was no reasonable and probable cause, it has to be shown that the defendant did not believe in the plaintiff's guilt. It was further observed that police is an impartial agency constituted by the State for investigation into offences, booking of offenders and bringing them to justice, on their being satisfied by their enquiries that the case is truthful and merits prosecution; therefore, if such an agency prosecuted the offender, it would certainly be a factory in favour of the complainant having reasonable and probable cause."
"10. Applying the aforesaid principles with which I respectfully concur, I am unable to find any merit whatsoever in the case of the appellant/plaintiff and the learned ADJ is correct in concluding that Suit No. 208/2017 Page 38 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
the appellant/plaintiff has utterly failed to prove his prosecution, though at the instance of the respon dent/defendant, to be malicious."
(c) In the case of 'West Bengal State Electricity Board V. Dilip Kumar Ray, Appeal (civil) 5188 of 2006, de cided on 24/11/2006,' the Hon'ble Supreme Court held as under: "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 19779 SC 49,
51)."
"A bare perusal of the averments made in the plaint show that they are extremely vague, lacking in de tails and after the learned trial judge held that the Board alone was responsible because it was not es tablished that any individual officer was responsi ble for it and dispute only have been revealed by the highpower enquiry which the court was incom petent to direct, the award for damages is clearly indefensible."
It is admitted case of the parties and there is no dispute between the parties that plaintiff was prosecuted and the proceed ing complained was terminated in favour of the plaintiff by passing the discharge order in favour of the Plaintiff. The questions which remain were whether the prosecution was instituted against the plaintiff was without any just and reasonable cause i.e. the prose cution was instituted with a malicious intention, i.e. not with the mere intention of getting law into effect, but with the intention Suit No. 208/2017 Page 39 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
which was wrongful in fact and the plaintiff had suffered damage to his reputation or to the safety of the person, or to the security of his property.
The defendant No.1 has proved the fact of forged signa tures on the following cheques, in the another proceeding between the Plaintiff and defendant No.1 which was decided by Shri Rajeev Bansal, the then Ld. Additional District and Session Judge, Presid ing Officer Labour Court XVI, Karkardooma Courts Delhi in the case titled as Mohan Dass P. Versus M/s. Hughes Escorts Commu nication Ltd. bearing New case LIR No.1000/16 (Old ID No.315/2006) Unique ID No.02402C0118272004 decided on 31.03.2016: Cheque Date Drawn on Amount Debited by No. (Rs.) Bank on 970590 10Jun96 Radhakrishnan 233,105.00 22.06.1996 970596 3Jun96 Radhakrishnan 89,700.00 02.07.1996 970598 02Jul98 Radhakrishnan 98,500.00 13.07.1998 970592 10Jul98 Radhakrishnan 189.600.00 18.07.1998 970600 15Jul98 Radhakrishnan 135,600.00 06.08.1998 970597 16Jul98 Radhakrishnan 97,500.00 12.08.1998 970591 17Jul98 Radhakrishnan 148,300.00 19.08.1998 970593 18Jul98 Radhakrishnan 82,300.00 04.09.1998 970594 03Aug98 Radhakrishnan 65,100.00 14.09.1998 970595 05Oct98 Radhakrishnan 229,100.00 31.10.1998 Suit No. 208/2017 Page 40 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
284157 11Mar99 Radhakrishnan 192.400.00 09.04.1999 329100 31Marl99 Radhakrishnan 37,250.00 17.05.1999 TOTAL 15,98.455.00 The Ld. Court in the said Judgment/Award has held as under: "50. Management has been able to show from the report of handwriting expert Sh.Ashok Kashyap that the cheques in question were signed by the Claimant as was the charges against him leveled in the charge sheet issued to him. An employee works in fiduciary capacity with the employer and cannot be expected to in dulge in such kind of activities and if an em ployee crosses that limit, he does so at his own peril. The Claimant by indulging in such acts has committed great and serious acts of miscon duct for which any penalty lesser that termina tion/dismissal from service would be insuffi cient. The Courts are not required to interfere with the punishment given by the employer un less and until the punishment imposed on the employee shakes the conscience of the Court. {See B.C. Chaturvedi Vs. Union of India 1995(6) SCC 749, D.G.R.P.F. Vs. Sai Babu 2003 (4) SCC 331, United Commercial Bank Vs. P.C. Kakkar 2003 (4) SCC 364, UOI Vs. S.S. Ahluwalia 2007 (7) SCC 257, State of MeghalayaMecken Singh 2008(7) SCC 580} Acts of making forged signa tures of the authorized signatories on the cheques by the Claimants needs to be handled with heavy hand and in such circumstances, the punishment of dismissal from service imposed on Suit No. 208/2017 Page 41 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
the Claimant I snot one which shakes the con sciences of the Court. This Court thus concludes that the termination of the services of the claimant by the management is neither illegal not unjustifiable and as such the claimant is not entitled to any relief."
The aforesaid Judgment/Award does not appear to have been challenged by the Plaintiff and definitely, it has persuasive value in this case also. Furthermore, the Plaintiff has earlier filed suit bearing CS No.225/05/1999 and leveled some allegations of similar nature as that of the present suit and the said allegations were also repeated in the present proceedings. The earlier/former suit of the Plaintiff was dismissed vide Judgment dated 31.10.2008 by the Court of Shri Daya Prakash, the then Ld. ADJ, Delhi. The relevant findings on pages No.22 to 24 of the said Judgment are re produced as follows: "REGARDING ISSUE NO.1 "Whether the plaintiff is entitled to recover a sum of Rs.4,75,000/ towards damages for mental and physical tortures and humiliation and also towards actual losses of cash and documents alongwith interest? OPP"
...I have seen the pleadings, documents, evi dence and feel that plaintiff has failed to prove this issue on the following grounds: "Firstly, it is fact that there was allegation that the Plaintiff has unauthorizedly removed twelve cheque leafs from the company cheque book and Suit No. 208/2017 Page 42 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
thereafter, he forged the signatures of President and Managing Director, Vice President, Finance and General Manager, Commercial. It is further a fact that on the basis of these allegations FIR bearing No.405/1999 has been registered as PS Kalakaji on 11.06.1999."
"Secondly, it is a fact that department proceed ings were started against the plaintiff, on 11.06.1999, a FIR was lodged; the police was in vestigating the matter and the alleged incident has been shown of the evening of 05.06.1999."
"Thirdly, so far as calling at the guest house on the evening of 05.06.1999 by the officer of defen dant is concerned, it is a proved fact but in my view plaintiff has twisted the story as to put pressure on the defendant to hush up the case FIR registered against him at PS Kalkaji at the behest of the defendant."
"Fourthly, there are allegations that plaintiff was confined by force by the alleged CBI Officers; that plaintiff was taken in vehicle and thereafter plaintiff was thrown out near Chankya Puri. These allegations have not been proved by the Plaintiff."
"Fifthly, the evidence of PW1 clearly shows that there was no injury mark on the body of the plaintiff. Similar is the evidence of PW2 when she stated that there was no injury mark on the body of the plaintiff."
"Sixthly, it may be that plaintiff might have cooked up a false story to avoid arrest or to put Suit No. 208/2017 Page 43 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
pressure on the defendant so that they should not be proceeded with trial of the plaintiff."
"Seventhly, PW1 in his cross examination has admitted that fraud regarding siffoning of around 16 lacs of the company was detected sometime in April,1999. PW1 also admit that he was arrested in case FIR No.405/99 dt. 11.06.1999 and he was called for investigation for the first time towards end of July,1999. It is further a fact that chargesheet dt. 10.08.1999 was issued by the company. Plaintiff given evi dence and made also representation and ulti mately services were terminated and he has challenged the termination which is pending be fore Labour Court."......
The aforesaid Judgment also does not appear to have been challenged by the Plaintiff and definitely it has persuasive value in this case also.
I am fully in agreement with the arguments advanced by the defendants that the Plaintiff has utterly failed to show that the prosecution was instituted against the Plaintiff was without any just and reasonable cause i.e. the prosecution was instituted with a malicious intention, i.e. not with the mere intention of getting law into effect, but with the intention which was wrongful in fact. Since the plaintiff has utterly failed to proved the said facts, there is no question of assessment of any damages caused to the plaintiff.
Cumulatively, in view of the discussions as hereinabove, arguments advanced by the defendants and law cited above, the is Suit No. 208/2017 Page 44 of 45 Mohan Dass V. Huges Escorts Communications Ltd. & Ors.
sues no.2 and 3 are decided against the Plaintiff and in favour of the defendants.
RELIEF From the discussions, as adumbrated hereinabove, I hereby pass the following FINAL ORDER
(i) The suit of the plaintiff is dismissed.
(ii) The parties shall bear their own respective costs.
Decreesheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court (ARUN SUKHIJA)
on 22/09/2018 ADJ07 (Central)
Tis Hazari Courts, Delhi
Suit No. 208/2017 Page 45 of 45