Delhi District Court
Sh. Jugal Kishore vs Ministry Of Home & Ors. on 18 September, 2012
SH. JUGAL KISHORE VS MINISTRY OF HOME & ORS.
IN THE COURT OF SH. RAVINDER SINGH, ADMINISTRATIVE
CIVIL JUDGE (EAST), KARKARDOOMA COURTS, DELHI
SUIT NO.: 489/2007
Unique Case ID No.:02402C0614782007
IN THE MATTER OF:
Sh. Jugal Kishore
S/o Late Sh. Janak Raj
R/o X/2844, Gali No.5. Ragjuvarpura No.II,
Gandhi Nagar, Delhi110031 ........ Plaintiff
VERSUS
1. Ministry of Home
Government of India,
Through its Secretary, New Delhi.
2. The Hon'ble Lieutenant Governor
Government of NCT, Raj Niwas,
Delhi.
3. The Commissioner of Police
Police Head Quarter,
I.P. Estate, New Delhi110002.
4. Sh. Rameshwar Khatri
Inspector Spl. Staff Kamla Market, Delhi
(Previously Posted as SHO PS Gandhi Nagar)
5. Sh. Prakash Chand
Assistant Sub Inspector,
P.S. Gandhi Nagar, Delhi110031. ...... Defendants
DATE OF INSTITUTION: 03.09.2007
SUIT NO.:489/2007 Page13/1
SH. JUGAL KISHORE VS MINISTRY OF HOME & ORS.
DATE OF RESERVING THE ORDER: 07.09.2012
DATE OF DECISION: 18.09.2012
SUIT FOR RECOVERY OF DAMAGES OF RS.10,000/ FOR
MALACIOUS PROSECUTION
JUDGMENT
1. Vide this judgment, I shall dispose off suit of Sh. Jugal Kishore (hereinafter called plaintiff) which he has filed against Ministry of Home, Hon'ble Lieutenant Governer, The Commissioner of Police, Sh. Rameshwar Khatri & Sh. Prakash Chand (hereinafter called defendants no.1,2,3,4 & 5 respectively) for recovery of damages of Rs.10,000/ on account of malicious prosecution.
2. Plaintiff alleged that one Sh. Ashok Kumar Balli made a complaint against defendant no.4 to defendant no.3 that he is running a Casino(Jua Khana) with the help of defendant no.4 who is taking Rs.60,000/ per month from him for providing shelter to run the said casino. Plaintiff further alleged that the complaint of Sh. Ashok Kumar Balli, was marked by defendant no.3 for conducting the enquiry. Plaintiff further alleged that he was called to join the enquiry in the office of DCP East where he made statement that he himself used to pay Rs.60,000/ per month to the defendant no.4 on behalf of Sh. Ashok Kumar Balli for running the said Casino which was running with and help of SUIT NO.:489/2007 Page13/2 SH. JUGAL KISHORE VS MINISTRY OF HOME & ORS.
defendant no.4 and other police officers of P.S. Gandhi Nagar. Plaintiff further alleged that defendant no.4 became annoyed with the plaintiff as well as others who deposed against him in enquiry so, he started harassing, humiliating and torturing him. Plaintiff further alleged that he came to know through notice of Ld. Special Executive Magistrate dated 14.07.2006 that defendant no.5 in connivance with defendant no.4 filed a false Kalandara against him under Section 107/150 Cr.P.C. Plaintiff further alleged that he challenged the order of Ld. Special Executive Magistrate dated 14.07.2006 in criminal revision and his revision petition was allowed by Ld.ASJ by its order dated 19.07.2006 thereby Ld.ASJ quashed the order and notice dated 14.07.2006. Plaintiff further alleged that defendant no.4 & 5 acted beyond their official duties by misusing official powers, uniform of Delhi police and without fear of their superior authorities and implicate him in a false and frivolous Kalandara with their malafide designs. Accordingly, he prayed to pass a decree of damages/defamation to the tune of Rs.10,000/ in his favour and against the defendants.
3. Summons for settlement of issues were duly served upon all the defendants but defendant no.2 to 5 filed their written statement whereas none has appeared for defendant no.1 so he was proceeded exparte on 22.05.2008. Defendant no.2 to 5 in their written statement alleged that plaintiff has no cause SUIT NO.:489/2007 Page13/3 SH. JUGAL KISHORE VS MINISTRY OF HOME & ORS.
of action and he has not served mandatory notice under Section 80 CPC. Further suit is barred U/S 140 of Delhi Police Act and by limitation. Defendants further alleged that plaintiff is a criminal and known for his bad character of the area and is involved in a number of criminal cases. On merits defendants denied the contents of the suit and accordingly, they prayed for dismissal of the present suit.
4. Plaintiff filed replication to the written statement of defendants no. 2 to 5 wherein he denied the contents of written statement of defendants no.2 to 5 and reaffirmed the contents of the plaint.
5 On the pleading of parties, following issues were framed vide order dated 24.10.2008:
i. Whether the plaintiff is entitled to recovery of damages/mesne profit against the defendant as prayed for? OPP ii. Whether the suit is barred by provisions of Section 47/50 of Delhi Police Act?OPD iii. Whether the suit is not maintainable being without cause of action as prayed for?OPD iv. Whether the suit is not maintainable for not serving the mandatory notice U/S 80 CPC?OPD SUIT NO.:489/2007 Page13/4 SH. JUGAL KISHORE VS MINISTRY OF HOME & ORS.
v. Whether the suit is barred by limitation as alleged?OPD vi. Relief
6. On perusal of issues no. I & II, it reveals that both the issues have not been framed as per pleading of the parties either inadvertently or by accidental slip of court hence, both the issues are reframed as under:
I. Whether plaintiff is entitled for damages to the tune of Rs.10,000/ on account of his malicious prosecution in Kalandra U/s 107/150 Cr.P.C. of PS Gandhi Nagar? OPP II. Whether suit is barred under section 140 of D.P. Act.?OPD
7. To prove his case, plaintiff examined as many as five witnesses i.e. Head Constable Dharampal Record Keeper from office of Ld.S.E.M. as PW1, Sh. Ranjit Soni LDC Record Room (Session) as PW2, Head Constable Manoj Kumar as PW3, plaintiff himself as PW4 and Anil Sharma as PW5.
8. PW1 produced and proved copy of kalandra Ex/PW1/1, typed complaint of Ajay Kumar along with FIR Ex.PW1/2, Notice of Ld. Special Executive Magistrate, U/S 111 Cr. P.C Ex.PW1/3.
9. PW2 produced and proved the judgment passed in criminal SUIT NO.:489/2007 Page13/5 SH. JUGAL KISHORE VS MINISTRY OF HOME & ORS.
revision 75/2006 on 19.09.2007 Ex.PW2/1 and order Ex.PW2/2.
10. PW3 produced and proved the copy of complaint given by Sh. Ashok Kumar Balli Ex.PW3/1, the statement of plaintiff and Anil Kumar Sharma as Ex.PW3/2 & Ex.PW3/3 respectively.
11. PW4 led his evidence on affidavit Ex.PW4/1. He generally deposed on the same lines of his plaint. He also produced and proved legal notice dated 28.02.2007 Ex.PW4/A, receipt of courier Ex.PW4/B, receipt of RC and UPC Ex.PW4/C & PW4/E respectively, receipt of AD card of respondents no.3, 4 & 5 are Ex.PW4/D and his complaint dated 25.07.2006 to defendant no.3 Mark PW4/D. In his cross examination, PW4 deposed that he did not remember that FIR No.236/88 U/S 12.09.1995 Gambling Act has been registered against him or not. He deposed that two cases have been registered against him but he did not remember their FIR number. PW4 denied that eight criminal cases have been registered against him in different police stations. He denied that he is running casino with Ashok Kumar Balli. PW4 admitted that a sum of Rs. 60,000/ was paid to SHO Gandhi Nagar for running Casino by Ashok Kumar Bhalli. PW4 admitted that Ashok Kumar Bhalli is a bad character in police record. PW4 admitted that he and Ramesh Kumar were arrested on 29.05.2006 SUIT NO.:489/2007 Page13/6 SH. JUGAL KISHORE VS MINISTRY OF HOME & ORS.
by police official of Karkardooma. PW4 denied the suggestion that kalandra bearing no. DD41A dated 04.05.2006 PS Gandhi Nagar was prepared on complaint of PCR calling. PW4 denied the suggestion that defendant no.4 & 5 prepared a legal kalandra under their colour of their duty.
12. PW5 also led his evidence on affidavit Ex.PW5/A wherein he deposed that Ashok Kumar Balli made a complaint to defendant no.3 that he is running casino with the help of defendant no.4 by giving monthly of Rs. 60000/. He further deposed that he received the notice from the office of DCP(East) to appear and give his statement. So his statement was recorded to the effect that Ashok Kumar Balli paid Rs.60,000/ to defendant no.4 to run his casino. PW5 further deposed that defendant no.4 become annoyed with him as well as another person who deposed against her in enquiry proceedings and he started harassing and humiliating him and threatened him to implicate in a false case. PW5 further deposed that defendant no.4 in collusion with defendant no. 5 prepared a false kalandra U/S 107/150 Cr. P.C. against plaintiff knowing fully that they prepared false kalandra. PW5 further deposed that aggrieved by order of Ld. S.E.M. dated 14.07.2006, plaintiff filed criminal revision before the court of ld. ASJ who quashed the order of Ld. S.E.M. vide its order dated 19.09.2007. PW5 further deposed that number of persons who were having business relations with plaintiff stopped doing business with him and they also SUIT NO.:489/2007 Page13/7 SH. JUGAL KISHORE VS MINISTRY OF HOME & ORS.
stopped meeting him.
13. After examination of plaintiff's witnesses, defendant did not lead any evidence despite various opportunity provided to them therefore defendants' evidence was closed.
14. I have heard the arguments of the Ld. counsel for the plaintiff and perused the material available on record. My finding on above said issues are in the following order:
ISSUES NO.II & IV
15. Both the issues are taken up together as they are related to the service of notice of plaintiff. The onus to prove these issued are lying upon the defendants but they have not lead any evidence. However, plaintiff as PW4 depose that he served legal notice dated 28.02.2007 Ex.PW4/A upon all the defendants through registered post, UPC as well as courier. Receipt of same are Ex.PW4/C, Ex.PW4/D and Ex.PW4/E respectively. PW4 further deposed that his notice was received by defendants and same was replied by DCP East vide its reply dated 04.10.2007 Ex.PW1/V. PW1 also produced the AD card of defendant no.3,4 & 5 Ex.PW1/D which suggest that notice was served upon them. In view of this plaintiff established that he served notice upon SUIT NO.:489/2007 Page13/8 SH. JUGAL KISHORE VS MINISTRY OF HOME & ORS.
defendants under the provision of Delhi Police Act as well as under Section 80 CPC.
16. PW4 also deposed that defendant no.4 & 5 acted illegally and misused their official power without fear of their superior authorities i.e. defendant no.1,2 & 3 and implicating him in a false case. Admittedly, implicating a person in a false case does not falls in the category of that the official discharged his duties in the colour of official function hence, defendant no.4 & 5 who are police officials are not entitled for any protection of Section 140 D.P. Act.
17. In view of above discussion, both the issues decided against defendants.
ISSUE No.III
18. The onus to prove this issue is upon the defendants. Defendants have not led any evidence to prove this issues hence this issue decided against the defendants.
ISSUE No.V
19. The onus to prove this issue is upon the defendants. Defendants SUIT NO.:489/2007 Page13/9 SH. JUGAL KISHORE VS MINISTRY OF HOME & ORS.
have not led any evidence to prove this issues further they have not stated in their written statement how the suit of plaintiff is hopelessly time barred. On the other hand, plaintiff deposed that he was called by Ld. S.E.M. Vide its notice U/S 111 Cr.P.C. dated 14.07.2006 to furnish bond of surety for keeping peace until completion of enquiry in false kalandra. It is not in dispute that the notice dated 14.07.2006 was quashed by Ld. ASJ vide its order dated 19.09.2006 Ex.PW2/1 thereafter PW1 was discharged in the kalandra. Plaintiff filed the present suit on 13.09.2007 and as per Article 74 of Part VI of Limitation Act 1963 the period prescribes to file suit for malicious prosecution is one year.
20. In view of above, it is clear that plaintiff filed the present suit within period of limitation accordingly, this issue is decided against defendants. ISSUE No.I
21. The onus to prove this issue is upon the plaintiff. In order to discharge his onus, plaintiff has to establish malicious prosecution from the hands of defendants so for that he must prove:
I. That he was prosecuted by the defendants.
II. That the proceeding was terminated in his favour. III. That prosecution was instituted against him without any reasonable and SUIT NO.:489/2007 Page13/10 SH. JUGAL KISHORE VS MINISTRY OF HOME & ORS.
probable cause.
IV.That prosecution was instituted with a malicious intention. V. That he has suffered damages to his reputation.
22. It is admitted facts on record that defendant no. 5 made kalandra Ex.PW1/1 which was forwarded by defendant no.4 to Ld. S.E.M. for prosecution of the plaintiff. The Ld. S.E.M. issued notice dated 14.07.2012 U/s 111 Cr.P.C. Ex.PW1/3 directing the plaintiff to furnish surety bond to keep peace until completion of enquiry. It is also admitted fact that plaintiff challenged the notice Ex.PW1/3 before Ld. ASJ and Ld. ASJ quashed the order and notice vide its judgment dated 19.09.2006 Ex.PW2/1. Thereafter, plaintiff was discharged by Ld. S.E.M in the said Kalandra. In view of this, it is clear that plaintiff was prosecuted in kalandra by defendant no.5 and the proceeding of said kalandra was terminated in his favour.
23. PW4 deposed that one Ashok Kumar Balli made complainant Ex.PW3/1 against defendant no.4 to defendant no.3 stating therein that he is running a casino with the help of defendant no.4 who took bribe of Rs.60,000/. PW4 also deposed that defendant no.3 marked the complaint for conducting inquiry so he appeared before DCP East and made statement Ex.PW3/2 against defendant no.4. PW5 also deposed that his statement Ex.PW3/3 was also recorded by inquiry officer pertaining to complaint of Ashok Kumar Balli SUIT NO.:489/2007 Page13/11 SH. JUGAL KISHORE VS MINISTRY OF HOME & ORS.
against defendant no.4. From the testimony of PW4 & PW5, it is clear that they got recorded their statement against defendant no.4 only and not against any other defendants.
24 It is pertinent that PW4 in his evidence affidavit Ex.PW4/1 deposed as under:
"That defendant no.4 and 5 have implicated the deponent by preparing false kalandra against him by misusing the power, post and uniform by hatching the conspiracy amongst them as deponent deposed against defendant no.4 before DCP East District and the offence has committed by the defendant no.4 and 5 is not the part their official duty as a public servant and acted maliciously with a view to take revenge with the deponent and the acts done by defendant no.4 and 5 in implicating the deponent in a false kalandra, the same has been done in private capacity and is quite illegal and unlawful.
It is admitted fact that plaintiff came to know about kalandra on receipt of notice of Ld. S.E.M. dated 14.07.2006. It is also admitted by plaintiff that he filed complaint Mark PW4/D on 25.07.2006 against defendant no.4 to defendant no.3. From the plain reading of complaint of plaintiff Mark PW4/D, it is clear that plaintiff has not made any whisper in his complaint about SUIT NO.:489/2007 Page13/12 SH. JUGAL KISHORE VS MINISTRY OF HOME & ORS.
hatching of conspiracy by defendant no.4 and 5 to implicate him in false case and thereafter defendant no.5 made false kalandra Ex.PW1/1 against plaintiff. In view of this, the testimony of plaintiff is not corroborated with the documents placed on record. Further, it is pertinent that plaintiff has not deposed any thing about misusing of their power by defendant no.1, 2 & 3 in his malicious prosecution in kalandra Ex.PW1/1.
25. In view of above discussion, it is clear that plaintiff has failed to bring any evidence on record to show that defendant no.5 in conspiracy of defendant no.4 made the false kalandra Ex.PW1/1 against him. Accordingly, plaintiff has failed to prove that defendant no.5 instituted prosecution with malicious intention against him in false kalandra U/S 107/150 Cr.P.C. of PS Gandhi Nagar.
26. In view of above, issue no.I is decided against plaintiff. RELIEF
27. In view of my findings recorded on issue no. I the suit of the plaintiff is dismissed. Decree sheet be prepared.
Announced In Open Court (RAVINDER SINGH)
18.09.2012 Administrative Civil Judge(East)
Karkardooma Courts,Delhi
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