Delhi District Court
Smt. Suman Nanda vs Shri O. P. Sibal on 15 July, 2013
IN THE COURT OF JITENDRA KUMAR MISHRA, ADDITIONAL
DISTRICT JUDGE CENTRAL-09: TIS HAZARI COURTS: DELHI
CS N0. 740/08.
UID No. 02401C0459462005.
Smt. Suman Nanda
W/o. Shri Sunil Nanda
R/o. 579, Sector-16D
Chandigarh
........... Plaintiff
Versus
1. Shri O. P. Sibal
S/o. Shri Ram Lubhaya Sibal
R/o. BT-16, Shalimar Bagh (West)
Delhi-110088.
2. Smt. Shashi Khanna
D/o. Shri O. P. Sibal
R/o. BT-16,Shalimar Bagh (West)
Delhi-110088.
.......... Defendants
Date of institution of suit : 28.05.2005.
Date of reserving for order : 02.07.2013.
Date of judgment : 15.07.2013.
JUDGMENT
1. This is a suit for recovery of Rs. 5,50,000/- filed by the plaintiff on account of damages for malicious prosecution.
2. Brief facts of the case are :
a) Defendant no. 2 was married to Sh. Jitender Khanna on 16/04/1983 at Delhi. Plaintiff is elder sister of Sh. Jitender Khanna.CS No. 740/08
Suman Nanda Vs. O. P. Sibal Page 1 The plaintiff was married to Sh. Sunil Nanda, a resident of Chandigarh on 05/10/1973. Sh. Sunil Nanda at the time of marriage was working in Indian Air Force as Flight Lieutenant and got pre-matured retirement on 30/04/1989 as Wing Commander.
b) Defendant no. 2 walked out of her matrimonial home in the first week of July, 1996. On 25/09/1996, defendant no. 2 made a complaint to Delhi Legal Aid & Advice Board knowingly and malafidely making unfounded and unsubstantiated allegations against the plaintiff.
Defendant no. 2 made another complaint to the ACP, Crime against Women Cell, Ashok Vihar, on 26/11/1996 against her husband Sh. Jitender Khanna, her mother in law Smt. Ved Khanna, plaintiff and her husband Shri Sunil Nanda, under Section 498A, 406, 506 IPC and Section 3 & 4 of the Dowry Prohibition Act. The said complaint was lodged by defendant no. 2 at the advice, abatement and connivance of defendant no. 1.
c) On the basis of complaint dated 26/11/1996, an FIR no. 344/97, under Section 498A and 406 IPC was registered against the plaintiff, her husband Sh. Sunil Nanda, her brother Shri Jitender Khanna and her mother Smt. Ved Khanna. The allegations against the plaintiff in the complaint dated 26/11/96 were not only baseless but were also motivated with malafide intention to rope in the plaintiff in the case in order to deface her and to harass her.
d) Plaintiff had to appear 4-5 times before the police in Crime against Women Cell, Ashok Vihar, New Delhi by travelling all the way from Chandigarh to Delhi only for this purpose. Apprehending arrest by the police in the case registered vide FIR No. 340/97 under Section 498A and 406 IPC, the plaintiff had to apply anticipatory bail and in doing so, the plaintiff had not only travelled from Chandigarh to Delhi on each and every date but had to spend about Rs. 50,000/-. The CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 2 plaintiff was granted anticipatory bail on 31/07/1998 from the court of Additional Sessions Judge, Delhi.
e) The prosecution filed challan in the court of Metropolitan Magistrate against the plaintiff, her husband Sh. Sunil Nanda and other persons. Smt. Ved Khanna died after challan was filed by the prosecution but before the charge was framed. The Ld Metropolitan Magistrate in the case filed by the prosecution framed the charges against the plaintiff under Section 498A and 406 IPC by order dated 16/03/2002. The plaintiff had to attend about 15 dates of hearing by travelling all the way from Chandigarh to Delhi and spending amount on travelling and other expenses and faced harassment. The plaintiff had to engage advocate for putting her defence before the court.
f) The plaintiff filed a criminal revision petition against the order of charge which was disposed of by the court of Additional Sessions Judge, Delhi on 29/05/2004 as criminal revision no. 74/2002, wherein the plaintiff was discharged.
g) The defendants had not only intention to put the plaintiff to harassment and malicious prosecution but both of them repeated the false allegations against the plaintiff to the plaintiff's relatives namely Shri A. K. Sahni and Smt. Swarn Sahni, who are brother in law and sister in law of the plaintiff residing in Delhi and also to Smt. Raj Rani Nanda, mother in law of the plaintiff. On 11/11/1996 both the defendants along with Sh. Mohit and Sh. Sohit, sons of defendant no. 2 went to the house of Sh. A. K. Sahni and Smt. Swarn Sahni and repeated allegations against the plaintiff to them in order to deface and to justify the allegations made by defendant no. 2 in malicious prosecution. Defendant no. 2 in order to defame the plaintiff and to justify malicious allegation in the complaint telephoned to Smt. Raj Rani Nanda on 30/08/1996.
CS No. 740/08Suman Nanda Vs. O. P. Sibal Page 3
h) As a result of malicious prosecution initiated by the defendants
in the name of Smt. Shashi Khanna as complainant at the instance and instigation of her father Sh. O. P. Sibal i.e. defendant no. 1, the plaintiff suffered loss of reputation, harassment, time and resources. The plaintiff was respected among the relatives and friends and as a result of this malicious prosecution, the plaintiff suffered loss of reputation and had to spend Rs. 1 lac in travelling from Chandigarh to Delhi to defend herself in the case instituted by defendants. The plaintiff sent a notice dated 11/05/2005 to the defendants which as per the AD receipt was served upon the defendants.
i) The plaintiff is entitled to claim Rs. 10 lacs as damages on account of malicious prosecution and loss of reputation and to further recover an amount of Rs. 5 lacs on account of expenditure incurred by her in defending herself and the harassment suffered by her. The plaintiff also had to leave her aged and ailing mother in law alone at home at Chandigarh and had to spend money on employing guard for the protection of the house and aged mother in law during her absence while attending the court at Delhi. But the plaintiff had restricted her claim only to Rs. 5,50,000/- which the plaintiff is claiming in this suit.
3. In the light of the facts of the present case, the defendant is liable for damages for mesne profits. The present suit was instituted on 28/05/2005 and the plaintiffs were discharged in this case on 29/05/2004 by the court of Sh. A. S. Chandra, Additional Sessions Judge, Delhi. On 23/04/2010, it was informed by the ld counsel for the plaintiff that plaintiff no. 2 expired on 16/04/2010 and, therefore, by order dated 17/02/2012 an order was passed by my ld predecessor in connected case no. 741/08, suit against plaintiff no. 2 was abated. Therefore, the present suit survives only against plaintiff no. 1 i.e. Smt. Suman Nanda.
CS No. 740/08Suman Nanda Vs. O. P. Sibal Page 4
4. Joint written statement filed by the defendants wherein the
maintainability of the suit is challenged on the ground that petitioner was merely discharged and not acquitted from the case. It is stated that criminal case is at the stage of evidence and there is every possibility of petitioner being re-summoned in the said case as defendant no. 1 has made serious averments against the plaintiff in her statement under Section 161 CrPC and will prove the same at the time of evidence. It is further stated that the plaintiff has filed the present suit only for the purpose of harassment and torturing defendant no. 2 both physically as well as mentally and also defendant no. 1 who is a heart patient. It is further stated that one of the purpose behind filing of the suit is to pressurize the defendant to withdraw their statements during their examination in chief in criminal case pending between defendant no. 2 and in her in laws. It is further stated that under the pretext of this suit the plaintiff wants to illegally extort the maintenance amount which her brother is paying to defendant no. 2 as maintenance. It is further stated that since the defendants are not being prosecuted and held liable for an offence under Section 499/500 IPC, the allegation of the plaintiff regarding his defamation cannot be accepted as gospel truth. It is further stated that defendant no. 2 was physically, mentally and emotionally harassed, tortured and abused throughout her stay in the matrimonial home in furtherance of the dowry demands and all the torturous activities used to increase when the plaintiff and her husband used to visit the matrimonial home of defendant no. 2, sometimes within 15 days, most of the times every week. Many times defendant no. 2 was thrown out of the matrimonial home at the instance of the plaintiff. Defendant no. 2 used to request for her entry in matrimonial home but her in-laws and husband had turned deaf towards her request. Defendant no. 2 used to beat her mercilessly on the one CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 5 pretext or the other and did not show any affection towards his children. On 10/07/1996, defendant no. 2 was thrown out of her matrimonial home by her in-laws and husband with bare two set of clothes and thereafter despite the repeated requests, she was not allowed to join the matrimonial home. Filing of complaint before Delhi Legal Aid and Advice Board is admitted. It is further stated that that the matrimonial life of defendant no. 2 got disturbed only due to the indulgence by the plaintiff and her husband in the matrimonial affairs of defendant no. 2. It is further stated that defendant no. 1 is the father of defendant no. 2 and is a well wisher of defendant no. 2. It is further stated that husband of the plaintiff caught hold of defendant no. 1 by collar and threatened to kill him and that defendant no. 1 is also a heart patient. Filing of criminal complaint before ACP, CAW Cell, Ashok Vihar on 26/11/96 is again an admitted fact. It is further stated that plaintiff played a key role in destroying the matrimonial life of defendant no. 2. The plaintiff had made a habit to visit the house of Mr. Jitender Khanna and defendant no. 2 who are husband and wife, at least twice a week and used to take drinks and non-veg dinner. The torturous activities increased when plaintiff and her husband used to visit the matrimonial house of defendant no. 2. Filing of complaint against the plaintiff, her husband and mother in law is again an admitted fact. Lodging of FIR under Section 498A and 406 IPC is also another admitted fact. It is further stated that the plaintiff was not travelling to Delhi for the purpose of the case but she was in habit to come to Delhi alone or along with her husband to stay at the house of her brother Sh. Jitender Khanna who was residing alone. Granting of anticipatory bail on 31/07/98 from the court of ASJ, Delhi, is another admitted fact. It is stated that the plaintiff's main role was to put oil on the fire lest to extinguish it. The plaintiff had never tried to reconcile the matter nor CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 6 came forward for mutual meetings. It is further stated that the mother in law of defendant no. 2 died due to constant interference by plaintiff and her husband in the family of Mr. Jitender Khanna. It is further stated that the order of Ld. Sessions Judge for discharge is not final as the plaintiff was contemplating to file revision/appeal before the Hon'ble High Court. The claim of the plaintiff is denied.
5. Plaintiff filed replication wherein it is stated that the discharge from the criminal case has the same effect as acquittal in the right of the plaintiff to claim damages from the defendants. Rest of the contents of the written statement are denied and averments made in the plaint are re- iterated and affirmed.
6. My ld predecessor by order dated 07/11/2005 framed following issues :
"(i) Whether the plaintiff is entitled to the amount claimed ?
OPP.
(ii) Relief."
7. To prove her case, the plaintiff examined herself as PW1 and tender her evidence by way of affidavit Ex. P1. This affidavit is similar to the averments made in the plaint. She has further relied upon documents Ex. PW1/1 to Ex. PW1/9. The plaintiff further examined Smt. Swarn Sawhney, as PW2 who tendered her evidence by way of affidavit Ex.
P2. She was also cross-examined by the counsel for the defendants. In defence, defendant no. 2 examined herself as DW1 and tendered her evidence by way of affidavit Ex. DW1/A. She further tendered documents Ex. DW1/1 and Ex. DW1/2. Ex. DW1/2. Ex. DW1/1 is already Ex. PW1/8. DW1 was cross-examined by ld counsel for the plaintiff. By order dated 23/05/2013, this court closed DE.
8. I have gone through the written arguments submitted by both the parties. I have also heard Sh. S. D. Sharma, counsel for the plaintiff and Ms. Anu Narula, counsel for the defendant. This court has also CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 7 gone through the entire record of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial. My issuewise findings are :
9. Issue No. 1.
Whether the plaintiff is entitled to the amount claimed ? OPP.
Onus to prove issue no. 1 is upon the plaintiff. Ex. P1 is similar to the averments made in the plaint. During cross-examination, PW1 stated she and her husband had come from Chandigarh to Delhi on 11/12/96 by Shatabdi. She has further stated that she had gone along with her brother to women cell. She has further stated that she along with her husband travelled on Shatabdi including on 15/12/96, 07/01/97 and on 20/01/97. She has further stated that fee amount of Rs. 20,000/- which she has referred in her evidence was paid for her and her husband and same was not for her mother or brother. The fee amount to Sh. R. K. Wadhawa, advocate was paid in cash. She has stated that she did not take any receipt or acknowledgment from Mr. Wadhwa towards the fee amount paid to him. She has further stated that Ex. PW1/9 reflects major items of her daily account/routine expenses and does not merely reflect the litigation expenses incurred by her in respect of present suit. Ex. PW1/9 is a note book in which from November, 1996 to July, 2005 detail of expenses incurred. This note book is numbered from page no. 1 to page no. 108. In the year 1996 both her children were doing MBA. She has further stated that expenses incurred to their education has not been reflected in Ex. PW1/9. She has never instructed her counsel to seek personal exemption on her behalf in the criminal proceedings including bail hearings. She used to meet her son as and when she used to visit Delhi for the hearing in the criminal matter pending against her. She CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 8 hardly visited Delhi specifically for visiting her son. She has further stated that no receipt regarding payment made to nurse at Chandigarh had been shown by her to her lawyer and none was filed on record. A suggestion was given that she and her husband were instrumental in harassing defendant no. 2 and breaking her marriage with her brother and the suggestion was denied. A further suggestion was given that there was no malicious prosecution by the defendants and the suggestion was denied. A further suggestion was given that Ex. PW1/9 is a false and frivolous document and the suggestion was denied. PW2 stated that husband of the plaintiff is her brother and she has stated that on 11/11/96 defendant no. 1, defendant no. 2, Sh. Sumesh Sibbal along with Sh. Mohit and Sohit, sons of defendant no. 2 and Sh. Jitender Khanna came to her house at Malka Ganj and leveled allegations against her brother Sh. Sunil Nanda and his wife i.e. the plaintiff. She has admitted that defendant no. 1 along with his wife had personally visited her to the wedding of two sons of defendant no. 1 namely Sh. Pardeep and Sumesh but she attended only one. A suggestion was given that defendant no. 2 and her family approached her for seeking her intervention to make Jitender and his family understand and for reconciliation. The suggestion was denied. She has further stated that from 1994 to 1996 frequency of visits of plaintiff and her husband at Delhi were more. She has further stated that from 1997 to 2004 whenever they had dates in the court, they used to visit Delhi. She denied the suggestion that plaintiff and her husband during the period 2002-03 were visiting Delhi only to meet their son and not for attending court dates. She has further stated that she came to know about the litigation between defendant no. 2 and Sh. Jitender in the year 1997. Ex. DW1/A is similar to the averments made in the written statement. During cross-examination, it is admitted that the CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 9 divorce petition filed by husband of defendant no. 2 against her has been decreed by the court. She has further admitted that she has led evidence in support of her allegations against the plaintiff and her husband in the divorce petition. She has further admitted that she has made allegations against the plaintiff and her husband in the FIR which she got registered under Section 498A and 406 IPC. She has admitted that her complaint dated 26/11/96 was against the plaintiff and her husband also. She has admitted that plaintiff and her husband are residing at Chandigarh. She has further stated that she did not approach any of her common relative requesting them to resolve the criminal disputes. She has further stated that her father and mother jointly or individually along with her did not visit Mr. Sahney at Malka Ganj either to complain about the behaviour of Mr. Sunil Nanda or the plaintiff. She has further stated that she had made allegations against Sh. Sunil Nanda and the plaintiff in her complaint dated 26/11/96 which forms basis of FIR No. 340/97 against them besides some other additional facts and incidents which she had narrated to the police orally as well as in writing. She has admitted that after receipt of the notice Ex. PW1/7, she or her father did not challenge the judgment of ld ASJ, Delhi in the higher courts.
10. At this stage, I shall refer the law on the subject 'malicious prosecution.' The Privy Council in Sah Mauji Ram Vs. Sah Chaturbhuj AIR 1939 Privy Council 225 held that in order to succeed in a suit for malicious prosecution, one has to establish that the defendant acted without any reasonable and probable cause and maliciously. Thereafter, Hon'ble High Court of Nagpur in Sitaram Vs. Dudharam AIR 1952 Nagpur 310 held in para 5 & 6 :
"5. Reasonable and probable cause may be defined as "an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 10 grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonable lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed."HLRNIMAN V. SMITH', 1935 AC 305 at p.316. Distinction, however, has to be drawn between the case of an accuser who has personal knowledge of the truth or otherwise of the accusation and th case of one who has no such knowledge but who on information received or from circumstances honestly believes in the guilt of the accused provided he does not fail or neglect to take reasonable care to inform himself of the true facts before commencing or proceeding with the prosecution.
6. Innocence is proved by proving acquittal in criminal proceedings where the prosecutor must know whether his accusation against the accused is false or true. If the accused is innocent it follows that the prosecutor must be telling a falsehood and there must be a want of reasonable and probable cause. Thus, in this class of case proof of innocence of the accused by production of the judgment in the criminal case is sufficient for the plaintiff to discharge the burden of proving want of reasonable and probable cause for the prosecution......"
11. The Hon'ble Andhra Pradesh High Court in Badduri Chandra Reddy and another v. Pammi Rami Reddy and others, (S) AIR ANDHRA 218 V (V.42, C. 81 Oct.)(1) held in para 9 :
"9. The principle laid down in 'Gaya Prasad V. Bhagat Singh (B)', was accepted by the Privy Council in another case - 'Balbhadar Singh v. Badri Sah', AIR 1926 PC 46(F). It may be taken that it is now well established, that, if a person does nothing beyond giving information to the police which he considers to be true, an action for damages for malicious prosecution is not maintainable against him. If on the other hand, besides setting the law in motion he takes an active part in the conduct of the prosecution he made be regarded as the real prosecutor, although the actual prosecution is by the police and renders himself liable for damages."
The Hon'ble High Court further held in para 16 of the said judgment :
16. .......Further the principle that should guide the determination of the liability for damages for malicious prosecution, as already stated by me, is that the person sought to be made liable for damages should be directly or primarily responsible for the CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 11 prosecution. It is difficult to say that one who gives some information to another who lodges a report before the Police can be brought within the scope of such a principle."
12. The Hon'ble Punjab and Haryana High Court in Major Gian Singh Vs. S. P. Batra AIR 1973 Punjab and Haryana 400 (V 60 C 114) held in para 13 :
"13. On the other hand, the learned counsel for the respondent has urged before us that the respondent, being an aggrieved person, had merely set the law into motion by placing the facts before a competent Court. The court itself forwarded the complaint to the Police for investigation. If, as a result of this investigation, the Police had actually arrested the appellant and put him for trial before a Court of law, the respondent could not be held liable for any damages. In short, it was submitted that the respondent could not be regarded as a prosecutor. We are unable to agree with the contention advanced by the learned counsel for the respondent. A defendant in a suit for prosecution can escape liability only if he places true and correct information before the Police or a Magistrate having jurisdiction to take cognizance of the offence charged against the plaintiff. Where a defendant conceals the material facts or distorts them to an unreasonable extent, he cannot be allowed to urge that he was not the prosecutor. In Balbhaddar Singh v. Badri Sah, AIR 1926 PC 46, it was observed as follows :-
In any country, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the word could not be raised against any private individual. But giving information to the authorities which naturally leads to prosecution is just the same thing. And if that is done and trouble caused an action will lie. But it must be kept in view that, so far as the police were concerned, there was ample cause for the initiation of prosecution proceedings."
It was further held in para 15 of the said judgment :
"15. ......... In a suit for malicious prosecution the burden of proving that the proceedings were initiated without any reasonable and probable cause lies on the plaintiff who seeks damages. It is no doubt true that the acquittal of the plaintiff in the earlier proceedings may sometimes give rise to a presumption that there was no reasonable and probable cause for his prosecution, but this presumption is rebuttable. The defendant in such a suit has merely to prove that the CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 12 facts and circumstances did exist which gave rise to a belief in his mind that the other party was guilty. These facts and circumstances do not have to be viewed or weighed as would be done by a Court of law, for otherwise in all those cases in which the prosecution fails the complainant or the prosecutor would become liable for damages."
13. The Hon'ble High Court further held in referred judgment that existence of reasonable and probable cause has to be judged in relation to state of mind at the time when he initiated the proceedings. The Hon'ble Delhi High Court in C. B. Aggarwal Vs. P. Krishna Kapoor, Suit 767 of 1983, decided on 28-11-1994 held in para 29 :
"29. On the basis of the various pronouncements of courts in India and in England. It can safely be concluded that civil actions which are normally covered under 'abuse of process' are relating to attachment or property, damage of a person, malicious bankruptcy, winding up proceedings and such other processes of the Court which are abused by a party. Only those cases can be considered by the courts which satisfy the following ingredients:-
1. The proceedings must have been instituted or continued by 'the defendant;
2. He must have acted without reasonable and probable cause;
3. He must have acted maliciously;
4. The proceedings must have been unsuccessful -
that is to say, must have terminated in favour of the plaintiff now suing;
5. The legal process was not only without foundation but is used for an improper and collateral purpose. Such orders were not used for a purpose, for which the court intended to pass the order or the order passed by a court in a case has been used with ulterior motives to cause damage to the reputation, person or property of the affected party."
It was further held in para 30 of the said judgment :
"30. The probable cause is not the same thing as sufficient cause and has to be judged from the standard of reasonable and ordinary prudent men. The plaintiff is obliged to give positive evidence of not only the lack of proper probable and reasonable cause but also as to the requirements of other conditions, before any relief is granted to him against the defendant.CS No. 740/08
Suman Nanda Vs. O. P. Sibal Page 13 Learned counsel for the plaintiff has argued that the defendant had no right to institute the proceedings and the initiation and continuation of proceedings was without probable cause and was malicious. I have already held that even these two ingredients are not proved in the present case. Even if these be assumed and have been proved, the remaining three ingredients have neither been pleaded nor proved. As such, the plaintiff could hardly bring the present suit for damages against the defendant and the net result is that the plaintiff is not entitled to any damages."
14. The Hon'ble Supreme Court in West Bengal State Electricity Board v. Dilip Kumar Ray AIR 2007 Supreme Court 976 defined in malice and malicious prosecution in para 14, 15, 16 and 17 :
"14. Malice and Malicious Prosecution as stated in the Advance Law of Lexicon, 3rd Edition by P. Ramanatha Aiyar read as follows:
"Malice - Unlawful intent Will; intent to commit an unlawful act or cause harm, Express or actual malice is ill will or spite towards the plaintiff or any indirect or improper motive in the defendant's mind at the time of the publication which is his sole or dominant motive for publishing the words complained of. This must he distinguished from legal malice or malice in law which means publication without law full excuse and does not depend upon the defendant's state of mind. The intent, without justification or excuse, to commit a wrongful act. II. Reckless disregard of the law or of a person's legal rights. Ill will: wickedness of heart. This sense is most typical in non legal contexts".
"Malice means in law wrongful intention. It includes any intent which the law deems wrongful, and which therefore serves as a ground of liability. Any act done with such an intent is, in the language of the law, malicious, and this legal usage has etymology in its favour. The Latin malitia means badness, physical or moral - wickedness in disposition or in conduct - not specifically or exclusively ill-will or malevolence; hence the malice of English law, including all forms of evil purpose. design, intent, or motive. But intent is of two kinds, being either immediate or ulterior, the ulterior intent being commonly distinguished as the motive. The term malice is applied in law to both these forms of intent, and the result is a somewhat puzzling ambiguity which requires careful notice. When we say that an act is done maliciously, we CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 14 mean one of the two distinct things. We mean either that it is done intentionally, or that it is done with some wrongful motive."
"Malice in the legal sense imports (I) the absence of all elements of justification, excuse or recognized mitigation, and (2) the presence of either (a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton and wilful doing of an act with awareness of a plain and strong likelihood that such harm may result. The Model Penal Code does not use 'malice' because those who formulated the Code had a blind prejudice against the word. This is very regrettable because it represents a useful concept despite some unfortunate language employed at times in the effort to express it."
"Malice" in the legal acceptance of the word is not confined to personal spite against individuals but consists in a conscious violation of the law to the prejudice of another. In its legal sense it means a wrongful act done intentionally without just cause or excuse.
'Malice", in its legal sense, does not necessarily signily ill- will towards a particular individual, but denotes that condition of mind which is manifested by the intentional doing of a wrongful act without just cause or excuse. Therefore, the law implies malice where one deliberately injures another in an unlawful manner.
Malice means an indirect wrong motive. 'Malice' in its legal sense means, malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause."
Malice, in ordinary common parlance, means ill-wiIl against a person and in legal sense, a wrongful act done intentionally, without just cause or reason. It is a question of motive, intention or state of mind and may be defined as any corrupt or wrong motive or personal spite or ill will.
'Malice' in common law or acceptance means ill-will against a person, but in legal sense it means a wrongful act alone intentionally without just cause or excuse.
It signifies an intentional doing of a wrongful act without just cause or excuse or an action determined by an improper motive.
CS No. 740/08Suman Nanda Vs. O. P. Sibal Page 15 "MALICE", in common acceptation, means, ill will against a person; but in its legal sense, it means, a wrongful act done intentionally without just cause or excuse"
Malice in its common acceptation, is a term involving stint intent of the mind and heart, including the will; and has been said to mean a bad mind; ill-will against a person; a wicked or evil state of the mind towards another; an evil intent or wish or design to vex or annoy another; a wilful intent to do a wrongful act; a wish to vex, annoy or injure another person or as intent to do a wrongful act; a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief.
"MALICE" means wickedness of purpose, or a spiteful or malevolent design against another; a purpose to injure another; a design of doing mischief, or any evil design or inclination to do a bad thing, or a reckless disregard to the rights of others, or absence or legal excuse, or any other motive than that of bringing a party to justice."
"The meaning of the term malice in English law, his been a question of much difficulty and controversy; and those who made through the many disquisitions on the subjects in text- books and judicial opinions are almost tempted to the conclusion that the meaning varies almost infinitely, and that the only sense which the term can safely be predicated not to have in ant given legal context is that which it has in popular language, viz., spite or ill-will. It certainly has different meanings with respect to responsibility for civil wrongs and responsibility for crime; and even with respect to crime it has a different sense according as it is used with reference to murder, libel, or the capacity of an infant to commit crime, expressed by the rule malitia supplet act item." (Ency. of the Laws of England). Ordinarily, the absence of reasonable and probable cause in instituting a proceeding which terminates in favour of the plaintiff, would give rise to the inference of malice. MALICE has been said to mean any wrong or indirect motive but a prosecution is not malicious merely because it is inspired by anger. However, wrong- headed a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be initiator of a malicious prosecution. MALICE means the presence of some improper and wrongful motive - that is to say an intend to use the legal process in question for some other than its legally appointed and appropriate purpose. It means CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 16 an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill-will; it may be due to a desire to obtain a collateral advantage.
MALICE in fact is malue animus indicating that action against a party was actuated by spite or ill will against him or by indirect or improper motives. Malice: hatred: aversion: antipathy: enmity:
Repugnance: ill-will: rancour: malevolence: Malignity: malignancy. Hatred is a very general term. Hatred applies properly to persons. It seems not absolutely involuntary. It has its root in passion, and may be checked or stimulated and indulged. Aversion is strong dislike. Aversion is a habitual sentiment, and springs from the natural taste or temperament which repels its opposites, as an indolent man has an aversion to industry, or a humane one to cruelty. Antipathy is used of causeless dislike, or at least one of which the cause cannot be defined. It is found upon supposition or instinctive belief, often utterly gratuitous. Enmity is the state of persona! opposition, whether accompanied by strong personal dislike or not; as "a bitter enemy." Repugnance is characteristically employed of acts or courses of action, measures, pursuits, and the like. Ill-will is a settled bias of the disposition. It is very indefinite, and may be of any degree or strength. Rancour is a deep seated and lasting feeling of ill-will. It preys upon the very mind of the subject of it. While enmity may be generous and open, rancour is malignant and private. Malice is that enmity which can abide its opportunity of injuring its object, and pervert the truth or the right, or go out of its way, or shape course of action, to compass its ends. "Malevolence commences with some idea or evil belonging to and connected with the object; and it settles into a permanent hatred of his person and of everything relative to him" - (Gogan) Malignity is cruel malevolence, or innate love of harm for the sake of doing it. It is malice the most energetic, inveterate, and sustained.
Malice in fact. "Malice in fact" means express malice. MALICE IN FACT OR ACTUAL MALICE, relates to the actual state or condition of the mind of the person who did the act. Malice in fact is where the malice is not established by legal presumption or proof of certain facts, but is to be found from the evidence in the case.CS No. 740/08
Suman Nanda Vs. O. P. Sibal Page 17 Malice in fact implies a desire or intention to injure, while malice in law is not necessarily inconsistent with an honest purpose.
Malice in law. 'Malice in law" means implied malice. "MALICE IN LAW" simply means a depraved inclination on the part of a person to disregard the rights of others, which intent is manifested by his injurious acts.
Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. S.R. Venkataraman v. Union of India (AIR 1979 SC 49, 51). MALICIOUS. Done with malice or an evil design; wilful; indulging in malice, harboring ill-will, or enmity malevolent, malignant in heart; committed wantonly, wilfully, or without cause, or done not only wilfully and intentionally, but out of cruelty, hostility of revenge; done in wilful neglect of a known obligation. "MALICIOUS" means with a fixed hate, or done with evil intention or motive; not the result of sudden passion.
Malicious abuse of civil proceedings. In general, a person may utilize any form of legal process without any liability, save liability to pay the costs of proceedings if unsuccessful. But an action lies for initiating civil proceedings. Such as action, presentation of a bankruptcy or winding up petition, an unfounded claim to property, not only unsuccessfully but maliciously and without reasonable and probable cause and resulting in damage to the plaintiff. (Walker) Malicious abuse of legal process. A malicious abuse of legal process consists in the malicious misuse or misapplication of process to accomplish a purpose not warranted or commanded by order of Court - the malicious perversion of a regularly issued process, whereby an improper result is secured. There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employs it for some unlawful object - not the purpose which it is intended by the law to effect; in other words, a perversion of it.
Malicious abuse of process. Wilfully misapplying Court process to obtain object not intended by law. The wilful misuse or misapplication of process to accomplish a purpose not warranted or commanded CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 18 by the writ. An action for malicious abuse of process lies in the following cases, A malicious petition or proceeding to adjudicate a person an insolvent, to declare a person lunatic or to wind up a company, to make action against legal practitioner under the Legal Practitioners Act, maliciously procuring arrest or attachment in execution of a decree or before judgment, order or injunction or appointment of receiver, arrest of a ship, search of the plaintiff's premises, arrest of a person by police. Malicious abuse of process of Court Malicious act Bouvier defined a malicious act as "a wrongful act, intentionally done, without cause or excuse."
A malicious act is one committed in a state of mind which shows a heart regardless of social duty and fatally bent on mischiefa wrongful act intentionally done, without legal justification or excuse.
'A malicious act is an act characterised by a preexisting or an accompanying malicious state of mind.
Malicious Prosecution Malice. Malice means an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill-will. It may be due to a desire to obtain a collateral advantage. The principles to be borne in mind in the case of actions for malicious prosecutions are these:Malice is not merely the doing a wrongful act intentionally but it must be established that the defendant was actuated by mains animus, that is to say, by spite of ill- will or any indirect or improper motive. But if the defendant hod reasonable or probable cause of launching the criminal prosecution no amount of malice will make him liable for damages. Reasonable and probable cause must be such as would operate on the mind of a discreet and reasonable man; 'malice' and 'want of reasonable and probable cause.' have reference to the state of the defendant's mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them.
OTHER DEFINITIONS OF "MALICIOUS
PROSECUTION".
"A judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it."
"A prosecution begun in malice, without probable CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 19 cause to believe that it can succeed and which finally ends in failure."
"A prosecution instituted wilfully and purposely, to gain some advantage to the prosecutor or thorough mere wantonness or carelessness, if it be at the same time wrong and unlawful within the knowledge of the actor, and without probable cause."
"A prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy."
The term "malicious prosecution" imports a causeless as well as an ill-intended prosecution. 'MALICIOUS PROSECUTION" is a prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or its bound to know are wrong and against the dictates of public policy. In malicious prosecution there are two essential elements, namely, that no probable cause existed for instituting the prosecution or suit complained of, and that such prosecution or suit terminated in some way favorably to the defendant therein.
1. The institution of a criminal or civil proceeding for an improper purpose and without probable cause. 2. The cause of action resulting from the institution of such a proceeding. Once a wrongful prosecution has ended in the defendant's favor, lie or she may sue for tort damages - Also termed (in the context of civil proceedings) malicious use of process. (Black, 7th Edn., 1999) "The distinction between an action for malicious prosecution and an action for abuse of process is that a malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to effect - the improper use of a regularly issued process. For instance, the initiation of vexatious civil proceedings known to be groundless is not abuse of process, but is governed by substantially the same rules as the malicious prosecution of criminal proceedings." 52 Am. Jur. 2d Malicious Prosecution S. 2, at 187 (1970).
The term 'malice,' as used in the expression "malicious prosecution" is not to be considered in the sense of spite or hatred against an individual, but CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 20 of malus animus, and as denoting that the party is actuated by improper and indirect motives.
As a general rule of law, any person is entitled though not always bound to lay before a judicial officer information as to any criminal offence which he has reasonable and probable cause to believe has been committed, with a view to ensuring the arrest, trial, and punishment of the offender. This principle is thus stated in Lightbody's case, 1882, 9 Rettie,
934. "When it comes to the knowledge of anybody that a crime has been committed a duty is laid on that person as a citizen of the country to state to the authorities what he knows respecting the commission of the crime, and if he states, only what he knows and honestly believes he cannot be subjected to an action of damages merely because it turns out that the person as to whom he has given the information is after all not guilty of the crime. In such cases to establish liability the pursuer must show that the informant acted from malice, i.e., 'not in discharge of his public duty but from an illegitimate motive, and must also prove that the statements were made or the information given without any reasonable grounds of belief, or other information given without probable cause; and Lord SHAND added (p. 940): "He has not only a duty but a right when the cause affects his own property."
Most criminal prosecutions are conducted by private citizens in the name of the Crown. This exercise of civic rights constitutes what with reference to the la of libel is termed a privileged occasion: but if the right is abused, the person injured thereby is, in certain events, entitled to a remedy. (See H. Stephen, Malicious Prosecution, 1888; Builen and Leake, Prec. P1., Clerk and Lindsell. Torts, Pollock, Torts; LQR. April 1898; Vin., Abr., tit. "Action on the Case" Ency. of the Laws of England.) "MALICIOUS PROSECUTION" means that the proceedings which are complained of were initiated from a malicious spirit, i.e, from an indirect and improper motive, and not in furtherance of justice. [10 CWN 253 (FB)] The performance of a duty imposed by law, such as the institution of a prosecution as a necessary condition precedent to a civil action, does not constitute "malice". (Abbott v. Refuge Assurance Co., (1962) 1 QB 432).
"Malicious prosecution" thus differs from wrongful CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 21 arrest and detention, in that the onus of proving that the prosecutor did not act honestly or reasonably, lies on the person prosecuted." (per DIPLOCK U in Dailison v. Caffery, (1965) 1 QB 348)). (Stroud, 6th Edn., 2000).
15. 'Malice' means and implies spite or ill-will. Incidentally, be it noted that the expression "mala fide" is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. (See Prabodh Sagar v. Punjab State Electricity Board and others. (2000) 5 SCC 630.
16. The legal meaning of 'malice' is "ill will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law"
means "something done without lawful excuse". In other words, "it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is deliberate act in disregard of the rights of others". (See State of A.P. v. Govardhanlal Pitti (2003) 4 SCC
739).
17. The word "malice" in common acceptation means and implies "spite" or "ill will". One redeeming feature in the matter of attributing bias or malice is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record. In the case of Jones Bros. (Hunstanton) Ltd. v.
Stevens (1955) 1 QB 275: (1954) 3 All ER 677 (CA), the Court of Appeal has reliance on the decision of Lumley v. Gye (1853) 2 E&B 216: 22 L.JQB 463 as below: "For this purpose maliciously means no more than knowingly. This was distinctly laid down in Lumley v. Gye (1853) 2 E&B 216: 22 LJQB 463 where Crompton, J. said that it was clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation of master and servant by harbouring and keeping the servant after he has quitted his master during his period of service, commits a wrongful act for which he is responsible in law. Malice in law means the doing of a wrongful act intentionally without just cause or excuse: Bromage v. Prosser (1825) 1 C&P 673: 4 B&C 247. 'Intentionally' refers to the doing of the act; it doe not mean that the defendant meant be spiteful, though sometimes, as for instance to rebut a CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 22 plea of privilage in defamation, malice in fact has to be proved". (See State of Punjab v. U.K. Khann and others (2001) 2 SCC 330)."
15. The Hon'ble Delhi High Court in R. K. Soni Vs. S. Singhara Singh, Suit 77/1987, decided on 21-08-1991 held in para 5 :
"5. ...... In order to succeed in an action for malicious prosecution the plaintiff was to prove only that he was prosecuted by the defendant and the prosecution ended in the plaintiff's favour and that defendant had acted without reasonable and probable cause and was actuated by malice in launching the criminal prosecution. From the evidence led by the plaintiff it is amply proved that the plaintiff was prosecuted by the defendant maliciously without any reasonable and probable cause and the prosecution ended in plaintiff's favour......"
16. The Hon'ble Delhi High Court in Vijendra Kumar versus Ved Prakash Gupta RSA No. 259/2005 & CM No. 12211-12212/2005, decided on 29-03-2007 relied upon West Bengal State Electricity Board (supra). The Hon'ble Supreme Court in Ravinder Singh Vs. Sukhbir Singh & Ors. 2013 STPL(LE) 47178 SC held in para 11 :
"11. The dictionary meaning of word 'false' means that, which is in essence, incorrect, or purposefully untrue, deceitful etc. Thus, the word 'false', is used to cover only unlawful falsehood. It means something that is dishonestly, untrue and deceitful, and implies an intention to perpetrate some treachery or fraud. In jurisprudence, the word 'false' is used to characterise a wrongful or criminal act, doe intentionally and knowingly, with knowledge, actual or constructive. The word false may also be used in a wide or narrower sense. When used in its wider sense, it means something that is untrue whether or not stated intentionally or knowingly, but when used in its narrower sense, it may cover only such falsehoods, which are intentional. The question whether in a particular enactment, the word false is used in a restricted sense or a wider sense, depends upon the context in which is it used."
17. It further relied upon West Bengal State Electricity Board (supra). It was further held in para 17 :
CS No. 740/08Suman Nanda Vs. O. P. Sibal Page 23 "17. The word "vexatious" means 'harassment by the process of law', 'lacking justification' or with 'intention to harass'. It signifies an action not having sufficient grounds, and which therefor,e, only seeks to annoy the adversary.
17.1. The hallmark of a vexatious proceeding is that it has no basis in law (or at least no discernible basis); and that whatever the intention of the proceedings may be, its only effect is to subject the other party to inconvenience, harassment and expense, which is so great, that it is disproportionate to any gain likely to accrue to the claimant; and that it involves an abuse of process of the court. Such proceedings are different from those that involve ordinary and proper use of the process of the court."
18. The present suit is within limitation as per Article 74 of the Limitation Act. Copy of order passed by the court of Additional Sessions Judge on 29/05/2004 has been proved by the plaintiff as Ex. PW1/6. In para 17 of Ex. PW1/6, it is observed by the court of Additional Sessions Judge are being reproduced :
"It is also revealed from the complaint that there is no allegation of misappropriation of dowry articles against petitioner no. 2 and 3 who are the sister in law and her husband. They live in Chandigarh. The vague allegations of harassment as found in para 7 of the complaint, would refer to the period of 1984/85. Further, except stating that they used to provoke her husband and, further, they themselves also taunted her and perpetrated cruelty on her, there is no description of such cruelty and I find that this is a sweeping, general and platitudinous allegations which is made in the course of complaint. In the complaint made before the Legal Aid Authority dt. 25.09.96, she had stated that petitioner no. 2 and 3 misbehaved and tortured her. Here also, the details are not forthcoming."
Further, in para 19, it was observed by the Ld ASJ :
"Considering the whole conspectus of the matter, I find that the entrustment of dowry articles is clearly made against the petitioner no. 1 and his deceased mother only. I find that there is no allegation of entrustment of dowry articles against petitioner no. 2 Suman Nanda. Further, the clear reading of the entire complaint and the report would suggest that CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 24 petitioner no. 2 and 3 are the residents of Chandigarh and the alleged provocation or taunting if any are falling short to come under the Sec. 498-A IPC. Further, I find that these allegations are made in a sweeping manner referring the same to the period between 1984 and 1985 since the complaint is choronogically and consciously having been written. I find that the said allegation would not suffice the ingredients as required for the offence U/s 498-A as regards petitioner no. 2 and 3."
Copy of complaint filed by defendant no. 2 against her husband and plaintiffs is Ex. PW1/2 wherein the plaintiffs were mentioned as accused no. 3 & 4. Copy of complaint dated 25/09/96 made by defendant no. 1 to the Principal Secretary of DLSA is Ex. PW1/1. Reply to the notice dated 01/06/2005 is on the record which is Ex. PW1/8 wherein defendant again made allegations against the plaintiffs to the effect that the matter was not investigated under the influence of the plaintiff upon the police and, therefore, the defendant had justified her allegations made against the plaintiff even after discharge of the plaintiff from the criminal case. Thus, defendant no. 2 all along maintained her intention to prosecute the plaintiff despite discharge of the plaintiff from the criminal case under Section 498A/406 IPC.
19. During arguments, it is contended by ld counsel for the defendants Ms. Anu Narula, that since there was no specific allegation by the defendant against the plaintiff of entrustment of istridhan and, therefore, the court of ld ASJ discharged the plaintiff from the said offence as per Ex. PW1/6. She has further submitted that when no such allegations were made by the defendants against the plaintiff regarding entrustment of dowry articles, therefore, there was no malice or ill will on the part of the defendant and thus, defendants are not liable for any action for malicious prosecution. She further submits that the judgment of ld ASJ which is Ex. PW1/6 and paras referred herein above, supports her arguments. Here, this court has to make CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 25 observation that the arguments of the ld counsel for the defendants has no force in view of Ex. PW1/8 wherein instead of making such submissions, the defendants continued to make further allegations against the plaintiff and, thus, malice towards the plaintiff itself proves. Moreover, Ex. PW1/2 mentions that defendant no. 2 at the time of filing of complaint, herself had arrayed the plaintiffs as accused no. 3 & 4 in her complaint and for this reason charge sheet was filed against the plaintiff upon which ld Magistrate had taken cognizance. This court agrees that there is observation in Ex. PW1/6 by ld. ASJ that there are no allegation of entrustment of dowry articles against the plaintiff but the fact remains that the court has to look into malice with unlawful intent to commit an unlawful act or to cause harm. The court has to see the state of the defendant's mind at the time of making complaint by defendant no. 2. This malice further confirms from Ex. PW1/6 i.e. the reply issued on behalf of the defendant to the notice of the plaintiff.
20. In such circumstances, this court is of the considered opinion that defendant no. 2 is guilty of malicious prosecution against the plaintiff. This court does not agree with the arguments of the ld counsel for the defendant that since the plaintiff was discharged, therefore, no case of malicious prosecution against the defendant is made out. Article 74 of the Limitation Act, 1963 states :
Description of suit Period of limitation Time from which period begins to run
74. For compensation One year. When the plaintiff is acquitted for a malicaious or the prosecution is prosecution. otherwise terminated.
21. The Legislature used the word acquitted but further used the phrase 'when the prosecution is otherwise terminated.' In this case the prosecution was terminated by Ex. PW1/6, as per order passed by ld CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 26 ASJ against the plaintiff and, therefore, arguments raised by ld counsel for the defendant is baseless. This court is of the considered opinion that defendant no. 2 acted in this case without reasonable and probable cause inasmuch as she filed a complaint against the plaintiff without any reasonable or probable cause as the plaintiff was living in Chandigarh along with her family and husband of the defendant was living with his mother in the matrimonial home of defendant no. 2. Simply when defendant no. 2 started residing along with her husband and termed as matrimonial home, this fact does not debarred the plaintiff to meet her brother as well as her mother. If defendant no. 2 was married to her husband, Sh. Jitender Khanna that does not amount to extinguish the relationship between the brother and sister i.e. the plaintiff and mother and daughter i.e. the plaintiff. The plaintiff has a right to meet her brother and mother unless and until both of them debarred her to meet them and when simply she is enjoying a good relationship with her brother and mother, the plaintiff cannot be liable to be impleaded in a criminal case and to face harassment and humiliation. It is also a matter of record that the matrimonial proceedings have been terminated in favour of the plaintiff. This court observes that the criminal proceedings were initiated by defendant no. 2 without foundation and with improper collateral purpose to humiliate the plaintiff in the eyes of the society and in order to harass her to face criminal prosecution. It is a matter of fact that as per Criminal Procedure Code, 1973, a person has to attend each date of proceedings till the final disposal. The said person has also to secure the bail from the competent court and till then the said person has to face apprehension of arrest which is not a small but great inconvenience to the said person.
22. Therefore, this court is of the considered opinion that in view of the law CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 27 discussed herein above, defendant no. 2 is guilty of malicious prosecution and she is liable to make the payment of damages to the plaintiff.
23. However, no case is made out against defendant no. 1 i.e. father of defendant no. 2. No evidence has been brought on the record against defendant no. 1 by the plaintiff to prove that he is guilty of malicious prosecution. In fact, no prosecution was initiated against the plaintiff by defendant no. 1. Therefore, the suit of the plaintiff against defendant no. 1 is dismissed.
24. Now the court has to consider the quantum of damages to be paid by defendant no. 2 to the plaintiff for the malicious prosecution committed by her. In para 15 of Ex. P1, it is stated by PW1 that she maintained the account of expenditure which she incurred in tavelling from Chandigarh to Delhi and in payment of fees to the lawyers etc. The said document Ex. PW1/9 is perused. This document does not bear the signature of any person or the plaintiff. Moreover, it is not the case of the plaintiff that she maintained Ex. PW1/9 regularly. When this document is perused then there is account of food, tickets, suits, daan, hawan, anniversary, dinner, milk, gifts made to various relatives etc. Such an account cannot be believed upon by this court as daan, hawan, gifts etc. were not spent by the plaintiff to defend herself in the criminal case initiated upon the complaint of defendant no. 2. In para 5 of Ex. P1, it is stated that the plaintiff attended the Crime against Women Cell on 11/12/1996, 15/12/1996, 07/01/1997 and 20/01/1997. However, the plaintiff did not examine any witness from Women Cell to prove that she had attended all such dates before Women Cell. Therefore, the plaintiff is not able to prove this fact. In para 7 of Ex. P1, it is further submitted by the plaintiff that she had attended the court on 12/11/1997, 05/12/1997, 22/12/1997, 09/01/1998, 21/01/1998, CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 28 02/02/1998, 19/02/1998, 02/03/1998, 17/03/1998, 02/04/1998, 06/04/1998, 13/04/1998, 22/04/1998, 12/05/1998, 22/05/1998, 29/05/1998, 04/06/1998, 02/07/1998 and 31/07/1998. However, again this court observes that the plaintiff did not examine any competent witness to prove that on all such dates, the plaintiff had attended the court. Therefore, the plaintiff is not able to prove the expenditure incurred for such dates. In para 6 of Ex. P1, it is the case of the plaintiff that the plaintiff engaged a lawyer for anticipatory bail and paid Rs. 20,000/- to Sh. R. K. Wadhwa, advocate to contest the application. Here this court observes that an amount of Rs. 20,000/- was allegedly paid by the plaintiff to her advocate, but no receipt for fees paid to Sh. R. K. Wadhwa, advocate has been brought on the record and, therefore, the plaintiff is not able to prove the amount of fees paid by her to her counsel Sh. R. K. Wadhwa, advocate for contesting the bail application. In para 10 of Ex. P1 again, it is the case of the plaintiff that she had travelled to Delhi from Chandigarh to hold discussions and to hold conferences with her lawyer for various dates as mentioned in said para. But again no receipt for the fees paid by her to her lawyer has been proved by the plaintiff. Therefore, the plaintiff is not able to prove this expenditure also. In para 13 on Ex. P1, it is the case of the plaintiff that she had suffered loss of reputation of Rs. 10 lacs and had to spent about Rs. 5 lacs on account of expenditure incurred in defending herself and harassment suffered besides Rs. 1 lac incurred in travelling from Chandigarh to Delhi. The plaintiff is not able to prove these expenditures also.
25. However, this court can take judicial notice of the fact that when criminal prosecution is initiated against a person then definitely the said person/plaintiff has to engage a lawyer, travelling from Chandigarh to Delhi, incurred expenditure at various places and suffered a loss of CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 29 reputation and to face harassment. The court applied its judicial mind and comes to the conclusion that to serve the purpose of the justice, Rs. 30,000/- is sufficient as damages to be paid by defendant no. 2 to the plaintiff. In view of the observations made herein above, this issue is answered in favour of the plaintiff and against defendant no. 2 with these observations.
26. Issue No. 2Relief In view of the observations made herein above, the suit of the plaintiff is decreed in favour of the plaintiff and against defendant no. 2 for a sum of Rs. 30,000/- along with proportionate costs of the suit. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (Jitendra Kumar Mishra) court on 15.07.2013. Additional District Judge-09 Central District, Tis Hazari Courts Delhi CS No. 740/08 Suman Nanda Vs. O. P. Sibal Page 30 CS No. 740/08 15/07/2013 (At 3:10 pm) Present : None for the plaintiff.
Ms. Anu Narula, counsel for the defendant.
Vide separate judgment announced in the open court today, the suit of the plaintiff is decreed in favour of the plaintiff and against defendant no. 2 for a sum of Rs. 30,000/- along with proportionate costs of the suit. Decree sheet be prepared accordingly. File be consigned to record room.
(Jitendra Kumar Mishra)
Additional District Judge-09
Central District, Tis Hazari Courts
Delhi/15.07.2013
CS No. 740/08
Suman Nanda Vs. O. P. Sibal Page 31