Delhi District Court
Mahender Kumar vs Mrs Shivani And Others on 4 November, 2024
IN THE COURT OF SH. DEEPANKER MOHAN
DISTRICT JUDGE-04, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 418/2019
IN THE MATTER OF:
Sh. Mahender Kumar
S/o Late Duly Chand,
R/o H.No.2, Sector-29
Near Huda Market, Faridabad, Haryana .... Plaintiff
VERSUS
1. Mrs. Shivani
W/o Sh. Vineet Gupta
R/o C-500, Gali No.1, Shivaji Gali,
Chajjupura, Babarpur, Shahdara, Delhi-110032.
2. SI Renu
Investigation Officer of FIR No.448/2014
PS Shahdara,
Through
Present SHO of
PS Shahdara, Delhi-110032
3. Sh. K.P. Rana
SHO PS Shahdara (In the year 2015)
Through
Present SHO of
PS Shahdara, Delhi-110032 ... Defendants
1. CS No. : 418/2019
2. Under Section : Suit for recovery of Rs.
CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 1 of 43
Digitally signed
by DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2024.11.04
18:07:00 +0530
31 lakhs on account of
damages.
3. Date of institution : 15.05.2019
4. Reserved for judgment : 02.08.2024
5. Date of Judgment : 04.11.2024
JUDGMENT
1. Vide this judgment, this Court shall dispose of the suit for recovery of Rs.31 lakhs on account of damages filed by plaintiff against defendants on 15.05.2019.
AVERMENT OF THE PLAINT
2. Plaintiff is a senior citizen and is retired from Indian Army. He is suffering from 50% disability. Plaintiff in his entire life was never involved in any criminal case of any nature and have a good reputation in the society. Plaintiff is required by the society people to even organize the marriages of their young generation children and the plaintiff had organized the same without any monetary benefits and he used to donate 30% of his pensions to the Charitable Trust from last two decades without disclosing his name and whereabouts.
3. Defendant no.1 is a daughter-in-law of brother-in-law of plaintiff. Defendants no.2 and 3 are the officers of Delhi Police. The defendant no.2 was the IO of FIR bearing No.448/2014 dated 27.07.2014 registered at P.S. Shahdara, on the complaint dated CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 2 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date: 2024.11.04 18:07:09 +0530 27.07.2014 of defendant no.1, for the offences punishable under Section 354-A/506/509/323 IPC. The defendant no.3 is the then Station House Officers of PS Shahdara in the year 2015 and defendant no.2 was working under his control and directions.
4. The defendant no.1 in the said FIR alleged that on 27.07.2014 at around 11:00am, when she was alone in her house, plaintiff, who is a handicap, outraged her modesty and throw away her child. The Plaintiff shut the mouth of defendant no. 1 and stated that he wants his money otherwise he will kill her. The plaintiff used filthy language and slapped on the face of defendant no.1 and on the shouting of defendant no.1, her neighbour brother Niraj came and saw the plaintiff running away from the spot.
5. The defendant No. 2, being the IO of the above-mentioned FIR, immediately started investigation and defendant no.2 also visited the Plaintiff's house to arrest him. At that point of time, Plaintiff's daughter apprised defendant no.2 that plaintiff had left Delhi on 26.07.2014 i.e. one day prior to the date of alleged incident and on the alleged date of incident, plaintiff was in Udaipur, Rajasthan.
6. After reaching Delhi, plaintiff visited PS Shahdara controlled by defendant no.3 and handed over all his travelling tickets as well as his other documents regarding his stay during those days. The CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 3 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date: 2024.11.04 18:07:17 +0530 plaintiff was released by defendant no.2 and 3 on bail after his arrest. Thereafter, plaintiff filed a criminal complaint bearing No.9004/2016 (Old No.62/2014) under Section 200 Cr.P.C. against defendants no.1 and 2 and other persons in which the Concerned Court directed the police to make further investigation. The defendant no.2 ignored the plea of alibi of the plaintiff and filed the final report before defendant no.3 with the remarks that there is sufficient evidence against plaintiff.
7. The defendant no.3 accepted the final report of defendant no.2 and forwarded to the ACP for further proceedings and after obtaining the permission of the then ACP, defendants no.2 and 3 forwarded the Charge sheet for the offences under Section 354-A/323/506/509 IPC against plaintiff, to the Concerned Court for trial. Thereafter, defendant no.2 with the permission and approval of defendant no.3, filed another report in criminal complaint bearing no.9004/2016 (old No.62/2014) before the Ld. Concerned Court questioning the plea of alibi of plaintiff. The Concerned court, after considering the report of defendants no.2 and 3 and documents filed by plaintiff, ordered an inquiry through DCP, District Shahdara to verify/ investigate the plea of alibi of plaintiff and the same was conducted by ACP Shahdara. On the basis of inquiry conducted by ACP Shahdara, a disciplinary action was referred against defendant no. 2 and 3 vide order dated 19.11.2018 and plaintiff was discharged in the criminal case arising CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 4 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date: 2024.11.04 18:07:25 +0530 out of the FIR No.448/2014 registered at PS Shahdara.
8. The defendant no.1 with the support of her family members and with malice intent harmed and damage the reputation, name, fame and standing of plaintiff in the society. Since the beginning of registration of the complaint, defendants knew about falsity of said FIR as no such incident had ever occurred because plaintiff was not in Delhi on 26.07.2014. They also circulated copy of said FIR and also verbally explained the alleged incident to the relatives and friends of plaintiff. Since the registration of FIR, plaintiff and his family members have to face embarrassing situation and while going to the public/society places, they have to hear disparaging remarks from them. Due to such incident, plaintiff and his family members have to confine themselves to their houses and offices and refrained themselves from going to public/society places. The said FIR and filing of charge sheet have caused immeasurable mental as well as physical agonies to plaintiff and his family members and lowered down the reputations of plaintiff and his family members amongst acquaintances, friends, relations and general public. The plaintiff and his family members have to face social ostracism because of wrongful act of defendants. The defendant no. 1 also got registered an FIR no. 438/ 2015 dated 22.08.2015 for the offences punishable under Section 376-D/323/506 IPC with P.S. Welcome against younger son of the plaintiff and after conducting investigation, I.O.
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filed the final report to the effect that no evidence is found against the son of plaintiff.
9. The Plaintiff through his Advocate had served defendants with the legal notice dated 09.04.2019 requiring them to pay Rs.21 lakhs on account of loss of reputation and Rs.10 lakhs for mental agonies, torture, financial loss and physical harassment. The said legal notice was sent through registered AD on 09.04.2019 and was duly served upon defendants but defendants failed to comply with the terms of said notice. The plaintiff is entitled to the money decree for a sum of Rs.31 lakhs on account of damages i.e. Rs.21 lakhs on account of loss of reputation and Rs.12 lakhs on account of mental agonies, torture, financial loss and physical harassment. Thus the present suit.
SERVICE OF SUMMONS
10. Vide Order dated 16/05/2019 summons of the present suit were issued upon defendants and the summons were served upon the defendant no. 1 to 3 on 05/08/2019, 05/03/2020 and 05/03/2020 respectively. The defendant No. 1 filed her written statement on 22.01.2020. The Defendant no. 2 and 3 did not filed their written statement despite service and therefore, their right to file written statements was closed and they were proceeded ex-parte vide order dated 23.01.2021.
CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 6 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN
MOHAN Date:
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AVERMENTS OF THE WRITTEN STATEMENT FILED BY DEFENDANT NO. 1
11. The suit of plaintiffs is without any cause of action; based on false, frivolous, baseless grounds and is liable to be dismissed. The Plaintiffs have not come before this Hon'ble Court with clean hands and suppressed true and material facts in order to gain undue advantage.
12. The Defendant no.1 has denied all the contents of plaint and further stated that the plaintiff was present in Delhi at the time of incident i.e. on 27.07.2014 and he has committed the offence mentioned in the FIR No. 448/2014. The Defendant No. 1 has denied that plaintiff was in Udaipur, Rajasthan on the date of incident. The plaintiff has not filed any travelling tickets and other relevant documents to establish that he was not present in Delhi at the time of incident. The Defendant No. 1 has stated that the contents of the FIR are true and correct. The defendant No. 1 has not circulated copy of FIR and has also not verbally explained the alleged incident to her relatives and friends of plaintiff. The plaintiff has not stated the name of any relatives and friends to whom the defendant No.1 has allegedly circulated copy of FIR.
13. The Defendant No. 1 has not damaged the reputation of the plaintiff and it is the plaintiff himself who had committed the offence CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 7 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:07:49 +0530 mentioned in above-mentioned FIR against defendant No. 1 and defamed her in the eyes of the society, family members, relatives and general public. Plaintiff has not stated the name, address and description of person(s) before whom defendant no.1 has allegedly defamed the plaintiff. No statement of any independent person was recorded by police during the investigation of the FIR, to substantiate the averment of plaintiff. The Defendant No. 1 has also preferred revision petition against the order dated 18.11.2018 which is pending before the Court of Ld. ASJ (Shahdara), Karkardooma Courts, Delhi and NDOH is 03/02/2020. The plaintiff is not entitled to recover damages from the alleged mental, torture, harassment, agony and humiliation from defendant no.1 as plaintiff and his family members have not suffered any losses or loss of reputation. The defendant no.1 had also sent reply to the legal notice dated 09.04.2019 to plaintiff on 06/05/2019 but as per report of the postman, the same could not be served upon plaintiff because he is not residing at the address given. Thereafter 28.05.2019, defendant no.1 had sent reply to the said notice upon Ld. Counsel for plaintiff namely Sh. Ajay Kaushik which was duly served. The plaintiff is not entitled to a decree of Rs.31 lakhs on account of damages as alleged.
AVERMENTS OF THE REPLICATION
14. On 16.01.2021, replication to the written statement of defendant no.1 was filed wherein plaintiff denied the averments of CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 8 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:07:57 +0530 the written statement and re-affirmed the averments of the plaint. It is further pleaded that the plaintiff has legal, valid and subsisting cause of action in his favour to file the present suit. The defendant further lowered down the reputation of the plaintiff before the other persons while circulating/ saying "that the plaintiff has no good reputation in the society." A FIR No. 87 dated 12.03.2020 was registered in P.S. Shahdara against defendant no. 1 on the direction of the Court of Ld. CMM in the application under Section 156 (3) of Cr.P.C. filed by plaintiff. The plaintiff is entitled to the relief claimed in the plaint.
FRAMING OF ISSUES
15. Upon completion of pleading, following issues were framed on 07.11.2022 which are mentioned as under:-
1. Whether plaintiff is entitled for sum of Rs.31,00,000/-, as prayed for?
2. Relief.
EVIDENCE LED BY THE PLAINTIFF
16. The Plaintiff to prove his case examined two witnesses i.e. Plaintiff himself as PW-1 and Sh. Satya Narayan as PW-2. PW-1 plaintiff filed his evidence affidavit on the line of averments mentioned in the plaint. On 16.10.2023, PW-1 tendered his evidence by way of affidavit as exhibited as Ex.PW1/A and also relied on following documents i.e. CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 9 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:08:05 +0530 (1) Ex.PW1/1- Discharge Book, Army (objected by Ld. Counsel for defendant no.1 being a duplicate copy); (2) Ex.PW1/2- Bank statement of PNB w.e.f. 29.01.2019 to 20.05.2019;
(3) Mark B- Defence accounts details dated 17.07.2017; (4) Mark C- Physical disability certificate dated 12.09.2017; (5) Mark A- Copy of final report U/s 173 Cr.PC;
(6) Mark D- FIR No.448/2014 of PS Shahdara, Delhi (objected by Ld. Counsel for defendant no.1 being a photocopy); (7) Ex.PW1/6- Legal notice dated 09.04.2019; (8) Ex.PW1/7 to Ex.PW1/9- Postal receipts dated 09.04.2019.
17. PW-1 was cross examined at length by Ld. Counsel for defendant no.1 on 16.10.2023.
18. PW-2 Sh. Satya Narayan filed his evidence affidavit and on 01.12.2023, he tendered his evidence by way of affidavit as exhibited as Ex.PW2/A. On the same day, he was cross examined by Ld. Counsel for defendant no.1.
19. On 01.12.2023, Plaintiff evidence was closed and the matter was listed for DE.
EVIDENCE LED BY THE DEFENDANT NO. 1 CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 10 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN
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20. Defendant no.1 to defend her case have examined two witnesses i.e. Defendant No.1 herself as DW-1 and her husband namely Sh. Vinit Kumar as DW-3. Sh. Mohit Tomar, Assistant Ahlmad in the Court of Sh. Aridaman Singh Cheema, Ld. MM-03, Shahdara, Karkardooma Courts, Delhi was a summoned witness who was summoned on the application of the plaintiff for the purpose of confrontation of DW-1 during her cross examination. Sh. Mohit Tomar has produced the judicial file of case arising out of FIR No. 438/2015 registered at P.S. Welcome and he was also examined as DW-2.
21. DW-1 filed her evidence affidavit. On 29.02.2024, DW-1 tendered her evidence by way of affidavit as exhibited as Ex.DW1/A and also relied on following already exhibited documents i.e.:-
(1) Mark D-1(Colly.) (Running into 09 pages) - Copy of the revision petition;
(2) Mark D-2(Colly.) (Running into 06 pages) - Copy of the protest petition;
(3) Ex.DW1/3(Colly.) (Running into 05 pages)- Copy of the reply dated 06.05.2019;
(4) Mark D-3- Postal receipt;
(5) Mark D-4- Copy of the postal receipt dated 28.05.2019.
22. On the same day, DW-1 was cross examined by the Ld. Counsel for plaintiff. During her cross examination, she was shown CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 11 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:08:18 +0530 the certified copy of the final report in FIR No.87/2020 to which she has denied and the same was marked as Mark D-5 (colly).
23. DW-2 Sh. Mohit Tomar, Assistant Ahlmad in the Court of Sh. Aridaman Singh Cheema, Ld. MM-03, Shahdara District, KKD Courts Delhi who had brought the judicial file pertaining the case FIR No.438/2015 titled as "State Vs. Vipin Kumar". He had checked the photocopy of the certified copy and matched the same with the original record and same had been found true and correct. Same was exhibited as Ex.DW1/P1(Colly.) (Running into 5 pages). On the same day, DW-2 was cross examined by Ld. Counsel for defendant No. 1.
24. DW-3 Sh. Vinit Kumar filed his evidence affidavit and on 29.02.2024, DW-3 tendered his evidence by way of affidavit as exhibited as Ex.DW3/A. On the same day, he was cross examined by the Ld. Counsel for plaintiff.
25. On 29.02.2024, DE was closed and the matter was listed for final arguments.
26. Final arguments were heard on 28.05.2024, 02.08.2024 and 15.10.2024. The defendant no.1 had filed her written synopsis and plaintiff has filed the case laws.
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FINAL ARGUMENTS ON BEHALF OF THE PLAINTIFF
27. It is being argued on behalf of plaintiff that the registration of FIR, filing of charge sheet and discharge order dated 19.11.2018 passed in FIR No.448/2014 are not in dispute. It is further argued that plea of alibi of the plaintiff was accepted by the criminal Court and he got discharged in the criminal case arising out of FIR No.448/2014 registered at PS Shahdara. He further argued that defendant No.1 has falsely implicated the plaintiff in the FIR bearing No.448/2014 knowingly that she is levelling false allegations. It is further argued that defendant No.2 and 3 have not performed their duties properly and has not conducted investigation fairly and had filed charge sheet against defendant No.1 in FIR bearing No.448/2014 without considering and investigating his plea of alibi. It is further argued that after registration of FIR, defendant No.1 has also circulated the copy of aforesaid FIR and defamed him within relatives, family members and society due to which plaintiff has suffered great mental as well as physical torture, trauma, harassment and suffered losses. He further argued that the present suit is very much maintainable against the defendants and is not hit by the provision of Section 140 of Delhi Police Act. He further submits that plaintiff has proved his case by leading positive evidence and is entitled for decree as prayed for. Plaintiff also relied upon the following judgments i.e. (1) Unilin Beheer B.V. Versus Balaji Action CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 13 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:08:31 +0530 Buildwell CS(COMM) 1683 & CC(COMM) 38/2018; (2) Dr. Mehmood Nayyar Azam Versus State of Chattisgarh and Ors. Civil Appeal No.5703/2012; (3) West Bengal State Electricity Board V. Dilip Kumar Ray Civil Appeal 5188 of 2016; (4) R.K. Soni Vs. S. Singhara Singh, Suit 77/1987; (5) M. Abubaker and Ors. Abdul Kareem S.A.(MD) No.122 of 2013 and M.P. (MD) No.1 of 2013 and (6)Dalip Singh Versus State of U.P. and others Civil Appeal No.5329/2002.
FINAL ARGUMENTS ON BEHALF OF DEFENDANT NO.1
28. It is argued on behalf of defendant No.1 that the present suit is not maintainable in view of the Section 140 of Delhi Police Act against defendant No.2 and 3 as well as against defendant No.1. He further argued that the defendant No.1 is also protected under Section 140 of Delhi Police Act. It is also argued that the plaintiff has not filed the present suit within three months from the date of wrongful act/offence, therefore, the present suit is barred by limitation. It is further argued that plaintiff has not examined any independent witness to prove the contents of para No.14 and 17 of the plaint. It was further argued that no reputation of the plaintiff was damaged, therefore, he is not entitled for decree of damages/compensation against defendant No.1. He further argued that defendant No.1 has never circulated the FIR and never defamed the plaintiff within the CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 14 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:08:38 +0530 family members, relatives and society. He further argued that plaintiff has failed to prove his case. He further argued that PW2 Satya Narayan is an interested witness, however, his testimony is of no use for the plaintiff. He further argued that the present suit is liable to be dismissed with costs being not maintainable.
APPRECIATION OF EVIDENCE AND DETERMINATION OF THE CASE ISSUE WISE ISSUE NO. 1:- Whether plaintiff is entitled for sum of Rs.31,00,000/, as prayed for?
29. The onus to prove this issue is upon plaintiff. In order to discharge the onus to prove this issue, plaintiff examined two witnesses i.e. PW-1- plaintiff himself and PW-2- Sh. Satya Narayan.
During the defendant evidence, Plaintiff also summoned the Assistant Ahlmad of the Court of Sh. Aridaman Singh Cheema: Ld. MM-03, Shahdara, Karkardooma Courts, Delhi and he was examined as DW-
2.
30. It is well settled proposition of law that plaintiff has to prove his entire case in accordance with law and stand on his own legs. There is an essential distinction between burden of proof and onus of proof; burden of proof lies upon the person who has to prove a fact CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 15 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:08:44 +0530 and it never shifts but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.
31. It is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inferences. Plaintiff is required to produce best of evidence in his possession and he is not entitled to get the decree on the basis of failure of defendant to prove his right or title. Plaintiff cannot bank upon the weaknesses of defendant in order to prove his case and plaintiff has to stand on his own legs by producing the cogent materials. Failure of a party to prove its defence does not amount to admission nor it can reverse or discharge the burden of proof of the plaintiff.
32. In Tarwinder Kumar Bedi v. Jit Parkash (2014 SCC Online P&H 20259) the Hon'ble High Court of Punjab and Haryana has held that:
"6. In order to succeed in a suit for damages for malicious prosecution, plaintiff has to prove :-
a) that the plaintiff was prosecuted by the defendant;
b) that the prosecution ended in favour of plaintiff;CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 16 of 43 Digitally signed by DEEPANKER
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c) that the defendant acted without reasonable and probable cause;
d) that the defendant was actuated by malice."
The Hon'ble High Court has further observed that the onus to prove that the proceedings were initiated without any reasonable cause is always on the person who asserts in affirmative i.e. the plaintiff in the present case who seeks damages on account of alleged false accusation. The conditions precedent for filing the suit for malicious prosecutions are the aforesaid conditions which should co-exist before the defendant in a suit for malicious prosecution can be burdened with liability. No doubt it is true that the acquittal of a person in a criminal case sometimes gives presumption that there was no reasonable cause for his prosecution, but this presumption is rebuttable in nature and there cannot be any universally accepted phenomenon that in case prosecution fails then the accused would be entitled for damages. Otherwise in all those cases where prosecution fails, would give rise to damages in favour of the accused. In view of this, it would be more in consonance with justice and equity to weigh the lodging of accusation on the threshold of principles as enumerated above. The question which has been posed for consideration before the court is whether the prosecution lodged against the person before a criminal court of law, if found having been instituted falsely or maliciously can lay the foundation for filing CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 17 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:08:56 +0530 suit for damages for malicious prosecution. The proposition has been seen in the context of complicity whether simply, setting the criminal law in motion on account of presentation of complaint (whether the same is found false subsequently) gives arise to any cause of action. If the action is dismissed by the court in the very inception as the same does not disclose any complicity, then in such eventuality, the finding of the criminal court cannot be presumed to be conclusive in nature. The second situation arises, where acquittal is recorded by the Court or a complaint is dismissed on the ground that it does not disclose any cognizable offence. The findings recorded in such process may or may not have contained a finding that the prosecution case is based on falsehood and is thus frivolous. Recording of such findings are only for the purpose of dismissal of the complaint or criminal prosecution. A sharp distinction has to be drawn between the aforesaid course and the course which is required for an action for a malicious prosecution. In an action for malicious prosecution if the ingredients as mentioned above are not satisfied, then the courts are not obliged to connect the lis simply on the basis of alleged accusation based on filing of the complaint simpliciter. The court is required to record finding in an action for malicious prosecution on all the aforesaid ingredients with reference to evidence on record. ".
33. The meaning of malice and malicious prosecution has been explained by the Hon'ble Supreme Court in West Bengal State CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 18 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:09:03 +0530 Electricity Board v. Dilip Kumar Ray (2007) 14 SCC 568 as follows:
"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 had reasonable or probable cause of launching the criminal prosecution no amount of malice will make him liable for damages. Reasonable and probable cause must be such as would operate on the mind of a discreet and reasonable man; 'malice' and 'want of reasonable and probable cause.' have reference to the state of the defendant's mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them".
OTHER DEFINITIONS OF "MALICIOUS PROSECUTION".
"A judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it."
"A prosecution begun in malice, without probable cause to CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 19 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:09:10 +0530 believe that it can succeed and which finally ends in failure."
"A prosecution instituted willfully 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 willful, 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 willful, 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.
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2. 2. The cause of action resulting from the institution of such a proceeding.
Once a wrongful prosecution has ended in the defendant's favor, lie or she may sue for tort damages - Also termed (in the context of civil proceedings) malicious use of process. (Black, 7th Edn., 1999) "The distinction between an action for malicious prosecution and an action for abuse of process is that a malicious prosecution consists in maliciously causing process to be issued, whereas an abuse of process is the employment of legal process for some purpose other than that which it was intended by the law to effect - the improper use of a regularly issued process. For instance, the initiation of vexatious civil proceedings known to be groundless is not abuse of process, but is governed by substantially the same rules as the malicious prosecution of criminal proceedings." 52 Am. Jur. 2d Malicious Prosecution S. 2, at 187 (1970).
The term 'malice,' as used in the expression "malicious prosecution" is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives.
As a general rule of law, any person is entitled though not always bound to lay before a judicial officer information as to CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 21 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date: 2024.11.04 18:09:25 +0530 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 law of libel is termed a privileged CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 22 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date: 2024.11.04 18:09:32 +0530 occasion: but if the right is abused, the person injured thereby is, in certain events, entitled to a remedy. (See H. Stephen, Malicious Prosecution, 1888; Builen and Leake, Prec. P1., Clerk and Lindsell. Torts, Pollock, Torts; LQR. April 1898; Vin., Abr., tit. "Action on the Case" Ency. of the Laws of England.) "MALICIOUS PROSECUTION" means that the proceedings which are complained of were initiated from a malicious spirit, i.e, from an indirect and improper motive, and not in furtherance of justice. [10 CWN 253 (FB)] The performance of a duty imposed by law, such as the institution of a prosecution as a necessary condition precedent to a civil action, does not constitute "malice". (Abbott v. Refuge Assurance Co., (1962) 1 QB 432).
"Malicious prosecution" thus differs from wrongful arrest and detention, in that the onus of proving that the prosecutor did not act honestly or reasonably, lies on the person prosecuted." (per DIPLOCK U in Dailison v. Caffery, (1965) 1 QB 348)). (Stroud, 6th Edn., 2000).
'Malice' means and implies spite or ill-will. Incidentally, be it noted that the expression "mala fide" is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 23 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:09:39 +0530 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.".
34. The Hon'ble High Court of Delhi in Tirlok Chand Bansal v. Bharat Bhushan Bansal (Decided on 23.03.2017) has observed as follows:
"22. In my view all prosecutions ending in an acquittal cannot be said to be malicious. I have in Sannam Bharti Vs. D.T.C. 2013 SCC Online Del 3104 and in Akbar Ali Vs. State 2014 SCC Online Del 1547 held so. There is no presumption in law of a prosecution ending in an acquittal being malicious. Thus, a plaint in a suit for compensation for malicious prosecution merely stating that the plaintiff was prosecuted by or at the instance of the defendant and was acquitted, would not disclose a cause of action.
23. There can be manifold reasons for acquittal. Every acquittal is not a consequence of the prosecution being malicious. It cannot be lost site of that the remedy of compensation has been provided for malicious prosecution and not for wrongful or uncalled for or failed prosecution.
24. In Black"s Law Dictionary Eight Edition defines, malice "as CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 24 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:09:45 +0530 the intent, without justification or excuse, to commit a wrongful act and as reckless disregard of the law of a person's legal rights and ill will or wickedness of heart. It defines malicious prosecution as the institution of a criminal or civil proceeding for an improper purpose and without probable cause. The tort of malicious prosecution requires proof of (a) initiation or continuation of a lawsuit; (b) lack of probable cause; (c) malice and (d) and favorable termination of lawsuit. The plaintiff in a suit for malicious prosecution has to necessarily disclose in the plaint the ulterior reason or purpose for which the defendant prosecuted him".
35. In Suparti v. Shamshuddin (AIR 1928 All 337) it has been held that "In our opinion the judgments of the criminal Courts are conclusive for the purpose of showing that the prosecution terminated in favour of the plaintiff, but we doubt if the findings of the criminal Courts by themselves are any evidence of the malice or want of reasonable and probable cause. It is for the civil Court to go into all the evidence and decide for itself whether such malice or cause existed or not."
36. In Deepak Rathaur & Anr v. Shashi Bhushan Lal Dass (2016 SCC Online Del 5319) the Hon'ble Delhi High Court on this CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 25 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:09:54 +0530 point has observed that:
"8. The issue therefore is as to whether on account of the appellants/plaintiffs being acquitted in the criminal case this by itself can show that there is malicious prosecution of the appellants/plaintiffs by the respondent/defendant. In my opinion, the answer to that has to be in the negative because mere fact that there has been acquittal in the criminal case will not automatically prove malicious prosecution in as much as what is relevant to succeed in a civil suit for seeking damages for malicious prosecution is that it must be found that a criminal complaint case or an FIR was initiated without reasonable and probable cause."
37. The Hon'ble Supreme Court has categorically held in "Vishnu Dutt Sharma v. Daya Sapra (Smt.)" (2009) 13 SCC 729 that judgment in a criminal case between the parties which has resulted in acquittal is not binding on the civil court and any finding in the criminal proceedings by no stretch of imagination would be binding between civil proceedings. Therefore, I reject the argument urged on behalf of the appellants/plaintiffs that this Court should hold the respondent/defendant guilty on the basis of reasoning and conclusions contained in the Judgment dated 6.8.2007 of the Additional Sessions Judge."
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38. The observations of the Hon'ble High Court of Delhi in Tirlok Chand Bansal v. Bharat Bhushan Bansal [C.S. (OS) No. 470/2016 decided on 23.03.2017] may be noted herein: "The counsel for the plaintiff generally argued that the defendant wanted to harass and humiliate the plaintiff and drew attention to the said averments in the plaint. I am not satisfied that such general averments would qualify as a plea of malice. Though the counsel for the plaintiff has not cited any case law in this regard but the counsel for the defendant has drawn attention to Gangadhar Padhy Vs. Prem Singh 211 (2014) DLT 104 where I have on a conspectus of case law held that it is imperative for a plaintiff in a suit for compensation for malicious prosecution to show that the proceedings against him were instituted by the defendant for malicious motives i.e. for indirect or improper motive and that 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."
39. The Division Bench of Hon'ble High Court of Delhi in " Anil Dutt Sharma versus Union of India", 2015 SCC Online Del 7615, also held that an action of malicious prosecution is not favoured in law and should be properly guarded and its true principles strictly adhered to, since public policy favours the exposure of a crime and it CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 27 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date: 2024.11.04 18:10:08 +0530 is highly desirable that those reasonably suspected of crime be subjected to the process of criminal law for the protection of society and the citizen be accorded immunity for bonafide efforts to bring anti-social members of the society to the bar of justice.
40. The Hon'ble High Court of Punjab and Haryana in Tarwinder Kumar Bedi v. Jit Prakash (2014 SCC Online P&H 20259) that: "No doubt it is true that the acquittal of a person in a criminal case sometimes gives presumption that there was no reasonable cause for his prosecution, but this presumption is rebuttable in nature and there cannot be any universally accepted phenomenon that in case prosecution fails then the accused would be entitled for damages. Otherwise in all those cases where prosecution fails, would give rise to damages in favour of the accused." It has been further observed that "Mere filing of complaint does not give rise to any malicious prosecution resulting in causing loss of reputation in general public, friends, relatives of the person who is so targeted. On this front also in the absence of any evidence in affirmation, no loss can be presumed."
41. The essential ingredients required to be proved in a suit for damages for malicious prosecution are as under: - (a) prosecution by defendant; (b) absence of reasonable or probable cause; (c) defendant acted maliciously; (d) termination of proceedings in favour of CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 28 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:10:16 +0530 plaintiff and (e) plaintiff suffered damage as a result of the prosecution.
42. Therefore, in a suit for damages for malicious prosecution, plaintiff is also required to prove that defendant prosecuted him without reasonable and probable cause. The question relating to want of reasonable and probable cause should be decided considering all the facts and circumstances of the case. The onus of proof of absence of reasonable and probable cause rests on plaintiff. Similarly, plaintiff is also required to prove that defendant acted maliciously in prosecuting him and not with mere intention of carrying the law into effect. Malice need not be a feeling of enmity, spite or ill will or spirit of vengeance but it can be any improper purpose which motivates the prosecutor such as to gain a private collateral damage. Also, termination of proceedings in favour of plaintiff does not means absence of judicial determination of his innocence but it means absence of judicial determination of his guilt. No action can be brought when the prosecution or the proceedings are still pending. Furthermore, plaintiff can claim damages on the ground of damage to his reputation, his person and property.
43. It is not in dispute that the FIR No. 448/2014 dated 27.07.2014 at PS Shahdara for the offences punishable under Section 354-A/506/509/323 IPC was registered at the instance of defendant No. 1 against plaintiff, however, the said FIR was never exhibited CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 29 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date: 2024.11.04 18:10:23 +0530 during evidence and it was only marked as Mark-D.
44. The Plaintiff pleads that vide Order dated 19.11.2018 he was discharged by the Court in the criminal case arising out of the FIR No. 448/2014 dated 27.07.2014 registered at PS Shahdara, however, the certified copy of the said order of discharge was never exhibited during evidence. One copy to certified copy of the said order is placed on record which is part of Mark-D-5. However, the defendant No.1 admits that plaintiff was discharged vide Order dated 19.11.2018 and she has also filed a revision petition Mark D-1 against the said order.
45. This Court vide its Order dated 07/10/2024 has stated that perusal of the entire judicial file shows that the cause of action mentioned in the plaint is pre-mature. The Ld. Counsel for the plaintiff sought some time to file case laws to satisfy this Court that the cause of action mentioned in the plaint is not pre-mature. On 15/10/2024, Plaintiff relied upon the Judgment passed by the Hon'ble High Court of Punjab and Haryana in " Bhim Singh versus Gurmit Singh and Ors." 2024-PHHC-046041 [R.S.A. No. 289/1993 (O & M)] wherein it was held that Article 74 prescribes limitation to commence when the plaintiff is acquitted or the prosecution is otherwise terminated and said period commences from the date of the judgment passed in original proceedings/ the first order of acquittal CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 30 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:10:30 +0530 or termination. The institution of a revision does not extend the period of limitation under Article 74.
46. The Hon'ble High Court of Delhi in Tirlok Chand Bansal v. Bharat Bhushan Bansal [C.S. (OS) No. 470/2016 decided on 23.03.2017] after considering the views of different Hon'ble High Courts in (a) B. Madan Mohan Singh versus B. Ram Sunder Singh , AIR 1930 All 326 (DB); (b) Soora Kulasekara Chetty versus Tholasingam, AIR 1938 Mad 349 (FB); (c) Bhikkam Singh versus Darshan Singh, AIR 1942 Oudh 489; (d) S.K. Mehtab v Balaji, AIR 1946 Nag 46; (e) Jagdev Singh versus Pritam Singh, 1969 SCC Online P & H 184; (f) Ramvilas versus Gopal Lal, 1972 SCC Online Raj 195; (g) Ramdhan versus Kanmal, 1981 SCC Online Raj 146 (DB); (h) Laxmi Narayan Soni versus Roop Chand Soni , (2002) 99 DLT 186; (i) S.D. Tiwari versus Gurmeet Singh, 2008 SCC Online MP 377; (j) Krishna Gupta versus DD Sadhotra, AIR 2014 J & K 81;
(k) Chanda Chandra Dash versus Niramjan Panda, 1993 SCC Online Ori 334 and (l) Purshottam Vithaldas Shet versus Ravji Hari Athavale, AIR 1922 Bom 209 (DB), has held that the suit for compensation for malicious prosecution filed during the pendency of the appeal against the order of acquittal is held to be premature.
47. During the course of arguments, it has come to the notice of this Court that on 07/06/2019 the Revision petition bearing no. Crl.
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(R) 37/2019 was filed and the same was dismissed vide Order dated 09/09/2020 by the Ld. Appellate Court. The present suit was filed on 15/05/2019 and the summons were served upon the defendant no. 1 on 05/08/2019. Admittedly, on the date of institution, no revision petition has been preferred by the defendant but after filing of the present suit and prior to service of summons of the present suit, the revision petition was filed and the same was also decided on merits and not in limine. The Defendant No. 1 has also mentioned about the pendency of the revision petition in her written statement. The Plaintiff in his replication has not disputed the factum of pendency of revision petition. Moreover, during her cross-examination, DW-1 deposed that "It is correct that I have not challenged the dismissal order of revision petition before any other Court of law ." It is also noted that neither of the parties have filed the certified copy or copy of the Order passed in Revision petition although admitted during the course of arguments that the revision petition was dismissed on merits on 09/09/2020.
48. The Defendant No.1, prior to service of summons of the present suit, has preferred the revision petition challenging the order dated 19/11/2018 which was adjudicated on merits and the Plaintiff even after getting the knowledge about the pendency of the revision petition, continued with the present suit and subsequently also contested the revision petition on merits, therefore, considering the CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 32 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:10:45 +0530 above law laid down by the Hon'ble High Court of Delhi, this Court is of the view that the prosecution has not been terminated/ended in favour of the plaintiff and continuation of the present suit by plaintiff during the pendency of revision petition makes the entire proceedings of the present suit irrational, unreasonable and not maintainable in the eyes of law.
49. The then Ld. Metropolitan Magistrate vide its Order dated 19.11.2018 in "State Vs. Mahender Kumar", has discharged the plaintiff stating that "It has come on record that the accused is handicapped person and the same is apparent on his appearance before the Court. The complainant is relative of the accused and there was a monetary transaction between them in the past. The accused had claimed that a false complaint had been filed against him, in order to put pressure on him so that he may not insist upon return of the money from the complainant. The enquiry report submitted by the DCP makes it clear that investigation of the FIR was improper and unfair to the accused. His plea of alibi was overlooked by the IO and chargesheet was filed without considering the defence of the accused. There were monetary transactions between the accused and the complainant and as per the complaint dated 27.07.2014 of complainant, the accused Mahender had come to her house to demand back his money from her. Therefore, it is admitted from the point of view of the complainant that there was an CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 33 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:10:50 +0530 issue regarding a monetary transaction between the parties. In such circumstances, the plea of the accused that he had been falsely implicated at the behest of the complainant cannot be overlooked. It has come on record in the enquiry of ACP that the accused Mahender was present at Udaipur, Rajasthan at the time of the alleged incident. In view thereof, at this stage of framing of charge, this Court is of the opinion that there are no sufficient grounds for proceeding against the accused U/s 239 Cr.P.C.. He is accordingly discharged in this case." It is noted that there is no finding of the Criminal Court that defendant had initiated a false and frivolous case against plaintiff out of malice and without just and reasonable cause. It was for plaintiff to show by leading cogent evidence that defendant had filed a false and frivolous case thereby putting plaintiff to a great humiliation, contempt, discredit and disgrace in the eyes of people of the locality, society, relatives and neighbours; plaintiff was made laughing stock in the society and his entire reputation was ruined and also caused financial losses, because of implication in a false case by defendants. The findings of the Criminal Court are not evidence of malice or lack of reasonable and probable cause and it is for the Civil Court to look into evidence and decide if any malice had existed or not.
50. The Plaintiff beside him, also examined Sh. Satya Narayan as PW-2 who stated in his evidence affidavit Ex. PW-2/A that the plaintiff is his brother-in-law and defendant is the wife of his nephew.CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 34 of 43 Digitally signed by DEEPANKER
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He further stated that the defendant along-with her husband visit my house in last of July, 2014 and told me about FIR registered against plaintiff and they gave me copy of FIR. He further stated that both of them requested him to arrange a meeting of all the relatives to punish the plaintiff. But during his cross-examination conducted on 01.12.2023, PW-2 deposed that Sh. Vineet Kumar and Sh. Jai Bhagwan had come to his house in the last week of July, 2014 and he also arranged a meeting with his family members namely Sh. Pawan Kumar, Sh. Subhash Chand, Smt. Usha Kumari, Smt. Sangeeta Kumari, Smt. Krishna Kumari and Smt. Shanti Devi. He further deposed that "No other person was present in the said meeting except my afore-said family members." He further deposed that Sh. Jai Bhagwan along-with his son Sh. Vineet Kumar had brought one FIR and he handed over the copy of the said FIR to him. The testimony of PW-2 clearly proves that defendant has never visited the house of PW-2 in the month of July, 2014.
51. PW-2 further deposed that he did not go through the contents of the said FIR and he had torned the copy of the said FIR. PW-2 also did not state that defendant or his husband or Sh. Jai Bhagwan has read over the contents of the FIR to him or his other family members.
The Plaintiff has not disclosed the name of PW-2 Sh. Satya Narayan in his plaint, legal notice and evidence affidavit Ex. PW-1/A stating that the defendant No. 1 has circulated the copy of FIR to Sh. Satya CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 35 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:11:15 +0530 Narayan in order to defame him. The plaintiff has also not mentioned the name and particulars of the acquaintance, friend, relations and general public in his plaint before whom the defendant No.1 lowered down his reputation. The testimony of PW-2 is of no help for the plaintiff.
52. The plaintiff has also not produced the enquiry report of ACP, Shahdara. The plaintiff has also not examined any witness to prove the malice or absence of reasonable or probable cause. There is no specific allegation in the plaint mentioning malice or absence of reasonable or probable cause. The Hon'ble High Court of Madras in "Thangavel Udaya versus R.K. Raju Mudaliar", 1996 SCC Online Mad 459 has held that in the absence of a specific pleading regarding malice, a suit for malicious prosecution cannot be entertained.
53. Mere acquittal in criminal case does not always automatically lead to inference that there was malicious prosecution or defamation of plaintiff in the hands of defendant. It cannot be lost sight of that the remedy of compensation has been provided for "malicious prosecution" and not for "wrongful or uncalled for or failed prosecution". Plaintiff has to prove the reasonable and probable cause and damages suffered by leading cogent, reliable and independent evidence. The plaintiff could not have merely relied upon the Order passed by the Criminal Court in his favour. Even otherwise, any CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 36 of 43 Digitally signed DEEPANKER by DEEPANKER MOHAN MOHAN Date: 2024.11.04 18:11:23 +0530 finding in criminal proceedings is not binding in Civil Proceedings.
Hence, the fact that plaintiff has been discharge is not prima facie evidence that the allegations mentioned in the charge sheet against him was unreasonable and false particularly when he has not produced enquiry report of ACP, Tickets which shows that he was not in Delhi at the relevant time and has not produced independent evidence to establish that the registration of FIR was for an improper purpose and without probable cause. The plaintiff has to prove independently of discharge that his prosecution was malicious without reasonable and probable cause. Further, plaintiff also failed to prove circulation of FIR and defamatory statement by defendant nor set out the actual words used nor stated or proved that they were circulated or spoken to some named individuals or specified the time, place, when and where they were circulated or spoken.
54. The plaintiff has put the certified copy of charge sheet of FIR No.87/2020 registered at PS Shahdara to DW-1 during her cross examination which was denied by DW-1 and the same was marked as Mark D-5 (colly). The said charge sheet has been filed for the offences under Sections 182/211/406/34 IPC against defendant No.1. The plaintiff has not proved the said charge sheet in his evidence or even by calling the Investigation Officer of the said case, during trial. The material collected by the Investigating Officer of the case is yet to be scrutinized and adjudicated by the concerned Ld. Trial Court.
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The plaintiff has not led any independent evidence to prove the material collected by I.O. of FIR No.87/2020 in the present suit.
55. Further, it has come on record that the parties have not been maintaining cordial relationship, having inimical terms and also litigating with each other. Therefore, the possibility of prosecuting plaintiff without any reasonable doubt and probable cause is ruled out completely.
56. The plaintiff in the present suit has also failed to prove that the institution of prosecution was without reasonable doubt or probable cause, malicious intention and damage suffered by plaintiff. The case laws filed by the plaintiff have no relevance to the facts and circumstances of the present case.
57. The Ld. Counsel for defendant has also argued that the present suit is not maintainable in view of the provision of Section 140 of Delhi Police Act against defendant No.1 as well as defendant No.2 and 3. The defendant No.2 and 3 have not filed their written statement and have not taken the said objection. However, the same being the legal issue/objection, therefore, this Court deems fit to give its findings on the said issue/objection.
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58. Section 140 of the Delhi Police Act, 1978 provides-
"140. Bar to suits and prosecutions. (1) In any case of alleged offence by a police officer or other person, or of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or authority or in excess of an such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act complained of:
Provided that any such prosecution against a Police Officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence.
(2) In the case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall give to the alleged wrongdoer not less than one month's notice of the intended suit with sufficient description of the wrong complained of, and if no such notice has been CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 39 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date: 2024.11.04 18:11:46 +0530 given before the institution of the suit, it shall be dismissed.
(3) The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service and shall state what tender of amends, if any, has been made by the defendant and a copy of the said notice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner of service thereof".
59. The said provision does not give protection to the complainants/victims and therefore, defendant No.1 does not fall under the meaning of "other person" mentioned in Section 140 of Delhi Police Act. It cannot be the intention of legislature to provide immunity and protection to the complainant/victim from the suit or prosecution, if it has been found that the earlier litigation had been filed with the malafide intention and malice. The legislature has not provided any special provision in the Delhi Police Act which provides protection to the complaints/victims from being prosecuted for malicious prosecution. The Section 140 of Delhi Police Act does not provide protection to the defendant No.1 and the suit for malicious prosecution is maintainable against defendant No.1 subject to the averments mentioned in the plaint are proved in accordance with law.
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60. The plaint does not disclose that the defendant No.2 and 3 have not acted under their colour of duty or authority. The plaintiff has also not produced any material to show that the act of defendant No.2 and 3 are not protected under the provision of Section 140 of Delhi Police Act. The investigation and filing of charge sheet in FIR bearing No.448/2014 registered at PS Shahdara by defendant No.2 and 3 is obviously an act done under the colour of duty or authority, therefore, the present suit is bad and is not maintainable against defendant No.2 and 3 in view of the Section 140 of Delhi Police Act.
61. The Ld. Counsel for defendant No.1 has also argued that the present suit was not filed within three months from the date of wrongful acts allegedly committed by defendants, therefore, the present suit is also barred by law as per Section 140 of Delhi Police Act. The Hon'ble High Court of Delhi in Laxmi Narayan Soni Vs. Roop Chand Soni, (2002) 99 DLT 186 has held that it is only when the order of acquittal attains finality, the cause of action would arise for filing a suit for compensation on the ground malicious prosecution. However, this Court has already observed above that the continuation of the present suit during the pendency of the revision petition against the order of discharge is bad, unreasonable, irrational and not maintainable in the eyes of law. This Court has also observed CS No. 418/19 Mahender Kumar Vs. Mrs. Shivani & Anr. Page 41 of 43 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.04 18:12:02 +0530 that the provision of Section 140 of Delhi Police Act does not provide protection to defendant No.1, therefore, the arguments of limitation raised by Ld. Counsel for defendant No.1 is baseless, meritless and not sustainable.
62. In view of the above, it is proved on record that the essential ingredients of malicious prosecution are not satisfied in the present suit and plaintiff has miserably failed to prove that the prosecution has been terminated in his favour, absence of reasonable or probable cause, malice on the part of defendants and goodwill and image of plaintiff has been tarnished by defendants by registering the FIR No. 448/2014 dated 27.07.2014 at PS Shahdara for the offences punishable under Section 354-A/506/509/323 IPC. The plaintiff is not found entitled for decree of compensation against defendants.
63. The issue in hand is accordingly decided against plaintiff and in favour defendants.
RELIEF
64. In view of above findings, the suit of plaintiff is hereby dismissed on merits. Parties shall bear their own costs.
65. Decree sheet be prepared accordingly.
66. The present suit is accordingly disposed off.
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67. File be consigned to record room after due compliance.
Digitally signed by DEEPANKER DEEPANKER MOHAN
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Announced in the open Court (DEEPANKER MOHAN)
on this 04th day of November, 2024 DISTRICT JUDGE-04,
SHAHDARA DISTRICT
KKD Courts, Delhi
04.11.2024
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