Delhi District Court
Prem Kumar vs M/S North Delhi Power Ltd on 6 July, 2024
IN THE COURT OF DISTRICT JUDGE-2: NORTH ROHINI
COURTS COMPLEX: DELHI
CNR No. DLNT01-009621-2017
CS DJ 748/17
IN THE MATTER OF:-
PREM KUMAR
S/O SH. ROOP CHAND
R/O 1048-A, PANNA MANDAN,
NEAR PETROL PUMP WALI GALI,
NEAR MLA RESIDENCE, BAWANA,
DELHI-110039. ................PLAINTIFF
VERSUS
M/S NORTH DELHI POWER LIMITED
REGISTERED OFFICE AT :
GRID SUB STATION BUILDING, HUDSON LINES,
KINGSWAY CAMP,
DELHI-110009
ALSO AT:
ENFORCEMENT ASSESSMENT CELL
HRDI BUILDING, SECTOR-3,
CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 1 of 17
ROHINI, DELHI-110085 ....... DEFENDANT
Date of institution : 22.08.2017
Date on which judgment was reserved : 06.07.2024
Date of pronouncement of the judgment : 06.07.2024
SUIT FOR DAMAGES, AND HARASMENT FOR MALICIOUS
PROSECUTION OF RS. 3,58000/- (RUPEES THREE LACS FIFTY EIGHT
THOUSAND ONLY)
JUDGEMENT
1. By way of the present suit the plaintiff is seeking damages for malicious prosecution for Rs. 3,58,000/-.
PLAINTIFF'S CASE
2. That tersely put as per record it is the case of plaintiff that he is an ex-service man. He retired from Indian Military. He has a good reputation. It is pleaded that Sh. A.K. Gupta on 17.04.2011 filed a false complaint regarding theft of electricity. Inspection was carried out at premises of the plaintiff located near M.L.A. residence, petrol pump wali gali, village Bawana, Delhi (hereinafter referred to as the suit premises). It is pleaded that false complaint in the court of Learned Special Judge Electricity, North West Distt., Rohini bearing C.C. no. 515241/16 was filed on 18.08.2011. Pre summoning evidence was recorded. Cognizance was taken of offence under section 135 of the Electricity Act. Plaintiff was supplied documents under section 207 Cr.P.C. Charge under CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 2 of 17 section 135 of the Electricity Act was framed. Plaintiff pleaded not guilty. Plaintiff had to take leave from office for court appearance as post retirement he was working as Escort inspector in Delhi Transport Corporation.
3. Vide order dated 03.09.2016 the court of Special Judge Electricity North- West Distt., Rohini acquitted the plaintiff. Plaintiff suffered trial for approximately 5 years. The computation of damages is done as under:
Serial no. Particulars of special damage Fee paid to Sri Hans Raj, Rs. 35,000/- (Rs. Thirty Five thousands only) Pleader for defense Fee paid to his clerk Rs. 3000/- (Rs. Three thousand only) Expenses incurred in Rs. 20,000/- (Rs. Twenty thousand only). appearing in court in five years Loss of reputation and Rs. 3,0,000/- (Rs. Three lacs only) mental agony and physical harassment CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 3 of 17
4. Total Rs. 3,58,000/- (Rs. Three lacs Fifty Eight thousand only) are claimed on above heads.
CASE OF THE DEFENDANT
5. The pleaded case of defendant is that inspection was conducted on 07.04.2011. Same was done pursuant to statutory powers under the Electricity Act 2003 and D.E.R.C. regulations 2007. The proceedings were done in course of official duty. There was good faith and no malice. There was no bad intention on part of inspecting team. It is pleaded that defendant has protection of Section 168 of Electricity Act 2003. It is further pleaded that in the judgment of acquittal dated 03.09.2016 there is no finding that prosecution was without reasonable and probable cause or basis. It is further pleaded that it is not even the pleaded case of the plaintiff that there was enmity or rivalry between plaintiff and complainant officials. No motive has been pleaded by the plaintiff. It is pleaded that no case for grant of damages on account of malicious prosecution is made out. It is pleaded that report of inspection was not malicious or mischievous.
6. It is further pleaded that on 07.04.2011 inspection was conducted in early morning hours in the premises. A total load of 6.083 K.W. was found connected for domestic purpose. A direct theft bill of Rs. 68,918/- was raised /issued against the plaintiff in terms of section 135 of Electricity Act 2003 read with D.E.R.C. Regulations 2007.
7. On merits it was denied that plaintiff is working as Escort inspector with D.T.C. It was denied that plaintiff suffered loss of reputation, mental agony and physical harassment to the tune of Rs. 3 lakhs. The passing of judgment of acquittal is admitted in pleadings.
REPLICATION CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 4 of 17
8. Replication was filed by the plaintiff. All the facts of the plaint were reiterated and submissions in Written Statement were denied.
ISSUES
9. Vide order dated 09.05.2019 following issues were framed by the predecessor of this Court:
1. Whether there was any loss of reputation/mental agony and physical harassment to plaintiff by the acts of defendant?OPP
2. Whether the plaintiff is consequently entitled for compensation for Rs.
3,58,000/- along with interest? OPP
3. Whether the plaintiff is entitled for cost of the suit?
4. Relief.
PLAINTIFF EVIDENCE.
SR No. Name of witness Documents exhibited
of
witness
1. PW1 Prem Kumar His affidavit is Ex. PW 1/A. He relied upon
certified copy of the judgment dated
03.09.2016 passed by Learned Special Judge
(Electricity) Rohini which is Ex. PW 1/1
(total 15 pages ) (colly).
CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 5 of 17
10. P.E. was closed on 20.07.2023.
DEFENDANTS EVIDENCE
SR No. Name of witness Documents exhibited
of
witness
1. DW1 Sh. Ashutosh He tendered his evidence by way of affidavit Ex.
Tyagi DW1/A and he relied upon the following documents :
1. Copy of Inspection Report prepared at site bearing his signature at point A is Ex. DW1/1(OSR)
2. Seizure memo of removal of illegal single core wire bearing his signature at point A is Ex. DW1/2 (OSR)
3. The documents i.e. copy of complaint dated 30.05.2011 received in PS Bawana on 02.06.2021 mentioned in the affidavit as Ex. DW1/3 is now de-
exhibited and marked as Mark A (two pages, colly).
CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 6 of 17
11. D.E. was closed on 18.04.2024.
ISSUE-WISE ARGUMENTS ADDRESSED AND FINDINGS:-
12. The court has carefully heard the rival submissions by the counsel for the parties,entire material available on record has been perused. After careful and thoughtful consideration of respective submissions the following issue wise findings are being returned.
13. Issue no 1 & 2 are interconnected. They are taken up for disposal together.
ISSUE NO. 1 is as under :
" Whether there was any loss of reputation/mental agony and physical harassment to plaintiff by the acts of defendant?OPP"
ISSUE NO. 2 is as under :
"Whether the plaintiff is consequently entitled for compensation for Rs. 3,58,000/- along with interest? OPP."
14. The onus to prove these issues was upon the plaintiff.
15. Learned counsel for plaintiff has argued that as per the case of the plaintiff the defendant never actually visited the suit premises. It has come in cross examination of DW1 Sh. Ashutosh Tyagi that before raiding permission was taken from H.O.G. Permission was not placed on record. No record of attendance of raiding team was placed on record. Strong reliance is placed upon judgment of acquittal.
16. It is further argued that perusal of DW1/2 shows that wire was seized but the photographs on the next page do not pertain to property of the plaintiff. It is CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 7 of 17 further argued that even the photographer was not examined by the defendant. It is not proved that the seizure took place from the house of the plaintiff.
17. It is further argued that since the premises of the plaintiff has not been connected with the alleged inspection report, the case set up by the defendant is malicious and loss has been incurred. Counsel for plaintiff also argued that photographs do not pertain to house of the plaintiff and that seizure memo is planted.
18. Per contra learned counsel for defendant has argued that there are 5 ingredients to be proved in case of malicious prosecution which are as under:
i) The proceedings must have instituted or continued by the defendant.
(ii) The proceedings must have been unsuccessful, i.e. to say, must have terminated in favour of plaintiff who is now suing.
(iii) The defendant must have acted without reasonable and probable cause.
(iv) The defendant must have acted maliciously.
v) Plaintiff had suffered damages.
19. It is further argued in cross examination PW 1 admitted that he has not placed on record any document to show he is ex-serviceman from Indian Military or that he was working for D.T.C. as Escort Inspector. He has denied that he had any personal enmity with members of inspection team. He had further admitted that no deduction was made from salary on account of taking leave. He has further stated that he does not understand loss of reputation and mental agony to the tune of Rs. 3 lakhs as claimed in the suit. He has further admitted that no financial loss accrued to the plaintiff in service with D.T.C. due to filing of criminal complaint.
CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 8 of 17
20. Reliance is placed by counsel for the defendant on following case law:
i Radhey Mohan Singh Vs. Kaushalya Devi & Ors. 2003 IV AD (Delhi) 522 ii. Gangadhar Padhy Vs. Prem Singh 211 (2014) DLT 104 iii. Deepak Rathaur & Anr. Vs. Shashi Bhushan Lal Dass RSA No. 1/2016 decided on 23.09.2016 iv. West Bengal State Electricity Board Versus Dilip Kumar Raw 2007 14 SSC 568 v. M/s Bharat Commerce nnd Industries Ltd. Vs. Surendra Nath Shukla and ors. AIR 1966 (Cal) 388
21. Further reliance is placed by counsel for defendant upon section 168 of Electricity Act 2003 which is as under:
"168. Protection of action taken in good faith-- No suit, prosecution or other proceeding shall lie against he Appropriate Government or Appellate Tribunal or the Appropriate Commission or any officer of Appropriate Government, or any Member, officer or other employee of the Appellate Tribunal or any member, officer or the employee of the Appropriate Commission or the assessing officer or any public servant for anything done or in good faith purporting to be done under this Act or the rules or regulations made thereunder."
FINDINGS ON ISSUE NO. 1 AND 2:
FACTUAL MATRIX IN BRIEF
22. Tersely put it is plaintiff's case that he was prosecuted by defendant in case under Section 135 of Electricity Act. He was ultimately acquitted on 3/09/2016. He prays for compensation on account of fees paid to lawyer and his clerk for defence, expenses incurred for appearing in court and compensation for loss of reputation and mental agony.
CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 9 of 17
23. On the other hand defendant claims that their was no malice and plaintiff is not entitled to any compensation.
INGREDIENTS THAT REQUIRE PROOF IN A SUIT FOR MALICIOUS PROSECUTION AND THE BURDEN TO PROOF
24. In case titled as Raja Brija Sunder Dev Versus Ram Dev Dass reported in AIR 1944, PC1 it was held that :
"in and action for malicious prosecution the plaintiff must in the first instance prove two things :
(i) The defendant was malicious.
(ii) that he acted without reasonable and probable cause."
25. This judgment of Hon'le privy council was relied by Hon'ble High Court of Delhi in case titled as Sh. Deepak Rathaur & Anr vs Sh. Shashi Bhushan Lal Dass decided on 23 September, 2016(RSA No. 1/2016) and it was held:
"...The burden however, lies upon the plaintiff to prove that want of reasonable and probable cause. Another essential ingredient of an action for malicious prosecution is damage suffered by the plaintiff. A claim for malicious prosecution cannot be sustained without proof of damage. Thus, the Tort of malicious prosecution is essentially an action for damages and following elements must be proved by the plaintiff that :
(i) The proceedings must have instituted or continued by the defendant.
(ii) The proceedings must have been unsuccessful, i.e. to say, must have terminated in favour of plaintiff who is now suing.
(iii) The defendant must have acted without reasonable and probable cause.
(iv) The defendant must have acted maliciously.
CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 10 of 17
(v) Plaintiff had suffered damages."
26. The burden is upon plaintiff to prove that prosecution was without reasonable and probable cause and that it was malicious.
APPRECIATION OF ORAL EVIDENCE
27. A careful perusal of the cross examination of plaintiff as PW 1 shows that he has not placed on record any document to show he is ex-serviceman from Indian Military or that he was working for DTC as Escort Inspector. During the course of final arguments certain documents in this regard were filed by counsel for the plaintiff. Without proof of same as per law they cannot be considered in evidence. In cross examination Plaintiff has denied that he had any personal enmity with members of inspection team. He had further admitted that no deduction was made from salary on account of taking leave. He has further stated that he does not understand loss of reputation and mental agony to the tune of Rs. 3 lakhs as claimed in the suit. He has further admitted that no financial loss accrued to the plaintiff in service with D.T.C. due to filing of criminal complaint.
28. The relevant part of cross examination of PW-1 is as under:
"I am residing for the last 60 years in the aforesaid house alongwith my family members including my wife and two sons and one daughter who is already married. My daughter got married in the year 2011 and elder son was got married in the year 2020. At is correct that the marriage of my son and daughter were properly solemnized without any hindrance and any problem from the side of the society. It is correct that I have not placed on record any document to show that I am an ex-service man from Indian Military or that I was working with the DTC as an Escort Inspector. It is wrong to suggest that I am not employed with Indian Military or DTC as an Escort Inspector and that is why, I have not placed any record.vol. I have ID card issued from DTC. It is correct that I appeared before CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 11 of 17 the Hon'ble Court of Ms. Swaran Kanta Sharma in criminal No.515241/2016 filed by the defendant. It is correct that I have not personally known to Sh. A.K. Gupta who filed the complaint on behalf of the defendant before said Special Court. I also do not personally known to Saurav Jain, Ashutosh Tyagi and Surender Choudhary officials of the defendant who was member of the inspection. It is correct that I do not have any personal enmity with the abovenamed officials who were members of the inspection team inspected the premises. .....
....It is correct that I have not placed on record any leave application submitted with my employee to attend the court proceedings. It is correct that I had taken the leave but no deduction was made from my salary on account of taking leave......
....It is correct that the Hon'ble Special Court (Electricity Court) in the Judgment has held that the complainant company failed to prove its case beyond reasonable doubt and I was acquitted by giving benefit of doubt. It is correct that in para No.6 of my affidavit, I at my own, written that criminal complaint lodged against me, was false but there is no finding of the Special Court in the Judgment Ex.PW1/1 that complaint filed by the complainant company, is false or with malicious intention or without any reasonable and provable cause. It is correct that I have not placed on record any receipt A regarding payment of legal fees to my counsel for a sum of Rs.35,000/- as well as for clerk of the counsel. It is also correct that I have not placed any certificate of fees issued by my pleader in respect of receiving the legal fees of Rs.35,000/- for defending the criminal complaint case. It is correct that I also did not file any receipt or document showing that I have incurred expenses to the tune of Rs.20,000/- for appearing in the complaint case. It is wrong to suggest that since I have not paid any legal fees of Rs.35,000/- to the counsel for defending the criminal complaint case as such, I have not placed any CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 12 of 17 document in support of claim of Rs.35,000/- in this case, ....."
29. The admissions of plaintiff have nullified his right to claim compensation. The quantum of compensation has also not been proved.
30. It is correct that DW-1 could not tell number of house property where inspection was done. No permission from H.O.G. is on record. No record of attendance team was proved. Merely because record of permission from H.O.G. is not on record or supporting documents qua raid are not on record it cannot be said that seizure proceedings are forged,fabricated or malicious. Plaintiff could not show by evidence on record that prosecution by defendant was without reasonable and probable cause.
31. Plaintiff could not elicit any absence of reasonable and probable cause from DW1 Sh. Ashutosh Tyagi. In absence of proof that prosecution was without reasonable and probable cause, the plaintiff cannot be held entitled to any damages.
APPRECIATION OF DOCUMENTARY EVIDENCE ON RECORD.
PLAINTIFF'S RELIANCE UPON JUDGMENT OF ACQUITTAL
32. In a suit for damages, the plaintiff has to discharge the burden of proving the facts afresh and he cannot merely rely upon the criminal judgment passed in his favour resulting into acquittal. (Reliance for this proposition of law is placed upon case decided by Hon'ble High Court of Delhi in case titled as Sh. Deepak Rathaur & Anr vs Sh. Shashi Bhushan Lal Dass decided on 23 September, 2016(RSA No. 1/2016).
33. Thus the plaintiff was required to independently prove in the present proceedings the ingredients of malicious prosecution.
CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 13 of 17
34. Plaintiff to succeed is thus required to show malicious considerations which lead defendant to prosecute the complaint.
35. Plaintiff in his evidence has tendered the judgment of acquittal. In view of law laid down as discussed in para above the civil court is to independently examine the evidence before it. The judgment by criminal court can be relied only to limited extent to show their was a prosecution which ended in acquittal. Malicious prosecution has to be proved before civil Court by independent evidence. The oral evidence lead by plaintiff has already been dealt with in paras above, Plaintiff could not show that the prosecution was without reasonable and probable cause, the plaintiff cannot be held entitled to any damages.
36. DW-1 tendered his evidence by way of affidavit Ex. DW1/A and he relied upon the following documents :
i. Copy of Inspection Report prepared at site bearing his signature at point A is Ex. DW1/1(OSR) ii. Seizure memo of removal of illegal single core wire bearing his signature at point A is Ex. DW1/2 (OSR) iii. The documents i.e. copy of complaint dated 30.05.2011 received in PS Bawana on 02.06.2021 mentioned in the affidavit as Ex. DW1/3 is now de- exhibited and marked as Mark A (two pages, colly).
37. Submissions by learned counsel for plaintiff that photographs do not pertain to house of the plaintiff and that seizure memo is planted, has not been proved on record as no admission in cross examination of DW-1 was elicited by plaintiff to the effect that photographs do not pertain to house of the plaintiff and that seizure memo is planted.
CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 14 of 17
38. It was argued by counsel for plaintiff that length of wire in photograph and seizure memo does not tally. Photographer was not examined. It is correct that photographer was not examined by defendant. The same does not create a dent in defendants case. DW-1 was duly examined. No admission in his cross examination was elicited by plaintiff to the effect that raid is fabricated or case was lodged without reasonable and probable cause.
39. In totality of circumstances and in view of categoric admission by plaintiff in his cross examination that no enmity existed with the defendant employees, it can safely be said on the basis of preponderance of probability that plaintiffs has not been able to show that prosecution was without reasonable and probable cause. No malicious motive has been proved by the plaintiff.
STATUTORY PROTECTION IN FAVOUR OF DEFENDANT
40. Reliance is rightly placed by defendant upon section 168 of Electricity Act 2003 which is as under:
"168. Protection of action taken in good faith-- No suit, prosecution or other proceeding shall lie against he Appropriate Government or Appellate Tribunal or the Appropriate Commission or any officer of Appropriate Government, or any Member, officer or other employee of the Appellate Tribunal or any member, officer or the employee of the Appropriate Commission or the assessing officer or any public servant for anything done or in good faith purporting to be done under this Act or the rules or regulations made thereunder."
Further Section 3 (22) of THE GENERAL CLAUSES ACT, 1897 is as under:
("22) a thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether it is done negligently or not;"
CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 15 of 17
41. Keeping in view admission by plaintiff in his cross examination that no enmity existed with the defendant employees, it can safely be said on the touchstone of preponderance of probability that plaintiff has not been able to show that prosecution was without reasonable and probable cause. No malicious motive has been proved by the plaintiff. The defendants are statutorily protected under section 168 of Electricity Act 2003 read with Section 3 (22) of THE GENERAL CLAUSES ACT, 1897. It has not been proved that action of defendant lacked good faith. Even negligent act is protected in terms of definition provided under The General Clauses Act, 1897.
42. Issues 1& 2 are decided against the plaintiff.
ISSUE NO. 3:
"Whether the plaintiff is entitled for cost of the suit?"
43. As per the case of the plaintiff he had to pursue the present case and he is entitled to exemplary costs. Per contra counsel for the defendant states that suit for malicious prosecution is not maintainable, so plaintiff is not entitled to any costs.
FINDINGS ON ISSUE NO 3:
44.The laudable object of Section 35 C.P.C in awarding costs to a litigant is to secure to him expenses incurred by him in the litigation. In view of the findings on issues no 1 & 2 plaintiff has not been able to show that criminal prosecution was without reasonable and probable cause. Plaintiff is thus not entitled to costs. In peculiar facts of the case, wherein the plaintiff was acquitted by criminal court and he pursued present suit for compensation, both the parties are directed to bear their own costs. issue no 3 is decided accordingly.
CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 16 of 17 RELIEF
45. On the basis of the issue-wise findings of this Court , the suit of the plaintiff is hereby dismissed. Parties are directed to bear their own costs.
46. Decree sheet be drawn accordingly.
47. File be consigned to record room only after due completion and necessary action, as per Rules. VIKRAM Digitally signed by VIKRAM BALI BALI Date: 2024.07.06 17:15:37 +0530 (VIKRAM BALI) DISTRICT JUDGE-2/NORTH/ ROHINI COURT/DELHI/06.07.2024 CS DJ 748/17 PREM KUMAR VS. M/S NORTH DELHI POWER LIMITED page no. 17 of 17