Delhi District Court
Sh. Anoop Kumar vs Sh. Rajesh Rathi on 29 April, 2019
IN THE COURT OF SH. SANJEEV KUMARI, ADDITIONAL DISTRICT
JUDGE12, TIS HAZARI COURTS, DELHI
CS No. 12246/16
Sh. Anoop Kumar,
S/o Sh. Ishwar Swaroop,
R/o C110, Marjlish Park,
Street No. 7, Delhi - 110033. .... Plaintiff.
Versus
1. Sh. Rajesh Rathi,
Sub Inspector, Delhi Police,
No. D3140, Old Police Line,
Delhi.
Also at :
E12, Maharaja Ranjeet Singh Road,
Adarsh Nagar, Delhi - 110033.
2. Sh. Sunil Kumar,
Sub Inspector, Delhi Police,
No. D562, P.S. Delhi cantt., Delhi.
3. Sh. V.S. Dangi,
Sub Inspector, Delhi Police,
CBT Branch, Special Protection,
Group Cell, Prime Ministers House,
New Delhi.
Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 1 of 54
4. Sh. V.P. Khurana, A.E.,
R/o B121, Prashant Vihar, Delhi.
5. Inspector S.S. Saxena,
115, Vasudha Apartment,
Sector9, Rohini, Delhi - 110085.
6. State of Delhi,
Through Chief Secretary,
Govt. of NCT of Delhi,
Players Building, I.P. Estate,
New Delhi. ..... Defendants.
Date of institution : 28.07.2005
Date of reserving Judgment : 14.03.2019
Date of decision : 29.04.2019
SUIT FOR RECOVERY OF RS. 20,00,000/.
JUDGMENT
Vide this Judgment, I shall decide the suit for recovery of Rs. 20,00,000/ as damages for malicious prosecution filed by the plaintiff.
2. Brief facts as stated in the plaint are that :
(1) the plaintiff is posted in DTTDC as Assistant of GradeI and he has a very high reputation amongst seniors and colleagues of the corporation as well as among the members Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 2 of 54 of the society and other nears and dears. His children were imparted education in a very high reputed public school and throughout his carrier, he has never indulged into unlawful activity.
(2) In the year 1993, his wife has purchased the property bearing No. A308/1, Vijay Vihar, Sector5, Rohini, Delhi -
110085 and for that purpose, (3) She has entered into an agreement with DTTDC and became a licencee / authorized person to sell liquor. (4) On 30.9.1997, defendant Nos. 4 and 5 along with defendant Nos. 1, 2 and 3 and staff of erstwhile DVB and local police conducted raid in Vijay Vihar on different premises including the wine shop run by DTTDC in the premises owned by his wife and they found various persons indulged into fraudulent abstraction of energy and accordingly a case registered against the persons who were indulged in the fraudulent abstraction of energy numbering about 18. (5) The premises though belonged to his wife but neither he nor his wife were present nor there was any fraudulent abstraction of energy.
Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 3 of 54 (6) On the complaint of defendant no.4 defendant FIR 986/97 in PS Mangol Puri was registered on 7.10.1997 and without verifying the facts, inserted the name of the plaintiff in the list of those persons who were allegedly found stealing energy from LV mains and by the defendant No. 4.
(7) That investigation was handed over to defendant No. 1. and the plaintiff was formally arrested by defendant No. 1 in case FIR No. and chargsheet was filed against him and he was remained confined in the Jail till he was released on bail. (8) Plaintiff was put to trial and found guilty by the court of Sh. Chandra Bose and was sentenced to pay a sum of Rs. 5000/. (10) Plaintiff filed appeal against the said Judgment and the court of Sh. R.P.S. Teji, Ld. ASJ has allowed the appeal vide Judgment dated 5.4.1999 and acquitted him with the direction to refund fine deposited by him and thus, he was malaciously prosecuted by the defendants which has caused loss of his reputation and hardship as he has to remain in jail and to face trial for long period of 8 years and thus, defendants are liable to compensate for a sum of Rs. 20 lacs.
3. The defendant No.1 who is Sub Inspector and Investigating Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 4 of 54 Officer (IO) has filed written statement in which he has stated that he is working as SI in Delhi Police and in his official capacity, whatever he has done, he has done in his official capacity and therefore, the suit in his individual capacity is not maintainable. He also averred that suit is barred for non impleading of Delhi Police, Home ministry Govt. of India as required under Section 79 of CPC.
On merits, he has denied that he was member of raiding party who has conducted the raid on 30.9.1997 along with defendant Nos. 4 and 5 at Vijay Vihar. He further stated that the defendant No. 1 was neither aware nor he has been informed by anybody that Smt. Uma Devi was the owner of the premises / shop. He further denied that the plaintiff was falsely implicated in the case and thus, he is not entitled to any damages on account of malacious litigation.
He further averred that the A.E. Zone No. 1, DVB, Rohini has lodged a complaint to the Police Station Mangolpuri about stealing of electricity directly from the DVB LV Mains and on the basis of his complaint, FIR No. 996/1997 under Section 39 of the Indian Electricity Act read with Section 379 of Indian Penal Code was registered against the plaintiff. Plaintiff was arrested and after investigation, chargesheet was filed. He was convicted by the court of Sh. Chandra Bose but in appeal he was Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 5 of 54 acquitted by the court of Sh. RPS Teji on the technical ground. Hence, in these circumstance defendant has not maliciously prosecuted him therefore suit is liable to be dismissed,
4. Plaintiff, in the replication to the written statement of defendant No. 1, has denied the contents of the written statement and has reiterated the averments as made in the plaint as correct.
5. In the written statement filed by defendant No. 2, he has stated in preliminary objections that the suit is not maintainable against him as plaintiff has not leveled any allegation nor has sought any relief against him. On merits, he has denied the contents of the plaint for want of knowledge and has stated that he was neither a member of the raiding party nor investigating office hence, has nothing to do with the prosecution of the plaintiff. Therefore, suit is liable to be dismissed qua him.
6. In the written statement filed by the defendant No. 3, he has stated that the suit is not maintainable for non compliance of Section 79 of the CPC and submitted that he was working as SI in Delhi Police and he has almost stated same facts in his written statement as stated by the defendant No. 1 in his written statement. Besides this, he has stated that raid was conducted by the officials of erstwhile DVB and he was accompanied them just to provide security to the Government officials and Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 6 of 54 to maintain law and order at the time of said raid. Further, he denied that it was told that the premises was owned by Smt. Uma Devi.
7. In the replication to the written statement of defendant No. 3, plaintiff has denied the contents of the written statement as wrong and reiterated the contents of plaint as correct.
8. Defendant Nos. 4 and 5 filed their joint written statement in which they have stated that suit is not maintainable against them as per provisions of Order 27 Rule 5A of CPC. Further, it is stated that the enforcement department of the erstwhile DVB carried out the inspection to detect theft of energy on 30.9.1997. The plaintiff has not arrayed the successor of the erstwhile DVB now the NDPL as a party to the present suit. The defendants cannot be sued personally in their individual the capacity as they were performed their official duty. Further, it is stated that the plaintiff has nowhere stated that the officials of the erstwhile DVB had any enmity or they were bent upon to prosecute the plaintiff without any reasonable cause of justification. The officials of the DVB in order to curb the rampant theft of electricity in the NCT of Delhi, carried out an inspection on 30.9.1997 in which the plaintiff was indulged in direct theft of electricity. The said inspection was in routine and several inspection was carried out in different parts of NCT of Delhi to detect theft of electricity. The prosecution Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 7 of 54 against the plaintiff was lodged in the routine manner and there was no ill will or enmity against the plaintiff. The said inspection team has reasonable grounds for thinking that the plaintiff was guilty of theft of electricity. The said inspection dated 30.9.1997 has not been set aside by any civil court.
On merits, it is admitted by the defendant Nos. 4 and 5 that an inspection was carried out on 30.9.1997 by the officials of enforcement department of the erstwhile DVB in Vijay Vihar area of District Rohini to detect the theft of electricity and the members of the inspection team prepared the joint report at site mentioning the name of persons indulged in the direct theft of electricity and the plaintiff is one of them and his name appeared at serial No. 8. Further, it is stated that the defendant No. 4 Sh. V.P. Khurana, the then A.E. was on leave on that day and Sh. S.K. Saxena, defendant No. 5 joined inspecting team to coordinate the raid being inspector of the area / zone. It is stated that the members of the inspecting team were Sh. T.S. Thomas, Sh. S.S. Antil, Sh. S.S. Saxena, Sh. V.S. Dangi and joint inspecting team booked the persons involved in direct theft of electricity and FIR was lodged against the concerned persons under Section 39/44 of the Indian Electricity Act, 1910 read with Section 379 of IPC and as per practice, rules and guidelines issued by the erstwhile DVB / DESU, the A.E. Zone has lodged the FIR upon findings of inspection report Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 8 of 54 as per rules. Further, it is stated that at the time of joint raid, the employees of wine shop were present at site and mentioned the name of user as Sh. Anoop Singh and accordingly, the members of inspecting team prepared inspection report on the basis of which FIR was lodged against Anoopo Kumar i.e. the plaintiff and the police have proper investigation, filed the chargesheet against the plaintiff. The plaintiff was convicted by the court of Sh. Chandra Bose. This established the fact that the prosecution was not leveled against the plaintiff without reasonable cause. Further, he was acquitted from the Criminal Court as a standard of proof in a criminal case is higher and the prosecution has to prove its case beyond reasonable doubt. Hence, it is submitted that the plaintiff is not entitled to the claim for damages therefore, the suit is liable to be dismissed.
9. Plaintiff has filed replication in which he denied the contents of written statement of defendant Nos. 4 and 5 as incorrect. He stated that since it is not in dispute that joint raid was conducted in the area of Vijay Vihar, Rohini and the defendants prepared a report which included the name of plaintiff and accordingly FIR was registered against the plaintiff as well and the plaintiff is not aware of the names and details of all members of the raiding party but the defendants were cited as prosecution witnesses against the plaintiff and therefore, these two defendants are responsible for Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 9 of 54 inserting the name of plaintiff without property verification about the real ownership of the premises or real culprit therefore, the defendant Nos. 4 and 5 are responsible for malacious prosecution.
10. On the basis of the pleadings of the parties, the Ld. Predecessor has framed following issues vide order dated 26.9.2012 for consideration :
1. Whether the plaintiff is entitled to damages in the amount of Rs. 20 lacs only from the defendants on account of malacious proceedings? OPP.
2. If issue No. 1 is decided in affirmative, whether liability of defendants in this regard is joint or separate? OPP.
3. Whether suit is not maintainable in the present form? OPP.
4. Whether the suit is without any cause of action?
OPD.
5. Relief.
11. In order to prove his case, plaintiff has examined herself as PW1. He also examined Sh. Om Prakash Tandan as PW2 who is his neighbour and Sh. Sunil Khanna as PW3.
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12. On the other hand, defendants have examined Sh. V.P. Khurana as D4W1 who led his evidence by way of affidavit as Ex. D4W1/A and Sh. S.S. Antil, D4W2. Sh. Anirudh Kumar Sinha as D4W5, Sh. Raj Kishan as D4W4 and Sh. V.B. Dangi as D3W1.
13. During pendency of the case, defendant No. 1 Sh. Rajesh Rathi and defendant No. 5 Sh. S.S. Saxena expired and the application filed by the plaintiff to implead their legal heirs was dismissed vide order dated 18.9.2009.
14. During pendency of the suit, an application was filed under Order 1 Rule 10 CPC to implead Government of NCT of Delhi as party and the same was allowed vide order dated 19.5.2008.
15. Arguments heard on behalf of the parties as advanced by their respective counsels. I have considered the submissions and have gone through the case file. My issuewise findings are as follows :
16. ISSUE NOS. 1.
Whether the plaintiff is entitled to damages in the amount of Rs. 20 lacs only from the defendants on account of malacious proceedings? OPP.
In order to prove his case, plaintiff has examined three witnesses. He has examined himself as PW1 and has led his evidence by Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 11 of 54 way of affidavit in which he has almost repeated the same contents as stated by him in his plaint. He has deposed that the plaintiff is posted in DTTDC as Assistant of GradeI and he has a very high reputation amongst seniors and colleagues of the corporation as well as among the members of the society and other nears and dears. His children were imparted education in a very high reputed public school. In the year 1993, his wife has purchased the property bearing No. A308/1, Vijay Vihar, Sector5, Rohini, Delhi - 110085. On 30.9.1997, defendant Nos. 4 and 5 along with defendant Nos. 1, 2 and 3 and staff of erstwhile DVB and local police conducted raid in Vijay Vihar on different premises including the wine shop run by DTTDC in the premises owned by his wife and they found various persons indulged into fraudulent abstraction of energy and accordingly a case registered against the persons who were indulged in the fraudulent abstraction of energy numbering about 18. The premises though belonged to his wife but neither he nor his wife were present nor there was any fraudulent abstraction of energy in the said wine shop but the defendants without verifying the facts, inserted the name of the plaintiff in the list of those persons who were allegedly found stealing energy from LV mains and FIR was registered on 7.10.1997 by the defendant No. 4 and investigation was handed over to defendant No. 1. The defendant No. 1 along with other Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 12 of 54 staff went to the official place of the plaintiff and he was arrested by defendant No. 1 in case FIR No. 986/97 and was remained confined in the Jail till he was released on bail. He put to trial and found guilty by the court of Sh. Chandra Bose and was sentenced to pay a sum of Rs. 5000/. He filed appeal against the said Judgment and the court of Sh. R.P.S. Teji, Ld. ASJ has allowed the appeal vide Judgment dated 5.4.1999 and acquitted him with the direction to refund fine deposited by him and thus, he was malaciously prosecuted by the defendants which has caused loss of his reputation and hardship as he has to remain in jail and to face trial for long period of 8 years and thus, defendants are liable to compensate for a sum of Rs. 20 lacs. He relied upon the following documents :
1. Certified copy of Judgment dated 5.4.2005 as Ex.
PW1/A.
2. Returned envelopes along with AD Cards of sending notice under Section 140 of Delhi Police Act to the police officials as Ex. PW1/B to Ex. PW1/G.
3. AD card of notice sent at residential address to defendant Nos. 1, 2 and 3 as Ex. PW1/H.
4. Returned envelopes of the notice sent to defendant Nos. 4 and 5 as Ex. PW1/I and Ex. PW1/J. Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 13 of 54
5. AD card of notice sent to defendant Nos. 4 and 5 at their residential address as Ex. PW1/K and Ex. PW1/L and relevant postal receipts as Ex. PW1/M.
6. Courier receipts as Ex. PW1/N (Colly.).
7. Three notices as Ex. PW1/O, Ex. PW1/P and Ex.
PW1/Q. Returned envelope as Ex. PW1/R.
8. Replies received on behalf of defendant Nos. 3 and 4 as Ex. PW1/S and Ex. PW1/T.
17. In his cross examination, he stated that his wife had a liquor shop in the year 1997 under licence from DTTDC and the address of the said shop was A308, Vijay Vihar PhaseI, Delhi. He did not know about the address B6 Vijay Vihar. He can show copy of the agreement between his wife and DTTDC but was not sure about the availability of said document. At present, the said shop is not in operation. He did not know whether any electricity connection was in the shop of his wife or not. In a specific question that why he has made TPDDL as necessary party, he has stated that he does not know to whom parties to be made or not. He stated that appeared before the court of Ld. MM in criminal proceedings and got a copy of chargesheet. He admitted that the copy of DVB inspection report dated 30.9.1997 was supplied to him along with other documents in the Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 14 of 54 court of Ld. MM. He cannot say whether V.P. Khurana was the member of inspecting team or not. He denied the suggestion that the officers of DVB inspected the premises while discharging their official duty and he denied the suggestion that he has no right to file the suit against V.P. Khurana and S.S. Saxena as they were not acting in their personal capacity. Property No. A308/1, Vijay Vihar, PhaseI, Delhi is owned by his wife Uma Devi. He denied the suggestion that there was a case of direct theft on 30.9.1997 in shop owned by his wife and voluntarily stated that the shop was on rent to DTTDC and he had no knowledge about any electricity theft. He stated that he has assessed an amount of Rs. 20 lacs as gross loss accrued to him in all aspects i.e. to his family and health of his father. He does not know as to when the electricity connection was installed at the shop in question. He stated that DTTDC was the owner of the shop. He stated that he has not served any legal notice to defendant No. 3 at any point of time.
18. Sh. Om Prakash was examined as PW2 who was the neighbour of the plaintiff who led his evidence by way of affidavit Ex. PW2/A in which he deposed that the being neighbour of the plaintiff used to meet him in the year 1997. Plaintiff told him about his false arrest in the case related to the raid by the DESU and by Delhi Police. He felt very sad about the same. Plaintiff was convicted in the said case in the Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 15 of 54 year 2004 for no fault of his and after few days, plaintiff told him that he had filed the appeal in which he was acquitted.
19. In his cross examination, it is stated that in th year 1997, DESU was supplying electricity and presently, electricity is supplied from TPDDL. The plaintiff did not disclose him about electricity theft case but he came to know from his father and brother about the same. He has no knowledge whether there was any electricity connection in the year 1997 at the address A308/1, Vijay Vihar and he also had no knowledge that the electricity in the year 201011.
20. PW3 Sh. Sunil Khanna is also the neighbour of the plaintiff and he almost deposed on the same facts in his affidavit as deposed by PW2. In his cross examination, he deposed that he cannot tell when he met lastly in the year 1997 and he used to meet almost everyday. In the year 1997, DESU was supplying the electricity and presently TPDDL is supplying electricity for the last 34 years. He has never visited the house A308/1.
21. On the other hand, defendants have examined Sh. V.P. Khurana / defendant No. 4 as D4W1 who led his evidence by way of affidavit Ex. D4W1/A. He has deposed that in the year 1997, he was posted as A.E. Zone1 with the erstwhile DVB and posted in Rohini Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 16 of 54 which was taken over by NDPL in June, 2002 and thereafter, by TPDDL. The inspection was conducted on 30.9.1997 by the joint inspection team at the premises including wine shop of DTTDC situated opposite A2 Pocket, SectorV, Rohini, New Delhi where direct theft of electricity was found and as per instruiction of joint team dated 30.9.1997, he raised bill to the tune of Rs. 5198/ and the same was tendered to Sh. Anoop Singh who refused to accept the same. Thereafter, he lodged a police complaint on 7.10.1997 vide IR No. 592790 and he has received a notice dated 2.6.2005 sent by Sh. M.S. Rohila, Advocate on behalf of the plaintiff. He relied upon the following documents :
1. Copy of inspection report as Ex. D4W1/1.
2. Copy of bill as Ex. D4W1/2.
3. Police complaint dated 7.10.1997 as Ex. D4W1/3.
22. In his cross examination, he has deposed that the bill which he has raised on the basis of inspection report was raised in the name of Anoop Singh, plaintiff which is Ex. D4W1/3. He did not know as per their record, there was any electricity meter at the premises in question in the name of Anoop Singh. The bill bears his signatures. On 1.10.1997, he was available in his office. He personally not gone to the place in question i.e. the shop of DTTDC at Vijay Vihar. There is no document to Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 17 of 54 show that Anoop Singh had attended their office on 1.10.1997. He denied the suggestion that the inspection team neither directed Anoop Singh to attend his office or that bill Ex. D4W1/3 was never tendered to him. In response to the question whether inspecting team carried out any verification and accordingly submitted any document / report to the witness to show that the plaintiff was connected with the said premises in any manner whatsoever, he answered that no such document or report was submitted by the inspecting team relating to Anoop Singh showing any connection with the premises in question. He stated that he did not come across to any document after filing of the case that Anoop Singh is connected with the said premises. He admitted that he had seen all the documents placed by them on record and in none of the document, the parentage of Anoop Singh and his residential address is not mentioned. He admitted that even at the time of lodging of FIR, he had not verified either the parentage or the residential address of the plaintiff. He did not know whether on that day, Anoop Singh was the manager of the shop. He admitted the suggestion that the electricity bill can be paid by anybody even if it is raised in somebody else's name.
23. Defendant No. 4 / Sh. S.S. Anil was examined as D4W2 who led his evidence by way of affidavit as Ex. D4W2/A in which he has Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 18 of 54 deposed that he was posted as Inspector in Enforcement Department with the erstwhile DVB. He was also members of the joint raiding team. On that day, raid was conducted at 18 premises. The report was prepared which bears his signatures. The premises including wine shop of DTDC situated opposite A2, Pocket, SectorV, Rohini where direct theft of electricity was found.
24. In his cross examination, he stated that there were 810 persons including him in the police officials. They had not prepared the inspection report but prepared consolidated report Ex. D4W1/1. They inquired from the persons available at the spot as to who was the owner of the premises where the thefts was being committed. Those persons were labours and workers of the respective premises. He had not noted down the name and addresses of those persons whom he inquired about the ownership of respective premises. Joint inspection team prepared a report on the spot. Inspection report was handed over to the Zonal Officer on the same day. Even after submitting the report, he had not verified about the ownership of the persons with regard to the premises where theft was allegedly taken place. The workers of DTTDC have disclosed the name of Anoop Singh but which was mentioned at serial number 8 in the inspection report.
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25. Sh. Anirudh Sinha, Assistant Manager, CMG, Tata Power Ltd., was examined as D4W5 who has produced the summoned record and relied upon following documents :
1. Copy of application bearing No. 10118356 dated 3.4.2010 as Ex. D4W5/1 (OSR).
2. Copy of installation test notice dated 7.4.2010 as Ex.
D4E5/2 (OSR).
3. Copy of undertaking for no objection to the electrification work by NDPL as Ex. D4W5/3 (OSR).
4. Copy of general power of attorney dated 15.12.2003 as Mark D4W5/A.
5. Copy of voter ID card of Smt. Uma Devi as Mark D4W5/B.
6. Copy of voter ID card of Sh. Anoop Kumar, husband of plaintiff as Mark D4W5/C.
7. Copy of another application bearing No. 10111115557 dated 24.2.2011 as Ex. D4W5/4 (OSR).
8. Copy of installation test notice dated 7.4.2010 as Ex.
D4W5/5 (OSR).
26. In his cross examination, he stated that the only connection Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 20 of 54 between the summoned record and the plaintiff that he is the husband of applicant.
27. Sh. Raj Kishore, Assistant Officer, TPDDL was examined as D4W4. He has produced the summoned record and relied upon the following documents :
1. Application of Smt. Uma Devi for fresh electricity connection as Ex.PW5/ D4W4/1 (OSR).
2. Copy of receipt of payment against demand note dated 23rd February for a sum of Rs. 4295/ as Ex.
D4W4/2 (OSR).
3. Copy of bill against CA No. 6003182585 as Mark DW4A.
4. Copy of statement of account of CA No. 6003182585 as Mark DW4B.
28. In his cross examination, he stated that the only connection between the summoned record and the plaintiff that he is the husband of applicant.
29. Sh. V.S. Dangi, defendant No. 3 was examined as D3W1 who has led his evidence by way of affidavit as Ex. D3W1/A in which he has deposed that he was working as Inspector of Delhi Police on Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 21 of 54 7.10.1997. On that day, raid was conducted by officials of erstwhile DVB and his role was only to provide protection to the Government officials and maintain law and order. He was not at all connected with the FIR No. 996/1997 registered against the plaintiff.
30. In his cross examination, he deposed that the fact that A.E. of erstwhile DVB has lodged a complaint in the specific name of plaintiff being owner of the said premises was known to him when he received copy of FIR from SI Rajesh Rathi who was the IO of the case FIR No. 996/1997. Sh. Rajesh Rathi ws not the member of raiding party so was plaintiff was not arrested from the sport. The fact that the plaintiff paid the entire bill and in other words, there was theft as mentioned in para 20 of the written statement and the fact that it means that the plaintiff has committed theft in para 2 of his affidavit has been mentioned by him as told by SI Rajesh Rathi.
31. Ld. Counsel for the plaintiff has contended that the defendants despite knowledge that plaintiff was neither the owner nor the user of the premises where alleged theft of electricity was committed which is prove from acquittal of the plaintiff. Hence it is prove that plaintiff was maliciously prosecuted which lower his reputation in the family and society therefore plaintiff is entitle to the damages of Rs. 20 Lakh.
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32. On the other hand, it is strongly urged by counsel for defendants that the major premise on which the plaintiff has brought a suit for malicious prosecution against the defendants is the acquittal of plaintiff by the Additional Sessions Judge and it is on the basis of his acquittal only that the appellant asserts that complaint filed by respondents is false and malicious. The counsel contends that the appellant was acquitted by the Learned Additional Sessions Judge on the grounds of benefit of doubt and there has been no categorical finding by the court of sessions that the complaint and FIR lodged by the respondents were false or were lodged with any mala fide intention. It has been asserted by counsel for defendant that there were various reasons for which the accused is given benefit of doubt and is acquitted and this by itself cannot lead to a conclusion that the complaint was based on extraneous consideration leading to entitlement for damages. The counsel for defendant further submits that it is the truthfulness of the fact explained by the complainant at the time of getting a criminal case registered which is material for deciding as to whether the complainant was having reasonable cause or not and whether those facts are ultimately held to be true or false by the court of law is immaterial. The counsel asserts that malice and absence of reasonable cause must coexist before the suit for malicious prosecution is allowed. Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 23 of 54
33. The counsel for defendants further contended that there was reasonable and probable cause for the defendant no. 4 to lodging a complaint as during the raid by the raiding party consist of various officials of the erstwhile DVB direct theft was found at the shop of liquor run by the DTTDC on enquiry employees have given name as Anoop Singh therefore his name was mentioned in the inspection report on the basis of which complaint was lodged. It is submitted by counsel for respondents that plaintiff did not send a single letter stating either to the DVB officials or to the police that not he but his wife is the owner of the said shop. He further submits that neither the DVB official nor the police has any means to know that plaintiff is not the owner but his wife as no documents of ownerships of the property was furnished either to the DVB officials not to the police. The property where raid was conducted is situated in the unauthorized colony where it is very difficult to ascertained the ownership as no regisrer sale deed is done.
34. I have consider the arguments and gone through the record. As far as defendant Nos. 1 and 5 are concerned, since they have already expired and the application to implead their legal heirs has also been dismissed, the present suit qua them is already abated. Therefore, the plaintiff is not entitled to recover any amount against defendant Nos. 1 and Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 24 of 54
5.
35. Further, since defendant Nos. 1, 2 and 3 are the police officials and as per Section 140 of the Delhi Police Act, 1978 the suit is barred against police officials if filed after three months without previous sanction of the administrator and same can be filed only within one year with the sanction and after one year, it cannot be filed at all. Section 140 (1) of the Delhi Police Act is reproduced as under : "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 any 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 I 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".
36. Admittedly, as evident from the Judgment filed by the plaintiff Ex. PW1/A, the FIR was registered on 30.9.1997 in which the plaintiff was Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 25 of 54 made an accused and thereafter chargesheet was filed and the plaintiff has been convicted by the Ld. MM but he was acquitted on 5.4.2005 whereas present case has been filed on 28.7.2005. I find force in the contention of Ld. Counsel for defendants that the limitation period for the purpose of section 140 DP Act against the defendants at the best will commence from the date of act complaint which is the act of impleading the plaintiff falsely in the case which at the best can be date of filing of the chargesheet before concerned Magistrate, the day when defendant no.1 after investigation sent the case of plaintiff to trial. Though no specific date of filing chargesheet has been mention either in the pleadings or in the evidence of the parties but since plaintiff was convicted on 20.11.2004 by Sh. Chandra Bose then Ld. MM hence same must have been file prior to it. Present suit has been file on 28.07.2005 hence same has been after expiry of more than three year of the conviction. Even if I accept the contention of counsel for the plaintiff that the period of filing suit against defendant Nos. 1 to 3 is to be commenced from the date of acquittal by the Court of Sh. R.P.S Teji, which was passed on 05.04.2005, even than the case has been filed after three months and admittedly, no sanction has been taken from the administrator who is the Lieutenant Governor in Delhi which permit plaintiff to file case upto 1 year, hence, the suit is barred under Section 140 Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 26 of 54 of the Delhi Police Act liable to be dismissed against the defendant no. 1 to 3 on this ground also.
37. Further, as per the joint inspection report Ex. DW1/1 on the direction of the XEN raid was conducted and 18 persons including the plaintiff premises i.e. Sh. Anoop Singh, wine shop DTDC situated at VijayVihar opposite A2 pocket sector 5 Rohini was found committing direct theft. From the said report itself it is evident that on the day of raid AE Rohini II was not present hence Inspector SS Saxena Inspector of the Rohini Zone, photographer police force headed by SI V.S. Dangi proceeded for conducting raid.
38. Defendant No. 3 n his testimony, led through affidavit Ex. D3W1/A, has testified that he was posted as SI in PS Mangol Puri his role was to provide protection to official of erstwhile DVB and to maintain law and order. This report Ex. DW1/1 corroborate the testimony of defendant no.3 that he was only providing securities to the raiding party being head of police force provide for conducting raid. No suggestion has been given that he has any other role than what is mention in the said inspection report. It appears that he has made Sh. V. S. Dangi as party probably because his name was mention in the inspection report. There is nothing in his cross examination that he has any further role.
Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 27 of 54
39. There is nothing in the testimony of plaintiff assigning any further role to the defendant no.3 Sh. V.S. Dangi for prosecuting him in the case FIR No. 996/97. In my view, defendant No. 3 is not responsible for prosecution of the plaintiff merely because he was heading the police force department to protect the raiding team of DVB which was conducting raid to take action against theft of electricity. Therefore, defendant no.3 cannot be held liable for prosecuting the plaintiff much less maliciously.
40. As far as defendant no. 4 is concerned he has deposed in his testimony led through affidavit Ex. D4/W1/A that an inspection was conducted on 30.09.1997 vide IR no. 535068 including the DTTDC shop and as per instruction he has raised the bill and lodged complaint with the police. He was on leave and was not member of the joint team. Inspection report EX DW1/1 corroborate the testimony of defendant no.4 that he was not part to the team which conducted raid at his premises. No suggestion has been given to him that he was member of raiding party or has any role other than lodging FIR.
41. In the testimony of plaintiff also, no specific role of the defendant no. 4 has been mentioned and only general averment has been given that all the defendants deliberately and without proper verification/investigation inserted his name in the list of those persons who Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 28 of 54 have found stealing the electricity. As mention above it is not the defendant no. 4 who prepared the inspection report in which plaintiff's name was mention as the person who found committing electricity theft. It bears the signature of T.S. Thomas, S. S. Antil and S. S. Saxena. From the complaint to the police Ex. D4W1/2, it is evident that defendant no.3 on the basis of inspection report has made the complaint to the police. In my view defendant no.4 cannot be held liable for malicious prosecution as he was merely discharging his official duty by making the complaint to the police for lodging FIR on the basis of the inspection team report. Anyone who is liable for malicious prosecution is either the member of raiding party who prepared the inspection report as it was upon them to enquire who was owner/ user of the premises, the erstwhile DVB under whose employment they were working as being their agent or the investigating officer of the police who investigated the case as he could find out whether plaintiff is thee owner / user of the premises or not and file the chargesheet if at all it is found that plaintiff was prosecuted maliciously. Hence in my view defendant no.3 is not liable for pay any damages for malicious prosecution of the plaintiff even if it is found that he was prosecuted maliciously.
42. Defendant No. 2, in his written statement, has categorically stated that he was neither the member of raiding party nor was the IO and Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 29 of 54 has only filed the chargesheet on behalf of SHO. Plaintiff has file no replication denying the said facts. Chargesheet as per Cr.PC is file by the incharge of the police station but SHO who is incharge of police station in Delhi has not been party. The onus was upon the plaintiff to prove that the defendant No. 2 has any role in the prosecution of the plaintiff but in his testimony, he has not assigned any specific role of defendant No. 2. Nor he has produced any document which proved that the defendant No. 2 has either took part in the raid or was the IO of the case or did any act which led to the prosecution of plaintiff. Hence, in these circumstances, plaintiff has failed to prove that the defendant No. 2 has maliciously prosecuted the plaintiff.
43. As far as defendant no.6 is concerned it has been made party after amendment in the plaint. But admittedly no notice as required u/s 80 CPC has been served upon the defendant no.6 which is mandatory required before filing any case. Section 80 of the CPC is reproduced as under : "80. Notice. (1) Save as otherwise provided in subsection (2), no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of -
Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 30 of 54
(a) in the case of a suit against the Central
Government, a Secretary to that Government;
(b) in the case of a suit against the Central
Government where it relates to railway, the General Manager of that railway;
(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, The Chief Secretary to that Government or any other officer authorized by that Government in this behalf;
(c) in the case of suit against a Secretary to that Government or the Collector of the district, and, in the case of a public officer, delivered to him or left at this office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left".
44. Hence, defendant No. 6 is not liable to pay any compensation / damages for malicious prosecution even if it is found that plaintiff was maliciously prosecuted.
45. Now coming to the question whether plaintiff has been able to prove that he was maliciously prosecuted or not. In Bharat Commerce Industries Vs. SN Shukla reported at AIR 1966 Calcutta 388 (DB) Honble High Court has discussed what is malicious prosecution. The Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 31 of 54 relevant para 7 is reproduced as under:
"7. In our opinion, the whole approach of Mr. Das is erroneous. In a suit for malicious prosecution, the plaintiff must prove (1) that the defendant prosecuted him, and (2) that the prosecution ended in the plaintiff's favour, and (3) that the prosecution lacked reasonable and probable cause, and (4) that the defendant acted maliciously. In the instant case, admittedly there was a prosecution and an acquittal, the only question that we shall have to find out on the facts and circumstances of this case is whether the prosecution under Sections 408 and 420 I. P. C. lacked reasonable and probable cause and whether Bharat Airways Ltd. acted maliciously. In the past, "malice" was identified with "lack of reasonable and probable cause" and often malice was inferred from lack of reasonable and probable cause and vice versa. But the present state of law seems to be that the concept of malice is to be kept distinct from the concept of lack of reasonable and probable cause. Ordinarily, malice denotes spite or hatred against an individual but it is often difficult to infer spite or hatred from the conduct of a person. It is said that the devil does not know the mind of man. Therefore, the ordinary meaning of malice cannot be determined by any subjective standard. Clarke and Lindsell have rightly said in their book on Law of Tort, 11th Edition. Article 1444 at page 870:
"The term 'malice in this form of action is not to be considered in the sense of spite or hatred against an individual, but of Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 32 of 54 malice animus and as denoting that the party is actuated by an improper motive. The proper motive for prosecution is of course a desire to secure an end to justice."
Professor Winfield has also made similar observations in his book on the Law of Torts (3rd Edition) at page 604:
"Judicial attempts to define malice have not been completely successful. 'Some other motive than a desire to bring to justice a person whom he (the accuser) honestly believes to be guilty", seems to overlook the fact that motives are often mixed. Moreover anger is not malice; indeed, it is one of the motives on which the law relies in order to secure the prosecution of criminals, and yet anger is much more akin to revenge than to any desire to uphold the law, perhaps we are nearer the mark if we suggest that malice exists unless the predominant wish of the accuser is to vindicate law."
Thus, in order to give an objective meaning to the term, 'malice', it should be found out whether the accuser has commenced prosecution for vindication of justice e.g., for redress of a public wrong. If he is actuated by these considerations, he cannot be said to have any malice. But if his object to prosecute is to be vindictive or to malign him before the public or is guided by purely personal considerations he should be held to have malice in the matter. Similarly, the lack of reasonable and probable cause should be also understood objectively. Reasonable and probable cause does not connote the subjective attitude of the accuser. If the accuser thinks that it is reasonable to prosecute, that fact Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 33 of 54 by itself cannot lead to the conclusion that judicially speaking, he has reasonable and probable cause for the prosecution. The term 'reasonable' shows that the causes must conform to the standards of a reasonable and prudent man and the term 'probable' shows that the causes may result in the proof of the guilt. Therefore, a reasonable and probable cause can only mean that the grounds for the plaintiffs guilt are reasonable according to a reasonable and prudent man and that there are materials which might result in the conviction of the accused. It can never be said that the reasonable and probable causes are grounds which must inevitably result in conviction. If acquittal means that the prosecution has been commenced without any reasonable and probable ground, then it would not have been necessary to say that apart from or in addition to the acquittal the plaintiff, in a suit for malicious prosecution, must prove that the defendant lacks reasonable and probable cause in prosecuting the plaintiff. A man may be acquitted and yet there may be a reasonable and probable cause for prosecution. This analysis of the legal position shows that the probative value of the evidence or the legal conclusions on the evidence cannot be very relevant in determining whether the accuser has a reasonable and probable cause in prosecuting the plaintiff. It is not necessary that in order to come to the conclusion that the accuser has a reasonable and probable cause, the evidence adduced must be commensurate with the conviction of the accused. In a criminal trial, benefit of doubt often plays an important part. If some part of the evidence Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 34 of 54 leads to a conclusion that a man is guilty and if another part of the evidence in the same case indicates that the man may not be guilty, or if two possible views of a conflicting nature can be spelt out from the entire facts of the case, the accused gets benefit of doubt. Therefore, the only relevant and material time when a reasonable and probable cause for prosecution has to be found out is the time when the criminal proceeding is commenced or set in motion. It is only from this point of view that the evaluation of the evidence in a suit for malicious prosecution should be made. Mr. Das's whole approach is that as the guilt of the plaintiff was not proved, or insufficient or contradictory evidence was adduced during the hearing of the criminal case, there cannot be a reasonable and probable cause for the prosecution. He has not made any distinction between 'malice and reasonable and probable cause and has contended that as there was lack of reasonable and probable cause, there must have been malice. He has referred us to that part of the plaintiff's evidence where he has deposed that in or about November, 1952 he has been unjustly superseded by a junior man who was a nominee of Mr. Kejriwal, an important officer of the Company. But apart from that uncorroborated oral evidence there is nothing to show that Bharat Airways Ltd. had an animus against him. It is true that the same set of facts may lead to the conclusion that there is malice as well as lack of reasonable and probable cause. It is also true that in some cases the existence of malice may be a relevant consideration to determine lack of reasonable and Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 35 of 54 probable cause and vice versa. But as stated earlier, the two concepts cannot be held to be identical. In this connection, attention may be drawn to the following observations of Mr. Winfield at page 662 in the same book:
"At one time malice was not always kept distinct from lack of reasonable and probable cause but a cogent reason for separating them is that, however spiteful an accusation may be, the personal feelings of the accuser are really irrelevant to its probable truth. The probability or improbability of X having stolen my purse remains the same however much I may dislike X. And it has long been law that malice and lack of reasonable and probable cause must be separately proved. Malice may, however, be inferred from want of probable cause, but it cannot be established by that alone."
With these observations, the oral and documentary evidence may now be examined. (After examining the oral and documentary evidence his Lordship went on to hold.) It should be remembered that we are not deciding in this appeal the guilt or innocence of Mr. Shukla in the context of the criminal charges levelled against him; nor are we enjoined to assess the evidence of the criminal case in its applicability to Section 222(2) of the Code of Criminal Procedure, except in an indirect way. In this connection we should remember the following observations of Mr. Winfield in his book at p. 608: "If there is an honest belief that the accusation is true, then even though the belief is mistaken, the charge may still be reasonable and probable. Nor under the facts upon which the prosecution was Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 36 of 54 founded be such as would be admissible as evidence to establish the guilt of the accused. "The distinction between the facts to establish actual guilt and those required to establish a bona fide belief in guilt should never be lost sight of in considering such cases. But this does not entitle a man, not making an accusation, to shut his eyes to facts which would make any reasonable person infer that the accused party's conduct was not criminal."
We should, therefore, try to find out whether the appellant commenced the prosecution without any honest belief of the plaintiff's guilt and whether it failed or neglected to takereasonable care to inform itself of the true facts before commencing or proceeding with the prosecution."
46. The law relating to malicious prosecution has been elaborately laid down by the Apex Court in West Bengal State Electricity Board v. Dilip Kumar Ray reported in AIR 2007 SC 976 as under:
"14................Malicious prosecutionMalice.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 of a wrongful act intentionally but it must be established Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 37 of 54 that the defendant was actuated by malus animus, that is to say, by spite or 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 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 through 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 illintended prosecution.
MALICIOUS PROSECUTION is a prosecution on some charge of crime which is wilful, wanton, or reckless, or against Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 38 of 54 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 favourably 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, he or she may sue for tort damagesAlso termed (in the context of civil proceedings) malicious use of process. (Black's, 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 effectthe 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 Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 39 of 54 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 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 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 occasion;
Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 40 of 54 but if the right is abused, the person injured thereby is, in certain events, entitled to a remedy. (See H. Stephen, Malicious Prosecution, 1888; Bullen 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. (190506)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 Dallison v. Caffery (196501 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 SEB, (2000) 5 SCC 630 ) Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 41 of 54
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 wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others.' (See State of A.P. v. Goverdhanlal Pitti(2003)4 SCC 739)
17. [T]he word ‗malice' ... in common acceptation means and implies ‗spite' or ‗ill will'. One redeeming feature in the matter of attributing bias or malice and 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 stated upon reliance on the decision of Lumley v. Gye(1853)2 E&B 216 : 22 LJQB 463 as below: ‗For this purpose maliciously means no more than knowingly. This was distinctly laid down in Lumley v. Gye 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.
Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 42 of 54 Prosser (1825)1 C&P 673: 4 B&C 247 ―Intentionally refers to the doing of the act; it does not mean that the defendant meant to be spiteful, though sometimes, as for instance to rebut a plea of privilege in defamation, malice in fact has to be proved.'(See State of Punjab v. U.K. Khanna (2001)2 SCC
330)
18. ―[Malice in law.] Malice in law is, however, quite different.
Viscount Haldane described it as follows in Shearer v. Shields1914 AC 808 as:
A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of mind is concerned, he acts ignorantly, and in that sense innocently.' Thus 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.? (See S.R. Venkataraman v. Union of India (1979)2 SCC 491; AIR 1979 SC 49)
19. [Malice per common law.] Malice in common law or acceptance means ill will against a person, but in the legal sense it means a wrongful act done intentionally without just cause or excuse.? (See Chairman and MD, BPL Ltd. v. S.P. Gururaja and others (2003)8 SCC 567 and Chairman and MD, BPL Ltd. v. S.P. Gururaja and others, JT 2003 (Suppl2) SC
515) Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 43 of 54
20. While it is true that legitimate indignation does not fall within the ambit of malicious act, in almost all legal inquiries, intention, as distinguished from motive is the allimportant factor. In common parlance, a malicious act has been equated with intentional act without just cause or excuse.? [See Jones Bros. (Hunstanton) v. Stevens, (1955)1 QB 275: (195403 All ER 677 (CA), Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant (2001)1 SCC 182".
47. Now reverting back to the case, from the pleadings of the party and evidences, following undisputed fact emerged :
(1) official of DVB committed raid on the shop DTDC which according to the plaintiff taken on license by his wife.
(3) On the complaint of defendant no.4 police register the FIR no. 996/1997.
(4) Investigation of the case was handed over to the defendant no.1.
(5) plaintiff was arrested in the said case and was sent to judicial custody.
(6) Chargesheet was filed against him u/s 39 of Electricity Act for commission of theft of electricity and he was convicted by the court of Ld. MM but was acquitted by the LD. ASJ.
48. It is not the case of the plaintiff that there was electricity Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 44 of 54 connection in the premises / shop at the time when raid was conducted by the DVB officials. It is also evident from the testimony of plaintiff that there was a liquor shop which was being run by DTTDC, hence presumption arise there was electricity supply in the premises as in the premises, hence, it is proved that the theft of the electricity was being committed in the premises. Even from the appeal, appellant has been acquitted as there is no finding that there was no electricity theft in the premises. There is only finding that the prosecution has failed to establish that the appellant / plaintiff was the owner or user of the premises but it was his wife. Para 6 of the Judgment is reproduced as under :
6. "The main thrust of arguments of Ld. Counsel for the appellant is that the appellant had no concern whatsoever in respect of the said shop in question where the alleged raid was conducted and further that Ld. Trial Court has acted with gross perversity in holding the appellant beneficary o the shop even though the appellant was not the user of the property or the electricity therein. There is force in the contention of Ld. Counsel for the appellant. No connecting evidence has been produced by the prosecution to the effect that appellant was the owner or user of the raided premises. There is nothing on record to show that appellant was physically present in or around the shop at th time of alleged raid. There is no direct evidence on record to show that it was the appellant who was committing the theft of electricity. I also agree with the Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 45 of 54 contention of Ld. Counsel for the appellant that since the appellant was not user of the raided premises, Ld. Trial court has erred in holding the appellant beneficiary of the shop in question. No doubt, appellant / accused in his statement U/s 281 Cr.PC read with Section 313 Cr.PC has admitted that his wife is having a shop situated opposite A2 Pocket in Vijay Vihar, Sector5 but that too was not sufficient to hold the appellant guilty because it was the duty of the prosecution to prove its case against the appellant beyond reasonable doubt".
49. Thus, the Ld. Appellate Court was of the view that the prosecution has failed to prove the guilty of accused beyond reasonable doubt. Hene, from the Judgment, it is evident that the benefit of doubt was given to the plaintiff by Ld. ASJ.
50. The law of evidence for the criminal case as well as civil case are different. In a criminal case, thee case is to be proved beyond reasonable doubt whereas in a civil case, principle of preponderance of probabilities is to be followed.
51. Onus was upon the plaintiff to prove that he was maliciously prosecuted by the defendants for committing theft of electricity. His case is not that the theft is committed but his case is that he was not the owner and or user of the shop run by DTTDC. The plaintiff has testified that his wife Uma Devi has purchased the property bearing no. A308/1 Vijay Vihar and Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 46 of 54 in order to supplement the family income she has entered into an agreement with DTTDC and DTTDC become a licensee to sell liquor. The wife of the plaintiff used to get 12.5% commission on gross profits. But to corroborated his testimony he has not produce any documents. Neither he has either examine his wife or any person from the DTTDC to prove that he was not the owner/ user of the premises but his wife was the owner/ user of the premises. From the testimony of D4W5 Sh. Anirudh Kumar Sinha it is proved that plaintiff wife has applied for electricity connection in the year 2010 only. Alongwith same she has file General Power of Attorney mark D4W5A it is evident that Smt. Uma has purchased the property no. A308 situated in Khasra no.659 Vijay Vihar in year 2005. No suggestion has been given to the witness that said GPA is fake or not file for obtaining the electricity connection, which means she cannot be owner of the premises in year 1997. Hence, plaintiff has failed to prove that his wife was the owner of the premises in the year 1997.
52. Further, in his cross examination he stated that his wife had a liquor shop under license from the DTTDC which means his wife was running the shop as owner and not DTTDC whereas at one place he stated that the shop was taken on rent by DTTDC hence, I found that there is contradiction in the testimony of plaintiff. This can be ascertained from the Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 47 of 54 agreement between DTTDC and his wife in what capacity the shop was being run either by DTTDC or by plaintiff's wife of by plaintiff himself but he did not produce the same probably as same does not suit him. Thus, he has concealed material facts.
53. Further plaintiff though stated in his testimony that the defendants have knowledge that he was not the owner of the premises where raid was conducted but has not specified as to how the defendants had got the knowledge that it was not he but his wife was the owner of the premises. Plaintiff has not prove any document that he has ever intimated to the DVB or to the police that he is not the owner of the said premises but his wife is the owner and therefore, instead of him, his wife should be made an accused. Thus, the plaintiff has concealed this material fact from the DVB official and Police thus he himself is to be blamed if he was made an accused in the case of electricity theft. It is not in disputes that provisional electricity bill EX DW1/3 for a sum of Rs. 5198/ was raise for the electricity theft in the name of the plaintiff and said bill was paid. The plaintiff has not disputed regarding payment of said bill as no suggestion was given by him regarding payment of said bill. The contention of the Ld. Counsel for the plaintiff that bill can be paid by any one. There is no dispute to the same but same will be paid on behalf of the person in whose name bill was raised as Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 48 of 54 I do no see any reason why a bill of his name will be paid by someone else who has no connection with the premises or not instructed by the person who was liable to pay the bill. The payment of bill prove that bill was received but despite receiving of the bill no complaint was file by the plaintiff that bill has been wrongly raised in his name. This led to presumption that at that time plaintiff has not disputed that he was not the owner/ user of the premises.
54. Further D4/W2 Sh. S.S. Antil who was one of member of raiding party in his cross examination has stated that they had inquired from the persons available at spot so as to who was the owner of the premises where the theft was being committed. Hence, from the testimony of Those persons were labourer / workers of the respective premises vol. some may be owners. Hence from the testimony of D4/W2 it is prove that name of owner/ occupier in the inspection report were mention on the basis of information received from the persons present at the spot where raid was conducted. Hence the act of the officials of DVB cannot be said to be absolutely baseless. The plaintiff was an official of DTTDC which has taken the said premises on license basis for running liquor shop hence, the contention of the Ld. Counsel for the defendants cannot be completely discarded that there would be role of plaintiff in letting that shop to DTTDC Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 49 of 54 that is why the employees posted in the shop has taken name of Anoop Singh which was mentioned in the inspection report. I do not find force in the contention of the Ld. Counsel for the plaintiff that since parentage of the Anoop was not mention in the inspection report or that raiding party official did not recorded the name and address of those employee who told name of owner as Anoop therefore it could be said that Anoop Singh mention in the inspection report could be different person than he who is known as Anoop Kumar. It is not his case that there was some other Anoop who was owner of the premises therefore employees have taken the name of some other Anoop and not him.
55. Furthermore, I am agree with the contention of Ld. Counsel for the defendants that premises in question was situated in an unauthorized colony and in the unauthorized colony it is virtually impossible to know who is owner of the property as usually there is neither any sale deed nor any house tax, electricity and water connection or any other record is available from which it could be ascertained by the authorities who is owner/ occupier and usually on the basis of local inquiry and in the local inquiry his name was disclosed. Hence if defendants no. 5 & other DVB official mention plaintiff name in the inspection report it cannot be said that they have intentionally with ill motive mention the name of plaintiff as the person Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 50 of 54 owner/user of the shop. It is not his case that he is complete stranger to the premises as according to him, his wife is the owner. In our Indian society usually even if properties are in the name of women but they are known with the name of male members and they have to depend upon the information obtained from the persons present on the spot or persons residing or working nearby. Therefore, recording the name of plaintiff in the inspection report on the basis of information given by the employees of the shop and then making him an accused and sending for trial cannot be said to be at all an act done without any basis. Though, I am agree to some extent that had defendant no.1 made effort to trace the owner/ user of premises by examining the official of DTTDC he could have ascertained to whom they have given license to run the liquor shop but this could be said to be his incompetency and not ill motive because in that case instead of plaintiff his wife would have been an accused and for this defendant no.1 was not getting any benefit. Rather plaintiff would not have like his wife be made an accused for a electricity theft case hence in a way incompetency of defendant no.1 has helped the plaintiff. It is not the case of the plaintiff that there was any enmity between the plaintiff and defendants herein. Therefore, there was no reason for them to name him as the owner/ user of the premises where they found direct theft. At the best it could be termed as Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 51 of 54 bonafide mistake/ incompetency of defendant no.1 based upon wrong information, which continue as plaintiff concealed from the authorities that his wife is the owner of the property.
56. In view of above facts and judicial pronouncement discussed above, I held that the plaintiff has failed to prove that the defendants have knowledge that plaintiff is not the owner of the property and they prosecuted him with ill will, ulterior motive or there was no reasonable or probable case to prosecute him. Hence, no case of malacious prosecution made out. Therefore, I held that the plaintiff has failed to prove that he was maliciously prosecuted by the defendants hence he is not entitled to any damage much less Rs. 20 lacs as claimed by the plaintiff from the defendants. Issue no.1 is decided accordingly against the plaintiff
57. ISSUE No.2 If issue No. 1 is decided in affirmative, whether liability of defendants in this regard is joint or separate? OPP .
In view of my finding of issue no.1, I held that defendants are not liable to pay any amount. Issue no.2 is decided accordingly.
58. ISSUE No.3 Whether suit is not maintainable in the present form? OPD.
Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 52 of 54 Onus to prove this issue was upon the defendants. Defendants no.1 to 3 in their written statement has stated that present suit is not maintainable for non compliance of the provision of section 79 CPC as they have not impleaded either Delhi Police, Ministry of Home, Government of India as party. But in my view if according to plaintiff it is the individual act of the defendants done malafidely which is responsible for his prosecution there was no need for him to made the Delhi Police, Ministry of Home, Government of India as party if he does not want to claim any compensation from them.
59. Defendant no.4 & 5 in the WS has stated that TPDDL which has taken over erstwhile DVB was necessary party but in my view there was no need to made DVB as party if according to plaintiff it is the individual act of the defendants no.4 and 5 done malafidely which is responsible for his prosecution there was no requirement to claim compensation from DVB though it would be proper party, but suit is not liable to be dismissed on this ground. Hence, I held that defendants have failed to prove that suit is not maintainable in present form. Issue no. 3 is decided against the defendants.
60. ISSUE NO. 4.
Whether the suit is without any cause of action? OPD. In view of my findings given in aforesaid issues, I held that the Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 53 of 54 plaintiff has failed to prove that he was maliciously prosecuted by the defendants. Hence, I held that there was no cause of action to file the case against defendants. Issue is decided accordingly against the plaintiff.
61. RELIEF.
In view of my findings on the aforesaid issues no.1, I held that the plaintiff is not entitled to any relief. Suit is hereby dismissed with cost. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Announced in the open court (Sanjeev KumarI)
on 29.04.2019 Additional District Judge12, Central
Tis Hazari Courts, Delhi
Digitally signed 29.04.2019
SANJEEV by SANJEEV
KUMAR
KUMAR Date: 2019.04.29
16:05:21 +0530
Suit No. 12246/16 Anoop Kumar Vs. Rajesh Rathi & Ors. Page No. 54 of 54