Delhi District Court
R/O House No. 62 vs Hari Kishan on 6 March, 2012
IN THE COURT OF CIVIL JUDGE05 (SOUTH), SAKET
COURTS, NEW DELHI
Presided by: Ms. Manika
CS No. 333/10
Unique Case ID No. 02406C0429722010
Vimal Chand
S/o SH. Kaushal Singh
R/o House No. 62, Savitri Nagar,
Malviya Nagar,
New Delhi110017. ...PLAINTIFF
VERSUS
Hari Kishan
S/o Late Sh. Balram
R/o 200, Savitri Nagar, Malviya Nagar,
New Delhi110017. ...DEFENDANT
Date of institution : 07.07.2010
Date of reserving : 27.02.2012
Date of pronouncement : 06.03.2012
Civil Suit No. 333/10 Page 1 of 20
JUDGMENT
1. Vide this judgment, it is proposed to dispose off the plaintiff's suit for damages for malicious prosecution filed with the following prayer:
"....
A) A decree for damages to the extent of Rs. 3 lacs may kindly be passed in favour of the plaintiff and against the defendant for malicious prosecution. B) Pass such further order or orders as this Hon'ble court may deem fit and proper in the facts and circumstances of the petition."
FACTS
2. The facts pleaded in the plaint are that the defendant, who is a neighbour of the plaintiff, is a person of quarrelsome nature and is a miscreant person of the society. The defendant filed a false and fabricated criminal complaint against the plaintiff and his family members namely Sh. Kaushal Singh (father), Sh. Rinku (son) and Sh. Ahmed Kumar @ Hemant Kumar (son) on 04.06.2002 alleging that the plaintiff and his aforesaid family members molested the defendant's wife by holding her hair and even tore off her clothes. In the aforesaid complaint it was also alleged that the plaintiff has Civil Suit No. 333/10 Page 2 of 20 relations with gunda elements and is engaged in selling countrymade liquor in connivance with local police. Since the aforesaid complaint lodged by the defendant was false, fabricated and frivolous, the concerned police did not take any action thereon. The defendant thereafter filed a false criminal complaint No. 40/2002 against the plaintiff and his family members under Section 448/354/506 of the Indian Penal Code (hereinafter referred to as 'I.P.C.') read with Section 156(3) of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') on 20.06.2002 in the Court of Sh. V.K. Maheshwari, learned A.C.M.M., New Delhi. In the said complaint, vide order dated 08.07.2003, the learned Magistrate issued summons against the plaintiff and his family members. On receipt thereof, the plaintiff and his abovenamed family members appeared before the Court and obtained bail. The first appearance was made by the plaintiff in October, 2003. After giving various opportunities to the defendant herein, the aforesaid complaint was dismissed for nonprosecution vide order dated 06.05.2008 passed by the learned Metropolitan Magistrate. Against the said order the defendant filed a revision petition No. 546/2008 which was dismissed vide order dated 03.02.2009 passed by the Court of Sh. J. R. Aryan, learned Additional Civil Suit No. 333/10 Page 3 of 20 Sessions Judge. Against the same, the defendant filed a Criminal L.P. No. 91/2009 before the Hon'ble High Court of Delhi which was also dismissed vide order dated 09.07.2009. The complaint under Section 156(3) of the Cr.P.C. was a false and frivolous complaint filed by the defendant with malice to ruin the reputation of the plaintiff and his family members. The aforesaid criminal prosecution initiated by the defendant was influenced by ulterior motive and, therefore, the defendant continued to take time to lead evidence and failed to do so despite several opportunities having been allowed. Though the value of the plaintiff's reputation in the society, which was ruined on account of such malicious prosecution, cannot be quantified, the plaintiff has claimed symbolic damages to the tune of Rs.3,00,000/ from the defendant for harassment and loss of reputation.
3. The defendant has contested the suit by filing written statement. He has raised preliminary objections that the plaintiff has not approached the Court with clean hands and has suppressed material facts; that the suit is not maintainable in the present form; that the plaint is liable to be rejected under Order VII Rule 11 of Code of Civil Procedure (hereinafter referred to as 'C.P.C.') for want of cause of action; that the plaintiff has not affixed the requisite court fee; and that Civil Suit No. 333/10 Page 4 of 20 the present suit has been filed with malafide intention raising false, frivolous and vague allegations to cause wrongful gain to the plaintiff and harassment to the defendant.
4. On merits, the defendant has alleged that the plaintiff and his family members are habitual of quarreling with other residents of the vicinity. He has denied the allegation that the criminal complaint filed by him against the plaintiff and his family members was false and fabricated. The defendant has contended that it was only after the learned Magistrate had observed that a prima facie case was made out that the plaintiff and his family members had been summoned. It is averred that the plaintiff had preferred a revision against the summoning order but failed to obtain relief. It is contended that the criminal complaint of the defendant was dismissed for nonprosecution rather than on merits and, therefore, the plaintiff is not entitled to any relief. It is stated that the defendant could not pursue his complaint being a layman and for want of proper guidance and legal advice. The defendant has asserted that the complaint filed by him was true and correct and has denied any malice or intention on his part to ruin the reputation of the plaintiff and/or his family members.
Civil Suit No. 333/10 Page 5 of 20 COURT PROCEEDINGS
5. The plaintiff's application under Order XXXIII Rule 1 of the C.P.C. seeking permission to sue as an indigent person was disposed off as withdrawn vide order dated 09.07.2010.
6. The defendant's application for permission to summon Smt. Suman, wife of the defendant, as a witness was allowed vide order dated 24.01.2012.
ISSUES
7. On the basis of the pleadings of the parties and the documents filed, the following issues were framed vide order dated 17.01.2011:
"1) Whether the suit of the plaintiff is liable to be dismissed under Order VII Rule 11 of the Code of Civil Procedure for want of cause of action? OPD
2) Whether the plaintiff is entitled to a decree for damages for malacious prosecution against the defendant? If so, for what amount? OPP
3) Relief."
EVIDENCE
8. In support of his case, the plaintiff only examined himself as PW1. He deposed in terms of the plaint and relied on copy of Civil Suit No. 333/10 Page 6 of 20 complaint dated 04.06.2002 made by the defendant to the SHO, PS: Malviya Nagar Ex.PW1/1, copy of order dated 03.02.2009 in Criminal Revision No. 161/08 passed by the Court of Sh. J. R. Aryan, learned Additional Sessions Judge Ex.PW1/2 and copy of order dated 09.07.2009 in Crl. L.P. 91/2009 passed by the Hon'ble High Court of Delhi Ex.PW1/3. No other witness was examined on behalf of the plaintiff.
9. In support of his case, the defendant examined as many as four witnesses. DW1, the defendant himself, deposed in terms of the written statement. DW2 Sh. Ghanshyam Das, an uncle of the defendant, deposed that on 04.06.2002 at about 01:30 pm, when he was coming from a shop namely Kadam Store after purchasing a bottle of cold drink, he saw 10 to 12 persons standing outside the house of the defendant. He deposed that he saw the plaintiff, Sh. Khushal Singh, Sh. Rinku and Sh. Hemant coming out of the defendant's house. He testified that the plaintiff was abusing the defendant's family. He stated that Haji Sahib (Sh. Bashir Ahmed) and Sh. Balwan Singh were also present at that time amongst the aforesaid 10 to 12 public persons. He deposed that he went inside the defendant's house, where his wife Smt. Suman was alone, and found that she was weeping Civil Suit No. 333/10 Page 7 of 20 and her blouse was torn. DW3 Sh. Bashir Ahmed stated that he runs a timber merchant store and had supplied fatte/ballies for construction of a building in plot No. 203, Savitri Nagar, New Delhi in the year 2002. He stated that on 04.06.2002 at about 01:30 pm, he heard hue and cry near the defendant's house and on hearing the noise went to the defendant's house. He deposed that he saw four persons, including the plaintiff, coming out of the defendant's house and shouting and abusing the family of the defendant. He stated that 10 to 15 persons had gathered in front of the defendant's house including one Sh. Balwan Singh. He also stated that in the meantime Sh. Ghanshyam, uncle of the defendant, also reached the spot and tried to enquire as to what had happened and went inside the house. DW4 Smt. Suman, wife of the defendant, deposed that the plaintiff used to quarrel with her family on one pretext or the other on a daily basis. She stated that on 04.06.2002 at about 01:00/01:30pm, when she was alone in the house, the plaintiff alongwith his father Sh. Khushal Singh and sons Sh. Rinku and Sh. Hemant entered her house and started abusing her in filthy language. She stated that when she objected to the same, the plaintiff caught hold of her clothes. She stated that she raised hue and cry and on hearing the same some people gathered outside her house. Civil Suit No. 333/10 Page 8 of 20 She stated that the plaintiff and his family members thereafter left her house while abusing her and her family and extending threats to come again. She testified that the plaintiff and his family members outraged her modesty and tore her blouse. She also stated that in the evening the plaintiff and his family members again came to her house and shouted, "KAHAN HAIN TERE SHER, NIKAAL BAHAR, DEKH LENGE"
and upon her objection gave beatings to her. She stated that the plaintiff and his family members threatened to eliminate her husband in case any complaint was made against them. She stated that she narrated the incidents to her husband, who made a complaint in writing to the SHO, Malviya Nagar on 05.06.2002. She further stated that she went to the Court 4 to 5 times for deposing in the complaint case filed by her husband against the plaintiff. FINDINGS
10. The record has been carefully perused. The respective submissions of Sh. Mohan Shyam Arya, Advocate, learned counsel for the plaintiff, and Sh. S.B. Sharma, Advocate, learned counsel for the defendant, have been considered.
Civil Suit No. 333/10 Page 9 of 20
11. The issuewise findings are as under: Issue No.1: Whether the suit of the plaintiff is liable to be dismissed under Order VII Rule 11 of the Code of Civil Procedure for want of cause of action?
12. The onus of proof qua this issue was on the defendant.
13. Learned counsel for the defendant argued that there arose no cause of action in favour of the plaintiff as the learned Magistrate had not returned a finding on the merits and the defendant's complaint had merely been dismissed for nonprosecution. He urged that a suit for damages for malicious prosecution cannot lie unless the plaintiff has either been acquitted or discharged in the criminal case.
14. Per contra, learned counsel for the plaintiff submitted that the fact that the plaintiff had been summoned in the criminal complaint case filed by the defendant against him was sufficient to provide the cause of action to the plaintiff to prefer an action for damages for malicious prosecution.
15. The plaintiff has averred in the plaint that the defendant had filed a criminal complaint No. 40/2002 against the plaintiff and his Civil Suit No. 333/10 Page 10 of 20 family members under Section 448/354/506 of the I.P.C. read with Section 156(3) of the Cr.P.C. before the Court of Sh. V.K. Maheshwari, learned A.C.M.M., New Delhi. He has averred that vide order dated 08.07.2003 the learned Magistrate had issued summons against the plaintiff, who appeared and obtained bail. It is stated that upon the failure of the defendant to lead evidence despite various opportunities, vide order dated 06.05.2008, the defendant's complaint was dismissed for nonprosecution.
16. The preconditions for bringing an action for malicious prosecution are that (i) the plaintiff was prosecuted by the defendant and (ii) the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating. Re: Prosecution by defendant
17. 'Prosecution' requires approach to a person clothed with judicial authority for setting the law in motion. In Mohammed Amin v. Jogendra Kumar, AIR 1947 PC 108, it was held that to found an action for damages for malicious prosecution based upon criminal proceedings, the test is not whether the criminal proceedings have reached a stage at which they may be correctly described as a Civil Suit No. 333/10 Page 11 of 20 prosecution; but the test is whether such proceedings have reached a stage at which damage to the plaintiff results. It may not be correct to say that the mere presentation of a false complaint which seeks to set the criminal law in motion will per se found an action for damages for malicious prosecution. If the Magistrate dismisses the complaint as disclosing no offence with which he can deal, there is nothing but an unsuccessful attempt to set the criminal law in motion and no damage to the plaintiff results. The Hon'ble Calcutta High Court in Nagendra Nath Ray v. Basanta Das Bairagya, (1929) ILR 57 Cal 25, the Hon'ble Madras High Court in Sanjivi Reddy v. Koneri Reddi, (1925) ILR 49 Mad 315 and the Hon'ble Orissa High Court in Rama Jena v. Gadadhar, AIR 1961 Orissa 118, have held that a suit for damages for malicious prosecution does not lie where no process has been issued to the plaintiff to appear. As a corollary, it follows that where process has been issued to the plaintiff upon a complaint filed by the defendant, the same constitutes 'prosecution' for founding an action for damages for malicious prosecution. In the instant case, the plaintiff has averred that summons had been issued to him vide order dated 08.07.2003 and he did appear and obtain bail. The same has not even been disputed by the defendant. The fact that process had been issued against the Civil Suit No. 333/10 Page 12 of 20 plaintiff on the complaint filed by the defendant and the plaintiff entered appearance thereon is sufficient for the purpose of 'prosecution' to base an action for damages for malicious prosecution. Re: Termination of proceedings in favour of the plaintiff
18. To found an action for damages for malicious prosecution, it is not necessary that there is a judicial determination of the plaintiff's innocence, but merely that there is no judicial determination of his guilt. It is enough if the prosecution has been discontinued. It is not necessary that the criminal proceedings should have been heard out to the end; it is sufficient if they have been initiated, though they may have fallen through for technical reasons unconnected with the merit. In the instant case, the plaintiff has alleged that the complaint filed by the defendant was dismissed for nonprosecution after the plaintiff had been summoned and had caused appearance and obtained bail.
19. In view of the aforesaid discussion, it cannot be said that there was no cause of action for filing the present suit or that the plaint does not disclose a cause of action.
20. This issue is accordingly decided in favour of the plaintiff and against the defendant.
Civil Suit No. 333/10 Page 13 of 20 ISSUE NO.2: Whether the plaintiff is entitled to a decree for damages for malacious prosecution against the defendant? If so, for what amount?
21. The onus of proof with respect to this issue was on the plaintiff.
22. In an action for malicious prosecution, the plaintiff is required to prove:
(i) that he was prosecuted by the defendant;
(ii)that the proceedings complained of terminated in favour of the plaintiff if from their nature they were capable of so terminating;
(iii)that the prosecution was instituted with a malicious intention, that is, not with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact; and
(iv)that he has suffered damage to his reputation or to the safety of person, or to the security of his property.
Re: Prosecution by the defendant
23. Admittedly, it was the defendant who had filed the complaint Civil Suit No. 333/10 Page 14 of 20 No. 40/2002 under Section 448/354/506 of the I.P.C. against the plaintiff, his father and sons upon which they had been summoned.
Re: Termination of proceedings in favour of the plaintiff
24. Further, it is the admitted case of the parties that the aforesaid complaint filed by the defendant had been dismissed for nonprosecution vide order dated 06.05.2008 passed by the learned Magistrate.
Re: Prosecution with malacious intention
25. As regards the ingredient of 'malice', the averments in the plaint are highly vague and wanting in substance. The plaintiff has merely averred that the complaint filed by the defendant was false and fabricated and had been made with a view to malign and ruin the plaintiff's reputation in the society. While, in paragraph 14 of the plaint, he has alleged that the criminal prosecution initiated by the defendant was influenced by ulterior motive, the plaintiff has not specified the alleged ulterior motive.
26. The Hon'ble Apex Court in West Bengal State Electricity v. Dilip Kumar Ray, AIR 2007 SC 976, noted various definitions of the Civil Suit No. 333/10 Page 15 of 20 term 'malice'. It observed that "Malice" in the legal sense imports (1) the absence of all elements of justification, excuse or recognized mitigation, and (2) the presence of either (a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton and willful doing of an act with awareness of a plain and strong likelihood that such harm may result. Malicious abuse of process involves wilfully misapplying Court process to obtain object not intended by law. 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 illwill. 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 that malice is not merely the doing of a wrongful act intentionally but it must be established that the defendant was actuated by mains animus, that is to say, by spite or illwill or any indirect or improper motive.
27. For the purposes of an action for damages for malicious prosecution, it is not sufficient for the plaintiff to simply aver in the plaint or even state in his testimony on oath that the defendant had initiated criminal prosecution against him on the basis of a false and fabricated complaint in order to malign his reputation. The plaintiff Civil Suit No. 333/10 Page 16 of 20 must discharge his onus by leading positive evidence to show the existence of 'malice'. However, besides pleading, and deposing in his affidavit Ex.PW1/A, that the complaint was false and fabricated and was filed in order to ruin the plaintiff's reputation, the plaintiff has failed to produce any material on record to prove that the complaint filed by the defendant was motivated by any extraneous factor other than the intention to set criminal law into motion. Admittedly, since the complaint had been dismissed for nonprosecution, there is no adjudication holding the allegations made in the complaint to be false by the criminal court which had the jurisdiction to entertain and try the said criminal complaint. The plaintiff has, therefore, failed to prove that the complaint was false and fabricated.
28. Learned counsel for the plaintiff urged that the element of malice is reflective from the fact that the defendant failed to lead precharge evidence in the complaint case on account of which the complaint was dismissed for nonprosecution. He contended that had the complaint been genuine the defendant would have produced witnesses and led evidence to support his allegations but he failed to do so and the same, therefore, goes to reflect on his malicious intention in prosecuting the plaintiff.
Civil Suit No. 333/10 Page 17 of 20
29. The plaintiff has not filed on record the order dated 06.05.2008 passed by the learned Magistrate dismissing the complaint for non prosecution. He has not filed copies of the orders of the dates on which allegedly multiple opportunities had been allowed to the defendant to lead evidence. He has failed to even file the impugned complaint under Section 448/354/506 of the I.P.C. filed by the defendant. The plaintiff has failed to aver, let alone prove, any reason/motive on part of the defendant such as past enmity etc. which may have prompted him to file a false complaint against the plaintiff. The mere fact that the impugned complaint was dismissed for nonprosecution is not sufficient to show that the defendant had filed/prosecuted the complaint with a malicious intention. Moreover, the defendant had admittedly preferred a revision petition against the order of dismissal for nonprosecution of the complaint and had thereafter also filed Cri.L.P. No. 91/2009 before the Hon'ble High Court of Delhi. Thus, it does not appear to be a case where the plaintiff had deliberately allowed the complaint to be dismissed for nonprosecution and accepted the said order without challenging the same as the plaintiff had admittedly made due efforts to get the said order of dismissal for nonprosecution set aside. Civil Suit No. 333/10 Page 18 of 20
30. In view of the aforesaid, there is no material on record to infer malice on part of the defendant in the filing of the impugned complaint No. 40/2002. The plaintiff has accordingly failed to prove that his prosecution by the defendant was malicious.
Re: Damage to reputation
31. While the plaintiff has pleaded that the impugned complaint filed by the defendant had the effect of ruining/maligning his reputation in the society, he has failed to examine even a single person to prove that his reputation/image in his eyes had been lowered as a result of the impugned complaint. The plaintiff has, therefore, failed to prove that by way of the complaint, his reputation had been ruined or maligned.
32. Furthermore, it may be noted that the burden was on the plaintiff to prove as to what damage has been caused to his reputation. Even if it is assumed that the criminal case against the plaintiff had any bearing to his reputation, there is absolutely no material on record to quantify the damages. The evidence on this aspect is completely missing.
33. In view of the aforesaid discussion, the plaintiff is not entitled to Civil Suit No. 333/10 Page 19 of 20 the decree of damages for malicious prosecution as prayed for.
34. This issue is, therefore, decided in favour of the defendant and against the plaintiff.
Issue No.6: Relief
35. In view of the findings on issue No.2, the plaintiff is not entitled to any relief.
36. The suit is hereby dismissed. Parties are left to bear their own costs.
37. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open Court on 06.03.2012.
(MANIKA) Civil Judge05 (South), New Delhi 06.03.2012 Civil Suit No. 333/10 Page 20 of 20