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Delhi District Court

Mrs. Suman Jain vs Sh. Pankaj Jain on 11 March, 2014

             IN THE COURT OF SURINDER KUMAR SHARMA
            ADDITIONAL DISTRICT JUDGE­ EAST DISTRICT 
                 KARKARDOOMA COURTS, DELHI

                              Civil Suit No. 619/10


Mrs. Suman Jain
W/o Sh. S.K. Jain
R/o 161, 1st Floor
Street No. 5, East Ajad Nagar
Delhi - 51.                                            
                                                                 ... Plaintiff
                
                              Vs.

Sh. Pankaj Jain
S/o Sh. R.K. Jain
C/o Sh. Sanjay Sharma
605/11, Ground Floor
Street No. 8, Krishna Gali
Maujpur, Delhi­53.

                                                               .... Defendant


Date of filing of Suit                                :  23.11.2010
Date of Arguments                                     :  04.03.2014
Date of Judgment                                      :  11.03.2014

                      
JUDGMENT

The present suit for recovery of Rs. 8,05,000/­ as a compensation on the basis of malicious prosecution has been filed by the plaintiff against the defendant.

The case of the plaintiff is as under:­ The plaintiff has filed the present suit for recovery of compensation amount on the basis of malicious prosecution as the plaintiff was falsely implicated by the defendant in a criminal complaint u/s 138 N.I. Act. The defendant had filed a complaint case u/s 138 N.I. Act against the plaintiff before the Ld. M.M., KKD Courts, Delhi. However, vide judgment dated 25.02.2010, the Ld. M.M., KKD Courts, Delhi had dismissed the said complaint case and the plaintiff was acquitted in the said case. In the said case, the plaintiff had proved that the cheque in question was never issued against any liability, rather, defendant had misused the said cheque adopting forgery by making alteration in the date of the said cheque.

The defendant did not prefer any appeal or revision against the said judgment dated 25.02.2010 passed by the Ld. M.M. KKD Courts, Delhi.

The plaintiff has filed the present suit as she has suffered a lot after facing trial before criminal court for a long time and undergone mental agony. The said false case against her has ruined her business of clothes and has also caused harm to her reputation.

Plaintiff issued legal notice dated 26.08.2010 to the defendant calling upon the defendant to make the payment of Rs. 8,05,000/­ on account of expenses on litigation, Civil Suit No. 619/10 Page 2/9 business loss and mental agony. Despite the receipt of the legal notice, the defendant did not comply the same. Thereafter, the plaintiff filed the present suit.

It is prayed that the decree for Rs. 8,05,000/­ be passed in favour of plaintiff and against the defendant along with interest @ 12% p.a. till the payment is made by the defendant.

Defendant was served with the notice. He contested the suit and filed written statement, wherein, he took preliminary objection that the present suit is an act of retaliation with the vindictive feeling and ulterior motive to harass the defendant. It is denied that defendant initiated the proceedings u/s 138 N.I. Act against the plaintiff in a malicious spirit, rather, defendant had reasonable and probable cause for initiating the said proceedings. It is stated that the present suit is not sustainable as the plaintiff has not filed any proof of damages as alleged. It is alleged that the plaintiff has suppressed the material facts from the court and there is no cause of action in favour of the plaintiff to file the present suit, thus, liable to be dismissed. On merits, the defendant has stated the averments of the plaint to be wrong and denied the same. It is prayed that the suit of the plaintiff be dismissed.

The plaintiff did not file any replication. On the pleading of the parties, following issues were Civil Suit No. 619/10 Page 3/9 framed by my Ld. Predecessor on 06.07.2011:­

1. Whether the plaintiff has suppressed any material facts from the purview of this court. If so, to what extent? OPD.

2. Whether the plaintiff is entitled to an amount of Rs. 55,000/­ towards expenses with respect to previous litigation u/s 138 N.I. Act? OPP.

3. Whether the plaintiff is entitled to damages to the extent of Rs. Five Lacs on account of business loss?OPP.

4. Whether the plaintiff is entitled to an amount of Rs.2.50 Lacs on account of mental agony? OPP.

5. Relief.

In order to prove her case, plaintiff examined herself as PW­1. She filed her affidavit Ex. PW1/1 and relied upon documents Ex. PW1/A to PW1/C. On the other hand, defendant examined himself as DW­1 and filed his affidavit Ex. DW1/A. I have heard the Ld. Counsels for the parties and perused the record.

My finding on the issues are as under:­ ISSUE NO.1 The onus to prove this issue is upon the defendant. In order to discharge the onus, the defendant has filed his Civil Suit No. 619/10 Page 4/9 affidavit Ex. DW1/A, wherein, it is submitted that the plaintiff has suppressed material facts with the intention to harass the defendant.

The case of the defendant is that the plaintiff has concealed and suppressed the material facts from the court. In his affidavit, the defendant has not disclosed as to what are the material facts which have been concealed and suppressed by the plaintiff. Nor during the course of arguments, this issue was pressed.

The defendant has not led any cogent evidence, in order to prove this issue and thus, he has failed to prove this issue.

Accordingly, this issue is decided against the defendant and in favour of the plaintiff.

The onus to prove this issue is upon the plaintiff. In order to discharge the onus, the plaintiff has filed her affidavit Ex. PW1/1, wherein, she has simply stated the expenses on litigation as Rs. 55,000/­.

It was contended by the Ld. Counsel for the plaintiff that in order to defend the false case against her, the plaintiff has engaged an Advocate and the plaintiff incurred expenditure of Rs. 55,000/­ in defending herself in a false case filed by the defendant.

It is important to note that the plaintiff has not given Civil Suit No. 619/10 Page 5/9 any detail of expenditure of Rs. 55,000/­ incurred by her in defending the case filed by the defendant. She has not even given the mode of payment and the time when the expenditure was incurred as claimed by her. In her cross­ examination, she had admitted that she has not filed any receipt of payment made by her to the Advocate who was appearing for her u/s 138 N.I. Act. Therefore, in my view, the plaintiff has failed to prove that she has incurred an expenditure of Rs. 55,000/­ in defending the case filed by the defendant against her and thus, the plaintiff has failed to prove this issue.

Accordingly, the issue is decided against the plaintiff and in favour of the defendant.

The onus to prove this issue is upon the plaintiff. In order to discharge the onus, she filed her affidavit Ex. PW1/1, wherein, she has stated that she has suffered loss of Rs. Five Lacs on account of the false case instituted against her by the defendant.

It was contended by the Ld. Counsel for the plaintiff that the plaintiff used to visit the court to defend her case which was filed against her by the defendant and on this account, she could not attend her business and due to this reason she suffered loss in her business.

On the other hand, it was contended by the Ld. Civil Suit No. 619/10 Page 6/9 Counsel for the defendant that the defendant did not file the case u/s 138 N.I. Act against the plaintiff with any ulterior motive or malice. It was contended that acquittal of the plaintiff in the said case does not entitle her to claim damages from the defendant. Reliance was placed on AIR 1936 Allahabad 537, wherein, it was held that the judgment of the criminal court are conclusive for the purpose of showing that the prosecution terminated in favour of the plaintiff, but the findings of the criminal court by themselves are not evidence of the malice or want of reasonable and probable cause. It was also held that it is for the civil court to go into all the evidence and decide for itself whether such malice or cause existed or not. Reliance was also placed upon AIR 1958 Patna 329.

The case of the plaintiff is that she suffered loss in business as she lost considerable time in defending the false case filed by the defendant against her. It is important to note that the plaintiff has not given any detail as to how she has suffered loss of Rs. Five Lacs. In her cross­examination, she has admitted that her business was also being looked after by her husband and two employees. She could not tell the turnover of her business for the relevant period. She also admitted that she used to pay income tax, but she has not produced the ITRs in order to show that her income was decreased during the relevant period. She did not know Civil Suit No. 619/10 Page 7/9 whether the balance sheet was used to be prepared or not. She has also admitted in her cross­examination that she has not filed any document regarding the loss of business during the period when she was facing the trial in the case under section 138 N.I. Act. She stated that she cannot produce the balance sheet of her business. She was not able to tell her monthly income from the business. She also admitted that her husband was looking after her business. In her cross­ examination, she also admitted that during the pendency of the case u/s 138 N.I. Act, she has purchased a house. Therefore, in my view the plaintiff has failed to prove that she suffered any loss in her business on account of the case filed by the defendant against her.

Hence, this issue is decided against the plaintiff and in favour of the defendant.

The onus to prove this issue is upon the plaintiff. In order to discharge the onus, she filed her affidavit Ex. PW1/1, wherein, she has claimed an amount of Rs. 2.5 Lacs on account of mental agony suffered by her on account of the case filed by the defendant against her.

It was submitted by the Ld. Counsel for the plaintiff that the plaintiff suffered mental agony as she faced trial in a false case instituted by the defendant against her. On the other hand, it was submitted by the Ld. Counsel for the Civil Suit No. 619/10 Page 8/9 defendant that the plaintiff has not led any evidence to show that she has suffered any mental agony as alleged by her.

In her cross­examination, the plaintiff has not filed any description of the doctor in respect of any depression. The perusal of the evidence led by the plaintiff shows that she has simply claimed that she is entitled to the compensation of Rs. 2.5 Lacs on account of mental agony suffered by her on account of false case filed against her by the defendant. She has not given any detail as to how she suffered mental agony or that as to how she is entitled to the compensation of Rs. 2.5 lacs on account of mental agony. The plaintiff has not led any cogent evidence in order to prove this issue.

Therefore, this issue is decided against the plaintiff and in favour of the defendant.

ISSUE NO. 5 (Relief):­ In view of the findings on the issues above, the plaintiff is not entitled to any relief. The suit of the plaintiff is dismissed.

No order as to cost.

Decree sheet be prepared accordingly.

File be consigned to Record Room.

Announced in Open Court 
on 11.03.2014                 (Surinder Kumar Sharma)
                               Addl. District Judge, East
                              Karkardooma Courts, Delhi. 

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