Bombay High Court
Suryabhan S/O Hiraman Nimje And Others vs Dayaram S/O Shankarrao Pajankar And ... on 8 May, 2025
2025:BHC-NAG:5120
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.610 OF 2018
1. Suryabhan S/o Hiraman Nimje,
Aged major, Occ: Retired
R/o Plot No.1, Adiwasi Colony, Bhamti,
Nagpur.
(Original defendant No.2)
2. Sewakram S/o Tukaram Dekate,
Aged major, R/o Plot No.7,
Adiwasi Colony, Nagpur.
(Original defendant No.3)
3. Natthu S/o Kisan Kedare,
Aged major, R/o Plot No.5,
Adiwasi Colony, Nagpur.
(Original defendant No.4)
4. Jagdish S/o Bajirao Nikhar
Aged major, Prop. Ankita Dry
Cleaners behind Anusaya Sabhagruh,
Near T-Point Ring Road, Nagpur.
(Original defendant no.5)
5. Ramrao S/o Ganpat Pakhale
Aged major, R/o Plot No.29,
Adiwasi Colony, Nagpur.
(Original defendant No.7)
6. Gopalchand S/o Ganpat Thote,
Aged major, R/o Plot No.48,
Adiwasi Colony, Nagpur.
(Original defendant No.8)
7. Gajendra Prakash S/o Hargovind Sahu
Aged major, R/o Plot No.53,
Adiwasi Colony, Nagpur.
(Original defendant No.9)
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8. Vasant S/o Ambadas Pujare
Aged major, R/o Near House of Shankarrao
Kumbhare, Golibar Chowk, Nagpur.
(Original defendant No.11)
...APPELLANTS
...V E R S U S...
1. Dayaram S/o Shankarrao Pajankar
Aged about 70 years, Occ: Retired,
R/o Plot No.68, Adiwasi Colony,
Nagpur.
(Original Plaintiff)
Matter is dismissed
against Resp.No.2 2. [Manohar Kisan Kumbhare
vide Registrar (J) Aged major, Occ: not known
order dtd.21.3.2024 R/o Plot No.97, Adiwasi Colony,
Bhamti, Nagpur.
(Original defendant no.6)]
Matter is abated 3. Dhanraj Ganaji Parate
against Aged major, Occ: not known
Resp.Nos.3&6 vide
R/o Plot No.82, Adiwasi Colony,
Registrar (J) order
dtd.21.3.2024 Bhamti, Nagpur.
(Original defendant no.10)
4. Chintaman Mahadeorao Bokade
Aged major, Occ: not known
R/o Plot No.95, Adiwasi Colony,
Bhamti, Nagpur.
(Original defendant no.12)
5. Pachkaudi Mahadevrao Bokade
Aged major, Occ: not known
R/o Plot No.94, Adiwasi Colony,
Bhamti, Nagpur.
(Original defendant no.13)
6. Murlidhar Jiwataji Nimje
Aged major, Occ: not known
R/o 519, Rani Durgawati Nagar,
Nagpur. (Original defendant no.15)
...RESPONDENTS
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WITH
SECOND APPEAL NO.461 OF 2019
1. Suryabhan S/o Hiraman Nimje,
Aged major, Occ: Retired
R/o Plot No.1, Adiwasi Colony, Bhamti,
Nagpur.
(Original defendant No.2)
2. Sewakram S/o Tukaram Dekate,
Aged major, R/o Plot No.7,
Adiwasi Colony, Bhamtee, Nagpur.
(Original defendant No.3)
3. Natthu S/o Kisan Kedare,
Aged major, R/o Plot No.5,
Adiwasi Colony, Bhamtee, Nagpur.
(Original defendant No.4)
4. Jagdish S/o Bajirao Nikhar
Aged major, Prop. Ankita Dry
Cleaners behind Anusaya Sabhagruh,
Near T-Point Ring Road,Bhamtee, Nagpur.
(Original defendant no.5)
5. Ramrao S/o Ganpat Pakhale
Aged major, R/o Plot No.29,
Adiwasi Colony, Bhamtee, Nagpur.
(Original defendant No.7)
6. Gopalchand S/o Ganpat Thote,
Aged major, R/o Plot No.48,
Adiwasi Colony, Bhamtee,Nagpur.
(Original defendant No.8)
7. Gajendra Prakash S/o Hargovind Sahu
Aged major, R/o Plot No.53,
Adiwasi Colony, Bhamtee,Nagpur.
(Original defendant No.9)
8. Vasant S/o Ambadas Pujare
Aged major, R/o Near House of Shankarrao
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Kumbhare, Golibar Chowk, Nagpur.
(Original defendant No.11)
...APPELLANTS
...V E R S U S...
1. Dayaram S/o Shankarrao Pajankar
Aged about 70 years, Occ: Retired,
R/o Plot No.68, Adiwasi Colony,
Bhamtee, Nagpur.
(Original Plaintiff)
Matter is dismissed
against Resp.No.2 2. [Manohar Kisan Kumbhare
vide Registrar (J) Aged major, Occ: not known
order dtd.21.3.2024 R/o Plot No.97, Adiwasi Colony,
Bhamti, Nagpur.
(Original defendant no.6)]
Matter is abated 3. Dhanraj Ganaji Parate
against Aged major, Occ: not known
Resp.Nos.3&6 vide
R/o Plot No.82, Adiwasi Colony,
Registrar (J) order
dtd.21.3.2024 Bhamti, Nagpur.
(Original defendant no.10)
4. Chintaman Mahadeorao Bokade
Aged major, Occ: not known
R/o Plot No.95, Adiwasi Colony,
Bhamti, Nagpur.
(Original defendant no.12)
5. Pachkaudi Mahadevrao Bokade
Aged major, Occ: not known
R/o Plot No.94, Adiwasi Colony,
Bhamti, Nagpur.
(Original defendant no.13)
6. Murlidhar Jiwataji Nimje
Aged major, Occ: not known
R/o 519, Rani Durgawati Nagar,
Nagpur. (Original defendant no.15) ...RESPONDENTS
-------------------------------------------------------------------------------------------
Shri S.P. Kshirsagar, Advocate for appellants.
Shri Anand Bandre, Advocate for respondent no.1.
-------------------------------------------------------------------------------------------
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CORAM :- M.W. CHANDWANI, J.
RESERVED ON :- 11.02.2025
PRONOUNCED ON :- 08.05.2025
JUDGMENT:
1. These two appeals have been filed by the appellants
against the common judgment and order passed by the learned
District Judge, Nagpur whereby allowing Regular Civil Appeal
Nos.478/2012 enhancing the amount of damages from Rs.1/- to
Rs.3,00,000/- against the appellants for prosecuting respondent
no.1 maliciously. Whereas, Regular Civil Appeal No.523 of 2012
filed by the appellants came to be dismissed.
2. The plaint depicts that respondent no.1 was a member of
the Adiwasi Samaj Unnati Grah Nirman Sahakari Sanstha Ltd.,
Nagpur. He was elected as Secretary of the said society on
17.02.1980 and again on 03.01.1988, he was re-elected in a
special general meeting. The society had a layout of 90 plots in
Khasra Nos.52/2, 52/3 and 59 of Mouza Bhamti. Being authorized
in the general meeting by resolution No.2 dated 26.10.1980,
respondent no.1 as Secretary of the society, was receiving the
amount from its member towards allotment of plots and handing
over its possession to them. The plaint further reveals that the
appellants, on 13.08.1988 lodged a false complaint to the
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Sonegaon Police Station, Nagpur alleging that respondent no.1 is
neither the secretary nor a member of the society but still he
illegally obtained an amount of Rs.64,648/- from the members of
the society. The police registered an offence vide Crime
No.148/1988 for the offence punishable under Section 420 of the
Indian Penal Code against respondent no.1. Respondent no.1 was
arrested and was in police custody remand. Respondent no.1 was
suspended from service. He was working as Professor in Punjabrao
Krushi Vidyapeeth at that time. Upon filing of the charge-sheet,
Regular Criminal Case No.101/1989 was initiated. The
respondent no.1 filed an application for discharge before the
learned J.M.F.C., Nagpur which came to be allowed by order
dated 03.10.1989. The appellants attempted to file an appeal
before the Sessions Court with an application for condonation of
delay against the order of discharge. The same came to be
dismissed. The appellants thereafter, by way of writ petition
approached this Court but could not succeed.
3. It is alleged also in the plaint that in the investigation,
respondent no.6 - Murlidhar Nimje gave a false statement to the
police. Whereas, the appellants alongwith respondent nos.2 to 6
maliciously prosecuted respondent no.1 without a reasonable and
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probable cause, knowing that the allegations were false with the
sole purpose of defaming respondent no.1 in the society. As a
result of this, the image of respondent no.1 was maligned in the
society and the same caused him mental agony and illness.
Respondent no.1 claimed damages of Rs.9,00,000/- from the
appellants and respondent nos.2 to 6. Original defendant nos.1
and 14 died during pendency of the trial and therefore, the suit
came to be abated against them.
4. The appellants and respondent nos.2 to 6 filed a
common written statement maintaining their stand that
respondent no.1 was neither the Secretary nor a member of the
society and the society never authorized him to obtain money
from the members. He illegally collected the money from its
members. Therefore, police report was rightly lodged against
respondent no.1. They also took the defence that there was no
malicious intent on the plot of the appellants and respondent
nos.2 to 6 and therefore, they are not liable to pay any damages.
The trial Court decreed the suit by granting damages of Rs.1/-.
5. Feeling aggrieved by the decision of the trial Court,
respondent no.1 filed an appeal against the quantum of
compensation. Whereas, the appellants also filed an appeal
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against the decree for damages passed by the learned trial Court.
The learned District Judge, Nagpur dismissed the appeal filed by
the appellants; whereas, allowed the appeal filed by respondent
no.1 enhancing the compensation from Rs.1/- to Rs.3,00,000/-
with interest at rate of 6% per annum from the date of filing of the
suit till its realization. Feeling aggrieved with the dismissal of their
appeal and enhancement in damages, the appellants filed two
separate appeals. Since, both the appeals arsing out of the
common judgment, they are being disposed of analogously.
6. This Court by order dated 24.09.2019 has framed the
following substantial questions of law :
"1. Whether the Courts below were justified in rendering
finding that criminal prosecution launched against the
respondent (original plaintiff) at the behest of the appellants
was malicious and that it was without reasonable and
probable cause ?
2. What would be effect of failure on the part of the
respondent (original plaintiff) in bringing on record legal
heirs of defendants No.1 & 14 and its consequent effect of the
decree granted by the Courts below in favour of the
respondent ?"
7. The trial Court in para 25 of its judgment has relied on
the observations made by the criminal Court that respondent no.1
in presence of some of the defendants was elected as Secretary of
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the society. On the day of acceptance of amount, respondent no.1
acted as a Secretary and he did not misuse the amount collected
by him from the plot holders and deposited the said amount in the
bank account of the society. The trial Court has also relied on the
fact that the allotment of plots to the all defendants was made by
respondent no.1 while acting as a Secretary and all the defendants
constructed the houses on the plots allotted by respondent no.1 in
the capacity of Secretary of the society and ultimately held that
the defendants were fully aware that the plaintiff/respondent no.1
acted as a Secretary of the society. Inspite of that, they lodged a
police complaint against respondent no.1. The trial Court
ultimately held that the prosecution at the behest of the
defendants was without reasonable and probable cause and
passed a decree of damages of Rs.1/-.
8. The first appellate Court endorsed the finding of the trial
Court regarding malicious prosecution. However, considering the
position of respondent no.1, who was a professor and the fact of
his arrest and humiliation of arrest was without reasonable and
probable cause, the learned First Appellate Court enhanced the
compensation from Rs.1/- to Rs.3,00,000/- with interest.
10 sa610.18.odt
9. Shri Kshirsagar, learned counsel appearing on behalf of
the appellants submitted that public notices (Exhibits 151 and
152) as well as yearly report (Exhibit 153) reveals that respondent
no.1 was not a Secretary on the day of acceptance of amount from
the original defendants and even the audit reports (Exhibits 160
and 161), which are required to be signed by the Secretary of the
society, were not signed by respondent no.1. The record reveals
that one Keshav Nandanwar was the Secretary of the society at the
relevant time and not respondent no.1. The trial Court as well as
the appellate Court have not considered the evidence of
DW1-Nandanwar. According to him, for claiming damages, it has
to be proved by the claimant that there was an absence of
reasonable and probable cause for initiating prosecution against
the plaintiff/respondent no.1 and the prosecution was malicious.
According to him, the defendants did nothing more than bringing
the information before the police and it was the police, after being
satisfied that there was a reason to suspect the commission of
crime, proceeded to investigate the facts and circumstances of the
case and took necessary orders for remand as they are bound to
do. The discharge of respondent no.1 on the ground of there
being no sufficient evidence cannot be blamed on the original
11 sa610.18.odt
defendants. The prosecution was not filed by any ill-will or
improper motive.
10. Conversely, Shri Anand Bandre, the learned counsel for
respondent no.1 vehemently submitted that the finding of facts
more particularly, concurrent findings recorded by the trial Court
as well as the first appellate Court cannot be interfered with under
Section 100 of the Code of Civil Procedure unless concurrent
findings recorded by the Courts below were found to be perverse.
It is contended on behalf of the learned counsel for respondent
no.1, that in view of the finding of the criminal Court and material
available on record that respondent no.1 was Secretary at the time
of accepting the amount which was very well within the
knowledge of all original defendants, they lodged the police
complaint and made a false statement before the investigating
officer. Therefore, the trial Court has rightly decreed the suit and
the first appellate Court has rightly enhanced the amount to the
extent of Rs.3,00,000/- with interest. To buttress his submissions,
he seeks to rely upon the decision of the Supreme Court in the
case of Kapil Kumar Vs. Raj Kumar1. Lastly, he sought rejection of
these appeals.
1 (2022) 10 SCC 281
12 sa610.18.odt
11. Having heard the learned counsel for the parties and
having gone through the record, it transpires that on 31.08.1988
the appellants along with J.B. Nikhar and S.S. Nimje lodged a
police complaint with the Sonegaon Police Station, Nagpur
alleging that respondent no.1 falsely claimed to be the Secretary
of the society, deceived the appellants and original defendant
nos.1 and 14 and illegally accepted the earnest amount towards
the plots to be allotted by the Adiwasi Samaj Unnati Grah Nirman
Sahakari Sanstha Ltd., Nagpur and sought action to arrest him
and to compel him to return the amount. It is a matter of record
that the offence came to be registered and he was in police
custody for some time. Respondent no.1 was also charge-sheeted.
By the order dated 21.10.1989 (Exh.98) respondent no.1 was
discharged by the learned JMFC, Nagpur from Regular Criminal
Case no.101/1989 holding that the complaint does not disclose
that respondent no.1 had a dishonest or fraudulent intention
when they paid the money to him. It also does not disclose that
the accused induced them to pay the amount and relied on the
resolution of the society appointing him as a Secretary of the
society in presence of some of the appellants and also considered
that the amount collected by respondent no.1 was deposited with
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the bank of the society and discharged respondent no.1. The
learned trial Court as well as the first appellate Court found that
respondent no.1 has been maliciously prosecuted by the
appellants and original defendant nos.1 and 14. The learned trial
Court granted a decree of Rs.1/-, whereas, the learned first
appellate Court enhanced it upto Rs.3,00,000/-.
12. Malicious prosecution means a judicial proceeding
instituted by a person against another with malice for wrongful or
improper motive or without probable cause to sustain it. It is a
prosecution on some charge of crime which is wilful, reckless and
without sense of duty. For maintaining the action for malicious
prosecution, two things are to be proved. Firstly, that the
defendant was malicious and secondly, that he acted without
reasonable and probable cause. However wrong headed a
prosecutor may be, if he honestly thinks that the accused has been
guilty of a criminal offence, he cannot be the initiator of a
malicious prosecution. Malice alone is not enough, there must be
an absence of reasonable and probable cause. No doubt,
reasonable and probable cause has to be proved by the defendant
on whose complaint the prosecution was launched.
14 sa610.18.odt
13. In the present case, the question is would be whether the
appellants have reason and probable cause to file complaint
against the respondent no.1. It is a matter of record that in the
proceedings before the Assistant Registrar (Co-operative), a
serious dispute was raised between two groups and the question
to meeting dated 26.10.1980 was revised in which respondent
No.1 claimed to have been appointed as a Secretary. The dispute
went up to Co-operative Appellate Court even the audit report
produced by DW2-Keshav Laxmanrao Nandanwar, who was
initially appointed as a Secretary and who claimed to have
continued as the Secretary of the said society shows that it does
not include the name of respondent no.1 as Secretary of the
society. Rather, the public notice reveals that there was a dispute
about the Secretary of the society. On one hand, respondent no.1
was claiming to be Secretary and on the other hand, DW2-Keshav
Nandanwar also claimed to be a Secretary. No doubt, the
resolution dated 14.04.1980 reveals that respondent no.1 has
been nominated as a Secretary, though it may have signatures of
some of the appellants but his membership as well as appointment
as a Secretary was challenged. Even then, one cannot be oblivious
of the fact that the members were aware that there was a dispute
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between two groups of society. The question was also raised with
regard to membership of respondent no.1 and his appointment as
a Secretary. The cross-examination of appellant no.5 - Ramrao
Pakhale, who was also a signatory to the complaint, goes to show
that though the plot was allotted by the allotment letter issued by
respondent no.1, the said witness has voluntarily admitted that
the said plot allotted to him was cancelled.
14. Considering the serious dispute between two groups of
person, both claiming to be Executive Body of the society pending
before the various Authority and Co-operative Court and question
raised about membership of respondent no.1 and his appointment
as Secretary and considering that the audit report (Exh.160) does
not contain the name of respondent no.1 as Secretary, it cannot be
said that there was no reasonable and probable cause with the
appellants and original defendant nos.1 and 14 to say that
respondent no.1 is not the Secretary of the society.
15. Another reason for which the orders of the trial Court as
well as the first appellate Court do not sustain is the finding
recorded by the learned Magistrate and the contents of the
complaint. As stated above, the order of discharge indicates that
there is no allegation in the complaint regarding the dishonest or
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fraudulent intention of respondent No.1 when they paid the
money to him. Thus, the allegations made in the complaint were
not constituting the offence as per the learned Magistrate and
consequently, the discharge order came to be passed. This itself is
evident of the fact that no such allegations were made in the
complaint by appellants and others two which constitute the
offence warranting the prosecution. It is for the investigating
officer to conduct the investigation and find out whether the
offence is made out or not. Some facts which have been stated in
the complaint which the appellants believed to be true as per their
knowledge and belief may be incorrect but the same cannot be the
basis for malicious prosecution, more particularly when the
learned Judge has come to the conclusion that the complaint is
befitting of the ingredients of the offence. In the present case,
respondent no.1 should have said the police officer who
conducted the investigation which culminated in charge-sheet. It
is surprising that the investigating officer was not a party to the
suit. This aspects have not ben considered which resulted in
perverse findings by the trial Court and First Appellate Court.
16. It is a matter of record that after filing of suit, original
defendant nos.1 and 14 died. Needless to mention that the suit
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against them came to be abated. Evidently, no legal heirs of
deceased of original defendant nos.1 and 14 were brought on
record. The question here is, whether not brining the legal heirs of
original defendant nos.1 and 14 would vitiate the decree passed
against the remaining defendants. The plaint alleges that original
defendant nos.1 to 15 prosecuted respondent no.1 maliciously.
Prayer clause of the suit reveals that the damages have been
claimed jointly and severally from all the defendants. Since, it was
a suit for malicious prosecution, respondent no.1 did not bring
legal heirs of original deceased defendant nos.1 and 14.
Therefore, no fault can be seen in decreeing the suit of respondent
no.1 in absence of original defendant nos.1 and 14.
17. I am aware of the legal position enumerated in case of
Kapil Kumar (supra) relied upon by the counsel for respondent
no.1 wherein, there are concurrent findings recorded by the trial
Court as well as the first appellate Court, unless the concurrent
findings recorded by the Court below were found to be perverse or
the findings recorded on the basis of ignorance of relevant
material. The Court should not interfere in second appeal. The
case in hand is a case of non-consideration of relevant material
and perverse finding, therefore, the concurrent findings recording
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that the prosecution lodged by the complainants was with malice
is required to be set aside. Consequently, both the appeals are
allowed.
18. The judgment and order dated 14.02.2008 passed by the
6th Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit
No.674/1990 as well as the common judgment and order dated
11.12.2017 passed by District Judge-4, Nagpur in Regular Civil
Appeal Nos.478/2012 and 523/2012 are respectively set aside.
The suit of the respondent No.1 is dismissed.
19. Pending civil application (s), if any, stand(s) disposed of.
JUDGE
Wagh
Signed by: Mr. Ashish Tambe
Designation: PA To Honourable Judge
Date: 10/05/2025 21:04:21
