Supratik Ghosh vs Commissioner Of Police Of Kolkata ...
2022 Latest Caselaw 2163 Cal/2

                        In The High Court at Calcutta
                       Constitutional Writ Jurisdiction
                                Original Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                           W.P.O. No. 831 of 2021
                           Supratik Ghosh
                                  Vs.
              Commissioner of Police of Kolkata and others

For the petitioner                   :     Mr. Tapas Dutta

For the
State of West Bengal                 :     Mr. Amitesh Banerjee,
                                           Ms. Ipsita Banerjee

For High Court Administration        :     Mr. Siddhartha Banerjee,
                                           Mr. Soumajit Majumder

Hearing concluded on                 :     02.08.2022

Judgment on                          :     11.08.2022

The Court:
1.    The petitioner lodged a complaint against one Bipro Das Chatterjee

      and his Company, upon which a First Information Report was

      registered under Section 420/120B of the Indian Penal Code. Bipro

      Das was arrested and released on bail upon giving an undertaking

      that he would pay 50 per cent of the total outstanding amount

      claimed by the petitioner, which would not be less than Rs.6,55,000/-

      according to the petitioner. It is alleged that such amount was to be

      paid within 15 days as per the undertaking of the accused, which was

      allegedly not complied with by the accused.


2.    The present respondent no.4 was the Investigating Officer of the case

and filed an FRT on October 3, 2001 indicating that the case was civil

in nature. During investigation, the respondent no.4 seized all

original documents like bills, challans, cheques, etc., by two Seizure

Lists dated February 27, 2001 and April 3, 2001.

3. The petitioner thereafter filed Money Suit No.01 of 2003 before the

Civil Judge, Senior Division, 8th Court at Alipore, against the said

Bipro Das Chatterjee and his Company for an amount of

Rs.10,58,166/-. Ad valorem court fees to the tune of Rs.25,550/- was

paid for institution of the suit.

4. In the meantime, vide order dated June 25, 2008, the Chief Judicial

Magistrate at Alipore directed respondent no.4 to return the original

documents to the petitioner, which was not complied with according

to the petitioner.

5. In evidence in connection with the Money Suit, respondent no.4 was

summoned as witness and he stated that the case diary was missing

and he was not in a position to produce the original seized

documents.

6. The Money Suit was ultimately dismissed by the Judgment and

Decree dated April 26, 2012. It is submitted that such dismissal was

due to non-production of the original documents.

7. The petitioner preferred an appeal bearing FAT 386 of 2012 against

the said Judgment and Decree dated April 26, 2012 but the appeal

was dismissed due to non-payment of deficit court fees vide order

dated September 9, 2013. As per the petitioner, such payment could

not be made due to the petitioner's financial hardship.

8. After dismissal of the appeal, the petitioner filed a writ petition bearing

WP No. 31667 (W) of 2013 on September 27, 2013 against the

respondent-authorities for compensation due to loss suffered by the

petitioner for the respondents' failure to hand over the original

documents to petitioner, which led to the dismissal of his suit.

9. In FAT 386 of 2012, the petitioner had filed an application bearing

CAN 4617 of 2016 for leave to file a review application. However, the

appeal was dismissed on September 9, 2013, without such leave being

granted. Consequently, the application was dismissed vide order

dated June 23, 2016.

10. The petitioner then filed a review application in the Trial Court on

June 29, 2016, which was registered as Miscellaneous Case No.8 of

2016, along with an application for condonation of delay.

11. While disposing of WP No.31667 (W) of 2013, a co-ordinate Bench,

vide order dated June 26, 2018, observed that since the State was

making over the photocopies of the documents seized by the police on

that date, certifying them to be exact photocopies of the documents

seized, it would be open to the petitioner to produce such documents

before the appropriate authority in accordance with law. It was

further held that since the petitioner, in law, was then in a position to

lead secondary evidence in support of his claim before the

adjudicating authorities, the claim for compensation need not be

assessed on that stage.

12. However, the petitioner's review application was dismissed vide order

dated June 15, 2019, upon refusal by the Court to condone the delay

in filing the review application. The said order of dismissal was

challenged in revision, giving rise to CO No. 598 of 2020, which was

also dismissed vide August 26, 2021 by this Court.

13. Subsequently, it is alleged, the petitioner learnt that the companies of

the accused/defendant no longer exist.

14. Thus, on the allegation of having suffered losses due to purported

negligent act of the respondent-authorities, particularly respondent

no.4, the petitioner has preferred the instant writ petition bearing

WPO No. 831 of 2021 for compensation to the tune of Rs.7,22,165/-

with 16 per cent per annum interest, to the tune of Rs.1,70,30,175/-,

for court fees paid to the tune of Rs.25,480/-, business loss, lawyer's

fees, miscellaneous expenses, alleged mental agony, etc.

15. Learned counsel for the petitioner argues that the Money Suit was

dismissed due to inability of the petitioner to produce the original

documents on which he relied on as evidence in the suit, due to the

respondent no.4 not handing over such originals to the petitioner.

The dismissal of the appeals for non-payment of deficit court fee was

due to the stringent financial condition of the petitioner. In any event,

it is argued that such dismissal was on a technical ground, as was the

dismissal of the review on the ground of limitation. Hence, the

petitioner's claim for compensation was never turned down on merits.

The affirmance of the dismissal by this Court in revision, it is argued,

does not alter such scenario.

16. Learned counsel submits that the writ court can take evidence and

grant compensation even if the respondents raise disputes on facts.

Such award of compensation will be on a prima facie notional figure,

which the Court can arrive at. In case of a disputed money claim, a

writ petition lies according to the petitioner.

17. In support of such propositions, learned counsel cites Popatrao

Vyankatrao Patil Vs. State of Maharashtra and others [(2020) 19 SCC

241], Sunil Kumar Wadhwa and another Vs. State of Punjab and others

[(2020) 19 SCC 678] and ABL International Limited and another Vs.

Export Credit Guarantee Corporation of India Ltd. and others [(2004) 3

SCC 553].

18. The petitioner cites Meghashyam Sadashivrao Vadhave Vs. State of

Maharashtra and others [(2017) 13 SCC 681] and N. Nagendra Rao &

Co. Vs. State of A.P. [(1994) 6 SCC 205] to elaborate his submissions

on the scope of interference by the writ court in such cases.

19. Learned counsel for the petitioner further submits that, while

dismissing the previous writ petition, the learned Single Judge had

refused compensation "at that stage", thereby keeping the question of

compensation open.

20. In support of the submission that the High Court, in a writ petition,

may direct the respondent-authority to pay compensation for wrongful

or negligent acts done by government servants, learned counsel for

the petitioner places reliance on Meghashyam Sadashivrao Vadhave

(supra) and N. Nagendra Rao & Co. (supra).

21. It is next contended that the writ court has the jurisdiction to

entertain a writ petition even if disputed questions of fact arise, in an

appropriate case, and award compensation. For the said proposition,

learned counsel cites Century Spinning and manufacturing Company

Ltd. and another Vs. The Ulhasnagar Municipal Council and another,

reported at (1970) 1 SCC 582, ABL International Ltd. and another Vs.

Export Credit Guarantee Corporation of India Ltd. and others, reported

at (2004) 3 SCC 533 and Popatrao Vyankatrao Patil (supra).

22. The next contention put forward by learned counsel for the petitioner

is that a writ petition is maintainable even involving monetary claim

when there is no fraud or misrepresentation, even though a suitable

efficacious alternative remedy is available by way of a suit.

Considering the age of the dispute, a writ petition was held to be

maintainable in ABL International Ltd. (supra).

23. Learned counsel for the petitioner also places reliance on ABL

International Ltd. (supra) for the proposition that a writ petition is

maintainable when the impugned action of the State or its

instrumentality is arbitrary and unreasonable so as to violate the

constitutional mandate of Article 14 or for other valid and legitimate

reasons. Lastly, learned counsel cites Sunil Kumar Wadhwa (supra) in

support of the proposition that the High Court was held in the said

case to have erred in law in relegating the appellant to the civil court

with liberty to file civil suit.

24. Learned counsel appearing for the respondent nos.1 to 4 submits that

the plaintiff/petitioner had available before him the option to file an

application under Section 65(c), read with Section 63, of the Evidence

Act for adducing copies of the documents-in-question as secondary

evidence. However, having not taken recourse to the said provisions,

it does not now lie in the mouth of the petitioner to claim

compensation for loss of the documents-in-question.

25. In the order dated March 23, 2017 passed by a co-ordinate bench in

connection with WP No.31667 (W) of 2013, with CAN 238 of 2014, it

was recorded that the learned advocate for the present petitioner, who

was also the petitioner therein, submited that the original Case Diary

records of the criminal proceedings have since been lost from the

Court's custody and referred to the report submitted by the District

Judge concerned and the Police Station concerned.

26. After such admission, the present writ petition claiming damages

entirely against the respondent nos.1 to 4 is not maintainable at all, it

is argued. A copy of the order referred to is annexed at page 10 of the

affidavit-in-opposition filed by respondent no.4 Saroj Praharaj.

27. Learned counsel for the respondent nos.1 to 4 next points to the

sequence of events. After dismissal of the plaintiff/petitioner's money

suit, not merely on the ground of adverse inference for non-production

of relevant documents but also on the ground of preponderance of

probabilities, the petitioner preferred a review application, which was

also dismissed for the delay in filing the same.

28. An appeal was also preferred by the petitioner against the dismissal of

the suit which was also dismissed on the ground of non-payment of

deficit court fees by the writ petitioner himself.

29. Moreover, the petitioner could easily have produced collateral evidence

and/or oral or circumstantial evidence to satisfy the test of

preponderance of probabilities, which was also a ground for the trial

court to dismiss the suit. However, the said course of action was

deliberately not adopted by the petitioner.

30. It is, thus, submitted that the petitioner lost before every forum due to

none else but his own laches and, as such, cannot now claim

compensation from the respondent-authorities.

31. That apart, it is submitted that it is beyond the scope of Article 226 of

the Constitution for the Court to grant damages, particularly in view

of the amount being unliquidated.

32. After having failed in all forums, the petitioner has preferred the

present writ petition, which is not maintainable in the eye of law, it is

contended.

33. Learned counsel for the High Court, while adopting the arguments of

the respondent nos.1 to 4, cites the judgment reported at P.

Viswanathan Vs. Dr. A.K. Burman and another, reported at (2002) SCC

OnLine 805, to elucidate the cases in which a writ court can award

cost or damages.

34. In the present case, however, such tests are not fulfilled as per the

learned counsel for the High Court. Upon considering the

submissions of the parties and perusing the material-on-record, it is

evident that the respondent nos.1 to 4 are justified in submitting that

the writ petitioner could very well have resorted to provisions of

Section 65(c), read with Section 63, of the Evidence Act to adduce

secondary evidence by producing copies of the documents purportedly

lost. Ample scope was available in law to produce secondary evidence

in the suit even if the originals were lost, which the petitioner chose

not to avail. Hence, the petitioner cannot argue now, at this belated

stage, that the petitioner lost his litigation due to the loss of the

documents.

35. That apart, it was specifically contended on behalf of the petitioner on

fact that the documents were lost from the Court's custody, which was

also recorded by the co-ordinate bench in the order dated March 23,

2017 passed in WP No.31667 (W) of 2013, with CAN 238 of 2014.

There is no conceivable reason as to why such admission of fact, even

if made through counsel, should not bind the petitioner.

36. The said contention belies the petitioner's allegation that the

respondents were responsible for the alleged loss.

37. Furthermore, the chronology of events clearly indicates that the

petitioner took a chance before all possible forums and waited for the

outcome thereof. Only after the litigations were all dismissed,

primarily due to the petitioner's laches, the petitioner is testing his

fortune by preferring the present writ petition.

38. The civil suit was dismissed, inter alia, on the ground of non-

production of relevant documents. However, the petitioner was the

dominus litis and it was the burden and initial onus of the petitioner,

as plaintiff, to tender copies of the relevant documents as secondary

evidence since Section 65(c) of the Evidence Act clearly stipulates that

in case of loss of a document, a copy thereof can be produced as

secondary evidence. Having failed to adopt such course, the petitioner

himself cannot turn back and claim compensation from others for

such flaw on his own part.

39. That apart, none else but the petitioner is to blame for the

considerable delay of more than 1300 days in filing the review

application. After losing in the review application and in the revisional

court, the petitioner also lost his appeal against the dismissal of his

suit only on the ground of non-payment of court fees, which could be

attributed only to the petitioner. Such laches are merely being sought

to be covered up now by the petitioner, by filing the present writ

petition for compensation against the respondents. Inasmuch as the

judgments cited by the petitioner are concerned, none of those

strengthen the case of the petitioner.

40. In the case of Meghashyam Sadashivrao Vadhave (supra), the basis of

grant of the compensation was the purchase price of teak trees, which

was quantifiable in nature, unlike in the present case.

41. Again, in N. Nagendra Rao & Co. (supra), the compensation was based

on the stock value which is, by its very nature, quantifiable.

Moreover, the relief was granted in the context of a suit and not a writ

petition.

42. Inasmuch as Century Spinning and Manufacturing Company Ltd. and

another (supra) is concerned, paragraph no.13 of the same lays down

that the questions of fact raised therein were "elementary" in nature.

In similar tune, Popatrao Vyankatrao Patil Vs. State of Maharashtra

and others (supra) specifically observed that disputed questions of fact

can only be decided by the writ court if they do not require "elaborate

evidence to be adduced" and that such plenary power is to be

exercised by the High Court only in exceptional circumstances.

Moreover, in the said case, the amount granted as refund was the

sum which was specifically paid by one of the parties, which was

clearly of quantifiable nature as well.

43. The Supreme Court, in ABL International Limited (supra), observed

that where disputed questions of fact pertaining to the

interpretation/meaning of documents or parts thereof are involved,

the courts can decide the objections. It was held that there does not

exist any absolute bar to decide disputed questions of fact by a writ

court "in an appropriate case".

44. In ABL International Limited (supra) it was categorically observed by

the Supreme Court that the plenary right of the High Court to issue

prerogative writ is not exercised normally to the exclusion of other

remedies, unless the impugned action of the State or its

instrumentality is arbitrary and unreasonable so as to violate Article

14 or any other legitimate right.

45. Again, in the present case, the alleged negligence of the respondents is

not arbitrary or unreasonable, let alone patently, as in ABL

International Limited (supra).

46. Inasmuch as civil suits are concerned, the High Court has been held

to have erred in law in relegating matters to the civil court with liberty

to file civil suit only in exceptional cases, which call for decision on

questions of fact, for deciding which, elaborate evidence is required.

47. However, contrary thereto, in the present case, the amount of

compensation/damages claimed by the petitioner is entirely

unliquidated. There is no reasonable basis or yardstick disclosed in

the writ petition for assessing such quantum.

48. Secondly, detailed and elaborate evidence is required to be adduced

and assessed for the court to come to a conclusion as regards whether

compensation is actually payable to the petitioner and, if so, the

quantum thereof.

49. Thirdly, in view of the observations made above, the petitioner has

failed to make out a strong case of violation of any fundamental or

legal right and/or arbitrariness on the part of the respondent-

authorities, which resulted in the petitioner's suit being dismissed and

the subsequent review application, the revision therefrom as well as

the appeal from the suit having all been dismissed by competent

courts of law.

50. After having exhausted all legal remedies, the petitioner has taken out

the present writ petition in a last-ditch effort to get the relief which he

failed to secure in the regular civil suit filed by him. Such attempt

cannot be given a premium by the writ court, since the petitioner has

come with unclean hands.

51. As rightly held in P. Viswanathan Vs. Dr. A.K. Burman and another,

reported at (2002) SCC OnLine 805, by the Division Bench of this

Court, here also it would be improper for this Court to award

compensation in the writ jurisdiction where prima facie it is not a case

of absolute breach of fundamental right or the action having been

taken without any authority of law. Hence, there is no scope for

granting compensation.

52. In fact, in P. Viswanathan (supra), cited by the State, several

instances of high handed action, which called for grant of

compensation by the writ court, were given. Such reasons were of a

grave and serious nature, such as custodial death due to torture,

abduction and killing of seven persons by high police officials, death of

a child in police custody due to beating and assault by a police officer

and the killing of 21 people by the police who had assembled to held a

peaceful meeting at a place in Bihar and unauthorized and illegal act

of police officials forcing labourers to do hard work without payment

and further outraging the modesty of women labourers. Since, in the

present case, the petitioner has failed to establish any such instance

of arbitrary or high-handed action by the respondents and/or any

negligence on the part of the respondents to justify grant of

compensation in favour of the petitioner, there is no scope of

interference in the present writ petition.

53. Accordingly, WPO No.831 of 2021 is dismissed on contest, without,

however, any order as to costs.

54. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )