Gangadhar Padhy vs Prem Singh
2014 Latest Caselaw 249 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 15th January, 2014.

+                               RFA 269/2013

       GANGADHAR PADHY                                         ..... Appellant
                  Through:              Counsel for the appellant (appearance
                                        not given)

                                    Versus
       PREM SINGH                                            ..... Respondent
                         Through:       Counsel     for    the      respondent
                                        (appearance not given)
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree dated 28 th January, 2013

of the Court of the Additional District Judge (ADJ)-I, Patiala House Courts,

New Delhi of dismissal of Suit No.675/2010 (ID No.2403C031222010) filed

by the appellant/plaintiff for recovery of Rs.5 lakhs from the

respondent/defendant towards damages suffered by the appellant/plaintiff

due to malicious prosecution and defamation of the appellant/plaintiff at the

instance of the respondent/defendant.

2. Notice of the appeal and the application for condonation of 18 days

delay in re-filing the same was issued. The counsel for the

respondent/defendant appeared before this Court on 26th November, 2013

when the delay in re-filing the appeal was condoned and finding the learned

ADJ to have dismissed the suit on the ground that the appellant/plaintiff had

not proved that prosecution was malicious and on the ground that the

appellant/plaintiff was acquitted giving benefit of doubt, the appeal was

admitted for hearing, the Trial Court record was requisitioned and the

counsels asked to address arguments. However, both the counsels sought

adjournment. Considering the nature of the appeal, it was not deemed

expedient to allow it to burden the roster of this Court and accordingly,

judgment was reserved giving liberty to the counsels to file written

submissions within fifteen days. Though more than fifteen days have

lapsed, neither counsel has bothered to file written submissions or to seek

opportunity to address. The Trial Court file has been perused.

3. The appellant/plaintiff instituted the suit from which this appeal

arises, pleading:

(i) that the appellant/plaintiff was introduced to the

respondent/defendant by the uncle of the wife of the

respondent/defendant;

(ii) that the appellant/plaintiff so also came in contact with the

daughter of the respondent/defendant;

(iii) that the appellant/plaintiff developed intimacy with the

daughter of the respondent/defendant and which converted into a love

affair;

(iv) that the daughter of the respondent/defendant took the

appellant/plaintiff to Bangalore where the father-in-law of the

respondent/defendant used to reside;

(v) that the appellant/plaintiff with the daughter of the

respondent/defendant also used to visit the shop at Mohan Singh Place

of a friend of the appellant/plaintiff;

(vi) that the appellant/plaintiff and the daughter of the

respondent/defendant planned to get married;

(vii) that the respondent/defendant and his wife were opposed to the

said marriage and stopped the appellant/plaintiff from even visiting

the colony of Golf Link, New Delhi in which the

respondent/defendant and his daughter were residing and threatened

the appellant/plaintiff;

(viii) that though the appellant/plaintiff stopped contacting the

daughter of the respondent/defendant but the respondent/defendant

fearing that his daughter may secretly marry the respondent

/defendant, got a false complaint made in the name of his daughter to

the Police Station, of the appellant/plaintiff having molested and

having threatened to kidnap her;

(ix) that however the police on investigation did not find any merit

in the complaint and no action was taken thereon;

(x) that the respondent/defendant then with the help of Special

Commissioner of Delhi Police and an Indian Administrative Services

(IAS) Officer filed a false, frivolous and concocted complaint against

the appellant/plaintiff alleging that the appellant/plaintiff had written

unsigned and signed letters to his daughter threatening her and also

linking the appellant/plaintiff with a notorious terrorist and gangster;

(xi) that on the said complaint, the appellant/plaintiff was arrested

and taken to the Police Station where he was given severe beating and

abuses at the instance of the respondent/defendant and after being kept

at the Police Station for one night was granted bail as the offence

under Section 509 IPC is a bailable one;

(xii) that on the next date i.e. on 29th March, 1999, the

appellant/plaintiff as directed reached the Police Station and was made

to sit there from 1200 hours to 2200 hours without food or water and

called to the room of the Station House Officer in the night where he

was confronted with the aforesaid Special Commissioner of Delhi

Police and the IAS Officer and all of whom threatened him with dire

consequence; the appellant/plaintiff was given third degree treatment

and was forced to accept certain letters as his and again beaten up and

tortured and forced to write letters to the daughter of the

respondent/defendant; Rs.2,000/- in his pocket were also taken away;

(xiii) that the appellant/plaintiff was forced to face trauma of trial in a

Criminal Court in the company of hardcore criminals and which trial

went for ten long years;

(xiv) that as the appellant/plaintiff has been defamed and de-

established from Delhi; he was forced to settled down in Mumbai;

(xv) that the cause of action accrued to the appellant/plaintiff on 23rd

September, 1999 when false First Information Report (FIR) No.88/99

was got registered against the appellant/plaintiff and on 9 th September,

2009 when the appellant/plaintiff was acquitted;

(xvi) that the complaint filed against the appellant/plaintiff by the

respondent/defendant was obviously with malicious intention and

wicked designs.

Accordingly, a claim for Rs.5 lakhs was made.

4. The learned ADJ, after framing issues and recording evidence has

dismissed the suit, finding/observing/holding:

(a) that the daughter of the respondent/defendant had appeared as a

witness and denied any relationship with the appellant/plaintiff and

had supported the complaint by her father against the

appellant/plaintiff herein on the basis of which the FIR was registered;

(b) that the appellant/plaintiff had been acquitted in the prosecution

giving benefit of doubt to him;

(c) that the appellant/plaintiff had failed to prove that the complaint

against him, though lodged by the respondent/defendant, was

malicious or initiated without reasonable or probable cause and there

is no conclusion of the Court which acquitted the appellant/plaintiff

also that the FIR in question was based on false allegations;

(d) relying on the judgment of the Division Bench of this Court in

Radhey Mohan Singh Vs. Kaushalya Devi AIR 2003 Delhi 413

laying down that there are variety of reasons for which an accused is

given benefit of doubt and this by itself cannot lead to a conclusion

that the complaint was based on extraneous consideration leading to

entitlement of damages, it was held that else the appellant/plaintiff had

been unable to base his claim for damages on the ground of malicious

prosecution as he has merely been acquitted for want of any definite

conclusion arrived at by the Court in which the appellant/plaintiff was

prosecuted.

5. In the absence of any argument on behalf of the appellant/plaintiff, I

have perused the memorandum of appeal. The appellant/plaintiff besides

repeating the contents of the plaint, has urged the impugned judgment to be

wrong inter alia on the ground that the appellant/plaintiff having been

prosecuted at the instance of the respondent/defendant and having been

acquitted, it is obvious that the prosecution of the appellant/plaintiff was

false and the damage to the appellant/plaintiff from such prosecution for ten

years is implicit/inherent. With respect to the Division Bench judgment in

Radhey Mohan Singh supra, it is only stated that the facts thereof were

different as it was a finding of the Trial Court in that case that the plaintiff

had admitted commission of offence (in that case of misappropriation)

giving the respondent reasonable and probable cause of filing the complaint

which on investigation was found to be correct. It is contended that there is

no such admission of the appellant/plaintiff in the present case nor any

finding of the Court deciding the prosecution to the said effect.

6. One thing which is clear from the judgment of the Division Bench of

this Court in Radhey Mohan Singh supra, that acquittal giving benefit of

doubt per se is not a cause for claiming damages for malicious prosecution.

To the same effect is another judgment of this Court in Bhupinder

Chaudhary Vs. Chander Parkash MANU/DE/4799/2009 laying down that

acquittal of the plaintiff in a criminal case does not necessarily lead to a

conclusion that his prosecution was malicious.

7. Still, the whole premise of the case of the appellant/plaintiff before the

Trial Court as well as before this Court in appeal is, that merely on account

of his acquittal, he is entitled to damages against the respondent/defendant

and which as aforesaid, is not the position in law.

8. It has been held in S.T. Sahib Vs. N. Hasan Ghani Sahib AIR 1957

Madras 646 that the action for malicious prosecution is not favoured in law

and should be properly guarded and its true principles strictly adhered to,

since public policy favours the exposure of a crime and it is highly desirable

that those reasonably suspected of crime be subjected to the process of

criminal law for the protection of society and the citizen be accorded

immunity for bona fide efforts to bring anti-social members to the society to

the bar of justice. It was thus held, that to be successful in a suit for

malicious prosecution, it is imperative for the plaintiff to show that the

proceedings had been instituted against him for an offence which was

groundless as evidenced by the successful termination of the proceedings in

his favour, and which were instituted against him by the defendant 'without

probable cause' and from 'malicious motives' i.e. for indirect and improper

motive. It was yet further held that only when the plaintiff has led some

evidence to this effect, can the defendant be called upon to show the

existence of such a cause and the onus lies heavily upon the plaintiff even

though the Rule may appear to require the plaintiff to prove a negative, viz.,

that the defendant had no reasonable and probable cause for the prosecution.

It was yet yet further held that in a suit for malicious prosecution, the

important question is whether the facts as known to the defendant or

reasonably believed by him at the material time, constituted a reasonable

cause for the prosecution. The Court quoted with approval Ramaswamy

Iyer's Law of Torts opining, that to show that there was no reasonable and

probable cause, it has to be shown that the defendant did not believe in the

plaintiff's guilt. It was further observed that police is an impartial agency

constituted by the State for investigation into offences, booking of offenders

and bringing them to justice, on their being satisfied by their enquiries that

the case is truthful and merits prosecution; therefore, if such an agency

prosecuted the offender, it would certainly be a factor in favour of the

complainant having reasonable and probable cause.

9. Reference may also be made to the judgment of the Division Bench of

the Calcutta High Court in Bharat Commerce and Industries Ltd.

Vs. Surendra Nath Shukla AIR 1966 Calcutta 388 observing, that though 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 but the concept of malice is to be kept distinct from the concept of

lack of reasonable and probable cause; malice denotes spite or hatred against

an individual and prosecution can be held to be malicious only if it is found

to be vindictive, initiated to malign the plaintiff before the public or guided

by purely personal consideration. It was reiterated that 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.

10. Applying the aforesaid principles with which I respectfully concur, I

am unable to find any merit whatsoever in the case of the appellant/plaintiff

and the learned ADJ is correct in concluding that the appellant/plaintiff has

utterly failed to prove his prosecution, though at the instance of the

respondent/defendant, to be malicious.

11. The daughter of the respondent/defendant whose modesty the

appellant/plaintiff was accused of outraging, appeared as a witness not only

in the prosecution, supporting the complaint but also as a witness on behalf

of the respondent/defendant in the suit from which this appeal arises and

both times denied any intimacy, love affair or relationship with the

appellant/plaintiff as claimed by the appellant/plaintiff. I have perused the

testimony of the daughter of the respondent/defendant in the suit from which

this appeal arises as well as as discussed in the judgment of acquittal of the

appellant/plaintiff and I am unable to therefrom find her such denial to have

been dented in any manner in cross-examination by the appellant/plaintiff.

12. Though it was the case of the appellant/plaintiff in the plaint that he

was introduced to the respondent/defendant and his family by the uncle of

the wife of the respondent/defendant but the case of the

respondent/defendant was, that the appellant/plaintiff was a domestic servant

in the house of a neighbour and had been harassing the daughter of the

respondent/defendant. The appellant/plaintiff denied that he was a domestic

servant and claimed to be a friendly astrologer of such neighbour. Though

the appellant/plaintiff in the suit did not examine the person in whose house

in the prestigious colony of Golf Link the appellant/plaintiff admitted to be

residing, not as a domestic servant but as a friend but the said person is

found to have been examined in the prosecution case and to have deposed

that the appellant/plaintiff was a domestic servant living in the servant

quarters, though at times performing Pooja in the house. The mere fact that

the neighbour of the respondent/defendant was availing the services of the

appellant/plaintiff living in the servant quarter into servant quarter, to

perform Pooja, will not change the status of the appellant/plaintiff from that

of a domestic servant in a neighbour's house as averred by the

respondent/defendant to that of a neighbour. The case set up by the

appellant/plaintiff, of affair with the daughter of the respondent/defendant

and her denial has to be seen in the said light.

13. The appellant/plaintiff admits intimacy on his part with the daughter

of the respondent/defendant; she denies and her denial, the appellant/plaintiff

as aforesaid has been unable to dent. The complaint by the

respondent/defendant of harassment by the appellant/plaintiff of his

daughter, seen in this light, cannot be said to be 'without any probable or

reasonable cause'.

14. The judgment of the acquittal of the appellant/plaintiff itself records

as many as 47 letters having been allegedly sent by the appellant/plaintiff to

the daughter of the respondent/defendant. The appellant/plaintiff has proved

some of those before the Trial Court. Of course, the judgment in the

prosecution holds the prosecution to have failed to prove the said letters in

the handwriting of the appellant/plaintiff. However, the said letters

otherwise are in consonance with the intimacy admitted by the

appellant/plaintiff with the daughter of the respondent/defendant.

15. The appellant/plaintiff has been unable to prove any reciprocity of the

said intimacy by the daughter of the respondent/defendant; though he

claimed that the daughter of the respondent/defendant had sent a number of

greeting cards to him but claimed to have lost the same; though he claimed

to have travelled to Bangalore with the said daughter of the

respondent/defendant but the said case was disbelieved in the judgment of

acquittal and no attempt even to prove the same and which could easily have

been proved, has been made in the present proceedings.

16. The admitted expression by the appellant/plaintiff of intimacy towards

the daughter of the respondent/defendant is thus found to be unilateral.

17. The appellant/plaintiff has also failed to prove any malice. The only

malice attributed by him to the respondent/defendant is that the complaint

was initiated to prevent his daughter from marrying the appellant/plaintiff.

However, once the appellant/plaintiff fails to prove the reciprocity of his

admitted intimacy, the said plea of malice also remains unsubstantiated.

18. The appellant/plaintiff thus has indeed failed to prove the necessary

ingredients to be entitled to the damages for malicious prosecution.

19. The appeal thus has no merit and is dismissed. The Trial Court did

not impose any costs on the appellant/plaintiff and which appears to have

encouraged the appellant/plaintiff to prefer this appeal, without even

intending to seriously pursue the same. The appellant/plaintiff is burdened

with costs of this appeal which is assessed at Rs.20,000/-. However, the

counsel for the respondent/defendant also having not bothered to contest the

appeal, the said costs, instead of being payable to the respondent/defendant,

be paid to the Delhi High Court Bar Association

Lawyers' Social Security and Welfare Fund, New Delhi.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

JANUARY 15, 2014/'bs'..