Madras High Court
Vidya vs E.Velu on 22 January, 2021
O.S.A.No.417 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.01.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
and
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
O.S.A.No.417 of 2018
and
C.M.P.Nos.18895 & 20263 of 2018
Vidya,
D/o.Late N.Krishnaswamy,
Old No.19/4, New No.11,
Thangavel Street, Gokulam Apartments,
T.Nagar, Chennai 600 017. ... Appellant
Vs
1.E.Velu, S/o.Ekanathan,
No.103, Gangai Amman Koil Street,
Vadapalani, Chennai 600 026.
2.H.Sankara Narayanan,
The Inspector of Police,
S15, Selaiyur Police Station,
Selaiyur, Chennai
presently working as
Intelligence cum Vigilance Wing,
Tamil Nadu Prison Department,
Egmore, Chennai 600 008. … Respondents
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PRAYER:
Appeal against the order and decreetal order in A.No.4158 of 2013 in
C.S.No.645 of 2012 dated 05.06.2018 in rejecting the plaint in C.S.No.645 of
2012.
For Appellant :Mrs.Vidya (Party-in-person)
For Respondents :Mr.S.R.Edwin (for R1)
Mr.P.Wilson (for R2)
Senior counsel
for Mr.R.Veeramani
JUDGMENT
(Judgment of the Court was delivered by N.KIRUBAKARAN, J )
Civil Court proceedings are very lengthy and protracted, driving the party
to go in search of alternate way of settling the civil dispute or recovery of
money at the earliest viz., by way of criminal complaint. This phenomenon is
not new and it has been decried by the Hon'ble Supreme Court in umpteen
number of judgments.
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2.1.The Hon'ble Apex Court in the case of Indian Oil Corporation v.
NEPC India Limited and Others reported in (2006) 6 SCC 736 has held in
paragraph 13 and 14 as follows:
“13. While on this issue, it is necessary to take notice of a
growing tendency in business circles to convert purely civil disputes
into criminal cases. This is obviously on account of a prevalent
impression that civil law remedies are time consuming and do not
adequately protect the interests of lenders/creditors. Such a tendency
is seen in several family disputes also, leading to irretrievable
breakdown of marriages/families. There is also an impression that if
a person could somehow be entangled in a criminal prosecution,
there is a likelihood of imminent settlement. Any effort to settle civil
disputes and claims, which do not involve any criminal offence, by
applying pressure through criminal prosecution should be deprecated
and discouraged. In G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636
: 2000 SCC (Cri) 513] this Court observed: (SCC p. 643, para 8)
“It is to be seen if a matter, which is essentially of a civil
nature, has been given a cloak of criminal offence. Criminal
proceedings are not a short cut of other remedies available in
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law. Before issuing process a criminal court has to exercise a
great deal of caution. For the accused it is a serious matter.
This Court has laid certain principles on the basis of which
the High Court is to exercise its jurisdiction under Section
482 of the Code. Jurisdiction under this section has to be
exercised to prevent abuse of the process of any court or
otherwise to secure the ends of justice.”
14. While no one with a legitimate cause or grievance should
be prevented from seeking remedies available in criminal law, a
complainant who initiates or persists with a prosecution, being fully
aware that the criminal proceedings are unwarranted and his remedy
lies only in civil law, should himself be made accountable, at the end
of such misconceived criminal proceedings, in accordance with law.
One positive step that can be taken by the courts, to curb unnecessary
prosecutions and harassment of innocent parties, is to exercise their
power under Section 250 CrPC more frequently, where they discern
malice or frivolousness or ulterior motives on the part of the
complainant. Be that as it may.”
2.2.The aforesaid decision was followed by the Hon'ble Apex Court in the
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decision reported in (2014) 10 SCC 663, Binod Kumar and Others v. State of
Bihar and Others, wherein the Hon'ble Apex Court in paragraphs 11 and 12 has
held as follows:
“11.Referring to the growing tendency in business circles to
convert purely civil disputes into criminal cases, in paras 13 and 14
of Indian Oil Corpn. case [Indian Oil Corpn. v. NEPC India Ltd.,
(2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] , it was held as under:
(SCC pp. 748-49)
“13. While on this issue, it is necessary to take notice of a
growing tendency in business circles to convert purely civil
disputes into criminal cases. This is obviously on account of a
prevalent impression that civil law remedies are time consuming
and do not adequately protect the interests of lenders/creditors.
Such a tendency is seen in several family disputes also, leading
to irretrievable breakdown of marriages/families. There is also
an impression that if a person could somehow be entangled in a
criminal prosecution, there is a likelihood of imminent
settlement. Any effort to settle civil disputes and claims, which
do not involve any criminal offence, by applying pressure
through criminal prosecution should be deprecated and
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discouraged. In G. Sagar Suri v. State of U.P. [(2000) 2 SCC
636 : 2000 SCC (Cri) 513] , this Court observed: (SCC p. 643,
para 8)
‘8. … It is to be seen if a matter, which is essentially of a civil
nature, has been given a cloak of criminal offence. Criminal
proceedings are not a short cut of other remedies available in
law. Before issuing process a criminal court has to exercise a
great deal of caution. For the accused it is a serious matter.
This Court has laid certain principles on the basis of which
the High Court is to exercise its jurisdiction under Section
482 of the Code. Jurisdiction under this section has to be
exercised to prevent abuse of the process of any court or
otherwise to secure the ends of justice.’
14. While no one with a legitimate cause or grievance should be
prevented from seeking remedies available in criminal law, a
complainant who initiates or persists with a prosecution, being
fully aware that the criminal proceedings are unwarranted and
his remedy lies only in civil law, should himself be made
accountable, at the end of such misconceived criminal
proceedings, in accordance with law. One positive step that can
be taken by the courts, to curb unnecessary prosecutions and
harassment of innocent parties, is to exercise their power under
Section 250 CrPC more frequently, where they discern malice or
frivolousness or ulterior motives on the part of the complainant.
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Be that as it may.”
12.Coming to the facts of this case, it is no doubt true that the
dispute relates to the non-payment of bill amount of Rs 34,505
pertaining to the contract executed by Respondent 2. It is also
pertinent to note that Respondent 2 preferred CWJC No. 5803 of
1999 wherein an order dated 5-4-2000 [Mukesh Prasad Singh v.
Tilka Manjhi Bhagalpur University, 2000 SCC OnLine Pat 388 :
(2000) 3 PLJR 734] was passed by the Patna High Court directing
the Vice-Chancellor of Bhagalpur University to release the balance
amount of Rs 34,505 with interest @ 18% w.e.f. 1-10-1994 till the
date of payment and pay the interest @ 11% on the sum of Rs 14,000
from 1-10-1994 till 9-12-1996. Aggrieved by the said order,
Bhagalpur University preferred LPA No. 716 of 2000 wherein it was
directed [Tilka Manjhi Bhagalpur University v. Mukesh Prasad
Singh, LPA No. 716 of 2000, order dated 17-8-2000 (Pat)] that since
it was not a statutory contract, no direction for payment of money
could be issued and Respondent 2 can pursue other remedies
available in law for the recovery of money. Aggrieved by the said
order, Respondent 2 filed SLP (C) No. … CC No. 4832 of 2001 which
was dismissed as withdrawn by this Court by the order dated 30-7-
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2001 [Mukesh Prasad Singh v. Tilka Manjhi Bhagalpur, SLP (C) No.
… CC No. 4832 of 2001, order dated 30-7-2001 (SC), wherein it was
directed:“The learned counsel for the petitioner seeks permission to
withdraw the SLP with liberty to approach the appropriate forum. It
is accordingly dismissed as withdrawn.”] granting him liberty to
approach the appropriate forum. Respondent 2 thereafter filed Money
Suit No. 2 of 2002 before the Court of Sub-Judge, first Court,
Lakhisarai on 20-4-2002 for recovery of Rs 69,010 i.e. double the
amount of Rs 34,505 and the said suit is pending. The second
appellant representing the University had also filed Money Suit No. 2
of 2006 before the same court on 4-2-2006 claiming a sum of Rs
1,44,437 with interest against the second respondent contractor.
These acts of the parties show that the parties have already had
recourse to the civil remedies that are available to them in law."
2.3.The Hon'ble Apex Court in the case of Prof. R.K.Vijayasarathy and
Another v. Sudha Seetharam and Another reported in (2019) 16 SCC 739, in
paragraph 31 has held as follows:
“29.In the present case, the son of the appellants has
instituted a civil suit for the recovery of money against the first
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respondent. The suit is pending. The first respondent has filed the
complaint against the appellants six years after the date of the
alleged transaction and nearly three years from the filing of the
suit. The averments in the complaint, read on its face, do not
disclose the ingredients necessary to constitute offences under the
Penal Code. An attempt has been made by the first respondent to
cloak a civil dispute with a criminal nature despite the absence of
the ingredients necessary to constitute a criminal offence. The
complaint filed by the first respondent against the appellants
constitutes an abuse of process of court and is liable to be
quashed.”
3.Here is one such case in which the first defendant instead of filing a suit
for recovery of money against the appellant, very conveniently filed a police
complaint raising certain allegations which would make a cognizable offence, as
a tool to recover the amount allegedly due from the appellant.
4.The appellant has filed the suit for damages to the tune of Rupees One
Crore against the respondents towards mental agony, malicious prosecution and
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defamation suffered by her. In the said suit, an application has been taken out by
the second respondents to reject the plaint under Order 7 Rule 11 CPC r/w
Order 14 Rule 12 of Original Side Rules. The said application has been allowed
rejecting the plaint in respect of second respondent alone. Against the said order
passed by the learned Single Judge, the present Appeal has been preferred.
5.The facts of the case are as follows:-
(a)The appellant is engaged in the business of real estate. During the
course of her business, the appellant was introduced to one K.C.Bose,
Venkataraman and Venkateswaran with regard to the sale of land at Oratthur
Village. It was represented to the appellant that the said K.C.Bose owned 125
grounds in the said village and he wanted to sell the same. The appellant was
made to pay a sum of Rs.25,00,000/- [Rupees Twenty Five Lakhs] for the
purchase of the said property. Later, it was found that the said property does not
belong to K.C.Bose. In view of the same, the appellant lodged a police
complaint against those persons, however the said complaint was closed as a
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Civil dispute, allegedly at the instance of one Additional Commissioner of
Police.
(b)Mr.Velu, the first respondent/first defendant is a close associate of
K.C.Bose. The first respondent, at the instigation of the Additional
Commissioner of Police lodged a false complaint against the appellant before
Selaiyur Police Station wherein the second respondent was serving as Inspector
of Police. In the said complaint, it was alleged that the first respondent had
advanced a loan to the appellant and when the amount was sought to be repaid,
the appellant threatened the first respondent with dire consequences.
(c)According to the appellant, at the instance of the second
respondent/second defendant, the first respondent's/first defendant's address was
shown as No.2/44, Madambakkam Road, Medavakkam, Chennai – 600 302 and
a case was registered against the appellant in Crime No.1247/2009 under
Sections 406, 420, 304(b) and 506(ii) of IPC and the appellant was arrested and
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remanded to judicial custody and she remained in the custody for 60 days. After
investigation, a final report was filed by the second respondent and the learned
Judicial Magistrate took cognizance of the offence under Sections 409, 420,
294(b) and 506(ii) IPC in C.C.No.203/2010.
(d)After the case was taken cognizance by the learned Judicial
Magistrate, the appellant filed a discharge petition under Section 239 Cr.P.C
before the learned Judicial Magistrate and by an order dated 12.07.2011, the
said discharge petition was allowed thereby discharging the appellant from the
charges framed against her.
(e)According to the appellant the first respondent with the connivance of
the second respondent filed a false criminal complaint with false address and
that the second respondent knowing fully well about the falsity of the
allegations stated in the complaint had deliberately registered a case against the
appellant. The complaint was filed against the appellant only to threaten her and
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incarcerate her in prison and to deter her from proceeding against the said
K.C.Bose. The registration of complaint with a false address was done with
malice with an intention to lower the reputation of the appellant in the eyes of
the public and her relatives. The appellant suffered mental agony due to the
false complaint and malicious prosecution resulting in defamation. Therefore,
she filed the suit for damages to the tune of Rupees One Crore against the
respondents towards mental agony, malicious prosecution and defamation
suffered by her.
(f)In the said suit filed by the appellant, the second respondent filed an
application for rejection of the plaint on the ground that he was working as
Inspector of Police at Selaiyur Police Station and a complaint was given by the
first respondent against the appellant alleging that the appellant borrowed a sum
of Rs.6,00,000/- [Rupees Six Lakhs Only] and when the amount was sought to
be repaid, the appellant refused to repay the loan and abused the first respondent
in filthy language and criminally intimidated him with dire consequences. The
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said complaint filed by the first respondent made out a cognizable offence and
hence, in discharge of his official function, he registered a case in Crime
No.1247 of 2009 for the offences punishable under Sections 406, 420, 294(b)
and 506(ii) IPC.
(g)After completion of investigation, a final report was laid before the
learned Judicial Magistrate who took cognizance of the offences under Sections
406, 420, 294(b) and 506(ii) IPC. Thereafter, the appellant successfully filed a
discharge petition under Section 239 Cr.P.C and the same was allowed on
12.07.2011. The said order was challenged before the learned Principal Sessions
Judge, Chengalpet in Crl.R.P.No.7 of 2011. In the meanwhile, the second
respondent was transferred and the new officer who had taken charge withdrew
the criminal revision petition without his knowledge.
(h)According to the second respondent, the appellant is a habitual
offender and there are many cases pending against her. He only made a formal
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arrest of the appellant in Crime No.1247 of 2009 when she was already under
judicial custody in connection with some other case. He only performed his
official functions and as such no malice could be attributed to him in the
registration of the complaint and he acted on reasonable and probable cause.
Therefore, there cannot be any suit for damages towards mental agony,
malicious prosecution and defamation against him.
(i)The said application was earlier dismissed by a learned Single Judge of
this Court by an order dated 11.02.2016. Challenging the said order, the second
respondent filed OSA.No.183 of 2016. Since the criminal revision against the
discharge of appellant was pending before the District Court and criminal
proceedings was not terminated in favour of the appellant, the Division Bench
of this Court set aside the order of the learned Single Judge by an order dated
17.10.2016 with a direction to consider the application afresh after final disposal
of Crl.R.P.No.158 of 2014 which was filed by the first respondent against the
discharge order discharging the appellant from the charges laid against her.
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(j)The said criminal revision filed by the first respondent was dismissed
by this Court on 08.12.2016 confirming the order of discharge and thus, the
criminal proceedings have been terminated in favour of the appellant.
Thereafter, the application was again argued before the learned Single Judge of
this Court and the learned Single Judge allowed the application on the ground
that there is no specific averment that the second respondent registered the
complaint with ill or improper motive and without there being reasonable and
probable cause for alleged criminal prosecution, no amount of malice could be
attributed against the second respondent. It was further held that the pleadings in
the plaint are extremely vague and lack certain ingredients. The said order
passed by the learned Single Judge is being challenged before this Court.
6.Heard the appellant as party-in-person, Mr.P.Wilson, learned Senior
Counsel appearing on behalf of the second respondent and perused the records.
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7.The appellant would submit that the finding given by the learned Single
Judge that there is no allegation of malice is not correct in view of the allegation
of malice pleaded in paragraph 6 and 8 of the plaint. The appellant would
further rely on the letter of L.W.4/Sampath who has been shown as a witness in
the criminal case, wherein he had stated that he has not given any statement as
alleged in the criminal case. Furthermore, the address of the first respondent as
stated in the complaint preferred before the Selaiyur Police Station is a false
address and the first respondent is not residing in the said address. In the
complaint, the address of the first respondent is given as No.2/44, Mambakkam
Salai, Medavakkam, Chennai – 600 302. Even if the said address is taken as a
correct one, the said address falls under the jurisdiction of Pallikaranai Police
Station and not within the jurisdiction of Selaiyur Police Station. However, the
second respondent inspite of the same had taken the complaint preferred by the
first respondent and registered an FIR. The appellant also relied on the Special
Report dated 20.07.2012 filed by the Inspector of Police, CBCID, Cyber Crime
Cell which states that there was no such address as stated in the FIR.
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8.Similarly, the appellant relied upon the report filed by the Additional
Director General of Police, CBCID wherein it had been specifically stated that
the complaint against the appellant appeared to be motivated. In view of the
aforestated pleadings, the appellant would submit that there are pleadings in the
plaint and there are documents to substantiate her claim and therefore, the
application for rejection of plaint filed at the instance of the second
respondent/the then Inspector of Police, Selaiyur Police Station has to be set
aside.
9.Mr.P.Wilson, learned Senior Counsel appearing for the appellant would
support the order passed by the learned Single Judge that the allegations in the
plaint are vague and there is no allegation of malice against the second
respondent. The learned Senior Counsel would contend that the second
respondent had only discharged his official duties as per the statute. There is no
occasion for the second respondent to prosecute the appellant, that too,
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maliciously, as the appellant is only a stranger to him. When the second
respondent had only performed his statutory duty by receiving the complaint
preferred by the first respondent, registering the FIR, conducting the
investigation and filing the charge sheet, there arises no necessity for initiation
of proceedings against the second respondent seeking damages towards mental
agony, malicious prosecution and defamation against him.
10.As rightly found by the learned Single Judge, the First Bench of this
Court has set aside the earlier order of the Single Judge on the ground that the
criminal proceedings against the appellant had not reached finality in her favour
and therefore, directed the application to be disposed of after the finality is
reached. It is proved by the documents that the Crl.R.P.No.7/2011 on the file of
the Principal Sessions Judge, Chengalpet was subsequently withdrawn by the
Inspector who succeeded the second respondent/defendant. Therefore, the order
of discharge has reached finality. Even otherwise, the first respondent
challenged the order of discharge of the appellant from the criminal proceedings
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before this Court in Crl.R.C.No.158/2013 and the discharge of the appellant was
confirmed in the above Crl.R.C by an order dated 08.12.2016 and paragraph 4
of the order is extracted as follows:-
“4.In allowing the discharge petition, court below has found
that the complaint informs money transaction between parties and
upon agreement, de facto complainant had given monies to
petitioner. Any dispute there regards should be agitated before a
civil forum and not in a criminal proceeding. Section 161(3) Cr.P.C
statements also did not inform how second respondent has cheated
petitioner/de facto complainant. Hence, no offences u/s 420 and
406 IPC would be attracted. The complaint did not inform where
the occurrence involving more than one accused took place and
hence, no charge u/s.120(b) IPC would be alleged. While both in
the complaint and First Information Report, it was alleged that a
person of 5½ feet threatened de facto complainant at knife point,
no mention regards such person has been made in the final report
and hence, the charge u/s.506(ii) IPC would not stand. There was
no explanation why de facto complainant has not approached the
civil forum. This Court is of the view that the order of Court below
does not warrant interference.”
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Therefore, the criminal complaint proceedings filed by the first respondent
registered by the second respondent against the appellant ended in favour of the
appellant finally.
11.The cause of action for the criminal complaint was allegedly the non-
payment of the amount borrowed by the appellant from the first respondent
regarding which only the allegation of criminal intimidation, apart from
cheating has been levelled against the appellant, when the money was sought to
be returned, resulting in filing of the complaint dated 04.11.2009. A close
perusal of the complaint would reveal the following:
(1).The appellant had allegedly borrowed a sum of Rs.6,00,000/- from the
first respondent at the rate of 1.5% interest per month in the year 2004.
(2).The appellant was evading the payment of money for the past 5 years.
(3).When the amount was demanded from the appellant, the first respondent
was threatened by the appellant at 11.00 A.M on 05.10.2009 at
Madambakkam Bus stop.
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(4).A complaint was given after one month viz., 04.11.2009 when the alleged
incident occurred on 05.10.2009.
(5)The complaint was given to take action against the appellant and recover
the money from the appellant.
(6)The complaint was given to the second respondent/Inspector of Police,
Selaiyur Police Station and a case was registered in Crime No.1247 of 2009
under Sections 406, 420, 294(b) and 506(ii) IPC on 04.11.2009.
12.From the above, it appears that the first respondent intended to recover
the money by adding some of the allegations which could make out cognizable
offence for registration of FIR. It is clear that the dispute between the appellant
and the first respondent is civil in nature. However, it is evident from the tenor
of the complaint that the complaint was only to recover the money, that too,
when filing of suit before the Civil Court to recover the money was barred by
limitation, as the money was allegedly paid in the year 2004 and the complaint
was given in the year 2009.
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13.The complaint was given before the Selaiyur Police Station which
does not have jurisdiction over the complainant's address namely, 2/44,
Mambakkam Salai, Gowrivakkam, Medavakkam, Chennai – 600 302. The RTI
details dated 03.12.2016 obtained by the appellant from the Deputy
Commissioner of Police, St.Thomas Mount District, Greater Chennai Police
would reveal that the address viz.,2/44, Mambakkam Salai, Medavakkam Road,
Chennai falls within the jurisdiction of Pallaikaranai Police Station. Therefore,
the case of the appellant that the second respondent with a malafide intention
had received first respondent's complaint which is civil in nature, that too with a
false address, appears to be correct. Even assuming that the address given by the
complainant/first respondent is correct, RTI information obtained by the
appellant would reveal that the Selaiyur Police Station does not have
jurisdiction with regard to the Mambakkam Road.
14.The second respondent who is a responsible police official, that too,
Station House Master of the Police Station is expected to know the jurisdiction
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of his Police Station. This Court could take judicial notice that many complaints
are not even taken on file quoting lack of jurisdiction and the aggrieved parties
are driven from pillar to post to register the complaint. Assuming that the
complaint could be taken without jurisdiction, the complaint should be
forwarded to the concerned Police Station thereafter. Hence, prima face it is
clear that there is no jurisdiction for the second respondent to receive the first
respondent's complaint. Hence, the allegation of the appellant that with malice,
the complaint was received without jurisdiction with false address and the case
was registered deliberately and she was arrested and kept in prison for 60 days,
cannot be brushed aside.
15.The Special Report of the Inspect of Police, CBCID, Cyber Crime
Cell, dated 20.07.2012 would state that there was no such address as stated in
the FIR. Therefore, the contention of the appellant, prima facie appears to be
correct, as per the special report. Only at the time of trial, whether the address
given by the complainant is correct or not can be proved through oral and
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documentary evidence. There are documents in support of the appellant as on
date which can be repudiated by employment of appropriate documents by the
respondents during trial.
16.It is a known fact that the police are not even receiving the complaint
even if grave criminal offences are said to have been committed and only in rare
cases, CSR numbers are given. The complainants are driven from pillar to post
and ultimately they are made to approach this Court and everyday this Court is
issuing directions to register a case or enquire and act in accordance with law
following the guidelines issued by the Hon'ble Apex Court in the case of
Lalitha Kumari vs. State of Uttar Pradesh. When that is the position, the
second respondent without even verifying the address of the first respondent
received the complaint and registered the FIR. It appears that receiving and
registering the complaint without jurisdiction and enquiry and arresting the
appellant is a pre-planned one.
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17.This Court cannot believe that the second respondent does not know
the jurisdiction limits of Selaiyur Police Station. If the address of the
complainant is not within the jurisdiction, the second respondent should not
have received the complaint and registered the FIR and arrested the appellant.
These are all the facts which are essential in the case of malicious prosecution.
The above findings are only prima facie findings based on the available
documents placed before this Court. Even the RTI information which has been
subsequently obtained and is being relied upon by the appellant before this
Court shows lack of jurisdiction.
18.The allegations made by the appellant against the respondents are very
serious in nature and the suit cannot be struck down at the threshold. The
learned Single Judge found that the allegations are vague and there are no
averments that without any probable cause, the respondent acted maliciously
and the appellant failed to make out necessary pleadings. In paragraph 4 of the
plaint, it has been categorically stated by the appellant that only at the instance
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of the second respondent, the address of the first respondent was mentioned as
2/44, Mambakkam Salai, Gowrivakkam, Chennai. The relevant last four lines of
paragraph 4 is extracted as follows:-
“4. …... In the said complaint, at the instance of the II
Defendant the address of the I Defendant was shown as 2/44,
Mambakkam Salai, Gowrivakkam, Medavakkam, Chennai – 600
302. This is evident from the addresses furnished in the 161(3)
statement and also in the statement of witnesses found in the final
report.”
19.In paragraph 9, the appellant specifically stated that on a false
complaint prepared and filed by the first defendant with malice, the second
defendant connived with him and registered the complaint.
20.In paragraph 10, the appellant categorically stated that the registration
of complaint and prosecution of the appellant were done with malice to lower
her reputation and they achieved it by keeping her in prison for 60 days. The
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relevant portion in paragraph 10 is extracted as follows:-
“10.The Plaintiff submits that the registering of the
complaint and the prosecution of the Plaintiff was done with
malice with an intent to lower the reputation of the Plaintiff in the
eye of the public and before her friends and relatives. This they
achieved by keeping her in prison for 60 days. The Plaintiff's fair
name and reputation has suffered due to the malicious prosecution
indulged by the Defendants with the sole intention to defame her.”
The above pleadings in the complaint neither could be termed as vague nor
without material particulars. Relevant material allegations are available in the
pleadings. Therefore, the findings given by the learned Single Judge that the
pleadings are vague and there are no material details given with regard to malice
or malicious prosecution are liable to be set aside and accordingly set aside.
21.The learned Single Judge observed that the appellant has to aver that
the second respondent/second defendant instituted criminal proceedings by
abusing his official power as public servant maliciously, when there being no
reasonable and probable cause and that the defendant was actuated by ill will or
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improper motive. The averments in paragraph 9 and 10 would prima facie make
out the pleadings for malicious prosecution. The crux of the issue has to be
culled out from the averments in the plaint and one cannot expect
statements/averments in the pleadings in a particular manner. From the facts, it
is evident that though the police complaint was given with false address to
register the complaint and knowing fully well the falsity of the allegations was
preferred by the first defendant with malice, the second defendant connived
with the first defendant by registering FIR. In the plaint, the parties are
supposed to plead material facts and that they need not give minute details as if
it is a proof affidavit. What is expected are only material facts. When material
facts are pleaded, the parties are at liberty to explain the same by way of
evidence and the Court cannot expect evidence by way of pleadings. Therefore,
the finding of the learned Single Judge in this regard has to be set aside.
22.The Hon'ble Supreme Court in P.V.Guru Raj Reddy, represented by
GPA Lakshmi Narayan Reddy v. P.Neeradha Reddy, reported in (2015) 8
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Supreme Court cases 331 stated about the conditions preceded for exercise of
Power under Order 7 Rule 11 CPC. Paragraph 5 of the order is usefully
extracted hereunder:-
“5.Rejection of the plaint under Order VII rule 11 of the
CPC is a drastic power conferred in the court to terminate a civil
action at the threshold. The conditions precedent to the exercise of
power under Order VII rule 11, therefore, are stringent and have
been consistently held to be so by the Court. It is the averments in
the plaint that has to be read as a whole to find out whether it
discloses a cause of action or whether the suit is barred under any
law. At the stage of exercise of power under Order VII rule 11, the
stand of the defendants in the written statement or in the
application for rejection of the plaint is wholly immaterial. It is
only if the averments in the plaint ex facie do not disclose a cause
of action or on a reading thereof the suit appears to be barred
under any law the plaint can be rejected. In all other situations, the
claims will have to be adjudicated in the course of the trial.”
As already stated, the plaint contains necessary averments to sustain the plea
and therefore, the appellant should be allowed to prosecute the case. Merely
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because the appellant is permitted to go ahead with the case before the learned
Single Judge does not mean that the case pleaded in the plaint is accepted. But it
is for the appellant to prove the case by adducing oral and documentary
evidence and it is for the respondents/defendants to impeach the evidence
produced by the appellant and also to produce contrary evidence.
23.The judgment relied on by the learned Senior Counsel appearing on
behalf of the second respondent reported in AIR 2007 Supreme Court 976,
West Bengal State Electricity Board v. Dilip Kumar Ray speaks about what is
meant by malice and what is meant by malicious prosecution. Paragraph 14 of
the said judgment is usefully extracted hereunder:-
“14.Malice and Malicious Prosecution as stated in the
Advance Law of Lexicon, 3rd Edition by P. Ramanatha Aiyar read
as follows:
"Malice - Unlawful intent Will; intent to commit an unlawful act or
cause harm, Express or actual malice is ill will or spite towards
the plaintiff or any indirect or improper motive in the defendant's
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mind at the time of the publication which is his sole or dominant
motive for publishing the words complained of. This must he
distinguished from legal malice or malice in law which means
publication without law full excuse and does not depend upon the
defendant's state of mind.
The intent, without justification or excuse, to commit a wrongful
act. II. Reckless disregard of the law or of a person's legal rights.
Ill will: wickedness of heart. This sense is most typical in non legal
contexts".
"Malice means in law wrongful intention. It includes any intent
which the law deems wrongful, and which therefore serves as a
ground of liability. Any act done with such an intent is, in the
language of the law, malicious, and this legal usage has etymology
in its favour. The Latin malitia means badness, physical or moral -
wickedness in disposition or in conduct - not specifically or
exclusively ill-will or malevolence; hence the malice of English
law, including all forms of evil purpose. design, intent, or motive.
But intent is of two kinds, being either immediate or ulterior, the
ulterior intent being commonly distinguished as the motive. The
term malice is applied in law to both these forms of intent, and the
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result is a somewhat puzzling ambiguity which requires careful
notice. When we say that an act is done maliciously, we mean one
of the two distinct things. We mean either that it is done
intentionally, or that it is done with some wrongful motive."
"Malice in the legal sense imports (I) 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 wilful doing of an act with awareness of a plain and strong
likelihood that such harm may result.
The Model Penal Code does not use 'malice' because those who
formulated the Code had a blind prejudice against the word. This
is very regrettable because it represents a useful concept despite
some unfortunate language employed at times in the effort to
express it."
"Malice" in the legal acceptance of the word is not confined to
personal spite against individuals but consists in a conscious
violation of the law to the prejudice of another. In its legal sense it
means a wrongful act done intentionally without just cause or
excuse.
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'Malice", in its legal sense, does not necessarily signily ill- will
towards a particular individual, but denotes that condition of mind
which is manifested by the intentional doing of a wrongful act
without just cause or excuse. Therefore, the law implies malice
where one deliberately injures another in an unlawful manner.
Malice means an indirect wrong motive.
'Malice' in its legal sense means, malice such as may be assumed
from the doing of a wrongful act intentionally but without just
cause or excuse, or for want of reasonable or probable cause."
Malice, in ordinary common parlance, means ill-wiIl against a
person and in legal sense, a wrongful act done intentionally,
without just cause or reason. It is a question of motive, intention or
state of mind and may be defined as any corrupt or wrong motive
or personal spite or ill will.
'Malice' in common law or acceptance means ill-will against a
person, but in legal sense it means a wrongful act alone
intentionally without just cause or excuse.
It signifies an intentional doing of a wrongful act without just
cause or excuse or an action determined by an improper motive.
"MALICE", in common acceptation, means, ill will against a
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person; but in its legal sense, it means, a wrongful act done
intentionally without just cause or excuse"
Malice in its common acceptation, is a term involving stint intent
of the mind and heart, including the will; and has been said to
mean a bad mind; ill-will against a person; a wicked or evil state
of the mind towards another; an evil intent or wish or design to vex
or annoy another; a wilful intent to do a wrongful act; a wish to
vex, annoy or injure another person or as intent to do a wrongful
act; a condition of the mind which shows a heart regardless of
social duty and fatally bent on mischief.
"MALICE" means wickedness of purpose, or a spiteful or
malevolent design against another; a purpose to injure another; a
design of doing mischief, or any evil design or inclination to do a
bad thing, or a reckless disregard to the rights of others, or
absence or legal excuse, or any other motive than that of bringing
a party to justice."
"The meaning of the term malice in English law, his been a
question of much difficulty and controversy; and those who made
through the many disquisitions on the subjects in text- books and
judicial opinions are almost tempted to the conclusion that the
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meaning varies almost infinitely, and that the only sense which the
term can safely be predicated not to have in ant given legal context
is that which it has in popular language, viz., spite or ill-will. It
certainly has different meanings with respect to responsibility for
civil wrongs and responsibility for crime; and even with respect to
crime it has a different sense according as it is used with reference
to murder, libel, or the capacity of an infant to commit crime,
expressed by the rule malitia supplet act item." (Ency. of the Laws
of England). Ordinarily, the absence of reasonable and probable
cause in instituting a proceeding which terminates in favour of the
plaintiff, would give rise to the inference of malice.
MALICE has been said to mean any wrong or indirect motive but a
prosecution is not malicious merely because it is inspired by anger.
However, wrong- headed a prosecutor may be, if he honestly thinks
that the accused has been guilty of a criminal offence he cannot be
initiator of a malicious prosecution.
MALICE means the presence of some improper and wrongful
motive - that is to say an intend to use the legal process in question
for some other than its legally appointed and appropriate purpose.
It means an improper or indirect motive other than a desire to
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vindicate public justice or a private right. It need not necessarily
be a feeling of enmity, spite or ill-will; it may be due to a desire to
obtain a collateral advantage.
MALICE in fact is malue animus indicating that action against a
party was actuated by spite or ill will against him or by indirect or
improper motives.
Malice: hatred: aversion: antipathy: enmity: Repugnance: ill-will:
rancour: malevolence: Malignity: malignancy. Hatred is a very
general term. Hatred applies properly to persons. It seems not
absolutely involuntary. It has its root in passion, and may be
checked or stimulated and indulged. Aversion is strong dislike.
Aversion is a habitual sentiment, and springs from the natural taste
or temperament which repels its opposites, as an indolent man has
an aversion to industry, or a humane one to cruelty.
Antipathy is used of causeless dislike, or at least one of which the
cause cannot be defined. It is found upon supposition or instinctive
belief, often utterly gratuitous. Enmity is the state of persona!
opposition, whether accompanied by strong personal dislike or
not; as "a bitter enemy." Repugnance is characteristically
employed of acts or courses of action, measures, pursuits, and the
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like. Ill-will is a settled bias of the disposition. It is very indefinite,
and may be of any degree or strength. Rancour is a deep seated
and lasting feeling of ill-will. It preys upon the very mind of the
subject of it. While enmity may be generous and open, rancour is
malignant and private. Malice is that enmity which can abide its
opportunity of injuring its object, and pervert the truth or the right,
or go out of its way, or shape course of action, to compass its ends.
"Malevolence commences with some idea or evil belonging to and
connected with the object; and it settles into a permanent hatred of
his person and of everything relative to him" - (Gogan) Malignity
is cruel malevolence, or innate love of harm for the sake of doing
it. It is malice the most energetic, inveterate, and sustained.
Malice in fact. "Malice in fact" means express malice.
MALICE IN FACT OR ACTUAL MALICE, relates to the actual
state or condition of the mind of the person who did the act. Malice
in fact is where the malice is not established by legal presumption
or proof of certain facts, but is to be found from the evidence in the
case.
Malice in fact implies a desire or intention to injure, while malice
in law is not necessarily inconsistent with an honest purpose.
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Malice in law. 'Malice in law" means implied malice.
"MALICE IN LAW" simply means a depraved inclination on the
part of a person to disregard the rights of others, which intent is
manifested by his injurious acts.
Malice in its legal sense means malice such as may be assumed
from the doing of a wrongful act intentionally but without just
cause or excuse, or for want of reasonable or probable cause. S.R.
Venkataraman v. Union of India (AIR 1979 SC 49, 51).
MALICIOUS. Done with malice or an evil design; wilful;
indulging in malice, harboring ill-will, or enmity malevolent,
malignant in heart; committed wantonly, wilfully, or without cause,
or done not only wilfully and intentionally, but out of cruelty,
hostility of revenge; done in wilful neglect of a known obligation.
"MALICIOUS" means with a fixed hate, or done with evil intention
or motive; not the result of sudden passion.
Malicious abuse of civil proceedings. In general, a person may
utilize any form of legal process without any liability, save liability
to pay the costs of proceedings if unsuccessful. But an action lies
for initiating civil proceedings. Such as action, presentation of a
bankruptcy or winding up petition, an unfounded claim to
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property, not only unsuccessfully but maliciously and without
reasonable and probable cause and resulting in damage to the
plaintiff. (Walker) Malicious abuse of legal process. A malicious
abuse of legal process consists in the malicious misuse or
misapplication of process to accomplish a purpose not warranted
or commanded by order of Court - the malicious perversion of a
regularly issued process, whereby an improper result is secured.
There is a distinction between a malicious use and a malicious
abuse of legal process. An abuse is where the party employs it for
some unlawful object - not the purpose which it is intended by the
law to effect; in other words, a perversion of it.
Malicious abuse of process. Wilfully misapplying Court process to
obtain object not intended by law. The wilful misuse or
misapplication of process to accomplish a purpose not warranted
or commanded by the writ. An action for malicious abuse of
process lies in the following cases, A malicious petition or
proceeding to adjudicate a person an insolvent, to declare a
person lunatic or to wind up a company, to make action against
legal practitioner under the Legal Practitioners Act, maliciously
procuring arrest or attachment in execution of a decree or before
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judgment, order or injunction or appointment of receiver, arrest of
a ship, search of the plaintiff's premises, arrest of a person by
police.
Malicious abuse of process of Court Malicious act Bouvier defined
a malicious act as "a wrongful act, intentionally done, without
cause or excuse."
A malicious act is one committed in a state of mind which shows a
heart regardless of social duty and fatally bent on mischiefa
wrongful act intentionally done, without legal justification or
excuse.
'A malicious act is an act characterised by a preexisting or an
accompanying malicious state of mind.
Malicious Prosecution Malice. 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
ill-will. 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 these:Malice is not merely the doing a
wrongful act intentionally but it must be established that the
defendant was actuated by mains animus, that is to say, by spite of
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ill- will or any indirect or improper motive. But if the defendant
hod reasonable or probable cause of launching the criminal
prosecution no amount of malice will make him liable for
damages. Reasonable and probable cause must be such as would
operate on the mind of a discreet and reasonable man; 'malice'
and 'want of reasonable and probable cause.' have reference to the
state of the defendant's mind at the date of the initiation of
criminal proceedings and the onus rests on the plaintiff to prove
them.
OTHER DEFINITIONS OF "MALICIOUS PROSECUTION".
"A judicial proceeding instituted by one person against another,
from wrongful or improper motive and without probable cause to
sustain it."
"A prosecution begun in malice, without probable cause to believe
that it can succeed and which finally ends in failure."
"A prosecution instituted wilfully and purposely, to gain some
advantage to the prosecutor or thorough mere wantonness or
carelessness, if it be at the same time wrong and unlawful within
the knowledge of the actor, and without probable cause."
"A prosecution on some charge of crime which is wilful, wanton, or
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reckless, or against the prosecutor's sense of duty and right, or for
ends he knows or is bound to know are wrong and against the
dictates of public policy."
The term "malicious prosecution" imports a causeless as well as
an ill-intended prosecution.
'MALICIOUS PROSECUTION" is a prosecution on some charge
of crime which is wilful, wanton, or reckless, or against the
prosecutor's sense of duty and right, or for ends he knows or its
bound to know are wrong and against the dictates of public policy.
In malicious prosecution there are two essential elements, namely,
that no probable cause existed for instituting the prosecution or
suit complained of, and that such prosecution or suit terminated in
some way favorably to the defendant therein.
1. The institution of a criminal or civil proceeding for an improper
purpose and without probable cause. 2. The cause of action
resulting from the institution of such a proceeding. Once a
wrongful prosecution has ended in the defendant's favor, lie or she
may sue for tort damages - Also termed (in the context of civil
proceedings) malicious use of process. (Black, 7th Edn., 1999)
"The distinction between an action for malicious prosecution and
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an action for abuse of process is that a malicious prosecution
consists in maliciously causing process to be issued, whereas an
abuse of process is the employment of legal process for some
purpose other than that which it was intended by the law to effect -
the improper use of a regularly issued process. For instance, the
initiation of vexatious civil proceedings known to be groundless is
not abuse of process, but is governed by substantially the same
rules as the malicious prosecution of criminal proceedings." 52
Am. Jur. 2d Malicious Prosecution S. 2, at 187 (1970).
The term 'malice,' as used in the expression "malicious
prosecution" is not to be considered in the sense of spite or hatred
against an individual, but of malus animus, and as denoting that
the party is actuated by improper and indirect motives.
As a general rule of law, any person is entitled though not always
bound to lay before a judicial officer information as to any
criminal offence which he has reasonable and probable cause to
believe has been committed, with a view to ensuring the arrest,
trial, and punishment of the offender. This principle is thus stated
in Lightbody's case, 1882, 9 Rettie,
934. "When it comes to the knowledge of anybody that a crime has
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been committed a duty is laid on that person as a citizen of the
country to state to the authorities what he knows respecting the
commission of the crime, and if he states, only what he knows and
honestly believes he cannot be subjected to an action of damages
merely because it turns out that the person as to whom he has
given the information is after all not guilty of the crime. In such
cases to establish liability the pursuer must show that the
informant acted from malice, i.e., 'not in discharge of his public
duty but from an illegitimate motive, and must also prove that the
statements were made or the information given without any
reasonable grounds of belief, or other information given without
probable cause; and Lord SHAND added (p. 940): "He has not
only a duty but a right when the cause affects his own property."
Most criminal prosecutions are conducted by private citizens in the
name of the Crown. This exercise of civic rights constitutes what
with reference to the la of libel is termed a privileged occasion: but
if the right is abused, the person injured thereby is, in certain
events, entitled to a remedy. (See H. Stephen, Malicious
Prosecution, 1888; Builen and Leake, Prec. P1., Clerk and
Lindsell. Torts, Pollock, Torts; LQR. April 1898; Vin., Abr., tit.
"Action on the Case" Ency. of the Laws of England.) "MALICIOUS
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PROSECUTION" means that the proceedings which are
complained of were initiated from a malicious spirit, i.e, from an
indirect and improper motive, and not in furtherance of justice. [10
CWN 253 (FB)] The performance of a duty imposed by law, such
as the institution of a prosecution as a necessary condition
precedent to a civil action, does not constitute "malice". (Abbott v.
Refuge Assurance Co., (1962) 1 QB 432).
"Malicious prosecution" thus differs from wrongful arrest and
detention, in that the onus of proving that the prosecutor did not
act honestly or reasonably, lies on the person prosecuted." (per
DIPLOCK U in Dailison v. Caffery, (1965) 1 QB 348)). (Stroud,
6th Edn., 2000).”
The description given by the Hon'ble Apex Court in the paragraph cited supra in
the opinion of this Court would only support the case of the appellant for the
reasons stated supra by this Court.
24.The Hon'ble Supreme Court in Prabodh Sagar v. Punjab State
Electricity Board and others reported in (2000) 5 SCC 630 held that there
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cannot possibly be any set of guidelines in regard to the proof of malafides.
Malafides, where it is alleged, depends upon its own facts and circumstances.
25.Hence, from the averment made, the appellant prima facie makes out a
case for trial and the plaint cannot be struck down at the threshold itself,
violating the rights of the appellant. Moreover, without arraying the second
respondent as a party, the case of the appellant cannot be proceeded with. The
allegations against the first and second respondents are inter-woven and only if
both the parties are present in the proceedings, the appellant can effectively
prosecute the case. In view of the above reason, the order of the learned single
Judge is set aside and the suit against the second respondent is restored.
26.It is made clear that the findings given by this Court are only for the
purpose of deciding the appeal arising out of order passed in the application for
rejection of plaint and that would not have any effect on merits of the main suit.
The parties have to prove their respective case during the trial through oral and
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documentary evidence.
27.Therefore, the order of the learned Single Judge is set aside. Both the
respondents are directed to file their respective written statement with
supporting documents within a period of four weeks from the date of receipt of
a copy of the order and face the trial. The O.S.A. is allowed with the above
directions. Consequently, connected Miscellaneous Petitions are closed.
(N.K.K.,J) (A.Q.,J)
22.01.2021
pgp
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N.KIRUBAKARAN, J
and
ABDUL QUDDHOSE, J
pgp
O.S.A.No.417 of 2018
Dated : 22.01.2021
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