------------------------------------------------------------------------------------------ Whether reporters of the Local papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 174 of 2000. Judgment reserved on :23.3.2010. Decided on: April 1, 2010. Manohar Lal Gupta. …… Appellant. Vs. State of Himachal Pradesh and others. …….Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? Yes. For the appellant : Mr. Ajay Kumar, Advocate. For the respondents: Mr. J.S. Rana, Asstt. Advocate General, for respondent No.1. Mr. Mukul Sood, Advocate, vice Mr. K.D. Sood, Advocate, for respondent No.4. None for other respondents. Surinder Singh, J. Civil suit No.5-S/1 of 1996, filed by the plaintiff- appellant, for recovery of Rs.2,50,000/- against all the respondents was dismissed by the learned District Judge, Shimla vide his judgment and decree passed on 15th May, 2000, against which the present appeal has been preferred by him. 2. In short, the facts giving rise to the present appeal can be summed up thus. In the year 1988, the plaintiff-appellant was Assistant Excise and Taxation Commissioner and he was posted at Bilaspur. Defendant-respondent No.4 Yog Raj Sharma was one of - 2 - the Excise and Taxation Inspectors, serving under the appellant. The plaintiff-appellant averred in his plaint that he was not satisfied with his work and conduct, so he was assigned less important work in the office as compared to the work of excise and sales tax, but even the said defendant did not work properly and was found negligent in performance of his duties. Many a times, his explanation was called by him, but he had shown no improvement, thus, his matter was reported to the higher authorities and was ultimately charge-sheeted. This offended him and his attitude towards plaintiff-appellant became hostile. 2-A. Defendant-respondent No.5 Mast Ram is an Advocate and has been a good friend of Yog Raj Sharma aforesaid. He was also having good terms with defendant-respondent Harbans Singh, the then Police Inspector in Anti Corruption Department posted at Bilaspur. Said Mast Ram contacted him in collusion with defendants- respondents Yog Raj Sharma and Tashi Chhering, who was the then Additional Superintendent of Police, implicated him in a false case of taking bribe and for that they used respondent Tulsi Ram, a co- villager of defendant-respondent Mast Ram, Advocate, who is alleged to have moved an application, in the office of the plaintiff- appellant, for the grant of sales tax number accompanied by two bogus bills. In the said application said Tulsi Ram was wrongly shown to have been running a ‘Karyana shop’ in village Bot-Kasol, under the head and style of ‘Raj Traders’ and required sales tax number for that shop, whereas, Tulsi Ram was a daily waged worker in the Irrigation & Public Health Department of Himachal - 3 - Pradesh. Said application was submitted in the office of the plaintiff- appellant on 27th December, 1989. 2-B. On 5.1.1990, the plaintiff-appellant was arrested on the charge of accepting bribe of Rs.200/- from said Shri Tulsi Ram respondent. The money was planted in his pocket of his coat, which was kept in his office and this false accusation brought lot of humiliation to the plaintiff-appellant and he suffered adversely in his reputation. He had an unblemished record and remained honest throughout his carrier. 2-C. Further that the plaintiff-appellant was released on bail, but the defendants-respondents No.2 to 5 pressurised Tulsi Ram aforesaid to file an affidavit, for the cancellation of his bail, on the ground that the plaintiff-appellant was threatening and pressurising him to withdraw the case. Ultimately, he was acquitted by the learned Special Judge, vide his judgment dated 27.12.1994. 2-D. The defendant-respondent-State of Himachal Pradesh, assailed the judgment of acquittal by filing an appeal, which was dismissed on 5th May, 1995. 2-E. The plaintiff-appellant then served a notice under Section 80 of the Code of Civil Procedure demanding damages for malicious prosecution, but it turned deaf ears. 2-F. The plaintiff-appellant claimed Rs.1,00,000/- as general damages for mental agony and bodily pain and loss of reputation and Rs.1,00,000/- on account of malicious prosecution and Rs.50,000/- for special damages (total Rs.2,50,000/-) with interest @ 18% per annum. - 4 - 3. Defendant No.5 Mast Ram, Advocate remained ex parte, whereas the other defendants-respondent resisted and contested the suit. Defendants No.1, 4, 5 and 6 filed separate written statements and defendants No.2 and 3 adopted the written statement filed by defendant No.1. 3-A. Defendant-respondent No.1 to 3 had raised the preliminary objections of maintainability of the suit, locus-standi, estoppel vis-à-vis limitation and also the value of court fee and jurisdiction. On merits, they denied the case of the plaintiff-appellant and alleged that the defendant-respondent Tulsi Ram had visited the office of defendant-respondent Tashi Chhering, the then Additional S.P. on 5.1.1990 and lodged an FIR that the plaintiff-appellant was demanding Rs.200/- as bribe, for the grant of sales tax number to him. It was thereafter, defendant Tulsi Ram was asked to produce two currency notes of the denomination of Rs.100/- which were treated with phenolphthalein powder with a direction to hand over the same to the plaintiff-appellant on demand. Tulsi Ram aforesaid was followed by a shadow witness. He reached the office of plaintiff- appellant. On demand, he paid two treated currency notes to him, the shadow witness had passed on signal to the raiding party and the raiding party recovered the said currency notes from the inner pocket of the plaintiff-appellant, to which he was wearing. The defendant-respondent Tashi Chhering and Harbans Singh, in presence of the independent witnesses and other official of their department recovered the currency notes. They have specifically denied that the said currency notes were stealthily kept in his coat, - 5 - as alleged. It is denied that the defendant Tashi Cheering, Harbans Singh and Yog Raj Sharma were having friendly ties. According to defendants-respondents No.2 to 4, they acted in a good faith and performed their duties in accordance with law. 4. Defendant-respondent No.4, Yog Raj Sharma denied having conspired with the other defendants and claimed special costs for filing a suit against him on incorrect facts. He denied that the plaintiff-appellant made a complaint against him, to the higher authorities, for which he was charge-sheeted, as alleged. He also denied his acquaintance with the defendant-respondent Mast Ram, Advocate and also that he got prepared application and the fake bills in the name of defendant-respondent Tulsi Ram and got them filed in the office. He also raised the preliminary objection of limitation. 5. Defendant No.6 Tulsi Ram admitted the case of the plaintiff-appellant. According to him, defendants-respondent No.2 to 5 had falsely implicated the plaintiff-appellant in this case and further that the defendants No.4 and 5 apart from being friends were close relatives as their wives are sisters. He also pleaded that he has been a daily waged worker in the Irrigation and Public Health Department of Himachal Pradesh and there was no occasion for him to apply for the sales tax number as he did not own any shop anywhere. He further pleaded that on 27.12.1989, he was called to Bilaspur by defendants-respondents No.4 and 5 and made to sign certain papers, however, its contents were not read over to him. He never visited the office of the plaintiff-appellant for submission of such application. He also stated that the defendant Yog Raj Sharma and - 6 - Mast Ram, although told him to revisit Bilaspur on 5.1.1990, but when he reached there, he was taken to defendants-respondents No.2 and 3 and some papers were got signed, without knowing its contents. He also averred that he did not know about making of application for cancellation of bail application of plaintiff-appellant, but however admitted his signatures on the said affidavit, which was filed in support thereof. According to him, these documents were prepared by defendants-respondents No.4 and 5. He denied that the plaintiff-appellant had ever demanded bribe from him. He stated that later when he came to know that the plaintiff-appellant was falsely implicated in a case by the defendants, he had submitted an affidavit to the Government supporting the plaintiff-appellant. 6. On the pleading of the parties, the following issues were framed:- 1) Whether the plaintiff was prosecuted without any reasonable and probable cause by the defendants? …OPP. 2) If Issue No.1 is proved, whether the plaintiff is entitled to damages to the tune of Rs.2,50,000/- from the defendants? … OPP. 3) Whether this court has no jurisdiction to try this suit, as alleged? … OPD. 4) Whether the suit is time barred, as alleged? … OPD. 5) Relief. - 7 - 7. After completing the trial, the learned District Judge answered Issues No.1, 3 and 4 in negative. Consequent there upon, issue No.2 called for no findings, because the plaintiff was not held to be prosecuted without any reasonable and probable cause, as such the suit was dismissed. 8. Feeling aggrieved and dissatisfied by the impugned judgment and decree passed by the learned District Judge, the instant appeal has been filed, on the grounds that the learned District Judge erred in discarding the relevant and material evidence of the plaintiff while arriving at various conclusions against him and further that the material and vital oral as well as documentary evidence was ignored. 9. I have heard the learned counsel for the parties and have carefully examined the evidence on record. 10. To be precise, according to the plaintiff-appellant, the allegation of taking the bribe and launching prosecution against him was without any reasonable or probable cause. He alleged that the application moved by defendant Tulsi Ram for the grant of sales tax number was motivated and not genuine as he was not running a shop and was a daily waged worker in the Irrigation and Public Health Department of Himachal Pradesh and he has admitted his case. But the statement of Tulsi Ram recorded before learned trial court in this case and also before the learned Special Judge vis-à-vis other documents like, his application for sales tax, affidavit for cancellation of bail of the appellant and later supporting the case of the appellant requires to be duly appreciated. - 8 - 11. Defendant Tulsi Ram during the trial was examined by the plaintiff-appellant as DW4 in the suit. Ex.PV16 is an affidavit sworn by him on 5.6.1990, but if the comments of this affidavit are seen in contrast to his statement Ex.PXX, recorded on 1.9.1993, before the learned Special Judge in the bribery case, to a court question, he stated that he came to know regarding a case against the plaintiff-appellant for the first time when he saw him appearing in the Court of Sessions Judge, Bilaspur about 7/8 months from the said date. He also asked Yog Raj Sharma defendant-respondent that as to why under his signatures, a false case was made against the plaintiff, but he did not make any complaint to any authority. He as DW-4 in the suit admitted his signatures on the application Ex.PK/4 for sales tax number and the other documents appended thereto but according to him, these were at the instance of defendants-respondents No.4 and 5 without knowing its contents. Significantly, in the application Ex.PV/1 made to the Financial Commissioner-cum-Secretary, Excise and Taxation on 5.6.1990, he stated that he had filed a false complaint against the plaintiff- appellant, whereas, the appellant was innocent but sought no action. He even did not name the person therein on whose instance, he had filed a criminal case against the plaintiff-appellant. Even in his affidavit Ex.PV/16 dated 5.6.1990, accompanied with the said application, there was no reference of the defendants having instigated him to file a false criminal complaint against the plaintiff- appellant. Rather, he stated that a man of his acquaintance was working in the Excise office and on his asking, he made an - 9 - application for issuance of sales tax number. He took the responsibility for the job to be done. This contradicts his averments made in the application Ex.PV/1 aforesaid that he never applied for the sales tax number and was ignorant about the contents of the application. His statement as DW-4 in the trial court that his signatures were obtained by the defendants- respondents Yog Raj Sharma and Mast Ram goes contrary to his earlier version made to the aforesaid authorities. Even in his affidavit aforesaid, he did not make any specific reference that he knew Yog Raj Sharma, defendant who was posted at the relevant time in the Excise office at Bilaspur and had asked him to make an application for the sales tax number, as alleged. The cumulative effect of statement made before the learned Special Judge and also in the court below as DW-4, the averments made in the application as also in the affidavit are in sharp contradictions to each other. Even in the affidavit Ex.PX2 appended in the application for the cancellation of bail clearly makes a reference and affirms that he had filed a complaint under the Prevention of Corruption Act, for taking bribe by the plaintiff-appellant on 5.1.1990 and that he was threatened to do away with his life in collusion with the Excise Mafia. Against this background, the learned trial Court rightly opined that when the Financial Commissioner-cum-Secretary, Excise and Taxation had sent the matter for the inquiry to the Deputy Commissioner, Bilaspur, the plaintiff-appellant was able to win over Tulsi Ram and he was playing in the hands of the plaintiff since - 10 - June, 1990 and this fact is also born out from the evidence on record. 12. It is well settled that in an action for malicious prosecution the onus of establishing absence of reasonable and probable cause in launching the criminal prosecution against the plaintiff by the defendant lies in the first instance on the plaintiff. When a criminal proceeding was instituted on the basis of the complaint lodged by the defendant before the police, which ultimately resulted in the acquittal of the plaintiffs on merits, the presumption of absence of reasonable and probable cause to lodge the complaint cannot be drawn. The finding of the criminal case is not a conclusive proof of the matter in the civil suit for damages for malicious prosecution. 13. The onus of proof lies upon the plaintiff that the plaintiff actually has been actuated with the malice. 14. Where the plaintiff alone stated that the allegations made against him were false and the criminal Court came to the conclusion on discussion of the evidence that the defendant failed to prove that the prosecution against him was actuated by malice, the plaintiff must be deemed to have failed to discharge the burden resting upon him. 15. The co-existence of malice and want of probable cause is an essential pre-requisite to the success of an action for malicious prosecution. Want of probable and reasonable cause cannot be inferred from malice, however, great such malice may be, but malice may be implied or inferred as a fact from want of probable cause. - 11 - The question, therefore, is not what the actual facts were, but what the defendant had reason to belief they were. In other words, the absence of reasonable and probable cause must be denied in order to prove the liability. 16. Legally, the judgment of acquittal in the criminal case is not admissible evidence except for the purpose of finding out whether or not the decision in the criminal case was in favour of the plaintiff and it can also not be relied upon as a conclusion for deciding the civil suit for malicious prosecution. The civil Court has to go into the matter on the basis of evidence adduced before it in the civil suit independently of the view expressed by the criminal Court. 17. In the instant case, there is enough evidence to prove that the treated currency notes were recovered from the inner pocket of the coat of the plaintiff-appellant. It contained the traces of chemical powder applied to it on the hands of the plaintiff-appellant when the notes were recovered. This fact has been substantiated by the defendant-respondent Tashi Chhering on oath as DW-3 before the learned District Judge. The plaintiff-appellant also admitted that the currency notes were recovered from his pocket, but according to him these were planted when his coat was lying on the chair of his office. The hand wash of the plaintiff-appellant was sealed in a nip and sent for the chemical examination, it also contained the traces of phenolphthalein powder and carbonate mixture. The appellant- plaintiff failed to discharge the burden by proving that the defendant had no reasonable and probable cause and that the prosecution was - 12 - due to malice on the part of the defendant. This fact was also corroborated by DW1 Harbans Singh, who was defendant- respondent No.3. The chemical report has not been assailed anywhere. It is also worth noticing that in his statement Ex.PXX, DW-4 Tulsi Ram stated before the learned Special Judge that the coat was lying on the table. This was also contradictory to the plea taken by appellant that it was lying on the chair and was not in the room. Further, it is also in evidence that the application for the sales tax number Ex.PK/4 was moved on 27.12.1989 and the plaintiff- appellant has marked it to the Sales Tax Commissioner (STC) on the same day, but it was diarised on 1.1.1990, thus, there was undue delay in processing the said application. If the application was not in accordance with rules, this could have summarily rejected by him. 18. Therefore, for the reasons aforesaid, it cannot be said that the prosecution of the appellant was without any reasonable or probable cause. Thus, in my opinion, the plaintiff-appellant has failed to prove and establish that the defendants aforesaid had prosecuted the appellant for no reasonable and or probable cause and the prosecution was actuated with malice. 19. No other point urged. 20. The appeal is without any merit, therefore, dismissed. 21. Parties to bear their own costs. (Surinder Singh ) Judge April 1,2010. (Pds)