IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 59 of 2001 Date of decision: 04.12.2009 Satya Nand and others ... Appellants Versus Balbir Singh Dhawan ….. Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellants : Mr. Ajay Kumar, Advocate. For the respondent: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. V.K. Ahuja, J. (Oral) : This is a Regular First Appeal filed by the appellants under Section 96 of the Code of Civil Procedure read with Section 20 of the H.P. Courts Act, 1976, against the judgment and decree of the Court of District Judge, Shimla, dated 1.1.2001, vide which the suit filed by the appellants as plaintiffs for recovery of Rs.2,12,000/- for malicious prosecution at the instance of defendant/respondent was dismissed. Briefly stated, the facts of the case are that the appellants as plaintiffs filed a suit for recovery of the amount by way of damages for the alleged malicious prosecution at the instance of defendant Balbir Singh. It was alleged in the plaint that a false report had been lodged by the respondent, hereinafter referred to 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 as the defendant against the plaintiffs at Police Station Rohru, on the basis of which an FIR under Sections 147, 148, 149, 323 and 506 I.P.C. was registered against the plaintiff, his two sons i.e. present appellants No. 2 and 3 and two other persons. The case was filed in the Court of learned Judicial Magistrate Ist Class, Rohru and the plaintiffs and others were tried for the said offence, but they were acquitted vide judgment dated 5.8.1997. It was alleged by the plaintiffs that the report lodged by the defendant was false. He had procured false witnesses during the course of investigation and as such, the complaint had been lodged falsely to harm the reputation of the plaintiffs. They accordingly, claimed a sum of Rs. 1,00,000/- as damages for malicious prosecution, Rs. 1,00,000/- as damages for the alleged defamation and Rs.12,000/- on account of interest at the rate of 12% per annum on this amount. The defendant contested the suit and denied the allegations that the report lodged by him was false or the witnesses were procured one. On the pleadings of the parties, the following issues were settled by the learned trial Court:- 1. Whether the plaintiffs were prosecuted by the defendant without any reasonable or probable cause, as alleged? … OPP. 2. If issue No.1 is proved, whether the plaintiffs are entitled to damages, if so how much? … OPP. 3. Whether the suit is not maintainable? …OPD. 4. Whether the plaintiffs have no cause of action? … OPD. 5. Whether the plaintiffs are estopped to sue by their acts, deeds and conduct etc., as alleged? ... OPD. 3 6. Whether the plaint lacks material particulars if so its effect? …OPD. 7. Whether the suit is bad for non-joinder of State of H.P.? … OPD. 8. Whether the suit is barred by time? … OPD. 9. Relief. Parties led their evidence and the learned trial Court vide its impugned judgment held that the plaintiffs have failed to prove that they were prosecuted by the defendant without any reasonable or probable cause and as such, they were not held entitled to any damages. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellants were that the report lodged by the defendant with the police had been proved to be false since the material independent witnesses had not supported the prosecution story and that there are findings of the Criminal Court leading to the acquittal of the plaintiffs and other which proves that the report was false and as such, it proves that the defendant had lodged a false complaint against the plaintiffs and as such, they were entitled to the grant of damages for malicious prosecution. It was further submitted that the observations made in the judgment of the Criminal Court are relevant and they clearly prove that there are various contradictions in regard to the date of occurrence and the presence of witnesses and as such, the case of the plaintiffs stood proved and findings to the contrary are liable to be reversed. On the other hand, learned counsel for the respondent submitted that the mere fact that the criminal case had 4 resulted in acquittal of the plaintiffs is not sufficient to prove that the report lodged by the defendant was false or that they are liable for malicious prosecution. It was also submitted that the observations made in the criminal case cannot be looked into to consider if the report lodged by the defendant was false. It was also submitted that the mere fact that the judgment of the Criminal Court has resulted in acquittal of the plaintiffs is not sufficient to hold that the defendant was liable for malicious prosecution. To substantiate his submissions, the learned counsel for the respondent had relied upon the following decisions:- The decision in Amar Singh and others Vs. Tara Dutt, 1997(2) Sim. L.C. 173, was relied upon, The observations made by the learned Single Judge of this Court in paras 18 and 24 are relevant and are being reproduced below:- “In a suit for damages for malicious prosecution, it is therefore, necessary for the plaintiff, inter alia, to prove that the defendant acted without reasonable and probable cause and that the defendant was actuated by malice. Even when the plaintiff succeeds in establishing malice of the defendant, in order to make out a cause of action, however, malice and want of reasonable and probable cause must concur. Either is insufficient without the other. The important question for determination in such a case is whether the defendant acted without reasonable and probable cause when he sent the report to the police leading to the prosecution of the plaintiffs. The burden of proving absence of reasonable and probable cause is on the plaintiffs.” “It is well settled that in an action for damages on account of malicious prosecution, a judgment of the criminal court is not admissible in evidence 5 except for the purpose of finding out whether or not the decision in the criminal case was in favour of the plaintiffs. In other words, it is not that the judgment of the criminal court has to be ignored altogether. It is not to be relied upon as 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. The sense in which it is said that the criminal court judgment is not admissible in evidence is that apart from the fact of the result of the judgment of the criminal court, namely, termination in favour of the accused persons, the observations of the criminal court or the reasons on which the acquittal is based is not to be accepted as conclusive.” Reliance was also placed upon the decision in Mohanlal Raghunath Prasad Vs. Diwan Lachhman Singh and another, AIR 1960 Madhya Pradesh 397, wherein it was held that in a suit for the recovery of damages for malicious prosecution, the production of the judgment in the criminal case is not sufficient for the plaintiff to discharge the burden of proving want of reasonable and probable cause. Reliance was placed upon the decision in C.M. Agarwalla Vs. Halar Salt and Chemical Works and others, AIR 1977 Calcutta 356. The observations made in Para-4 are relevant and are being reproduced below:- “The generally accepted essential elements in a cause of action for malicious prosecution, in conformity with the malicious decisions are: (1) that the plaintiff was prosecuted by the defendant (2) that the prosecution terminated in his favour, if 6 from their nature they were capable of such termination (3) that there was no reasonable and probable cause for launching such prosecution (4) that the prosecution was malicious, i.e., it was done with ulterior motive and not with the intent of carrying the law into effect.” The decision in Haripada Sahu Vs. Ramchandra Tripathy and others, AIR 1961 Patna 226, was relied upon. The observations made in Para-4 are relevant and are being reproduced below:- “The judgment of the Criminal Court is in no way binding upon the civil court in a suit for damages for malicious prosecution, and, therefore, such a judgment is admissible only to show who were the witnesses examined by the Parties and what documents were produced in that case, when the existence of such documents and non- examination of such witnesses were challenged in the civil action. But it is not admissible for the purpose of proving malice and want of probable and reasonable cause.” A perusal of the impugned judgment shows that the learned trial Court had rightly observed that the judgment delivered by the Criminal Court is relevant only for the purpose of proving two facts, namely, the plaintiffs were prosecuted by or at the instance of the defendant and the proceedings terminated in favour of the plaintiffs. However, the question whether the prosecution was without any reasonable or probable cause has to be determined on the basis of evidence produced by the plaintiffs in civil case independent of the view expressed by the Criminal Court in its judgment of acquittal. In the present case, the plaintiff 7 examined himself as PW-1 and he simply has reiterated the assertions made in the plaint that it was a false case. He also filed a certified copy of the judgment Ext. P-4 to prove the fact that the case lodged by the defendant has resulted in acquittal of the plaintiffs. The said judgment is relevant but not binding and the observations made in that case in regard to the contradictions in the date of occurrence cannot be considered to hold if the case was false or not. The plaintiff had to prove by leading independent evidence that the allegations made in the said report were false to his knowledge. The defendant examined himself as well his son, who had allegedly seen the occurrence and their statements are on record of the criminal case. The mere fact that the independent witnesses cited in the case had not supported the statement of the defendant or his son is not sufficient to hold that the allegations made in the complaint were false to the knowledge of the defendant. The oral statement of the plaintiff was not sufficient to prove the assertions made in the plaint and the findings of the learned trial Court which are based upon correct appreciation of evidence and law, do not call for an interference by this Court., In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellants, which is dismissed accordingly. However, the parties are left to bear their own costs. ( V.K. Ahuja ), December 04, 2009 Judge (BSS) 8