IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 427 of 2004. Decided on: 7th November, 2009. _______________________________________________________ Madan Lal and others ….Appellants. Versus Partap Singh ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant s : Mr. Vinay Thakur, Advocate. For the respondent : Mr. K.D. Sood, Advocate. __________________________________________________________ SURINDER SINGH, J (Oral) The suit for recovery of damages to the tune of Rs.2 lacs was filed by the appellant/plaintiffs against the respondent/defendant, for their malicious prosecution which was dismissed by the learned District Judge by a detailed judgment and decree dated 28th August, 2004, passed in Civil Suit No.8/1 of 2001/2000, which have been challenged in this appeal. The facts in brief giving rise to the present appeal can be stated thus. On 23rd May, 1990, respondent Partap Singh reported to the police that his uncle Dandu Ram (deceased) had gone for a dinner to the house of one Shri Sunka Ram Brahman and he did not return, thus srv.Shri Suresh Kumar and Dina Nath were requested to trace him. On their return they informed him that Dandu Ram was found by them in an Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - injured condition in Mauza Kasohal. He was unconscious and they brought him to his house. Thereafter Dandu Ram was taken to hospital at Ghumarwin, where he died. Partap Singh also informed police that on the previous day appellant Madan Lal had picked-up a quarrel with the deceased and he proclaimed that Dandu Ram would be killed within a month or two. Thus he suspected that the appellants/plaintiffs might have caused his death. The police recorded the statement of Partap Singh under Section 154 of the Code of Criminal Procedure and registered a case under Section 302 of the Indian Penal Code. Appellants/plaintiffs Madan Lal and Rania Ram were arrested on the same day, whereas Mansha Ram was granted pre-arrest bail. The plaintiffs faced the trial and on 14th August, 1992, they were acquitted by the Additional Sessions Judge, Bilaspur. The State had filed appeal against their acquittal which was also dismissed by the High Court. The appellants alleged that the respondent/defendant was instrumental in implicating them in the aforesaid case and made his best efforts to seek their conviction by procuring false evidence and he had also engaged a private counsel during the trial to prosecute the case. Since the appellants underwent the torture of trial and a huge amount on litigation and also suffered irreparable loss and injury, their prosecution was without any reasonable cause, thus they sought the damages to the tune of Rs.2 lacs as compensation by filing the suit. - 3 - The respondent/defendant resisted and contested the suit and raised the preliminary objections with respect to the maintainability of the suit and no cause of action. On merits, the respondent/defendant denied having reported to the police actuated by any malice. But according to him, he only stated to the police about what his deceased uncle had told him and further that he was informed by Suresh Kumar and Dina Nath about having found the deceased in an injured condition who was brought to his house and thereafter taken to the hospital. Because of previous incident, the defendant entertained a strong suspicion that these injuries might have been caused by the appellants, in view of the threats given to him. He specifically denied that he had any malicious intention or ill-will against the appellants and that he had procured the false witnesses against them. Thus, prayed for the dismissal of the suit. In the replication, the preliminary objections were denied by the appellant/plaintiffs and on merits reasserted even paras of the plaint. On the pleadings of the parties, the following issues were framed by the learned trial Court. 1. Whether the plaintiffs are entitled for the recovery of suit amount from the defendant as alleged? OPP. 2. Whether the suit is not maintainable? OPD. 3. Relief. The parties led their evidence and after hearing the parties the learned District Judge held that although the suit was maintainable, but the appellant/plaintiffs were not entitled for any damages as claimed. Hence the suit was dismissed. - 4 - Now the challenge has been made to the aforesaid judgment and decree passed by the learned trial Court in this appeal, precisely on the ground that the learned trial Court did not appreciate the facts and law in right perspective. Mr. Vinay Thakur, learned counsel for the appellants vehemently argued that the appellant/plaintiffs have discharged the initial onus that they were prosecuted at the instance of the defendant and later acquitted by the Courts. Since the defendant failed to rebut the same and the learned District Judge did not consider this fact, therefore, the impugned judgment and decree deserve to be reserved. Contra Shri K.D. Sood learned counsel forcefully supported the impugned judgment and decree. It is a fact established on record and also not disputed that the death of Shri Dandu Ram was not a natural death, but a culpable homicide. The police machinery was set in motion by the respondent/ defendant by filing an FIR. The respondent informed the police that a day prior to the alleged incident his deceased uncle (Dandu Ram) told him that appellant Madan Lal had picked-up a quarrel with him and proclaimed that he had an income of Rs.10,000/- per month and he would kill him with stones within a day or two. When Dandu Ram did not return from the house of Shri Sunka Ram Brahman where he had gone to attend a feast, then his aunt Premi Devi sent Suresh Kumar and Dina Nath to find out the whereabouts of her husband. The complainant only stated in the FIR that the said persons had informed that Dandu Ram was found injured and on the way on the boundary of Mauza Kasohal on the side of the road, he was brought to his house - 5 - in injured and unconscious condition. His injuries were bleeding and thereafter he was taken to the hospital. In cross-examination PW-2, Madan Lal, appellant admitted that on the above information the police had carried out the investigation of the case and recorded the statements of the aforesaid persons and ultimately filed the challan in the Court within three months of the said incident. He also admitted that he was having litigation with Dandu Ram deceased and his son regarding joint holding wherein water- pump was installed by them in the year 1985 and that Dandu Ram had instituted a criminal case against the appellants. He further admitted that Balia and Shiv Ram were the prosecution witnesses against them in the murder case of Dandu Ram and stated before the Court that they had seen the appellants inflicting the injuries on Dandu Ram with Drat. He also admitted that Keshav Dutt Sharma testified before the Court that the appellants had threatened to eliminate Dandu Ram. But according to him, the said statements given by them in the court were false. The appellants also placed on record the certified copies of their statements in evidence along with the copy of judgment. Admittedly, defendant was not an eye witness. He simply informed the police about the previous incident as disclosed by the deceased to him and also informed the police about the facts which were brought to his notice by Shiv Ram and Balia, the prosecution witnesses in the criminal case. The same facts were testified by him in the court when he appeared as a witness. - 6 - As a matter of fact for maintaining an action for damages for malicious prosecution the plaintiffs are bound to establish:- (i) that they were prosecuted by the defendant; (ii) the proceedings complained of terminated in favour of the plaintiffs; (iii) the prosecution instituted against them was without any reasonable and probable cause; and (iv) it was due to malicious intention of defendant and not with a mere intention of carrying the law into effect. In the instant case from the facts on record, the first two points are made out that the plaintiffs were prosecuted by the defendant and the proceedings complained of terminated in their favour. The only controversy between the parties remains with respect to the third and fourth points referred above. 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. The onus of proof lies upon the plaintiffs that the prosecution was commenced without reasonable cause and was actuated by malice. 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 - 7 - him was actuated by malice, the plaintiff must be deemed to have failed to discharge the burden resting on him. 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. 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. In the instant case, the appellant/plaintiffs have failed to discharge the burden by proving that the defendant had reasonable and probable cause and that the prosecution was due to malice on the part of the defendant. 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 plaintiffs 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. Therefore, the plaintiffs cannot derive any benefit from the judgment of acquittal passed by the learned Additional Sessions Judge and its affirmation in appeal by the High Court. Thus for the foregoing reasons, in my opinion the plaintiffs have failed to prove and establish that the defendant - 8 - had no reasonable and probable cause for prosecuting them and further their prosecution was actuated with malice. The appeal sans merit and is accordingly dismissed with costs. November 7, 2009. (Surinder Singh), J. (rc)