SAO No. 49 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH SAO No. 49 of 2010 Date of Decision: 8.3.2011 Ujagar Singh ....Appellant. Versus Sampuran Singh ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Ms. Satpreet G. Kapila, Advocate for the appellant. AJAY KUMAR MITTAL, J. 1. The plaintiff-respondent filed a suit for recovery of Rs.40,000/- on account of damages for malicious prosecution initiated by the defendant-appellant as, according to the plaintiff, a frivolous complaint bearing No. RT-376/14.9.1989 under Section 323, 341, 506 of the Indian Penal Code was filed by the present appellant against him. 2. The suit was resisted by the defendant-appellant by pleading that the trial Magistrate had convicted the appellant. However, it was on appeal that the plaintiff was acquitted and there was no element of malicious prosecution. 3. From the pleadings of the parties, the following issues were framed by the trial court:- “1. Whether the plaintiff is entitled to the recovery as prayed for? OPP 2. Whether this suit is not maintainable?OPD SAO No. 49 of 2010 -2- 3. Relief.” 4. The trial court after appreciation of the evidence dismissed the suit of the plaintiff vide judgment and decree dated 25.5.2009. On appeal, the lower appellate court by reversing the findings of the trial court on issue Nos.1 and 2 and holding that the prosecution of the plaintiff was without reasonable and probable cause vide judgment dated 4.10.2010 remanded the case to the trial court for quantifying the damages. Hence, this appeal. 5. I have heard learned counsel for the appellant and have perused the record with her assistance. 6. Learned counsel for the appellant submitted that the suit filed by the plaintiff-respondent was barred by time as the same could be filed within one year from the date of acquittal or termination of prosecution in view of Article 74 of the Limitation Act, 1963. Reliance has been placed on the judgment of Bombay High Court in Vasantrao v. Raghunathrao and another, 1990 CCC 91 (Bombay). It was next contended that the onus was on the plaintiff to establish that the complaint which had been filed by the defendant was malicious in nature and the lower appellate court had wrongly held issue No.1 in favour of the plaintiff and remanded the matter to the trial court for quantifying the damages to which the plaintiff was entitled to on account of the malicious prosecution. Reliance had been placed on the judgments in Radhey Mohan Singh v. Kaushalya Devi & Ors. 2004(2) CCC 329 (Delhi), A. Narayan Rao v. Shanta Bai and others, 2004(2) CCC 409 (AP) and Amar Singh v. Tara Dutt, 1998(1) CCC 382 (HP) in support of her submissions. SAO No. 49 of 2010 -3- 7. I have given my thoughtful consideration to the submissions of the learned counsel for the appellant and do not find any merit in the same. 8. On a specific query to the learned counsel for the appellant to refer to the pleadings with regard to the question of limitation, learned counsel candidly admitted that no objection to that effect had been raised in the written statement filed by the defendant. In the absence of any categoric assertion in the pleadings that suit was barred by limitation, it being a mixed question of law and fact cannot be allowed to be raised for the first time in this Court. 9. Adverting to the second point, it is well established that the plaintiff in order to justify claim for damages for malicious prosecution is required to establish the following four essential ingredients:- (i) that the defendant had initiated and continued criminal proceedings against the plaintiff; (ii) that there existed no reasonable or probable cause for the defendant for instituting those criminal proceedings; (iii) that the criminal proceedings finally culminated in favour of the plaintiff; (iv) that the defendant had taken recourse to such proceedings with ulterior and malicious intention. 10. It may further be noticed that the findings recorded by the criminal court cannot be held to be conclusive and the civil court is required to judge the evidence produced before it independently and arrive at its own conclusions based thereon. The judgment in the SAO No. 49 of 2010 -4- criminal trial shall be only a piece of evidence and it would depend upon facts of each case as to what weightage is required to be given to such piece of evidence. 11. Examining the factual findings in the present case, the lower appellate court recorded that the appellant had appeared as PW1 and produced on record the copy of the judgment of the Criminal Court as Ex.P1, vide which he was acquitted. It noticed that the alleged incident on the basis of which complaint was lodged on 14.9.1999 was dated 16.12.1998 and there was no explanation for such delay and laches on the part of the defendant. It was also observed that the sister of the plaintiff had filed a complaint against the defendant relating to an earlier occurrence of 19.1.1999 in which Ujjagar Singh had been convicted, though later on 28.4.2005, he was acquitted by the appellate court. The lower appellate court after referring to the evidence of Amrik Singh as PW6, copy of complaint filed by Ujjagar Singh (Ex.P3) and counsel fee certificate (Ex.P4) had reversed the finding of the trial court on issue No.1. The trial court concluded that initial onus which was on the plaintiff, thus, stood discharged and the defendant failed to produce any material to show that the complaint was bonafide. No error or fault could be pointed out in the aforesaid findings of the lower appellate court which may warrant interference. Suffice it to notice that the principle of law enunciated in the judgments which have been relied upon by the learned counsel for the appellant are well recognized but are of no help to him being based on individual fact situation involved therein. SAO No. 49 of 2010 -5- 12. In view of the above, no ground for interference by this Court is made out. Accordingly, there is no merit in the appeal and the same is hereby dismissed. March 8, 2011 (AJAY KUMAR MITTAL) gbs JUDGE