ash 1 fa-590.93.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO. 590 OF 1993 1. V.L. Tari, ) since deceased through ) his legal heirs: ) a) Smt. Rajani Vishwanath Tari, ) b) Eknath Vishwanath Paradkar. ) 2. S.G. Shirodkar, ) 3. M.A. Chavan. ).. Appellants Versus 1. Madhukar Janardan Mulay, ) 2. Shri Ravindranath Vishwanath Tari, ) 3. Shri Mahindranath Vishwanath Tari, ) 4. Smt. Madhuri Madhukar Chopadekar. ).. first Respondents -- Shri Anjali Helekar i/by Shri S.M. Dharap for the Appellants. Shri S.G. Deshmukh for 1st first Respondent . -- CORAM ; A.S. OKA, J SUBMISSIONS WERE HEARD ON : 16TH JUNE, 2011 JUDGMENT PRONOUNCED ON : 12TH AUGUST, 2011 ash 2 fa-590.93.sxw JUDGMENT: . The Appellants have taken an exception to the judgment and decree dated 19th June, 1993 passed by the learned Judge of the City Civil Court at Bombay. The Appellants are the original Defendant Nos. 2, 3 and 13. The first Respondent is the Original Plaintiff. The first Respondent was employed as a teacher in Adarsh Vidyalaya at Goregaon (West), Mumbai. The Defendants are the office bearers of the management of the said school. The first Defendant was the President who died during the pendency of the suit. The second Defendant/ first Appellant was the Vice President. The third and the fourth Defendants were the Secretary and Joint Secretary, respectively. The fifth Defendant was the Treasurer of the management. The sixth to tenth Defendants were the members of the managing committee. The eleventh and twelfth Defendants were the Head Master and Supervisor of the said school Adarsh Vidyalaya, respectively. The thirteenth and fourteenth Defendants were senior clerk and junior clerk respectively working with the said Adarsh Vidyalaya. According to the case of the first Respondent, there was a conflict between him and the Defendants. The dispute aggravated when the members of the staff elected the first Respondent as their representative to channelise and voice their grievances against the Management. According to the case of the first Respondent, a false allegation was made against him that he retained ash 3 fa-590.93.sxw with himself a sum of Rs.215/- being the fees collected from pupils for the month of February, 1971. It is alleged that the Defendant Nos.1, 2 and 4 to 8 lodged a false and malicious complaint against the first Respondent with Goregaon Police Station on 20th February, 1971 at 11.15 p.m. It is alleged that the complaint was lodged knowing full well that it was a false complaint. It is alleged that the complaint was lodged with vindictive attitude to ensure that the first Respondent was immediately arrested and he should not get bail. It is alleged that ultimately the first Respondent was acquitted on 29th June, 1992. It is alleged that an attempt was made by the Defendants to damage the character and reputation of the first Respondent and they were bent upon removing the first Respondent from the said school. It is alleged that Defendant No.3/ Appellant No.2 made defamatory statements against the first Respondent during the investigation and during the criminal trial. It is alleged that the Appellant No.2 asserted without reasonable and sufficient cause that the first Respondent did not deposit any cash. The first Respondent made a claim of Rs.15,000/- being compensation towards the physical suffering, mental anguish, emotional disturbance, etc. and a sum of Rs.4,950/- being the expenses incurred by him. The impugned decree has been passed only against the Defendant Nos.2, 3 and 13 ( the Appellants ) jointly and severally directing them to pay an amount of Rs. 19,950/- together with interest at the rate of 6% per annum from the date of filing of the suit till ash 4 fa-590.93.sxw realisation. The suit was disposed of against Defendant No.1 as abated and dismissed against the rest of the Defendants. 2. The Defendants filed their written statements. It was contended that the Defendant No.3/ Appellant No.2 reasonably believed that there was a dishonest intention on the part of the first Respondent in not depositing the fees collected by him in the month of February, 1971. Therefore, the Appellant No.2 filed a complaint with the police. It is contended that the Defendants had issued instructions to the first Respondent not to keep the amount of fees with him. However, the first Respondent did not pay any attention to such direction. It was submitted that the police, after being satisfied about the case, have taken further steps by carrying out investigation. It is alleged that after acquittal, a departmental inquiry was initiated against the first Respondent for rude behaviour. 3. After the Appeal was called out for final hearing, this Court suggested the parties to have amicable settlement. However, amicable settlement is not worked out. Learned counsel for the Appellants submitted that the very fact that the first Respondent utilised the amount collected from the students by way of fees and subsequently deposited the same by a cheque shows that he had intention to misappropriate the amounts. Learned counsel submitted that the ash 5 fa-590.93.sxw amount was tendered by cheque only when the Management found that the amount was not deposited by the first Respondent. The learned counsel submitted that the learned Trial Judge committed an error by relying upon the judgment of acquittal of the criminal Court. The learned counsel submitted that the fact that the first Respondent had retained the amount collected by way of fees with him has been established. The learned counsel submitted that when it was proved that the first Respondent had unlawfully retained the amount of fees with him, the act of filing a complaint at the police station and giving evidence in the criminal prosecution will not amount to defamation. The learned counsel submitted that in any event the complaint was lodged as per the instructions of the Management and, therefore, none of the Appellants are personally liable. The learned counsel appearing for the Appellants submitted that the liability of the expenses allegedly incurred by the first Respondent could not have been fastened against the Appellants. The learned counsel submitted that there was no independent evidence adduced to prove that there was any loss of reputation. The learned counsel submitted that all the four elements which were required to prove malicious prosecution were not established by the first Respondent in terms of what is held by this Court in the case of Asaram Kanhaji Gaikwad v. Kusumbai Sahebrao Jadhav, (2008(6) Mh.LJ 534). ash 6 fa-590.93.sxw 4. The learned counsel appearing for the first Respondent supported the impugned judgment and decree. The learned counsel submitted that the police complaint was lodged at 11.15 p.m. on 20th February, 1971 with the only intention of ensuring that the first Respondent was arrested. He pointed out that the complaint was filed even before the expiry of the month of February, 1971 and there was no scope of making allegation that before the end of month, the fees collected were required to be deposited. He pointed out the Rules and in particular the Rule 4 relied upon by the Defendants. He submitted that the Rule clearly permits a class teacher to deposit the fees collected by the end of last day of the month. He pointed out that the misappropriation alleged was as regards the fees collected in February, 1971. He submitted that before lodging a police complaint, there was no notice issued by the Management to the first Respondent calling upon him to deposit the amount. He submitted that the manner in which the complaint was lodged clearly shows that there was malicious intention on the part of the Defendants of prosecuting the first Respondent. He submitted that it was established that the Defendants acted without reasonable and probable cause. He submitted that no interference is called for. The learned counsel appearing for the Appellants submitted that even assuming that the Appellants are liable to pay compensation, there is no evidence in support of the claim made of Rs.4,950/- towards the loss sustained by the first Respondent. The ash 7 fa-590.93.sxw learned counsel submitted that there was absolutely no evidence in support of the said claim. The learned counsel submitted that in any event the Appellants cannot be personally liable. 5. I have given careful consideration to the submissions. As far as the law on the aspect of malicious prosecution is concerned, the same has been summarised by this Court in the case of Asaram Gaikwad (supra). In Paragraph 12 and 13, this Court has held thus:- “12. There is no dispute that in order to prove malicious prosecution, four elements must be proved by the plaintiff, which are as under:- (i) Criminal proceedings must have been instituted or continued by the defendant; (ii) The proceedings must have been unsuccessful, that is to say, must have been terminated in favour of plaintiff; (iii) The defendant must have acted without reasonable and probable cause; and (iv) The defendant must have acted maliciously. 13. In this case, it is relevant to examine whether the Respondent filed complaint without reasonable and probable cause and secondly whether the complaint which culminated in registering the first information report and ultimate trial, was lodged maliciously.” 6. It will be necessary to make a reference to the deposition of the first Respondent. He has deposed as to in what manner he had ash 8 fa-590.93.sxw raised various issues with the Management. He pointed out that for four months in the year 1967, the staff was not getting salary. He stated that as a representative of the teachers in the school committee, on 9th July, 1967 in a meeting, he conveyed the wishes/grievances of the teachers to the school committee. He deposed that as a class teacher he was required to collect the fees from the students from a particular class. He stated that noting of the fees was made on the fee sheets and the catalogue of the class. He produced copies of the catalogues of September and November, 1971 on record which contain the requisite Rules. He stated that in the month of December, 1990 and January, 1971, he tendered the school fees collected from the students by cheques, but the said cheques were not accepted. 7. In his examination-in-chief, he has further stated that at the midnight of 20th February, 1971 he was arrested and taken to the police station. He stated that he was told that a complaint was lodged by the school authorities with the police that he had collected the fees of Rs. 215/- which was not deposited in the school treasury. He stated that at time of lodging the complaint, all the managing committee members were present and that they were insisting that he should write his resignation on a blank sheet of paper. He stated that he was acquitted in the prosecution. As far as the prejudice caused to him is concerned, in Paragraph 6, he stated thus:- ash 9 fa-590.93.sxw “6. The mental torture was of a serious nature, I lost my mother in the year 1972. She was 70 years old. In the year 1972, I was unmarried. When the students were giving their evidence in the cri. Case, their parents asked me what made me to misappropriate such a small amount. I was treated as a criminal. My relatives were not ready to come to me. The day on which I was arrested, I was to approve a girl for my marriage contacts. The defendants send school peon to check up at my residence whether I am in custody. At that time, my proposed bride alongwith her parents were present. Noticing my detention, they left my house without settlement. I was in custody for one night. I have furnished surety for getting myself released on bail. I say that, the cri. Prosecution launched against me is a malicious prosecution. Due to this prosecution, my prestige in society was lowered.” 8. As regards his monetary claim, in Paragraph 5 he deposed thus:- “5. I am claiming approx. Rs.3000/- towards legal expenses. During the period, I was staying at Goregaon, the matter was taken at Borivali and Vikhroli. I was attending court case by bus. I have paid Rs.2500/- to my lawyer towards this professional charges to prosecute the cri. Case on my behalf. On account of my prosecution, my suspension order was passed resulting in loss of my S.S.C. Exam. fees as well as the fees for the observation of D.Ed. lessons. I was doing both the works for 3 years prior to my suspension. I was receiving Rs.500/- each from both. During the whole process, I was physically, mentally subjected to disturbances. I claim about 15 to 16 thousands rupees on this account. According to me, the amount claimed in the suit in inadequate in view of losses sustained by me but as I could not arrange for court-fee, I have limited my claim in the suit.” ash 10 fa-590.93.sxw 9. The first Respondent was cross-examined by the Defendants on the procedure of collecting the fees. In the cross- examination, he stated that as far as possible, the fees collected from the students were in cash. He stated that he never deposited the cash amount received by him by way of fees in his savings account and the cash amount used to remain in his custody. He stated that the said amount was not deposited by him in his Account for the purposes of issuing cheques. 10. None of the Defendants stepped into the witness box and no other evidence was adduced by the Defendants. 11. At this stage, it will be necessary to make a reference to the First Information Report lodged by the Appellant No.2 (Defendant No. 3). As pointed out earlier, the FIR was lodged by the Appellant No.2 in the midnight on 20th February, 1971 which was a Saturday. The allegation in the FIR (Exhibit P-6 collectively ) is that the first Respondent collected the fees from the students from 1st February, 1971 till 11th February, 1971 totally amounting to Rs.215/- but he did not deposit the said amounts with the concerned Clerk in the office of the school. It is stated that the first Respondent was a class-teacher of ash 11 fa-590.93.sxw Division-B of Xth standard. It was alleged that the first Respondent has misused the school cash. It is stated that it was the practice that the class-teacher has to deposit the fees recovered on the very day with the concerned clerk. Therefore, it was alleged that as the first Respondent had not deposited the fees, he has committed a criminal breach of trust. It appears that on the basis of the said FIR, the first Respondent was arrested and taken into custody. 12. The directions/rules issued by the Management to the teachers have been incorporated in the class register. The class registers of September and November, 1970 have been produced by the Appellants before the Trial Court and the same have been marked as the Exhibits-D-1 and D-2 respectively. Clause 4 of the said Rules reads thus:- “The monthly fees will be collected and paid into the School office each month on the days fixed by the principal. The name of a pupil who has not paid his or her fees without any reasonable excuse by the end of the current month, should, as rule, be struck of the Register forthwith, and in no case are arrears to be allowed except by the special sanction of the Head of the School. Class-teachers should keep their fee account open till the end of the last day of the month, and pay into the office all sums either on the same day that they receive them or on such installment days as are fixed by the Principal. All sums received must be paid to the Principal by the end of the month.” ash 12 fa-590.93.sxw 13. The first part of the Rules says that the monthly fees will be collected and paid into the school office each month on the days fixed by the Principal. In the present case, the Appellants did not make out any case before the Trial Court that the particular days were fixed by the Principal. Clause 4 further provides that the class-teachers should keep their fee account open till the end of the last day of the month and pay into the office all sums either on the same day on which the same are received or on such installment days as are fixed by the Principal. The last sentence of clause 4 which is highlighted in the class register clearly shows that the outer limit to deposit the amount was by the end of a particular month. In any case, it must be noted that the FIR was lodged even before the end of the month. Admittedly, no notice was issued to the first Respondent by the Management calling upon him to deposit the amount. The appellants placed reliance on a communication dated 5th February, 1971 issued by the Principal of the school to the first Respondent. In the said letter, it was stated that instead of depositing the fees collected on daily basis, the first Respondent was depositing the amounts after 8 to 10 days by cheques. It was stated that as a result of this action on the part of the first Respondent, the date of receipt issued to the parents and the actual date of receipt of the amounts did not tally. Therefore, the first Respondent was called upon to deposit the fees on daily basis. Admittedly, the amount of Rs.215/- represented the fees collected by ash 13 fa-590.93.sxw the first Respondent from 1st February, 1971 to 11th February 1971. 14. The judgment of acquittal of the first Respondent by the Criminal Court is on record as Exhibit P-6 collectively. The learned Magistrate recorded a finding that in view of the clause 4 of the Rules, the complaint was totally premature and there was no opportunity given to the first Respondent to deposit the amount. In the judgment, the learned Magistrate has recorded that the relations between the accused and the Managing Committee were strained right from the year 1967. In Paragraph 9 of the judgment, the learned Magistrate recorded a finding that the complaint made against the first Respondent was only a trick played by the Managing Committee just to achieve the end which it desired for a long time. The learned Magistrate found that the management was trying to get rid of the first Respondent. The learned Magistrate noted that the effort made by the first Respondent earlier to pay the amount by cheque did not succeed as the Management did not accept the cheque. The learned Magistrate observed that the school authorities have shown a deliberate haste in going to the police station to lodge a complaint. It was observed that the haste was with an ulterior motive therefore, the learned Magistrate proceeded to acquit the first Respondent. The order of acquittal was not challenged either by the State Government or by the Management. ash 14 fa-590.93.sxw 15. The evidence on record shows that there was a dispute between the Management of the school and the first Respondent. The first Respondent being the authorised representative of the teachers and members of the staff had made certain demands with the Management. The amounts allegedly misappropriated were collected by the first Respondent from 1st February, 1971 till 11th February, 1971 totally amounting to Rs.215/-. The Management had never called upon the first Respondent to deposit the amount. Even without calling upon the first Respondent to deposit the amount or without giving him an opportunity to deposit the amount by the end of the month, around the midnight on a Saturday, the first information report was lodged by the 2nd Appellant. On the basis of the first information report, the first Respondent was arrested. It is obvious that the complaint was lodged with the police against the first Respondent without any reasonable and probable cause. The fees collected by the first Respondent upto January, 1971 were deposited by the first Respondent with the Management and on some occasions by cheques. Thus, apart from the fact that there was no reasonable or probable cause for lodging a complaint, the 2nd Appellant acted with malice. The malice is apparent from the fact that without waiting for the month to end and without calling upon the first Respondent to pay the amount by sending a notice, the complaint was filed just before the midnight on the ash 15 fa-590.93.sxw Saturday, the 20th February, 1971. The first Respondent was picked up by the police in the same night and was arrested. The prosecution has been resulted into an acquittal. The notes of evidence in the prosecution have been placed on record (P-6 collectively). The notes of evidence show that the criminal proceedings were continued and in fact, the present Appellant No.2 and the Appellant No.3 deposed before the criminal Court. Therefore, this is a case where, as held by the Trial Court, all the four ingredients which are laid down in the decision of this Court in the case of Asaram Gaikwad (supra) were proved by the first Respondent. 16. Perusal of the first information report filed by the 2nd Appellant shows that in filing the FIR, no other Defendants have played any other role. It is not the case made out therein that the 2nd Appellant filed the FIR on the instructions of the Management. No evidence has been adduced as regards any such instructions. The 3rd Appellant was a clerk in the office of the school. There is nothing on record to show that he was in any manner instrumental in filing the FIR. The same is the case with the first Appellant. Therefore, there could not have been a decree against the first and third Appellants and the decree could have been passed only as against the 2nd Appellant who has lodged the FIR which has set the criminal law in motion. ash 16 fa-590.93.sxw 17. A sum of Rs.15,000/- has been granted by the Trial Court towards mental anguish, emotional disturbances and physical suffering by the first Respondent. The first Respondent remained in custody of the police for one night. The first Respondent was required to face the trial. In the meanwhile, the first Respondent lost his mother who had suffered a shock. The prospects of the marriage of the first Respondent were adversely affected due to pendency of the prosecution. Therefore, there was a justification for grant of a sum of Rs.15,000/- as damages. 18. The other claim made by the first Respondent was on account of expenses towards the legal fees, loss of examinership, loss of honorarium for observing B.Ed. students, etc. On this claim, the first Respondent in his examination-in-chief has stated that he was claiming a sum of Rs.3,000/- towards the legal expenses. He claimed that on account of prosecution, he lost his SSC Examination fees as well as the fees received for the work of observation of the lectures by B.Ed. students. However, no documentary evidence whatsoever has been placed on record to show that the said income was being earlier received by the first Respondent. However, the claim made by the first Respondent for legal expenses in the sum of Rs.3,000/- appears to be reasonable and has been rightly granted. To the aforesaid extent, the impugned decree needs modification. ash 17 fa-590.93.sxw 19. Hence, I pass the following order:- (a) The decree passed as against the defendant Nos. 2 and 13 is quashed and set aside and there will be a decree only as against the 3rd Defendant ( 2nd Appellant). (b) The decree shall be in the sum of Rs.18,000/- together with interest at the rate of 6% per annum from the filing of the suit till realisation. The order of costs in the impugned decree is maintained. (c) The Appeal is partly allowed on above terms. (d) No orders as to costs. ( A.S.