RSA No. 206 of 2006 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 206 of 2006 Date of Decision: 1.9.20009 Kehar Singh ......Appellant Versus Kuldip Kumar Sharma and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Manohar Dadwal, Advocate, for the appellant. Shri Bhrigu Dutt Sharma, Advocate, for the respondents. HEMANT GUPTA, J. (Oral). The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby suit of the plaintiff for damages on account of act of defamation, was dismissed. The learned trial Court decreed the suit and granted Rs.12,000/- as damages, but the first Appellate Court found that the plaintiff has failed to prove that the act of lodging of a complaint, which led the suspension of the plaintiff and the publication of news item, were malicious in intent and, thus, reversed the finding recorded by the learned trial Court. Still further, the learned first Appellate Court found that the suit is beyond the period of limitation as the news item was published on 10.10.1997, whereas the suit was filed on 27.11.1998 i.e., after the expiry of one year of publication of RSA No. 206 of 2006 (2) the libelous news item. Learned counsel for the appellant has vehemently argued that the present is the suit for damages on account of malicious prosecution and, thus, such suit would be governed by Article 74 of the Limitation Act, 1963. It is argued that time for filing such suit starts when the plaintiff is acquitted or prosecution is otherwise terminated. It is argued that the malicious prosecution includes into its ambit not only criminal prosecution, but false complaint as well. Reliance is placed upon Sukhwinder Singh v. Ravinder Singh, AIR 2003 Punjab & Haryana 324. Learned counsel for the respondents has controverted the arguments raised by the learned counsel for the appellant and also argued that apart from the orders passed in the proceedings initiated by the defendants, the plaintiff has not led any evidence to prove that the allegations levelled by the defendants against the plaintiff were without any reasonable and probable cause and that the defendants have acted maliciously. Therefore, apart from the fact that the suit has been filed after the prescribed period of limitation in terms of Article 75 of the Limitation Act, 1963, the plaintiff has not even proved the basic ingredients to succeed in a in an action based upon malicious prosecution. In the judgment referred to by the learned counsel for the appellant, this Court referred to a Division Bench judgment of this Court reported as Major Gian Singh v. S.P. Batra, AIR 1973 Punjab and Haryana 400, wherein it was held to the following effect:- “In a suit for malicious prosecution, the burden of proving that the proceedings were initiated without any reasonable and probable cause lies on the plaintiff who seeks damages. It is no doubt true that the acquittal of the RSA No. 206 of 2006 (3) plaintiff in the earlier proceedings may some times give rise to a presumption that there was no reasonable and probable cause for his prosecution but this presumption is rebuttable. The defendant in such a suit has merely to prove that the facts and circumstances did exist which gave rise to a belief in his mind that the other party was guilty. These facts and circumstances do not have to be viewed or weighed as would be done by a Court of law, for otherwise in all those cases in which the prosecution fails, the complainant or the prosecutor would become liable for damages. All the four conditions mentioned by Shri John Salmond must co-exist before a defendant in a suit for malicious prosecution can be burdened with liability. Again, in the case of such a transaction in which fraud is alleged, the person defrauded remains ignorant of all or some of the attendant circumstances of the case till a late stage. If a person could visualise or foresee what is going to happen in future, he would never become a victim of fraud.” The ingredients laid down in the aforesaid case are not proved against the respondent-defendants. There is no evidence to this effect. Thus, the basic ingredients of malicious prosecution have not been set up by the plaintiff-appellant. Thus, it cannot be said that the finding recorded by the learned first Appellate Court suffers from any patent illegality or material irregularity, which may give rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) 01-09-2009 JUDGE ds