R.S.A. No. 1177 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1177 of 2009 (O&M) Date of decision: 19.03.2009 Parminder Singh and another ....Appellants Versus Deep Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Puneet Jindal, Advocate, for the appellants. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgment and decree dated 13.2.2009 passed by the learned lower appellate Court vide which the suit filed by the plaintiff/respondents claiming damages to the tune of Rs.2,00,000/- has been partly decreed, and the plaintiff/respondents have been granted damages of Rs.30,000/- for malicious prosecution. The plaintiffs brought a suit for damages on the plea that defendant No. 2 is the real brother of plaintiffs No. 1 and 2, and they have joint agricultural land at village Gehri on account of which civil litigation is pending between the parties. The plaintiffs claimed that as the defendant/appellants always had mala fide intentions and personal grudge against the plaintiffs, they got a false case registered under Sections 341/323/506/147 IPC at police station, Jandiala, vide FIR No. R.S.A. No. 1177 of 2009 (O&M) -2- 360/98, in which the plaintiffs were falsely involved. The plaintiffs faced trial for a period of seven years, and ultimately they were acquitted by the learned Magistrate by recording a finding that false and fabricated FIR has been lodged against the plaintiffs and, in fact, no such incident had taken place. It was also held that the doctor who allegedly examined defendant No. 2 was not produced before the criminal Court. The judgment has attained finality. The suit was contested by the appellant/defendants by taking preliminary objections that the suit was not maintainable and that the plaintiffs had concealed material facts from the Court. The case filed against the plaintiffs was said to be not genuine and legal. The relationship being strained between the parties was, however, admitted. After the filing of the replication, the learned trial Court framed the following issues: - “1. Whether the defendants lodged the FIR No. 360/98 U/s 341, 323, 506, 147 IPC with malafide intention? OPP 2. Whether suit is not legally maintainable? OPP 3. Whether the suit is bad for mis-joinder and non- joinder of necessary parties? OPD 4. Whether this court has no jurisdiction to entertain and try the present suit? OPD 5. Whether the plaintiff has not come to the court with clean hands if so its effect? OPD 6. Whether the plaintiff is entitled to the recovery of Rs.2 lacs as damages on account of malicious prosecution at the instance of defendants? OPP 7. Whether the plaintiff is entitled to the recovery of interest from the date of filing of suit till realization @ 18% P.A? OPP R.S.A. No. 1177 of 2009 (O&M) -3- 8. Relief.” The learned trial Court was pleased to observe that in order to prove the malicious prosecution, the plaintiffs are required to prove the following ingredients: - “a) That criminal proceedings were instituted and continued against him by the defendant; b) That there was no reasonable or probable cause for the defendant instituting those proceedings; c) That institution of such proceedings was malicious; and d) That those proceedings ended in his favour. The learned trial Court found that two ingredients were fulfilled i.e. criminal proceedings were instituted and they ended in favour of the plaintiffs. However, the learned trial Court held that there was no material to hold that the proceedings instituted were not reasonable or was out of malicious prosecution. In view of the finding, issue No. 1 was decided against the plaintiffs by holding that the FIR lodged was not with malicious intention. The learned trial Court held that the finding by the civil Court is to be recorded on independent evidence and not merely on the judgment of criminal Court. In view of the finding on issue No. 1, issues No. 6 and 7 were also decided against the plaintiffs. Similarly, issues No. 2 to 5 were also decided in favour of the defendants and against the plaintiffs, whereas issue No. 3 was decided in favour of the plaintiffs. However, on issue No. 4 it was held that civil Court had the jurisdiction to entertain and try the suit, and consequently, the suit was ordered to be dismissed. R.S.A. No. 1177 of 2009 (O&M) -4- The plaintiffs preferred an appeal against the judgment and decree passed by the learned trial Court, which stands allowed by observing as under: - “After hearing the respective arguments and going through the evidence on record, it transpires that it is an admitted fact that a criminal case titled as State Vs. Deep Singh etc. was got registered vide FIR No.360/1998 under Section 341/323/506 IPC at Police Station Jandiala, Amritsar on the complaint of Parminder Singh (now respondent) which was tried in the Court of Sh. Tarn Taran Singh Bindra, PCS, the then JMIC, Amritsar and finally decided on 27.4.2005. In this case, all the accused were acquitted from the charge leveled against them with specific finding “on the basis of above discussion, it can be very safely concluded that no such occurrence took place on 25.10.1998 in which Iqbal Singh suffered injuries at the hands of accused”. Moreover, PW4 Jagbir Singh who was Investigating Officer in the above case has further corroborated the case of the appellant. I would like to take support of case law of the Hon'ble Supreme Court of India in case titled Smt. S.R. Venkataraman Vs. Union of India and another, AIR 1979 Supreme Court 49 in which the Hon'ble Supreme Court of India has held that Torts-Malice-Meaning of malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause of excuse, or for want of reasonable or probable cause. Thus, from my above discussion and in the light of citation of the Hon'ble Supreme Court of India, I am of the consistent view that the plaintiffs/appellants have successfully proved the issue No.1. So issue No.1 is R.S.A. No. 1177 of 2009 (O&M) -5- decided in favour of plaintiffs/appellants and against the defendants/respondents and as a result of this, the findings of learned lower Court on issue No.1 are set aside. Now so far as issue No.6 is concerned which relates to amount of Rs.529 lacs as damages on account of malicious prosecution, that can be determined on taking into account various factors and facts. In this case, criminal case was instituted and tried from 19998 to 2005 i.e. It took seven years for the conclusion of trial. Although, it has been pleaded that plaintiffs/appellants suffered a lot of mental pain and agony and have to engage several lawyers and attend the Court on account of the false and frivolous case filed by the defendant/respondent just to harass, humiliate and defame the appellants/plaintiffs. As such, plaintiffs/appellants have paid heavy amount in terms of fees, other expenses regarding Court work etc. The amount of Rs. Two lacs is not a perfect parameter in order to compensate the plaintiffs/appellants. It was further contended that the appellants/plaintiffs have already appended a Court fee of Rs.4300 in the lower Court and same in this appeal, thus totaling Rs.8600/-. Keeping in view the totality of circumstances and facts, issue No.6 is proved to the extent that appellants/plaintiffs are entitled to recover Rs.30,000/- from the defendants/respondents. Hence issue No.6 is decided accordingly in favour of appellants/plaitiffs and against the defendants/respondents and as a result of this, findings of learned lower Court on issue No.6 are set aside. So far as issue No.7 is concerned, it is decided in favour of appellants/plaintiffs and against the defendants/respondents to the extent that appellants are entitled to recover interest from the date of filing of the suit till realization at the rate of 6% per annum only and R.S.A. No. 1177 of 2009 (O&M) -6- as a result of this, the findings of the learned lower Court on issue No.7 are set aside.” In view of reversal of finding of the learned trial Court on issues No. 1 and 7, finding on issues No. 2 and 5 were also reversed, whereas finding on issues No. 3 and 4 were affirmed. However, the learned lower appellate Court held that the plaintiff/appellants were entitled to only Rs.30,000/- as damages for malicious prosecution, and partly decreed the suit along with interest @ 6% per annum. The learned counsel appearing on behalf of the appellants contends that this appeal raises the following substantial questions of law: - "1. Whether the judgment and decree passed by the learned lower appellate Court without considering the material evidence especially Ex. D-2 to Ex. D-4 on record is sustainable in the eyes of law? 2. Whether in the absence of basic ingredients for the grant of damages on account of malicious prosecution, the suit could be decreed? 3. Whether in the absence of any evidence in the suit to establish institution of criminal prosecution with malice and without any material to show that there is no reasonable or probable cause for the defendant to institute the criminal proceedings, the suit for damages on account of malicious prosecution could be decreed? 4. Whether the judgment of the learned trial Court could be reversed without finding any fault with the same? 5. Whether in the facts and circumstances of the case, the Ld. Courts below could have relied upon decision of the Hon'ble Supreme Court in case S.R. R.S.A. No. 1177 of 2009 (O&M) -7- Venkataraman versus Union of India, AIR-1979- SC-49?" In support of the first substantial question of law, the learned counsel for the appellants contends that the decree passed by the learned lower appellate Court cannot be sustained as the learned lower appellate Court has not considered the material evidence specially Ex. D-2 to D-4 on record, i.e. ruka, report, bedhead ticket and statement of Dr. Pawan Bhatia. Doctor was also not examined on the civil side to prove, that incident had, in fact, taken place. Though a positive finding was recorded by the learned criminal Court that no incident had occurred as alleged by the prosecution and accused were honourably acquitted. The finding of the learned lower appellate Court is based not only on the judgment of the learned criminal Court, but the learned lower appellate Court has taken note of the statement of I.O. who had categorically stated that no such incident took place, and the complaint was registered with mila fide intention, which was accepted by learned criminal Court. The learned lower appellate Court recorded a finding on the basis of evidence on record and also in view of the fact that it was proved case that the plaintiff was prosecuted on the criminal side, which resulted in his honourable acquittal then the malicious prosecution can be presumed. It is not in dispute that the relationship between the parties were strained and there were other civil litigations going on between the parties. The learned lower appellate Court was thus right in reversing the R.S.A. No. 1177 of 2009 (O&M) -8- finding of learned trial Court. No fault can be found with regard to finding of the learned lower appellate Court on issues No. 1 and 2. The substantial question of law, thus, does not arise, as it cannot be said that some of the evidence brought on record was not taken into consideration, as contended. On the second substantial question of law, the learned counsel has merely referred to the finding recorded by the learned trial Court holding that the ingredient showing that the prosecution was malicious was not proved on record. This plea is mis-conceived. The appellants failed to produce any independent evidence to prove the incident before the civil Court, so as to get finding that the plaintiffs were not entitled to damages as claimed in view of malicious prosecution. The second substantial questions of law also is answered against the defendant/appellants. It is not in dispute, as held by the criminal Court, that criminal prosecution was launched against the plaintiff/respondents and in which the plainitffs were honourably acquitted by holding that no such incident had taken place. In view of finding coupled with the admitted grudge between the parties, the learned lower appellate Court was right in holding that prosecution was malicious. The fourth substantial question of law framed also does not arise. The learned lower appellate Court has given reasons for reversing the finding by holding that malice was proved. It cannot be said that the judgment of the learned lower appellate Court has been passed without reversing the finding of the learned trial Court as contended. Finally, the learned counsel appearing on behalf of the R.S.A. No. 1177 of 2009 (O&M) -9- appellants contends that the reliance on the judgment of the Hon'ble Supreme Court in Smt. S.R. Ven vs. Union of India and another, AIR 1979 Supreme Court 49 by the learned lower appellate Court was misconceived, as the Hon'ble Supreme Court in Smt. S.R. Ven vs. Union of India and another (supra) was dealing with the case of compulsory retirement, and not that of malicious prosecution. This plea cannot be accepted. The learned lower appellate Court has not relied on the said judgment to grant damages, but only has given meaning to word "malicious" as held by the Hon'ble Supreme Court. The definition of malicious prosecution would be applicable both to the civil and criminal case irrespective of the fact whether the case decided is on the civil side or on the criminal side. Consequently, the substantial questions of law framed are answered against the appellants. No merit. Dismissed in limine. (Vinod K. Sharma) Judge March 19, 2009 R.S.