FIRST APPEAL No. 686 OF 1995 Against the judgment and decree dated 17.04.1995 passed by Sri Raj Kishore Lal, Subordinate Judge 1st , Gaya in Money Suit No. 25 of 1990. THE STATE OF BIHAR & ANR. ………. Defendants/Appellants Versus RAM JANAM SINGH ……… Plaintiff/Respondent ******** For the Defendant/Appellant : Mr. Manish Dhari Singh, A.C. to G.P. 16 For the Plaintiff/Respondent : Mr. Gouranga Chatterjee, Advocate Dated : 26th day of November, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T The appellants have filed this First Appeal against the judgment and decree dated 17.04.1995 passed by Sri Raj Kishore Lal, the learned Subordinate Judge 1st, Gaya in Money Suit No. 25 of 1990 decreeing the plaintiff’s Money Suit in part. (2) The plaintiff filed the aforesaid Money Suit claiming Rs.1,79,222.50 alleging that he was appointed as Matric Trained Assistant Teacher by the District Superintendent of Education in the pay scale of Rs.230-5-280-E.B.-6-340 and joined U.P. School, Adai, Konch, District Gaya on 25.07.1973. He was getting his salary till 1974. In 1974, his Mungeshwar Sahoo, J. 2 enemies gave false information that the plaintiff’s real name is Bhagwan Singh and in fact, the plaintiff’s brother is Ram Janam Singh, who is actually appointed as Assistant Teacher but because he is invalid, the plaintiff impersonating him as Ram Janam Singh and working as Assistant Teacher. Thereafter on 8.9.1976, he was arrested from the office of District Superintendent of Education without asking any explanation or show cause. According to the plaintiff, the arrest was illegal and unjustified. (3) The further case of the plaintiff is that he was bailed out in the criminal case u/s 420, 419 and 511 I.P.C. Charge sheet was also submitted in the said criminal case which was ultimately disposed of by Sri N.K.Verma, Judicial Magistrate 2nd class, Gaya on 16.1.1983 in which the plaintiff was acquitted on the ground that the prosecution did not substantiate and prove the charge. Thereafter, the plaintiff was reinstated on 1.9.1985 and since then, he is getting his salary. The plaintiff further alleged that he was not getting his salary from the year 1974 till August 1985, so, he moved from pillar to post but nothing was paid to him and none of the authorities heard him. The plaintiff further alleged that no departmental proceeding was ever initiated against him and the prosecution launched against him was a malicious prosecution causing damage to the plaintiff and therefore, he is entitled to litigation cost amounting to Rs.1,12,222 as per the account given in Schedule-II of the plaint. The plaintiff also claimed interest at the rate of 12% per annum before filing the suit. After serving notice u/s 80 C.P.C. on the State of Bihar, the plaintiff filed the suit valuing the same at Rs.1,79,222.50. (4) The appellants appeared and filed a contesting written statement alleging that the plaintiff was absent from 1974 to August 1976 3 and therefore, he was not paid his salary. So far salary from the period of September 1976 till his joining is concerned, the State of Bihar did not dispute the fact, in other words, the State of Bihar admitted the claim of the plaintiff. So far malicious prosecution is concerned, the case of the defendant-appellant is that, in fact, it was a bonafide prosecution launched against the plaintiff according to law and after investigation, charge sheet was also submitted against the plaintiff. It is also alleged that the plaintiff was not even discharged at the time of framing charge and therefore, it cannot be said that it was a false and malicious prosecution. It is also stated that public filed a petition levelling the allegation against the plaintiff that in fact, he is impersonating his brother. (5) On the basis of the aforesaid pleadings, the learned Court below framed the following issues: (i) Is the suit as framed maintainable? (ii) Has the plaintiff got any cause of action for the suit? (iii) Is the suit barred u/s 80 C.P.C.? (iv) Is the suit barred by the law of limitation? (v) Is the suit barred under the provision of Specific Relief Act? (vi) Is the suit barred by the principle of Estoppel, Waiver and Acquiescence? (vii) Is the plaintiff entitled for the damages sustained on account of malicious prosecution? (viii) Is the plaintiff entitled to get pay, D.A. and Bonus and increment as claimed? 4 (ix) Is the plaintiff entitled to get interest as claimed in the plaint i.e. 1% P.M.? (x) Is the plaintiff entitled to any other relief or reliefs? (6) After trial, the learned Court below came to the conclusion that the defendants-appellants have failed to prove that the plaintiff was absent from the year 1974 to August 1976 and the State has admitted the claim of salary of the plaintiff from September 1976 to 1985 when he joined and therefore, allowed the claim of the plaintiff with regard to this point. The learned Court below also found that the prosecution launched against the plaintiff was malicious prosecution and therefore, lump sum amount of Rs.9,000 has been awarded as litigation cost. So far interest is concerned, the learned Court below awarded 6% interest on the amount of salary since 1974 to 1985. (7) The learned counsel appearing on behalf of the appellants assailed the judgment only on the finding of malicious prosecution and awarding Rs.9,000 to the plaintiff. The learned counsel submitted that in this case it cannot be said that the plaintiff was prosecuted maliciously because there was a public petition which has been admitted by the plaintiff himself in the plaint and the said petition discloses a cognizable offence. In such circumstances, it cannot be said that the department should first enquire about the correctness or otherwise of the fact because the department has no investigating agency and moreover, the departmental proceeding is a separate thing and criminal proceeding is a separate thing. The learned counsel further submitted that had it been a false and malicious prosecution, then, in such circumstances, the police after investigation could not have filed charge sheet and the Court also did not discharge him at the time of framing charge. Charge was framed 5 because there were materials available on the record for framing charge. The learned counsel further submitted that only because the plaintiff has been acquitted, it cannot be presumed that the prosecution was a malicious prosecution and moreover, the delay was not caused because of the appellants. The learned counsel further submitted that if on the ground that the accused has been acquitted it is presumed that it was a malicious prosecution then, in almost more than 50% cases in which, the accused are acquitted because of non-production of evidences, the State will have to face suit for realization of cost of litigation. The learned counsel on these grounds submitted that the impugned judgment so far it relates to finding of malicious prosecution and awarding of Rs.9,000 is concerned is liable to be set aside. It may be reiterated here that no other grounds has been raised by the learned counsel for the appellants. (8) On the other hand, learned counsel appearing on behalf of the plaintiff-respondent submitted that the impugned judgment and decree is legal an after considering the evidences, the learned Court below has found that in fact, it was a malicious prosecution. The learned counsel further submitted that there was a report that a false prosecution has been filed but even then, the plaintiff was prosecuted. On these grounds, the learned counsel submitted that the First Appeal may be dismissed. (9) In view of the above contentions of the parties, the points for consideration in this appeal is as to “whether the prosecution launched against the plaintiff is malicious prosecution” and “whether the plaintiff was entitled for damage and litigation cost as awarded by the learned Court below” and “whether the impugned judgment and decree relating to this point is sustainable in the eye of law?” 6 (10) As stated above, except the above points, no other question has been raised and therefore, in my opinion, evidence is not required to be gone into in this case. It relates to only the question of law. The plaintiff himself admitted in the plaint that a public application was filed and then, he was arrested by the police. He also admitted that a criminal case u/s 420, 419 and 511 I.P.C. was started against him. It may be mentioned here that Section 420 I.P.C. is a cognizable and non-bailable offence and the police can arrest without warrant. In such circumstances, the police arrested the plaintiff and after investigation, charge sheet was also filed. The only allegation of the plaintiff that prior to arrest, the department should have relied upon the report of Block Education Extension Officer, Konch, Gaya, who after enquiry reported that the person who is working is Ram Janam Singh and a false petition has been filed by his enemies. From perusal of the impugned judgment also, it appears that the learned Court below has given much emphasis on this report. In my opinion, the Block Education Extension Officer has no authority to enquire about the cognizable offence and the enquiry made by him is not binding in the Criminal Court. After investigation, admittedly, charge sheet was submitted. Finding materials in the charge sheet, cognizance was also taken and subsequently, charge was also framed against the plaintiff. It is a different matter that ultimately the prosecution could not prove the charge against the plaintiff beyond all reasonable doubt but only one that ground alone, there is no presumption that the prosecution launched against the plaintiff is malicious prosecution. (11) In the case of Nagendra Kumar v. Etwari Sahu AIR 1958 Patna 329, a Division Bench of this Court has held that the plaintiff in order to succeed in an action for damages for malicious prosecution, must prove : 7 (i) the prosecution by the defendant of a criminal charge against the plaintiff before a tribunal into whose proceedings the Courts are competent to enquire; and, (ii) that the proceedings complained of terminated in his favour, if from their nature they were capable of so terminating; and (iii) that the defendant instituted or carried on such proceedings maliciously; and (iv) that there was an absence of reasonable and probable cause for such proceedings; and (v) that the plaintiff has suffered damage. The onus of proving every one of the above conditions of liability is on the plaintiff. (12) Therefore, in view of the above decision, the plaintiff is required to prove one of the most important ingredients that the defendant proceeded maliciously and there was an absence of reasonable and probable cause for such proceeding. Unless this ingredient is proved by cogent and reliable evidence by the plaintiff, no presumption will be there in favour of the plaintiff. In the present case, except the report of the Block Education Extension Officer, there is nothing on record in favour of the plaintiff. As stated above, the said report of the Extension Officer is not binding on the appellants particularly when the public complaint disclosed a cognizable offence. It cannot be said that in the above facts and circumstances of the case, there was no reasonable and probable cause for launching a criminal prosecution. Reasonable and probable cause depends upon the information and belief of the defendant. It may not be justifiable to commence a prosecution on mere suspicion but in the 8 present case, there is quite and clear reasonable and probable cause for moving the Criminal Court. In the present case, it further appears that the appellants acted on the basis of the public application. The plaintiff himself has admitted that the said application disclosed a cognizable offence and therefore, it cannot be said that when the prosecutor initiated the prosecution had any malice against the plaintiff and he launched the prosecution without any reasonable and probable cause. (13) In view of my above discussion, I find that the learned Court below has not considered this aspect of the matter. I, therefore, find that the plaintiff has failed to prove that the appellants prosecuted the plaintiff maliciously. The finding of the learned Court below on this point is therefore, set aside. Accordingly, that part of the judgment and decree whereby the learned Court below has held that the plaintiff is entitled for a lump sum amount of Rs.9,000 towards meeting the litigation expenses commencing from 1976 to 1985 is also set aside. (14) In the result, this appeal is allowed in part and the impugned judgment and decrees so far it relates to awarding of Rs.9,000 as indicated above is set aside. The impugned judgment and decrees are modified to the said extent. In the facts and circumstances of the case, the parties shall bear their own costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 26th November, 2010 Saurabh/N.A.F.R.