HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APEAL NO. 32 OF 2003 Chotiya & Others ….Plaintiff-Appellants Vs. Smt. Souli Devi ….Defendant-Respondent Dated 6.6.2008 Hon’ble Rajesh Tandon, J. Heard Sri H.M. Raturi, counsel for the appellant and Shri V.K. Bisht, Sr. Advocate assisted by Smt. Seema Sirohi, counsel for the respondent. 2. By the present first appeal filed under Section 96 of the Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 3.7.2003 passed by the District Judge, Uttarkashi in Original Suit No. 54 of 1998. 3. Briefly stated, a suit was filed by the plaintiff-appellants being suit no. 54 of 1998 praying for realization of a sum of Rs. 29,900/- as damages with interest @ 18 % per annum. According to the plaint averments, the plaintiffs and the defendants are the residents of village Gajoli, Patti Barahat, Teshil Bhatwari, District Uttarkahsi and they are co-owners with the defendant. The defendant being anguish with the plaintiffs filed an application under Section 156 (3) Cr. P.C. on 24.6.1997 in the court of Chief Judicial Magistrate, Uttarkashi with false allegations against the plaintiffs and the chargesheet were filed against the plaintiffs under Sections 427, 504, 506 2 and 147 I.P.C and a criminal case being no. 17 of 1997 was instituted against the plaintiffs. The case was decided in favour of the plaintiffs and they were acquitted. It has been stated that the defendant had filed the application under Section 156 (3) on false grounds with the intention to defame the plaintiffs, hence, the plaintiffs have filed the suit for recovery of Rs. 29,900/- from the defendant as damages. 5. The defendant has filed a written statement admitting therein that plaintiffs and the defendant are the members of the same family. It has been stated that the defendant is a poor widow and the plaintiffs have harassed and abused her. On 22.6.1997, the plaintiffs came on her khet no. 3727 and destroyed the crop of ‘Marsha’ and threatened the defendant. The defendant, thereafter, has filed an application in the Court of C.J.M. It has been stated that the Government has not been impleaded as party and the suit has been filed on the wrong facts. The details of the expenditure are wrong. The suit of the plaintiffs are liable to be dismissed. 6. On the pleadings of the parties, the trial court has framed the following issues:- 1. D;k izfrokfnuh us oknhx.k ds fo:) QkStnkjh okn la[;k 442 lu~ 1997 ljdkj cuke nhik vkfn] vUrxZr /kkjk 426] 504] 506@147 Hkk0na0la0 xyr o fo}s"k dh Hkkouk ls pyk;k x;k Fkk\ ;fn gkWa rks izHkko\ 2. D;k okn i= esa fn, x, vk/kkjksa ij oknhx.k izfrokfnuh ls dksbZ {kfriwfrZ ikus ds vf/kdkjh gSa\ ;fn gkWa rks fdruh\ 3. oknhx.k fdl vU; vuqrks"k dks ikus ds vf/kdkjh gSa\ 7. The plaintiffs have examined Chotia as P.W.1. The defendant has examined herself as D.W.1. 3 8. Towards the documentary evidence, the plaintiffs have produced the copy of written statement along with copy of the plaint in suit no. 64 of 1997, copy of statement of Sawli i.e. paper no. 9 ga, copy of statement of Darshan i.e. paper no. 10 ga, copy of statement of Nathi Singh i.e. paper no. 11 ga, copy of statement of Rirku i.e. paper no. 12 ga, copy of statement of Gokul Singh i.e. paper no. 13 ga, copy of judgment dated 2.9.1998 i.e. paper no. 14 ga, copy of chargesheet i.e. paper no. 15 ga, copy of registered notice i.e. paper no. 16 ga and copy of acknowledge i.e. paper no. 17 ga. 9. While deciding issue no. 1 as to whether the defendant has instituted the criminal case against the plaintiffs with intention to wrong and malicious motives, the trial court has recorded the finding that it is not established that the aforesaid criminal case was instituted against the plaintiffs on the basis of malicious motives. The trial court has recorded the finding to the following effect:- “Hkkjro"kZ esa nkf.Md ekeyksa esa vfHk;kstu dh izfdz;k ftl :Ik ls pyk;h tkrh gS izk;% vf/kdak’k eqdneksa ds ifj.kke nks"keqfDr dh rjQ gh gksrk gS vkSj ;gkWa ij vfHk;kstu ds reke ?kVd feydj dk;Z djrs gSa vkSj cgq/kk eqdnes tkap vf/kdkjh rFkk vfHk;kstu&vf/kdkjh dh ltx iSjoh ds vHkko esa NwV tkrs gSa A vr% ;g dguk fd eqdnek ;k nkf.Md dk;Zokgh dk fu"d"kZ vfHk;qDrx.k ds gd esa ugha dh tk ldrh A vxj dh xbZ dk;Zokgh esa ifjokn rFkk vfHk;kstu ds Ik;kZIr vk/kkj Li"V gksrs gksa rks ;gh ,slk rF; gS ftlds vk/kkj ij dh xbZ nkf.Md dk;Zokgh dks lgh eku fy;k tk;sxk A fo}s"kiw.kZ vfHk;kstu ,d vid`R; dk dk;Z gksrk gS vkSj vid`R; dks lkfcr djus ds fy, Lora= lk{; vkSj lk{; dk lh/kk vkSj ldkjkRed gksuk Hkh vko’;d gksrk gS A orZeku izdj.k esa dsoy oknh NksfV;k ls c;ku ftl :Ik ls djk;k x;k gS] mlls nkf.Md ifjokn dk fo}s"kiw.kZ vk’k; ls izLrqr gksuk 4 fl) ugha gksrk vkSj ;g Hkh fl) ugha gksrk fd mDr nkf.Md dk;Zokgh esa ;qfDr;qDr rFkk lEHkkO; dkj.kksa dk vHkko Fkk A” 10. While deciding issue no. 2 as to whether the plaintiffs are entitled to get the compensation, the trial court has recorded the finding that it is not proved that the alleged criminal case was being instituted by the defendant maliciously and, therefore, the plaintiffs are not entitled for any compensation from the defendant. 11. On the basis of the aforesaid, the trial court has dismissed the suit of the plaintiffs. 12. I have perused the record. I do not find that the trial court has erred while coming to the conclusion that the defendant has initiated a malicious prosecution against the plaintiffs. The findings recorded by the trial court, therefore, are liable to be confirmed and consequently, judgment and decree passed by the trial court is affirmed. 13. Present first appeal lacks merits and is liable to be dismissed. Consequently, first appeal is dismissed. No order as to costs. (Rajesh Tandon, J.) 6.6.2008 Avneet