IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: RFA.No.6 of 2001. Date of Decision :11th March, 2008. Kashmir Singh Guleria …Appellant. Versus: State of H.P. and another. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for judgment?1 For the appellant: Mr.Vijay Thakur, Advocate. . For Respondents. Mr.Vivek Thakur, Addl. Advocate General with Ms.Subh Mahajan, Dy. Advocate General. Sanjay Karol, J(Oral). The present appeal arises out of the judgment and decree dated 7th November, 2000 passed by Additional District Judge, Shimla, in Civil Suit No. 12-S/1 of 95/90 titled as Kashmir Singh Guleria Vs. State of H.P. and another dismissing the plaintiff’s suit for recovery of a sum of Rs.4,00,000/-. Plaintiff, who was working as Trained Graduate Teacher in the department of Education, Government of Himachal Pradesh was transferred from Government High School Pangna, District Mandi, H.P. to Chuhara Block in the then Sub Tehsil Chirgaon, District Shimla, H.P. He submitted T.A. bill amounting to Rs.942-65 paise. The 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 correctness of the bill was got verified and it was so found that a false bill had been submitted by the plaintiff and as such F.I.R.No. 2/83 was registered against him with the Anti Corruption Unit, Shimla, Zone, Shimla. The matter was investigated and the accused was subsequently charged for an offence under Sections 467 and 471 of the Indian Penal Code and Section 5(1)(d) read with Section 5(3)(a) of the Prevention of Corruption Act, 1947. The accused was found guilty and sentenced to undergo imprisonment by the Sessions Judge, Shimla vide his judgment dated 11th November, 1986 in case No.8-S/7 of 1986. However, this Court in Criminal Appeal No.95/86 filed by the accused reversed the conviction and sentence and vide judgment dated 31st May, 1989 acquitted the accused of the charged offence. The accused was also promoted as Head Master. But, however, the order of promotion was withdrawn for which he had to litigate. Thereafter, plaintiff filed a civil suit, which is a subject matter of the present appeal, alleging that the defendants had maliciously prosecuted him without reasonable and probable cause. In the plaint, he claimed compensation to the extent of Rs.4,00,000/-. At this stage it is pertinent to notice that the suit was filed against the State of H.P. and the Director of Education, H.P Government and no official was impleaded as party in his personal capacity. Importantly even in the plaint no specific acts of malice have been alleged and attributed against any particular official/employee of the Department. In the written statement, the defendants took the plea that after preliminary investigation and subsequently thorough examination, the case was registered against the plaintiff and at all 3 stages there has been proper application of mind. The fact that the prosecution was launched with malice or without any due and reasonable care and caution was specifically denied by the defendants. Based on the pleadings of the parties, the trial court framed the following issues: 1. Whether the prosecution launched against the plaintiff was frivolous, malicious and without any reasonable and probable cause as alleged? OPP. 2. Whether the suit is barred by limitation? OPD. 3. Whether the plaintiff has suffered damages, if so, to what extent? OPP 4. Relief. In support of his case plaintiff examined as many as four witnesses. He examined himself as PW-1, Rajinder Nath Paul as PW- 2, Sh Mansa Ram as PW-3 and Parma Nand as PW-4. The plaintiffs suit stood dismissed in terms of judgment and decree dated 7th November, 2000 which is now a subject matter of the suit. I have heard the learned counsel for the parties and perused the record. Perusal of the entire evidence on record would show that except for a bald statement made by PW-1 that he was falsely prosecuted without any reasonable cause, none has given any specific instances with regard to the actual acts of malice. The plaintiff’s evidence is conspicuously silent as to who acted with malice and in what manner. There is no whisper of any specific instances, details and particulars. There is just a general and vague allegation. Even in 4 the pleadings there are no specific allegations and instances and no evidence has come on record in support of the plaintiff. In order to succeed in an action for damages for malicious prosecution plaintiff must prove: (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 (1v) that the there was an absence of reasonable and probable cause for such proceedings and (v) that the plaintiff has suffered damage. The onus of proving the above conditions as regards determination of liability is on the plaintiff. In considering the presence or absence of reasonable and probable cause court has to consider the totality of the circumstances. The existence of reasonable and probable cause has to be judged in relation to the state of mind at the time when the plaintiff initiates the proceedings. 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. This Court while dealing with a similar situation in Darshan Singh Vs. State of Himachal Pradesh and others, Latest HLJ 2006 (HP) 157 has held that simply because the official of the State carried out the investigation and registered a case that fact alone would not enough to hold the official to be guilty of malice. It is a matter 5 of record that Anti Corruption Cell was headed by a Senior Police Officer and the case was registered only after thorough investigation by a high ranking officer. In Ravinder Kumar Sharma, Vs. State of Assam and others, AIR 1999 Supreme Court 3571, the apex court has held as under: “24 The question here is whether there is proof of malice and proof of absence of reasonable and probable cause for the search, seizure and arrest of the appellant and for his prosecution. The remedy of suit for damages for false imprisonment is part of the law of torts in our country (ADM., Jabalpur V Shivakant Shukla, (1976) 2 SCC 521 (at 579): (AIR 1976 SC 1207 at Pp. 1229-30), Lord Devlin stated: “The defendant can claim to be judge not of the real facts but of those which he honestly, and however erroneously , believes; if he acts honestly upon friction, he can claim to be judged on that” 27. The question is not whether the plaintiff was ultimately found guilty but the question is whether the prosecutor acted honestly and believed that the plaintiff was guilty. As pointed out by Winfield and Jolowicz on Tort (15th Ed., 1998, p. 685) in prosecutions initiated by the police officers, the fact that they did so upon advice or instruction of superior officers is one of the relevant facts unless it is proved that the particular police officer did not himself honestly believe that the plaintiff was guilty of an offence.” In Amar Singh Vs. Smt. Bhagwati, AIR 2001 Rajasthan 14, the Court has held as under: “15. Reasonable and probable cause means a genuine belief, based on reasonable grounds, that the proceedings are justified. Similarly, the terms “ reasonable and probable” are synonymous, and “Probabilis causa” was a classical latin expression “probabilis causa” means primarily provable and “Probabilis causa” a good reason. The defendant is not required 6 to believe that the accused is guilty and it is enough if he believes that there is reasonable and probable cause for prosecution. Therefore, he need only be satisfied that there is a proper cause to lay before the Court. If a person honestly states his complaint to a responsible police officer, who advises him to prosecute, he will be protected. 16.As regards grounds for belief, even if the defendant honestly believed the proceedings to be justified, there is no reasonable and probable cause unless this belief was based on reasonable grounds and it can be determined by the facts actually known to the defendants at the time when he laid the information and subsequently proceeded with the prosecution, and not to the facts as they factually existed. Thus, facts unknown to the prosecutor do not prevent the facts being known to him from constituting reasonable and probable cause. 17. However, if a person embarks upon a prosecution without any evidence at all or with evidence on which the accused would not reasonably be convicted, then there is strong evidence that he had no reasonable and probable cause. But it is not enough in itself to establish a reasonable or probable cause that the plaintiff was committed for trial or even that he was convicted by a Court at first instance and subsequently acquitted on appeal. It seems good sense, for, though these facts would be weighted by evidence of a reasonable and probable cause, they should not be conclusive there, malicious prosecution is not an action at law but is an action at tort.” In M/s Bharat Commerce Industries v. S.N.Shukla (AIR 1966 Cal 388) (supra) the Division Bench of Calcutta High Court observed, as under (paras 7, 13): “Therefore, the only relevant and material time when a reasonable and probable cause for prosecution has to be found out is the time when the criminal proceeding is commenced or set in motion. It is only from this point of 7 view that the evaluation of the evidence in a suit for malicious prosecution should be made”. In Ravindra Sharma Vs. State of Assam (AIR 1999 SC 3571) (supra) the apex court observed as follows :- “The remedy in a suit for damages for false imprisonment is part of the law of torts in our country (A.D.M. Jabalpur V. Shivakant Shukla (1976) 2 SCC 521 (at 579): AIR 1976 SC 1207 at pp. 1229-30, Lord Devlin stated: “The defendant can claim to be judge not of the real facts but of those which he honestly, and however erroneously, believes, if the acts honestly upon fiction, he can claim to be judged on that” “The question is not whether the plaintiff was ultimately found guilty but the question is whether the prosecutor acted honestly and believed that the plaintiff was guilty. As pointed out by Winfield and Jolowicz on Tort (15th Ed., 1998, p.685) in prosecutions initiated by police officers, the fact that they did so upon advice or instruction of superior officers is one of the relevant facts unless it is proved that the particular police officer did not himself honestly believe that the plaintiff was guilty of an offence.” Applying the aforesaid principles of law to the instant case, it cannot be said that the prosecution was launched without any basis reasonable cause or out of malice. The prosecution was not launched on the basis of mere suspicion but was on the basis of the documentary evidence as submitted by the plaintiff himself. Plaintiff’s witnesses have stated that they did not have any knowledge with regard to any claims of T.A. made by the plaintiff. In support of his claim, the plaintiff has placed on record a copy of the legal notice issued to the defendant (Ext.PW-1/A), the judgment of the High Court Ext.PW-1/H and the orders of the Sessions Judge, Shimla Ext. PW-1/K-1 to Ext.PW-1/K-3 . 8 It is the plaintiff’s own case that he had submitted T.A.Bill of Rs. 942-65 paise and claiming therein a sum of Rs. 573-75 paise on account of charges for carriage of house hold and personal effects to his place of posting. A receipt for the same purportedly issued by Sh. Paras Ram, driver of truck No. HIL.No.4727 was placed on record whereby a sum of Rs. 825/- was paid to the driver. Receipt did not bear the signature of Paras Ram. The said receipt was attested by the plaintiff in his own hand and signature. It was this receipt which was found not to be genuine and accordingly the prosecution was launched against him. I have gone through the judgment passed by this Court wherein it has been noticed that during the trial Paras Ram admitted not having issued the receipt; received the money or carried the goods as claimed by the plaintiff. While acquitting the plaintiff, the court has not held that the prosecution was initiated out of malice or reasonable cause. In my view, the trial court correctly held that in the present case the plaintiff has not been able to prove that any of the defendants have acted with malice or without reasonable cause while initiating the investigation or prosecution of the plaintiff with regard to his T.A. bills. Simply because the plaintiff has been acquitted by this High Court, while reversing the judgment of conviction of sentence that fact alone would not be sufficient to prove the fact that the prosecution had been launched with malice. In my view, the plaintiff has not been able to prove by cogent and convincing material that the prosecution launched against 9 him was frivolous, malicious or without any reasonable and probable cause. I see no infirmity or perversity in the impugned judgment and the appeal filed by the plaintiff is consequently dismissed. (Sanjay Karol), Judge. March 11, 2008(R) 10 11