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Madhya Pradesh High Court · body

2001 DIGILAW 270 (MP)

Mangilal v. Manakchand

2001-03-22

S.P.KHARE

body2001
Judgment ( 1. ) THIS second appeal is under Section 100, CPC. The following substantial question of law was formulated by order dated 13-9-83 at the time of admission of this appeal: "whether in the facts and circumstances of the case the learned Lower Appellate Court, which is the final Court so far as questions of facts are concerned has committed an error in dismissing the appeal in motion hearing ?" ( 2. ) THE facts relevant for the decision of the question referred to above are that-Defendant-Mangilal filed a complaint against the plaintiff Manakchand in the Court of Judicial Magistrate, 1st Class, Susner alleging therein that the plaintiff has committed criminal breach of trust in respect of an amount of Rs. 2900/- which was entrusted to him by the defendant. It was also alleged in the complaint that the plaintiff has committed theft of the account books belonging to the defendant. After an enquiry, as required by Section 200 and Section 202, Cr. P. C. , the Magistrate found that the dispute between the parties was of civil nature. The complaint was dismissed under Section 203, Cr. P. C. Defendant Mangilal filed a criminal revision 46/78 in the Court of Session, Shajapur. That was also dismissed on 18-5-79. A notice of this criminal revision was given to the plaintiff and he appeared before the Revisional Court to contest the revision. He engaged a lawyer to represent him in the Revisional Court. It is also an admitted fact that a search warrant was issued by JMFC after filing of the complaint by the defendant and search of house of the plaintiff was conducted on 4-3-78. ( 3. ) THE plaintiff claimed an amount of Rs. 2000/- as damages for malicious prosecution. According to the plaintiff the prosecution was initiated by the defendant without any reasonable and probable cause. ( 4. ) THE case of the defendant was that he had given an amount of Rs. 2900/- to the plaintiff for depositing the same in the sales tax office and the plaintiff did not do so. There was reasonable and probable cause for filing the criminal complaint. ( 5. ) THE Trial Court held that the criminal complaint was filed without any reasonable and probable cause and decreed the suit for Rs. 2000/- as damages with costs. In appeal by the defendant, this decree has been affirmed. There was reasonable and probable cause for filing the criminal complaint. ( 5. ) THE Trial Court held that the criminal complaint was filed without any reasonable and probable cause and decreed the suit for Rs. 2000/- as damages with costs. In appeal by the defendant, this decree has been affirmed. The first appeal has been dismissed in motion hearing. ( 6. ) IN this case it is an admitted fact that the plaintiffs house was searched in pursuance of the search warrant issued by the Magistrate on the complaint of the defendant. The complaint was no doubt dismissed under Section 203, Cr. P. C. Revision was filed by the defendant in which a notice was issued to the plaintiff. Therefore, in view of the decision of this Court in Babulal Vs. Ghasilal (1970 MPLJ 810), it must be held that, the plaintiff was prosecuted by the defendant. ( 7. ) THE next question is whether the said prosecution was without any reasonable and probable cause ? The order dated 13-6-78 (Ex. P-1) by which the complaint was dismissed, shows that the Magistrate found that there was dispute of civil nature between the parties. The plaintiff and the defendant were carrying on some business in partnership and the dispute related to the settlement of the accounts. The Trial Court and the First Appellate Court had held that there was absence of reasonable and probable cause for prosecuting the plaintiff. The evidence adduced in the Civil Court, shows that the charge relating to the theft of the accounts books was definitely baseless. The search of the house of the plaintiff on the basis of these allegations, must have damaged his reputation. The decision of the Trial Court that the prosecution was without any reasonable and probable cause was correct. In such situation the dismissal of the appeal by the First Appellate Court in motion hearing can not be said to be unjust or unreasonable. First Appellate Court has power to dismiss the appeal even in motion hearing under Order 41 Rule 11, CPC. Answer to the question which has been framed by this Court is that First Appellate Court has not committed an error in dismissing the appeal in motion hearing.