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2005 DIGILAW 1401 (RAJ)

hanwar Lal Pareek v. Krishna Swarup

2005-05-10

DALIP SINGH

body2005
Judgment Dalip Singh, J.-This is a first appeal by the defendant against whom a decree for damages for a sum of Rs. 15,000/-was passed by the learned trial Court by the impugned Judgment and decree dated 03.09.1986 on account of a suit filed by the plaintiff-respondents for damages on the ground of malacious prosecution. 2. The brief facts giving rise to this appeal are that plaintiffs filed a suit stating therein that defendant-appellant malaciously filed a First Information Report on 03.07.1975 with Police Station Kotwali, Jaipur against the plaintiffs for the offence under Sections 147, 542 and 323, IPC. In the course of investigation, the plaintiffs were interrogated several times by the police who came to their residence and in full view of the other occupants of neighbourhood they were interrogated. They were forced to seek anticipatory bail and thereafter, the case was challaned and from 1975 to 1979 they had to attend the Court including coming from far of places when finally on 24.04.1979, the said criminal case terminated in their acquittal which was as a result of false malacious prosecution actuated on account of enmity by the defendant-appellant. 3. Plaintiff -respondents filed a suit for damages amounting to Rs. 20,000/-for malacious prosecution. During the pendency of the aforesaid suit, one of the plaintiffs Smt. Chameli Devi died and, as such, trial Court did not award any compensation to the deceased Smt. Chameli Devi. The learned trial Court after recording the evidence came to the conclusion that plaintiffs were malaciously prosecuted by the defendant-appellant without any reasonable or probable cause and the said prosecution having culminated into acquittal of the plaintiffs by Judgment dated 24.04.1979, the plaintiffs were held entitled to the damages of Rs. 15,000/-. 4. It may also be stated that defendant-appellant filed his written statement and denied the allegations and claim of the respondents regarding having lodged a false and malacious report without reasonable cause. The defendant-appellant reiterated that report lodged by him with the police was correct. The defendant-appellant also denied that plaintiffs were reputed persons and on account of aforesaid prosectuion had suffered any loss of reputation etc. 5. In this appeal filed by the defendant-appellant, the defendant-appellant has assailed the findings given by the learned trial Court in the impugned Judgment dated 03.09.1986. 6. The defendant-appellant also denied that plaintiffs were reputed persons and on account of aforesaid prosectuion had suffered any loss of reputation etc. 5. In this appeal filed by the defendant-appellant, the defendant-appellant has assailed the findings given by the learned trial Court in the impugned Judgment dated 03.09.1986. 6. The submission of the learned Counsel for the appellant is that learned trial Court erred in disbelieving the evidence led by the defendant-appellant and finding given on issue No. 1 deserves to be set aside. On the other hand, learned Counsel for the plaintiff-respondents has supported the Judgment of the learned trial Court and has submitted that learned trial Court has taken into consideration the entire facts and circumstances and the evidence led by both the parties and has given the findings in accordance with law. 7. In a suit for malacious prosecution the plaintiff must prove (1) that he was prosecuted by the defendant; (2) that said prosecution or proceeding terminated in favour of the plaintiff ; (3) that prosecution was instituted with malice; (4) that the same was without any reasonable or probable cause; and (5) that plaintiff suffered damages to his reputation, safety of person and/or property. 8. In the instant case it has come on the record that the relationship between the plaintiff No. 1 and defendant were strain on account of a suit having been filed by the plaintiff No. 1 against his wife and defendant for dissolution of marriage on account of illicit relations between the wife of plaintiff No. 1 and the defendant. In the said suit, the defendant was a party. He appeared through his Counsel but subsequently the he decided not to contest the said suit and a decree for dissolution of marriage in favour of the plaintiff was passed against his wife on account of illicit relations between the wife of the plaintiff No. 1 and the defendant. In the instant case a First Information Report dated 03.07.1975 was filed against the plaintiff No. 1 by the defendant. In the said FIR, alongwith plaintiff No. 1 Krishna Swarup, Smt. Chameli Devi, two daughters of plaintiff No. 1 viz., Shashi and Manju and two sons viz., Ravi and Vinod were also arrayed as accused persons. In the instant case a First Information Report dated 03.07.1975 was filed against the plaintiff No. 1 by the defendant. In the said FIR, alongwith plaintiff No. 1 Krishna Swarup, Smt. Chameli Devi, two daughters of plaintiff No. 1 viz., Shashi and Manju and two sons viz., Ravi and Vinod were also arrayed as accused persons. On the record Exhibit-1 Judgment dated 24.04.1979 by which the plaintiff No. 1 and other accused persons referred to above were acquitted of the charges under Sections 147, 452 and 323, IPC. A perusal of the aforesaid Judgment goes to show that learned trial Court while acquitting the plaintiff -respondents held that as per the case of the defendant Bhanwar Lal Pareek himself in the compromise where the alleged incident took place nearly 150 persons reside but not a single person who was resident was examined as witness. The conduct of the defendant in not contesting the allegations made against him in the suit filed for dissolution of marriage was also taken into consideration by the learned trial Court. The fact that even the mother of the wife of plaintiff was not spared in being arrayed as an accused and she too supported the plaintiff was also taken into consideration by the learned trial Court which goes to show that even the mother-in-law of the plaintiff was not happy with the conduct of defendant and her daughter who was married with plaintiff No. 1. The learned trial Court disbelieved the entire case of the defendant after discussing the various factors including reappreciation of evidence of alleged eye-witnesses and also took into consideration the fact that despite the fact it was alleged that defendant was beaten up there was no medical evidence to support the said allegation. The learned trial Court having taken into consideration all these circumstances further took into account that apart from the defendant himself DW. 2 Gopal has been examined to prove the allegations made in the First Information Report on the side of the defendant-appellant. The learned trial Court has taken into consideration the fact that DW. 2 Gopal was not mentioned as a witness in the FIR nor was he examined as a witness during the trial or by the police during the course of investigation. On account of these circumstances, the testimony of DW. 2 Gopal was rejected by the trial Court in support of the defendant-appellants case. 2 Gopal was not mentioned as a witness in the FIR nor was he examined as a witness during the trial or by the police during the course of investigation. On account of these circumstances, the testimony of DW. 2 Gopal was rejected by the trial Court in support of the defendant-appellants case. The learned trial Court further found that DW. 2 Gopal in his cross-examination has admitted that at the time of alleged incident, he was not present in the room, as such, what transpires therein, he was unable to depose before the Court. The learned trial Court further found that DW. 2 Gopal was a party to the suit which has been filed by the plaintiff for partition of the property of plaintiff and, as such, it was decided by the trial Court that DW. 2 Gopal was an interested witness. In the light of the aforesaid factors which are enumerated by the learned trial Court, the testimony of this witness was not accepted by the trial Court to prove the case of the defendant that the said incident dated 03.07.1975, in fact, had occurred. 9. The other witness who has been examined on the side of the defendant is DW. 3 Gulab Chand. This witness has deposed that incident of 03.07.1975 occurred at about 8-8:30 in the night and the witness had gone to invite Bhanwarlal, the defendant-appellant to dinner as the defendant was his friend. The witness on being cross-examined was unable to state as to what was the occasion for which the dinner had been hosted. The fact that he went to invite his friend at about 8:30 p.m. in the night at such a late hour when there was an occasion for which the dinner had been hosted was considered unnatural by the learned trial Court. The very fact that instead of two of them going for dinner, the said witness allegedly having accompanied the defendant to the police station also discredits the testimony of the witness that he went on the spot at the alleged time of incident to invite the defendant and thereafter accompanied him to the police station instead of going back to attend other guests who had come for dinner to his place was a circumstance which was considered by the trial Court to disbelieve the testimony of this witness. Moreover, the fact that the testimony of these alleged eye witness was not corroborated by any medical evidence was sufficient to disbelieve the said witnesses. The inference which the learned trial Court drew was one which could not be termed as not plausible and as such calls for no interference. 10. Having gone through the record and the Judgment of the trial Court as well as the Judgment of acquittal Exhibit -1, I am satisfied that alleged report lodged by the defendant regarding the incident of 03.07.1975 was a false one, as has been held by the learned trial Court. Thus, the report against the plaintiffs by the defendant-appellant was false and without any reasonable and probable cause. It has also come in the evidence that the defendant-appellant did not rest content that merely filing the FIR against the plaintiffs who were then challaned by the police but thereafter actively participated in prosecuting the case by appointing his own Counsel as is evident from the Exhibit 16-A, the vakalatnama, that was filed by the Counsel for the defendant-appellant to prosecute the case on his behalf before the criminal Court. In the light of the above, the relevant factors regarding the prosecution of plaintiffs by the defendant, the termination of the proceeding in favour of the plaintiffs, the prosecution being without reasonable and probable cause are amply proved. It is now to be seen whether the prosecution was instituted with malice towards the plaintiffs. As has been seen the relations between the defendant-appellant and the plaintiffs were strained as the plaintiff always suspected the defendant of having illicit relations with his wife and the said relationship led to the plaintiff No. 1 filing a suit for dissolution of marriage which culminated into a decree for dissolution of marriage being passed in favour of the plaintiff . Needless to say that in the said proceeding, the defendant-appellant had been arrayed as party alongwith the wife of plaintiff No. 1 and after due service of summons, though the defendant-appellant chose not to contest the same for the reasons best known to the defendant-appellant. In these circumstances, the fact that plaintiff has lodged the proceedings initiated by way of First Information Report against the plaintiff was initiated with malice can reasonably be inferred. In these circumstances, the fact that plaintiff has lodged the proceedings initiated by way of First Information Report against the plaintiff was initiated with malice can reasonably be inferred. Consequently, it is held that initiation of the prosecution by lodging the false report against the plaintiffs was actuated with malice against the plaintiffs. Thus, the findings given by the learned Court below on the issue No. 1 are upheld and the contention raised by the defendant-appellant are rejected. 11. So far as quantum of damages is concerned, from the perusal of the record and the averments made in the plaint, it is clear that the plaintiffs have claimed damages on account of mental agony for loss of reputation as averred in the plaint and consequently the amount awarded to the plaintiff for loss of reputation and consequent mental agony and the actual expenses incurred in contesting the prosecution proceedings calls for no interference. 12. Consequently, this appeal fails and is hereby dismissed. In the facts and circumstances of the case, there shall be no order as to costs. The appeal having been dismissed, the stay order dated 111.1986 is vacated and the respondents would be free to realise the decretal amount by encashing the bank guarantee that was furnished by the defendant-appellant in pursuance of the aforesaid stay order dated 111.1986.