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Madhya Pradesh High Court · body

2006 DIGILAW 476 (MP)

Kutubuddin v. Ishrat Begum

2006-03-31

N.K.MODY

body2006
ORDER 1. Being aggrieved by the judgment and decree dated 20.12.2001 passed by Fifth Additional District Judge, Gwalior in Civil Appeal No. 60A/06 whereby judgment and decree dated 19.3.1996 passed by Ninth Civil Judge Class II, Gwalior in Civil Suit No. 350A/94 was confirmed and the appeal was dismissed, present revision has been filed. 2. Short facts of the case are that Tahir Khan who was Predecessor-in-title of the respondents tiled a suit for compensation of Rs. 4,950/- alleging that civil litigation is pending between the petitioner and the deceased Tahir Khan in the Court of V Civil Judge Class II. Gwalior. It was alleged that a criminal case is also pending on the complaint of the deceased Tahir Khan which is pending before the Judicial Magistrate, Gwalior. It was also alleged that civil suit has also been tiled by the petitioner which is pending in the Court of Fourth Civil Judge Class I. Gwalior. It was alleged that a false FIR was lodged by the petitioner on 3.10.1985 against deceased Tahir Khan in the Police Station, Madhav Ganj, Gwalior on the basis of which a criminal case was registered against him under sections 341/323, IPC in which deceased Tahir Khan was arrested on 23.10.1985 and was released on 24.10.1985. Challan was filed before the Court of Judicial Magistrate First Class, Gwalior. After trial, vide judgment dated 28.2.1987 deceased Tahir Khan was acquitted as charges were not found proved. In the plaint, it was alleged that because of malicious prosecution filed by the petitioner, deceased Tahir Khan was entitled for compensation, hence, the suit was tiled. 3. Petitioner tiled the written statement wherein all the plaint allegations were denied. It was denied that the complaint lodged by the petitioner was baseless. It was prayed that the suit be dismissed. 4. On the basis of pleadings of the parties, learned trial Court framed issues, recorded evidence and decreed the suit for a sum of Rs. 4,950/against which appeal was tiled which was dismissed, hence, the present revision. 5. Learned counsel for the petitioner submits that from perusal of the judgment passed in criminal case which is exhibited as Ex. P-1, it is evident that benefit of doubt was given to the deceased Tahir Khan. It was submitted that it is not the case in which the acquittal is on the basis of lodging of false complaint. 5. Learned counsel for the petitioner submits that from perusal of the judgment passed in criminal case which is exhibited as Ex. P-1, it is evident that benefit of doubt was given to the deceased Tahir Khan. It was submitted that it is not the case in which the acquittal is on the basis of lodging of false complaint. Learned counsel further submitted that it was for the plaintiff to prove that his prosecution is malicious and without reasonable and probable cause. Reliance was placed on a decision in the case of Bhanwarlal v. Fatesingh, [ 1984 JLJ 505 ], wherein it was held that it is for the plaintiff to prove that the defendant invented whole of the story as far as it implicated the plaintiff. This is a very heavy onus of proof and unless the plaintiff sustains it, the plaintiff must fail. Further reliance was placed on a decision in the matter of Bharat Bhushan v. Chandra Mohan, [1982 JLJ 1351 wherein Division Bench of this Court has observed that to succeed in an action for damages for malicious prosecution, a plaintiff must prove (i) the prosecution by the defendant of a criminal charge against the plaintiff before a Tribunal into whose proceedings the civil Courts are competent to enquire; (ii) that the proceedings complained of terminated in his favour. if from their nature they were capable, of so terminating; (iii) that the defendant instituted or carried on such proceedings maliciously; (iv) that there was an absence of reasonable and probable cause for such proceedings; and (v) that the plaintiff has suffered damages. It was also observed that reasonable and probable cause may be defined to be an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accused to the conclusion that the person charged was probably guilty of the crime imputed. 6. Shri Pramod Gohadkar, learned counsel for the respondents submitted that the prosecution of deceased Tahir Khan was without any basis, hence, the Courts below have rightly granted decree in favour of the respondents. From perusal of Ex. 6. Shri Pramod Gohadkar, learned counsel for the respondents submitted that the prosecution of deceased Tahir Khan was without any basis, hence, the Courts below have rightly granted decree in favour of the respondents. From perusal of Ex. P-1 which is the judgment of criminal case, it is evident that before acquittal of Tahir Khan by giving benefit of doubt, it was observed that because of pendency of civil and criminal cases between the parties, it is possible that at the time of lodging the complaint, false and concocted story may have been prepared by the petitioner. 7. In the case of Bank of India v. Lekhimoni Das reported in [(2003) 3 SCC 640], the apex Court has held that in a suit for malicious legal prosecution plaintiff has to prove absence of a probable and reasonable cause. In cases of trespass the plaintiff has only to prove the trespass and it is for the defendant to prove to good cause or excuse. In the former case the plaintiff has to prove malice on the part of the defendant while in the latter case it is not necessary. In the matter of Ravindra Kumar Sharma v. State of Assam and others, reported in [ (1999) 7 SCC 435 ] the apex Court has observed that "the test is whether the prosecution had not acted honestly believing the person concerned to be guilty and not the result of the criminal trial". 8. From perusal of the record, it is evident that the plaintiff and the defendant belong to one community. There were disputes between the parties. Civil as well as criminal cases were pending between the parties. 9. In the judgment Ex. P-1 benefit of doubt has been given to the accused Tahir Khan on the ground that it can also be possible that because of pendency of litigation false complaint can be lodged. It is not the easel in which the Court has disbelieved the complainant. On the contrary Court has given the benefit of doubt to Tahir Khan. 10. In the circumstances, in view of the law laid down by the apex Court and also by this Court, it appears that the learned Courts below committed error in passing the judgment and decree in favour of the deceased Tahir Khan. 11. On the contrary Court has given the benefit of doubt to Tahir Khan. 10. In the circumstances, in view of the law laid down by the apex Court and also by this Court, it appears that the learned Courts below committed error in passing the judgment and decree in favour of the deceased Tahir Khan. 11. In view of this, the revision is allowed and the judgment and decree passed by the Courts below are set aside. Parties shall bear their own costs.