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2007 DIGILAW 607 (KAR)

W. E. SATHYANARAYANA v. W. S. VIJAYAKUMAR

2007-09-19

SUBHASH B.ADI

body2007
SUBHASH B. ADI, J. ( 1 ) THIS is plaintiffs appeal against the Judgment and decree dated 10-7-2003 in OS No. 4469/1997. ( 2 ) THE suit is one for damages of Rs. 3 lakhs with interest. The case of the plaintiff is that, a partition suit in OS No. 8386/1980 was pending on the file of the Addl. City Civil Judge (CCH-31) Bangalore City. The defendant, who is working in M/s. Prakash Leasing, Bangalore is highly influential persons by virtue of his professional dealings, filed a false complaint on 30-1-1992 before the Shivaji Nagar Police Station for the offences punishable under Sections 324 and 506 Indian Penal Code, without any reasonable or probable cause, police registered the complaint. However, the said prosecution resulted in discharge of the plaintiff by an order dated 28-6-1996 by the Criminal Court. The prosecution case went from 1992 to 1996. The plaintiff who is an Advocate suffered physical, mental and financial stress and his reputation is lowered in the Society. He is a member of the Rotary International, having a badge of Notary International, Canada and a member of Institute of Engineers, member of the Institution of the valuers (India), and an Advocate, has lost time and money for the defence and lost professional opportunities and service to Society and community. Further, he was prevented from attending and contributing in the National and International conferences. Therefore, claimed damages of Rs. 3 lakhs. ( 3 ) THE defendants though served remain un-represented and placed exparte. ( 4 ) PLAINTIFF got himself examined as PW1 and also got marked Exs. P1 to 9 marked in his evidence. The trial Court on appreciation of the evidence dismissed the suit by observing that the plaintiff did not examine any other witnesses in support of his case and also observed that, the plaintiff has not proved the malicious prosecution against the defendant and held that there is no clear tangible evidence to show that there was a malicious prosecution against the plaintiff. ( 5 ) SRI Chandrasekhar, learned Counsel for the plaintiff submitted that, in pursuance of the complaint filed by the defendant the police filed the FIR and thereafter, filed a charge sheet in Criminal Case No. 24244/ 1992 and it was pending till 22-4-1996 on which day, in view of the order of the Apex Court in W. P. No. 1128/1986, the case was closed as per Clause (2) (f) of the said Judgment. He submitted that, the plaintiff who is exonerated from all charges and who was made to suffer for nearly five years in the criminal case is entitled for damages. The complaint is filed by the defendant and at his instance the prosecution was launched. He further submitted that, the trial Court was not justified in dismissing the suit by observing that the plaintiff did not examine any other witnesses in support of his case. He further submitted that, plurality of evidence is not necessary when cogent and reliable evidence is placed on record. He also submitted that, when the defendant did not file the written statement, the trial Court was not justified in dismissing the suit. ( 6 ) IN support of his case he relied on two decisions in the case of H. N. Jayachandra Reddy Vs. M. V. S. Nanjappa reported ILR 2007 Kar 2181 and also the decision in the case of Mohammed Amin Vs. Jogendra Kumar reported in AIR (34) 1947 Privy Council 108. He also relied on the decision in the case of Shirajasab Husensab Exambi Vs. Ashok Panditappa kaddimani reported in ILR 1998 Kar 2655 submitted that the plurality of evidence is not necessary. ( 7 ) THE learned Counsel appearing for the defendant submitted that the defendant was not served with the suit summons in the trial Court. The paper publication was taken by substituted service in Sanjevani, which is hardly circulated in the area and therefore, defendant could not defend his case in the trial Court. ( 8 ) LEARNED Counsel for the defendant submitted that, he had filed a complaint and had placed all the material before the said Police and the jurisdictional police took action by filing FIR before the jurisdictional magistrate Court. Thereafter, the Police made investigation and filed charge sheet against the plaintiff. Thereafter, the mater was on the file of the learned Magistrate and it was prosecuted by the jurisdictional police. Thereafter, the Police made investigation and filed charge sheet against the plaintiff. Thereafter, the mater was on the file of the learned Magistrate and it was prosecuted by the jurisdictional police. He further submitted that, the case was prosecuted by the State and in view of the decision of the Apex Court in W. P. No. 1128/1986 case was closed. He further submitted that the Judgments relied on by the learned counsel for the plaintiff are not applicable to the facts of this case, as in both the cases the plaintiff had proved the malicious prosecution and in this case there is no proof of malicious prosecution. He submitted that the plaintiff is not entitled for compensation. ( 9 ) HAVING regard to the rival contentions, the only question that arises for consideration is: "whether closure of the criminal case would confer any right on the plaintiff to claim damages on the ground that it was a malicious prosecution and what constitute malicious prosecution?" ( 10 ) PW-1 in his evidence has stated that, the defendant is his brother's son and there was a suit for partition, defendant filed a complaint against the plaintiff before the Shivajinagar Police Station, alleging the assault and injury and also alleged that it was a false, fabricated complaint filed against the plaintiff. In pursuance of the complaint, a case was registered in C. C. No. 24244/1992 on the file of the 11th A. C. M. M. Court, Mayohall, bangalore. The said complaint was pending from 1992 to 1996 i. e. , for a period of five years and on 2-6-1996, the Criminal Court closed the case by relying on the decision of the Apex Court in W. P. No. 1128/1986 by referring to clause-2 sub-clause (f) of the said judgment. ( 11 ) THE order sheet of the C. C. No. 24244/1992 is marked in the evidence of PW-1 as Ex. P7. PW-1 has stated that he is a B. E. Mechanical engineer, holding several appointments and after retirement, he completed law and enrolled as Advocate in 1992. ( 11 ) THE order sheet of the C. C. No. 24244/1992 is marked in the evidence of PW-1 as Ex. P7. PW-1 has stated that he is a B. E. Mechanical engineer, holding several appointments and after retirement, he completed law and enrolled as Advocate in 1992. He is a member of Institute of engineers (India) and member of Rotary International from Koramangala club and had attended International Convention at Calgari, Canada representing India and alleged that, due to the complaint filed by the defendant, he was subjected to humiliation and untold physical, mental and financial loss affecting his practice and further alleged that, it has reduced his image in the society and amongst his friends and claimed that he is entitled for compensation. ( 12 ) THE complaint lodged by the defendant was registered in the jurisdictional Police Station and the concerned Police filed a FIR. Thereafter, on investigation, the jurisdictional Police filed charge sheet against the plaintiff. It is clear from Ex. P7 that the criminal case is not dismissed for want of evidence or want of proof, but it was closed because of the general direction issued by the Apex Court. The Closure of the criminal case cannot be held as a malicious prosecution unless it is shown that, the complaint filed by the defendant is false and the acquittal order is passed by the jurisdictional Magistrate on a clear finding that, the initiation of the criminal case is based on false complaint. It is also not the case of the plaintiff that the defendant had prosecuted the matter. Defendant is only the complainant. However, the Police found that the plaintiff is guilty of the offence and filed the charge sheet. It cannot held that the prosecution is a malicious prosecution by the defendant. The judgment of this Court in the matter of H. N. Jayachandra Reddy, is a case where, allegation made in the complaint filed by the defendant treated as allegation of civil dispute and no cognizance was taken by the Police and thereafter, the 'b' report was submitted by the Police. The defendant therein filed a protest application and it is at his instance, the Criminal court issues the summons and the matter was pending for 4 years and ultimately, because of the default of the plaintiff in not prosecuting the case, the criminal case ended in acquittal. The defendant therein filed a protest application and it is at his instance, the Criminal court issues the summons and the matter was pending for 4 years and ultimately, because of the default of the plaintiff in not prosecuting the case, the criminal case ended in acquittal. In those circumstances, this court had held that, it is a malicious prosecution by the plaintiff in that case. The other decision relied by the learned Counsel for the appellant reported in AIR (34) 1947 Privy Council 108 in the matter of Mohamed amin Vs. Jogendra Kumar Bannerjee and Others, the Privy Council in the said case has held that, in an action for damages for malicious prosecution, the plaintiff must prove that, the proceedings initiated against him were malicious without reasonable and probable cause, that they terminated in his favour and that he suffered loss. The Privy Council has also held that, mere presentation of a false complaint which first seeks to set the criminal law in motion will not per se found in action for damages for malicious prosecution. If the Magistrate dismisses the complaint as disclosing no offence with which he can deal, it may well be that there has been nothing but an unsuccessful attempt to set the criminal law in motion and no damage would be awarded to the plaintiff. ( 13 ) IN this case, the complaint filed by the defendant was not only registered, but a charge sheet was also filed by the jurisdictional Police, it cannot be termed as a malicious prosecution unless the Criminal Court on appreciation of the evidence has given a finding that there was no offence committed by the plaintiff and the complaint is a false complaint. Since a concession is given by the Supreme Court in similar matters for closing the criminal case because of the long pendency of such cases for more than 3 years, the benefit has been extended to the plaintiff. Hence, the decisions relied by the learned Counsel for the appellant are not applicable to the facts and circumstances of the present case. ( 14 ) NO doubt, in this case the defendants have not represented by filing the written statement and were placed exparte. Hence, the decisions relied by the learned Counsel for the appellant are not applicable to the facts and circumstances of the present case. ( 14 ) NO doubt, in this case the defendants have not represented by filing the written statement and were placed exparte. However, learned counsel for the defendants submitted that, suit summons was not served on the defendants and it was taken out by paper publication and the said paper publication is not widely circulated. ( 15 ) BE that as it may, the fact that the plaintiff is claiming damages on the ground of malicious prosecution, he is required to prove the malicious prosecution and unless that is proved, granting of decree for damages does not arise. Even assuming that the written statement is not filed, the court is not precluded from examining the plaintiffs case on merit to grant a decree. All prosecution cases which ended in acquittal cannot be treated as malicious prosecution, unless the malice is established by the plaintiff. Plaintiff is not disputing that defendant had only filed a complaint and it is not prosecuted by him. If the State prosecutes the case for a period of four years, no malice can be attributed to the defendant. The complaint of the defendant is not only entertained, but charge sheet is also filed. That being so, I do not find that there is any material to show the malicious prosecution and the defendant being only a complainant, he cannot be made liable for damages on the ground of malicious prosecution. The trial Court though has not assigned several reasons, but the conclusion arrived by the trial Court is just and proper. I find no reason to interfere with the judgment and decree of the trial Court. Accordingly, the appeal fails and same is dismissed.