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2015 DIGILAW 148 (GAU)

Sandhya Bharti v. Narendra Biswas

2015-02-09

MANOJIT BHUYAN

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JUDGMENT AND ORDER : Manojit Bhuyan, J. Heard Mr. M.H. Choudhury, learned counsel for the appellant. Also heard Mr. S.R. Borbhuyan, learned counsel appearing for the respondent. 2. The genesis of the case can be traced to the first information lodged by the appellant/defendant, i.e., Sandhya Bharali, which, eventually, was a matter before the Court of Chief Judicial Magistrate, Morigaon, Assam, in G.R. Case No. 375/1998 registered under Sections 143/341/323/354 of the IPC. By judgement dated 29.04.2000, the learned Chief Judicial Magistrate, upon due appreciation of evidence, held that the prosecution could not prove the guilt of the respondent/plaintiff, i.e., Sri Narendra Biswas, beyond all reasonable doubt. As a result, said Sri Narendra Biswas was acquitted by setting him at liberty. 3. Title Suit 5/2001 came to be instituted by said Sri Narendra Biswas before the Court of Civil Judge, Senior Division, Morigaon, for compensation and damage for malicious prosecution. The appellant, i.e., Sandhya Bharali made appearance by filing written statement refuting the allegations made in the plaint. In the suit, as many as seven issues were framed and the Issue No. 4 involved the question as to whether the defendant, i.e., Sandhya Bharali had brought charges against the plaintiff Narendra Biswas and the proforma defendant in Laharighat P.S. Case No. 63/1998 corresponding to G.R. Case No. 375/1998 maliciously without any reason and probable cause. The trial Court exhaustively dealt with the said Issue No. 4 and on appreciation of oral and documentary evidence, decided the issue in the affirmative. Judgement and decree in the said suit was delivered on 30.01.2002 by decreeing the suit on contest with further order that the plaintiff Narendra Biswas is entitled to recover an amount of Rs. 25,000/- by way of general damage for mental and bodily pain and loss of reputation along with a further sum of Rs. 5,000/- as special damage towards litigation cost, loss of business etc. 4. Being aggrieved, the appellant, i.e., Sandhya Bharali, preferred an appeal being Title Appeal No. 2/2002 before the Court of learned District Judge, Morigaon. The learned Appellate Court, after going through the entire evidence on record, including perusal of the judgment rendered in G.R. Case No. 375/1998, as indicated above, dismissed the appeal as being without any merit, thereby affirming the judgement and decree passed by the Trial Court. 5. The learned Appellate Court, after going through the entire evidence on record, including perusal of the judgment rendered in G.R. Case No. 375/1998, as indicated above, dismissed the appeal as being without any merit, thereby affirming the judgement and decree passed by the Trial Court. 5. The appellant Sandhya Bharali is now before this Court on second appeal praying for appropriate relief. 6. By order dated, 18.02.2004, this Court, while admitting the second appeal for hearing, had framed the following substantial question of law: "Whether the judgment delivered by the Chief Judicial Magistrate, Morigaon in GR Case No. 375/1998 could be interpreted as a judgment of clean acquittal or acquittal on benefit of doubt and whether prosecution of the respondent No. 1 could be treated as malicious?" 7. Mr. M.H. Choudhury, learned counsel, submits that on the face of it, the decisions of the learned Courts below are wholly illegal and not sustainable in law, inasmuch as the essential ingredients to satisfy presence of malice on the part of the appellant Sandhya Bharali was wholly absent. Mr. Choudhury, learned counsel, in support of his contention, has also placed reliance upon the decision rendered in the case of Amar Singh v. Smt. Bhagwati, reported in AIR 2001 Raj 14 to show that in order that an action for malicious prosecution would lie, the conditions that are required to be followed are as follows: "i. The proceedings must have been instituted or continued by the defendant; ii. He must have acted without reasonable and probable cause; iii. He must have acted maliciously; iv. The proceedings must have been unsuccessful, that is to say, must have terminated in favour of the plaintiff now suing." On the touchtone, as above, Mr. Choudhury strenuously argues that no tort had been proved and as a necessary corollary, the suit ought to have been dismissed. On the other hand, Mr. S.R. Borbhuyan, learned counsel for the respondent submits that the plain reading of the findings and discussions on Issue No. 4 would clearly go to show that malice on the part of Sandhya Bharali is wholly apparent. Mr. On the other hand, Mr. S.R. Borbhuyan, learned counsel for the respondent submits that the plain reading of the findings and discussions on Issue No. 4 would clearly go to show that malice on the part of Sandhya Bharali is wholly apparent. Mr. Borbhuyan further submits that the decisions of the Courts below having been arrived at upon appreciation of evidence on record, as such, this Court exercising power under Section 100 cannot re-appreciate evidence, that to when there has been no defect in the procedure followed and as because the decision, so rendered by the Court below, do not go to the root of the matter. 8. Indeed, the adequacy and sufficiency of evidence cannot be looked into or gone into in second appeal. This Court cannot make a fresh appraisal of the evidence and come to a different finding contrary to the finding recorded by the Courts below, specially, when both the Courts below had rendered concurrent finding on all issues. The existence of a "substantial question of law" being a sine-qua-non for exercise of jurisdiction under Section 100 CPC, this Court finds that the question raised in this appeal do not involve a substantial question of law. There is no substantial error or defect in the procedure followed to enable this Court to interfere with the decision rendered by the Courts below. 9. In view of the above, this appeal lacks merit as it does not involve any substantial question of law. The issues involved are purely question of fact, which has been exhaustively dealt with by the Courts below. Accordingly, this appeal stands dismissed, however, without any order as to costs. 10. Registry is to send back the records to the appropriate Court below forthwith.