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2020 DIGILAW 172 (ORI)

Prafulla Chandra Samantaray v. Satyabhama Panda

2020-09-01

D.DASH

body2020
JUDGMENT : D. Dash, J. This appeal under section 100 of Code of Civil Procedure (C.P.C.) has been filed by the present appellant in questioning the judgment and decree dated 16.08.1997 and 01.09.1997 respectively, passed by the learned Additional District Judge, Khurda in Money Appeal No.1 of 1997. That appeal filed by the present respondent challenging the judgment and decree dated 17.01.1997 and 06.02.1997 respectively passed by the learned Civil Judge (Senior Division), Khurda in M.S. No.103 of 1995 has been allowed and accordingly, the suit filed by the present appellant, as the plaintiff, which had been decreed by the trial court has been dismissed. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the trial court. 3. The plaintiff has filed the suit claiming damage of Rs.15,000/- from the defendant for the false prosecution against him alleging that he with others entered into the house of the plaintiff, dragged her husband, outraged her modesty and forcibly took away her husband in a jeep. Making such allegations, he lodged a complaint in the court of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Khurda vide 1CC No.22 of 1994. Learned S.D.J.M., Khurda, holding an enquiry under section 202 of the Code of Criminal Procedure (Cr.P.C.), took cognizance of the offences under section 365/354/34 of the Indian Penal Code (IPC) and issued process against the plaintiff and others, placed as the accused persons therein. The plaintiff then appeared in the said proceeding before the learned S.D.J.M., Khurda on 04.03.1994 through his counsel and filed an application under section 205 Cr.P.C. seeking his representation all throughout in the case, by his lawyer. Another application was also filed for reconsideration of the order of taking cognizance. It is said that those applications having been dismissed, non-bailable warrant of arrest had been issued against the plaintiff and in order to avoid arrest and harassment, he underwent serious mental depression and agony being further not able to perform his normal duties during the said period. The order of the learned S.D.J.M., Khurda taking cognizance of the offences and issuing process to the plaintiff and others were challenged before this Court in Crl. Misc. The order of the learned S.D.J.M., Khurda taking cognizance of the offences and issuing process to the plaintiff and others were challenged before this Court in Crl. Misc. Case No.616 of 1994 through an application invoking the jurisdiction under section 482 Cr.P.C. This Court, by order dated 08.07.1994, allowed the said prayer of the plaintiff and another accused, namely, Ramakanta in holding that the continuance of the proceeding against them would be abuse of process. Accordingly, 1CC No.22 of 1994 stood finally concluded in so far as the present plaintiff and another are concerned. It is the further case of the plaintiff that he was then the Sarpanch of Baghamari Grama Panchayat and elected President of Baghamari Service Cooperative Societies as also the Director of Khurda Sub-Divisional House Building Society, Chairman of Baghamari UP School Committee and Member of the Managing Committee of Baghamari High School. Thus, the plaintiff stated that he was carrying/enjoying high reputation and prestige in the society and this malicious and false prosecution launched against him put him to humiliation and harassment when there was absolutely no reasonable and probable cause to institute such a complaint against him in the court of law in making the allegations. He, therefore, he claimed damage of Rs.10,000/- towards mental agony and Rs.5,000/- towards legal expenses from the defendant. It is also stated that the allegations leveled in the complaint against the plaintiff were all with malicious intention and deliberately made to humiliate him in public eye and harass him unnecessary harassment. 4. The defendant, in the written statement, averred that despite the order of this Court passed in Crl. Misc. Case No.616 of 1994 in holding the continuance of the proceeding against the plaintiff as unwarranted, she had all the reasonable and probable cause in believing that the allegations made in the complaint are all true and that plaintiff was the creator of the very incident. It is stated that the plaintiff having political ambition with the objective of keeping a command in the locality was carrying a revengeful attitude towards the plaintiff and her husband who has thus been entangled in several criminal cases. With all these, she prayed to non-suit the plaintiff. 5. Based on the above rival pleadings, the trial court framed as many as six issues. In the trial, the plaintiff had examined three witnesses and the defendant had two. With all these, she prayed to non-suit the plaintiff. 5. Based on the above rival pleadings, the trial court framed as many as six issues. In the trial, the plaintiff had examined three witnesses and the defendant had two. The documents concerning the complaint case, i.e., 1CC No.22 of 1994 had been admitted in evidence. In a cryptic judgment, the trial court has answered all the issues in favour of the plaintiff without discussing the position of law holding the field. Under the crucial issues, the finding of the trial court reads as under:- “Issue No.3 and 5:- Admittedly, the defendant has initiated a criminal case 1CC No.22/94 against the plaintiff along with others in the court of the learned S.D.J.M., Khurda u/s 365/354/34 IPC. In Ext.3 the Hon’ble High Court has held that continuance of the proceeding against Prafulla and Ramakanta would be sheer abuse of the process of law. Accordingly, the petition filed by Prafulla and Ramakanta are allowed and the proceeding shall not continue so far they are concerned. The statement of the plaintiff examined as P.W.1 to the effect that the husband of the defendant was involved in a criminal case instituted at Banki and he was arrested by the Banki Police has not been challenged. The defendant examined as D.W.1 has admitted in her cross-examination that on the day her husband was taken out from her house, he was (husband of the defendant) retained in the police lock up. The aforesaid observation of the Hon’ble High Court and the statement of both the plaintiff and defendant reached to the conclusion that the defendant has filed criminal case 1CC No.22 of 1994 in the court of the learned S.D.J.M. at Khurda against the plaintiff without any reasonable and probable cause with malice. “Issue No.6:- The plaintiff claims damages of Rs.10,000/- as damage due to the mental agony and Rs.5,000/- towards the litigation expenses. As it appears from the record that the plaintiff is involved in politics as well as number of criminal cases. So, considering the background of the plaintiff and the extent of mental agony and expenses sustained by him, I think it would be just and proper if the plaintiff is given a damages of Rs.1,000/- towards his mental agony and a sum of Rs.500/- as the legal expenses sustained by him. Hence, ordered.” 6. So, considering the background of the plaintiff and the extent of mental agony and expenses sustained by him, I think it would be just and proper if the plaintiff is given a damages of Rs.1,000/- towards his mental agony and a sum of Rs.500/- as the legal expenses sustained by him. Hence, ordered.” 6. The lower appellate court, being moved by the unsuccessful defendant, has held that the plaintiff has not been able to establish the absence of reasonable and probable cause on the part of the defendant in instituting the prosecution vide 1CC No.22 of 1994. Regarding the existence of the malice actuating the defendant in launching the prosecution by making the allegations, said court has also mainly found it to be absent. 7. The plaintiff having filed this appeal; it has been admitted on the substantial questions of law as indicated in paragraphs (E), (F) and (G) of the Memorandum of Appeal. Those read as under:- “(I) Whether the learned lower appellate court has misconstrued and misinterpreted the law relating to malicious prosecution while examining the matter?; (II) When the present appellant by oral as well as documentary evidence has established that the complaint case was initiated by the present respondent out of malice with the intention to put the present appellant to harassment whether the learned lower appellate court is justified to come to a conclusion otherwise which is an error of record; and (III) Whether the finding of the learned lower appellate court is without specifically dealing with the finding of the learned trial court can be sustainable in the eye of law, when the same is not inconsonance with the sound proposition of law.” 8. Heard Mr.S.P.Mishra, learned Senior Counsel appeared for the appellant. Right from the beginning, despite personal service of the notice for hearing of this appeal upon the respondent, she has not entered appearance. That had also been the situation on the other dates on which the appeal had come on board for hearing. In that view of the matter, as none appeared on behalf of the respondent on 26.08.2020 in the first slot as well as the pass-over slot, this Court took the decision for hearing the appeal which is running for more than two decades. Mr. In that view of the matter, as none appeared on behalf of the respondent on 26.08.2020 in the first slot as well as the pass-over slot, this Court took the decision for hearing the appeal which is running for more than two decades. Mr. Mishra, learned Senior Counsel for the appellant questioning the finding of the lower appellate court that the plaintiff has failed to prove that the defendant without reasonable and probable cause, had launched the prosecution by lodging the complaint against him; submitted that the view so taken against the plaintiff is erroneous. He further submitted that when here in the case, the criminal proceeding has been quashed by this Court in exercise of the inherent power under section 482 Cr.P.C. holding its continuance to be sheer abuse of process of law, the lower appellate court has erroneously again put that weighty burden upon the plaintiff to discharge as regards absence of reasonable and probable cause on the part of the defendant for the institution of that criminal case. He next submitted that here the defendant had lodged the complaint in the court of law stating an incident concerning herself and her husband, describing therein the objectionable role played by the plaintiff which were all based on her personal knowledge as she under that circumstances had projected herself as the victim and therefore, on the face of the order of quashment of the criminal proceeding that its continuance against the plaintiff is an abuse of process, the lower appellate court ought to have gone to analyze the evidence let in by the defendant in judging as to whether she has discharged the onus that had shifted upon her in proving through evidence that complaint had been lodged by her having all the reasonable and probable cause. In support of the above contention, Mr.Mishra has cited the decisions in case of Gobind Ch. Sambarsingh Mohapatra –V- Upendra Padhi and others; AIR 1960 Orissa 29, Ramesh Ch. Singh Mohapatra –V- Jagannath Singh Mohapatra; AIR 1975 Orissa 121 and Shew Singh –V- Ranjit Singh and others; AIR 1983 Allahabad 105. In support of the above contention, Mr.Mishra has cited the decisions in case of Gobind Ch. Sambarsingh Mohapatra –V- Upendra Padhi and others; AIR 1960 Orissa 29, Ramesh Ch. Singh Mohapatra –V- Jagannath Singh Mohapatra; AIR 1975 Orissa 121 and Shew Singh –V- Ranjit Singh and others; AIR 1983 Allahabad 105. His last limb of submission was that the finding of the lower appellate court that plaintiff (P.W.1) having not whispered a word that 1CC No.22 of 1994 was launched being actuated with malice towards him and there being no other evidence on the score even citing any such instance for bearing malice, in the given facts of the case, the conclusion holding that there has been a failure on the part of the plaintiff to prove that the defendant had initiated the criminal case being actuated by malice is also contrary to the settled principles of law governing the field in relation to a claim for damage by the suiter upon being maliciously prosecuted. 9. The position of law is well settled that in an action for malicious prosecution, the plaintiff must prove (a) that he was prosecuted by the defendant; (b) that the proceeding complained of terminated in favour of the plaintiff; (c) that the prosecution was instituted against him without any reasonable or probable cause; (d) that the prosecution was instituted with a malicious intention, that is, not with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact; and (e) that he has suffered damage to the reputation or to the safety of person, or to the security of his property. In case of Gobind Chandra (Supra); it has been held that in a suit for damages for malicious prosecution, where the complaint was made by the defendant-complainant on facts based on his personal knowledge, the burden of proof is different from a case where the complaint is based on information believed to be true. In case the complaint based on personal knowledge, if the trial ended in acquittal on merit, there would be presumption in favour of the plaintiff that there was no reasonable and probable cause. In case the complaint based on personal knowledge, if the trial ended in acquittal on merit, there would be presumption in favour of the plaintiff that there was no reasonable and probable cause. In the other case of Ramesh Chandra (Supra) as to the proof of absence of reasonable and probable cause which is a proof of negative fact; it has been said that it would need slight evidence to discharge the initial onus lying on plaintiff. Mere innocence of the plaintiff is also not prima facie proof of absence of absence of reasonable and probable cause. 10. In the instant case, undoubtedly the plaintiff was prosecuted by the defendant. The other facts is that the criminal complaint vide 1CC No.22 of 1994 in so far as the plaintiff is concerned terminated by the order of this Court in exercise of inherent jurisdiction under 482 Cr.P.C. by holding its further progress against the plaintiff as abuse of process. In the backdrop, the first point comes for examination that on the admitted factual settings as also the evidence on record whether the initial burden lying on the plaintiff to prove that the prosecution at the behest of the defendant was without reasonable and probable cause and thus actuated by malice with an intention that was wrongful in point of time can be said to have been discharged causing shift of the onus of proof in positive form upon the defendant. If the answer would come in the affirmative then it would lead to judge as to whether the defendant has discharged said sifted onus of proof on that score. 11. Coming to the case in hand, it is pertinent to take note of the fact that the suit has come to be filed after the order was passed by this Court on 08.07.1994 in Crl. Misc. Case No.616 of 1994. Certified copy of the said order admitted in evidence and marked as Ext.3 has been carefully gone through. The allegations made in the said complaint filed by the defendant were that while one accused, namely, Soleman (against whom the continuation of the proceeding was not found to be abuse of process) was effecting the arrest of the husband of the defendant and he misbehaved the plaintiff and thereby committed the offence under section 354 IPC. The allegations made in the said complaint filed by the defendant were that while one accused, namely, Soleman (against whom the continuation of the proceeding was not found to be abuse of process) was effecting the arrest of the husband of the defendant and he misbehaved the plaintiff and thereby committed the offence under section 354 IPC. The specific allegation against this plaintiff was that he and another accused, namely, Ramakanta were the mastermind in the said episode and at their behest, accused Soleman had so acted in misbehaving the defendant and in finally taking away defendant’s husband by force. The petition under section 482 Cr.P.C. before this Court had been jointly filed by all the three accused persons after their move before the learned S.D.J.M. for recall of the order of taking cognizance of the offences under section 364/354/34 of the IPC failed and it was ordered that they would have to face the said case. In deciding the application under section 482 Cr.P.C; this Court first of all, has come to a conclusion that on a bare reading of the complaint containing the allegations and even accepting the same as laid, no offence under section 365 IPC is not made out. As to the cognizance of offence under section 354 of the IPC, it has, however, been found that in so far as this plaintiff and other accused Ramakanta are concerned, neither the allegations made in the complaint filed by the defendant nor her statement as also those of the witnesses examined in course of enquiry under section 202 Cr.P.C. make out a case for commission of said offence. It has also been said that even taking that those make out a case of offence under section 354 of the IPC so as to proceed against accused Soleman, the materials do not point out that this plaintiff and the other accused Ramakanta had the common intention with said accused Soleman in doing of said offensive acts in furtherance of such intention. Having said so, the action so as to proceed against the plaintiff has been quashed, reason being that the complaint and the materials collected during enquiry do not disclose the commission of any offence against the plaintiff so as to be proceeded against. Having said so, the action so as to proceed against the plaintiff has been quashed, reason being that the complaint and the materials collected during enquiry do not disclose the commission of any offence against the plaintiff so as to be proceeded against. Whether in such an eventuality, the quashment of the criminal proceeding in so far as the plaintiff is concerned as ordered by this Court while not interfering with that the order of cognizance of offence under section 354 of the IPC and the continuation of the proceeding against accused Soleman would be taken to have discharged the initial burden of proof as to absence of the reasonable or probable cause for the defendant to lodge the complaint implicating the plaintiff as an accused is thus comes up for consideration. This Court, in that proceeding under section 482 Cr.P.C., on a bare perusal of the complaint and the statement made during enquiry simply said that the continuance of the criminal proceeding against the plaintiff is not warranted. In that proceeding, there is no conclusion as to falsify of the facts especially indicting the plaintiff which might have been so held at the conclusion of the complaint case. Under the situation, factual foundation laid in the complaint cannot be taken as false and frivolous, in which case the plaintiff’s would have been absolved of discharging the initial burden as to initiation of the prosecution by the defendant without reasonable and probable cause for the presumption as available to be drawn thereby placing it upon the defendant to show that it had been so lodged with the reasonable and probable cause. 12. With the aforesaid and keeping in view the position of law as discussed; the evidence of the plaintiff need also to be glanced at. On a careful reading of deposition of P.W.1 (plaintiff), it is found that he has simply stated that it was a false prosecution which had been instituted by the defendant against him whereas, the defendant (D.W.1) in her evidence has asserted about existence of reasonable and probable cause. On a careful reading of deposition of P.W.1 (plaintiff), it is found that he has simply stated that it was a false prosecution which had been instituted by the defendant against him whereas, the defendant (D.W.1) in her evidence has asserted about existence of reasonable and probable cause. With this evidence on record wherein it has also not even been said that there had never been any such incident or for which the plaintiff could have been arraigned or in the incident as laid, no such inference either direct or indirect is drawable; in showing no reasonable and probable cause behind the prosecution; I am of the considered view that the finding of the lower appellate court as has been rendered that the plaintiff has failed to discharge the burden of proof that the defendant had launched the prosecution without there being reasonable and probable cause has to receive the seal of appraisal both on fact and law. The submissions of learned Senior Counsel for the appellant, therefore, cannot be countenanced with. 13. The above discussion and reason thus provide the answers to the substantial questions of law in aforesaid paragraph-7(I) and (II) against the plaintiff-appellant. In view of that the substantial question of law under paragraph-7(III) does no more survive for being further answered. 14. Resultantly, the appeal stands dismissed. No order as to cost.