JUDGMENT
M.M. Kumar, J.
1. The only question which arises for determination in this appeal filed by the plaintiff-appellant against the judgment of reversal passed by the learned Additional District Judge, Patiala, dated 23.2.1980 is as to whether there is proof of malice and also proof of absence of reasonable and probable cause for launching prosecution by the defendant-respondent by filing complaint under Section 325, Indian Penal Code against the plaintiff-appellant so as to award damages for malicious prosecution to the plaintiff. Unless these two requirements of law are satisfied, it is not possible to sustain the claim of the plaintiff-appellant for damages for malicious prosecution.
2. The facts of the case necessary to decide the appeal are that defendant-respondent (hereinafter to be referred as the defendant’) initiated criminal prosecution against the plaintiff-appellant (hereinafter to be referred as ‘the plaintiff) under Section 325 Indian Penal Code by filing a complaint on 29.6.1971 in the Court of Judicial Magistrate 1st Class, Rajpura. The plaintiff alleged that the complaint was filed by the defendant against him without any reasonable cause and the filing of complaint was actuated by mala fide intention because a civil suit filed by the plaintiff against the defendant and Ors. regarding the flow of water of his residential house was dismissed. It is averred that in order to take revenge against the plaintiff, the defendant filed a false and frivolous complaint against the plaintiff alongwith one Joginder Singh. The complaint was dismissed on 13.12.1973 and the plaintiff was discharged. It is claimed by the plaintiff that because of the malicious prosecution by the defendant, he had suffered pecuniary damages as well as loss of reputation in the village. It is also claimed that he suffered mental and bodily pain which was a natural consequences of the malicious act of the defendant. An amount of Rs. 500/- has been claimed by way of general damages and also special damages for having defended the complaint filed by the defendant on 24 dates by engaging a counsel. A further claim of Rs.15/- per day for loss of business suffered has been claimed as the plaintiff is a carpenter. In this manner he has claimed a total amount of Rs. 1,000/- as damages from the defendant.
3. The defendant in his written statement, controverted all the allegations and it was claimed that the complaint was rightly filed. It has been further pleaded by him that there was no cause of action for the plaintiff to claim damages as the decision in criminal case would not have any effect on civil litigation.
4. The trial Court after recording the evidence felt persuaded to hold that the defendant had filed a false complaint against the plaintiff and maliciously prosecuted him. Discussion by the trial Court on this issue is available in paragraph 9 which reads as under:-
“9. The perusal of judgment Ex.P1 further goes to show that in the complaint it was alleged by the defendant that Joginder Singh met him in the way. Then Joginder Singh started abusing the defendant and also weilded a dang blow towards his head. He tried to ward of the same and as a result of which it hit on his forearm. Ishar Singh, Shankar and Gurdev intervened and rescued the defendant from the hands of Joginder Singh with great difficulty. Thus according to the version of defendant in his
complaint against the plaintiff before the Judicial Magistrate. Shankar. Gurdev Singh and Ishar Singh were the persons who intervened and rescued him from Joginder Singh, the companion of the plaintiff. But surprisingly enough, the defendant has not produced any of them to rebut the case of the plaintiff but has produced one Gurbachan Singh DW1 who was not at all named in the complaint as an eye witness of the occurrence of assante upon the defendant. Therefore, no reliance whatsoever can be placed on the statement of Gurbachan Singh DW1. Moreover, this witness has stated in his examination in chief that in the way Chanan Singh and Joginder Singh met Surjit Singh, Chanan Singh gave lalkara and Joginder Singh gave a soti blow. Surjit Singh told about this occurrence to him (Gurcharan Singh DWi) and he took him to the police station. It is nowhere stated by Surjit Singh defendant while appearing as DW2 that he ever narrated the occurrence to Gurbachan Singh DW 1. Therefore, the statement of Gurbachan Singh has no evidenciary value whatsoever. Statement of the complainant as already discussioned (discussed ? sic.) above is not at all trust worthy. Therefore, taking into consideration, the aforesaid discussion, I am fully convinced and stands persuaded to hold that the defendant filed a false complaint against the plaintiff and maliciously prosecuted him under Section 325 IPC in the court of Judicial Magistrate 1st Class. Rajpura and in which case the plaintiff was discharged. This issue, therefore, stands proved and is accordingly held in favour of the plaintiff.”
5. The defendant filed an appeal before the learned District Judge, Patiala against the aforementioned findings of the learned trial Court given in its judgment and decree dated 17.1.1978. The learned Additional District Judge, Patiala, held that two facts are required to be established before it could be concluded that the prosecution launched by the defendant wax malacious in nature – (a) that the intention of the defendant was malicious; and (b) there was no reasonable and probable cause for him to launch the prosecution. The learned Additional District Judge recorded his findigns in paragraphs 9 and 10 with regard to malicious intention of the defendant to prosecute the plaintiff and felt that there was. Jack of proof of the absence of reasonable and probable cause. Paragraphs 9 and 10 read as under :-
“9. In this case it is admitted fact that respondent filed a civil suit against the appellant which was dismissed. It is also admitted that after the dismissal of the civil suit, the criminal complaint was filed by the appellant against the respondent. From these facts the malice proved.
10. So far as the second ingredient is concerned there is the solitary statement of the plaintiff-respondent to prove the absence of reasonable and probable cause, The copy of the order of discharge Ex. P1 has been produced. That can only be seen regarding the corroboration of the fact of acquittal or discharge only. The ground of acquittal cannot be looked into by the civil court, it appears that the trial court came to the conclusion in favour of the finding of the criminal court. The trial court came to the conclusion in favour of the respondent from the mere fact of acquittal and went wrong and against the law. To succeed in this case, the respondent had not only to prove his acquittal, but also that the charge was false to the knowledge of the appellant and that it was malicious and without reasonable and probable cause. The respondent had to prove by affirmative evidence that the criminal case against him was false. The acquittal of the respondent may be because the charge has been found to be unproved and not because the case was found to be false. The mere acquittal does not absolve the respondent from proving that his prosecution was malicious and without reasonable cause. The appellant had lodged a report with the police before the filing of the complaint. The copy of the F.I.R. has not been produced by him in this case. From the non-production of the copy of the F.I.R. by the appellant the trial Court has presumed that it would have gone against him, if he had produced the same. This presumption could not be raised in this case as it was for the respondent to prove his case. In case the report lodged with the Police was in favour, it was for him to produce the same in civil Court. All the witnesses produced by the respondent are regarding
his income, the expenses and the dates of hearing in the criminal case. It is admitted by the respondent in his cross examination that there was injury on the appellant which could have been caused by a fall from the cycle in these circumstances. I hold that the plaintiff-respondent has failed to prove the absence of reasonable and probable cause for filing the complaint by the appellant. The findings of the trial Court on issue No. 1 are reserved and the issue is decided against the plaintiff-respondent.”
6. I have heard Mr. Jai Bhagwan, learned counsel for the plaintiff and Mr. K.S. Gre-wal, learned counsel for the defendant and with their assistance have perused the record.
7. As the amount involved was a petty sum of Rs.750/-. I had granted an opportunity to die plaintiffs learned counsel to seek instructions with a view to resolve the dispute amicably. However, the learned counsel expressed inability of his client to arrive at any amicable solution,
8. Mr Jai Bhagwan, learned counsel for the plaintiff has argued that once it is proved that a suit was filed by the plaintiff which was dismissed and subsequently a complaint was filed which was also dismissed, it is established that there was a malicious prosecution on the part of the defendant to launch criminal proceedings under Section 325 Indian Penal Code by filing complaint. On the contrary, Mr. K.S. Grewal, learned counsel for the defendant submitted that it cannot be claimed that there was no reasonable and probable cause for the defendant to initiate criminal proceedings against the plaintiff. He further submitted that mere failure in criminal proceedings by virtue of acquittal of the plaintiff would not necessarily lead to the conclusion that there was absence of reasonable and probable cause for launching criminal prosecution under Section 325 Indian Penal Code by the defendant. According to the learned counsel, the approach of the learned Additional District Judge is absolutely correct and the appeal of the plaintiff deserves to be dismissed.
9. The view taken by the learned Additional District Judge finds substantial support from the fact that there was injury on the arm of the defendant although the injury was described by the plaintiff to have been caused by fall from the bicycle. Another fact which supports the view taken by the learned Additional District Judge is that the defendant had lodged a report with the police and non production of the report by the defendant in the trial Court could not be presumed a factor against him. The report should have been got produced by the plaintiff.
10. In the case of Ravinder Kumar Shartna v. State of Assam and Ors., (1999)7 S.C.C. 435, similar question arose before the Supreme Court. In the cited case, on the sanction granted by the Assam Government, the defendants had conducted the search, seizure and arrest operations. On failure of the prosecution, those who were arrested or were subjected to search and seizure filed suit for damage for malicious prosecution against the State of Assam and two police officers for recovery of various amounts. Repelling the claim of those who were arrested and who were subjected to search and seizure, their Lordships of the Supreme Court held as under:-
“25. The question here is whether there is proof of malice and proof of absence of reasonable and probable cause for the search, seizure and arrest of the appellant and for his prosecution. We have been taken through the oral and documentary evidence adduced in the case by both sides. The notification of the Central Government dated 30.9.1977 [S.O. 696(E)]. Ministry of Agriculture & Irrigation [Gazette of India, Part-II Section 3(ii), Extra] dated 30.9.1977 (at pp. 2639-40) no doubt states that “in exercise of power conferred by Section 3 of the Essentual Commodities Act, 1955 (Act 10 of 1955), the Central Government hereby rescinded the Assam Foodgrains (Licensing and Control) Order, 1961 w.e.f. 1.10.1977.” It was on 1.10.1977 that Respondents 2 and 3 conducted the search, seizure and arrest operations. But, as noticed by the trial Court, the Assam Government had issued a Wireless Message No. 363773 dated 30.9.1977 to all Deputy Commissioners and SDOs that the
Government of India’s procurement policy dated 29.9.1977 did not state that the existing restriction on movement of paddy/rice was withdrawn w.e.f. 1.10.1977 as reported in the press. Moreover, the Assam Foodgrains (Licensing & Control) Order, 1961 had not been repealed and the new procurement policy would commence from 1.11.1977. The message stated:
“….. please, therefore, ensure that the provisions of the aforesaid Assam Foodgrains (Licensing and Control) Order, 1961, are enforced even after 1.10.1977, pending further instructions from the Government.”
The record also shows that this was communicated to officers lower down on 3.10.1977. This aspect was not given due importance by the High Court.
XX XX XX XX XX
XX XX XX XX
27. Now if Defendants 2 and 3 as police officers of the Assam Government acted upon the instructions of the Assam Government and processed to apply the Control Order even on 1.10.1977, they cannot, in our opinion, be said to be acting without reasonable or probable cause. The remedy of suit for damages for false imprisonment is part of law of tons in our country (A.D.M., Jabalpur v. Shivkant Shukla [SCC (at p.579)]. In Glinski v. Mclver [AC (at p.776)] Lord Devtin stated that
“The defendant can claim to be judged not of the real facts but of those which he honestly, and however erroneously, believes; if he acts honestly upon fiction, he can claim to be judged on that.”
28. The question is not whether the plaintiff was ultimately found guilty but the question is whether the prosecutor acted honestly and believed that the plaintiff was guilty. As pointed out by Winfield and Jplowicz on Tort (15th Edn., 1998, P.685) in prosecutions initiated by police officers, the fact that they did so upon advice or instruction of superior officers is one of the relevant facts unless it is proved that the particular police officer did not himself believe that the plaintiff was guilty of an offence.”
11. The principles deducible from the aforementioned judgment of the Supreme
Court when applied to the present case, it is absolutely clear that the plaintiff was under
legal obligation to discharge the burden of proof that the defendant had no reasonable
and probable cause for launching prosecution under Section 325 Indian Penal Code
which he failed to discharge. Therefore, there is no substance in this appeal which is
hereby dismissed. No order as to costs.