JUDGMENT
Pradeep Nandrajog, J.
1. Application under Order 7 Rule 11 CPC states as under:
1. That the plaintiff has filed a suit against the defendant for recovery of Rs. 50,00,000/- only on account of damages. In the said suit he has made scurrilous insinuation, malicious and vexatious allegations which have no iota of truth.
2. That the matter is sub-judice in the court of MM, New Delhi in which charge sheet for one FCNR account has already been filed which was investigated by the Crime Branch for the offence under Section 420/467/468/471 r/w Section 120-B IPC.
3. That the plaintiff has not come with clean hands. The suit is false, the defendant has reasonable and probable cause for filing of the FIR because huge amounts have been mis-appropriated by the plaintiff in connivance with others for which the investigation is being carried out by the CBI.
4. That a written statement to the said case has been filed by the defendant. She relies upon the averments made in the written statement which clearly shows that no cause of action has arisen for filing of the suit. The further investigation is being carried out by the C.B.I as per orders of this Hon’ble Court. The offence committed by the plaintiff are grave and serious and in order to put pressure on the defendant, so that she may not be able to pursue the legal remedy, this false and frivolous case has been made which is liable to be dismissed as no cause of action has arisen. The plaint do not discloses any cause of action in the suit.
5. That as there is no cause of action to file the suit, the same is liable to be dismissed under Order 7 Rule 11 CPC.
2. Prayer made is to dismiss the suit.
3. Reply by the plaintiff reads as under:
1. That the contents of paragraph 1 of the application as stated is wrong and denied. It is denied that the plaintiff has made any scurrilous insinuation, malicious or vexatious allegations. The plaintiff has made truthful submissions.
2. That the contents of paragraph 2 of the application as stated is wrong and denied. It is submitted that the cause of action arose to the plaintiff to file the suit in question after the investigation carried out disclosed commission of no offense while the plaintiff was made to undergo imprisonment in jail for 65 days on account of baseless allegations made by the Defendant is in her complaint dated 11.6.2000.
3. There is no paragraph 3.
4. That the contents of paragraph 3 of the application is wrong and denied. The allegations are false, besides being vague. The investigations carried out do not disclose any misappropriation of funds by the plaintiff. These allegations are baseless and defamatory. The defendant is guilty of making defamatory allegations against the plaintiff time and again.
5. That the contents of paragraph 5 of the application are wrong and denied. The submissions made in the written statement are wrong and they have been suitably replied by the plaintiff by filing a replication. As a matter of fact, after filing the written statement, the case of the plaintiff has further improved as the defendant by making reckless and baseless allegations against the plaintiff even before this Hon’ble Court by way of written statement has proved that she has abused the process of law and has indulged defamatory tactics against the plaintiff. There is no offence committed by the plaintiff as per the investigations being carried out during the last five years. It is denied that any pressure is being made by the Plaintiff. The Plaintiff has filed the suit in order to seek recourse to legitimate remedy under the law in view of the nefarious conduct of the defendant.
6. That the contents of paragraph 6 of the application besides being wrong and denied are also vague and without any substance.
4. Suit seeks damages in sum of Rs. 50 lacs against the defendant. Basis pleaded is that Shri J.S. Premi, husband of the defendant was the cousin of the plaintiff. Being settled in United States of America he executed 2 general power of attornies in favor of the plaintiff, dated 24.4.1992 and 27.1.1993. He empowered the plaintiff to open and operate FCNR, NRE and NRO accounts in the name of Shri J.S. Premi. That plaintiff opened FCNR account with Vysya Bank Limited on basis of the power of attornies and operated the said account.
5. That Shri J.S.Premi died on 22.9.1993. His wife i.e. the defendant lodged a false complaint on 11.6.2000 alleging commission of various economic offences against the plaintiff. The complaint resulted in registration of FIR No. 107/01 under Section 420/467/468/471 read with Section 120-B IPC.
6. Pursuant to the investigation, local police arrested plaintiff on 17.3.2004 He suffered police remand for 3 days and thereafter was sent to judicial custody for 65 days. Plaintiff obtained bail on 21.5.2004
7. A chargesheet is stated to have been filed in the Court of the Metropolitan Magistrate on 13.5.2004
8. Plaintiff stated that most of the allegations in the complaint have been found to be false, only on some minor trivial issues, police has recorded in the chargesheet that case is made out to proceed against the plaintiff.
9. Plaintiff states that he has sought quashing of the FIR by way of a writ petition filed in this Court.
10. In para 19 of the plaint, it is stated that the complaint has been filed maliciously and with mala fide design by the defendant to harass and blackmail the plaintiff. It is stated that the FIR No.107/2001 is a result of the said motivated complaint. It is also pleaded in para 19 that the defendant has not only made a false report but has also circulated false stories about the plaintiff and got the same published in various newspapers.
11. Shri R.M.Bagai, learned Counsel for the plaintiff referred to the chargesheet and sought to urge that in view of the fact recorded in the chargesheet that the power of attornies were genuine, indictment of the plaintiff was perverse.
12. I am not noting the elaborate submissions made by the counsel for the plaintiff pertaining to the chargesheet submitted by the police for the reason the learned Metropolitan Magistrate has neither framed any charges nor has opined that any charges can be framed. Till date, arguments on framing of charges have not been held.
13. Suffice would it be to note that the process of criminal law is still on. Plaintiff has not been acquitted or discharged.
14. Law is clear. Malicious prosecution is actionable as a tort. But, ingredients to be proved by the plaintiff in an action for malicious prosecution are:
(i) that plaintiff was prosecuted at the instance of the defendant;
(ii) that the prosecution terminated in favor of the plaintiff;
(iii) that the prosecution was malicious; and
(iv) that it was without reasonable and probable cause.
15. In the report published as AIR 1947 PC 108, Mohamed Amin v. Jogendra Kumar Bannerjee, in para 17 it was observed as under:
17. From this consideration of the nature of an action for damages for malicious prosecution emerges the answer to the problem before the Board. To found an action for damages for malicious prosecution based upon criminal proceedings the test is not whether the criminal proceedings may be correctly described as a prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results. Their Lordships are not prepared to go as far as some of the Courts in India in saying that the mere presentation of a false complaint which first seeks to set the criminal law in motion will per se found an action for damages for malicious prosecution.
16. In the report published as , T. Subramanya Bhatta v. A. Krishna Bhatta, it was held that ingredients which must exist to maintain an action for malicious prosecution are 4, the ones noted in para 14 above.
17. A perusal of the plaint shows that principal grievance of the plaintiff is a false complaint resulting in registration of FIR No.107/2001 and plaintiff’s arrest pending investigation. This is evident from plaintiff’s averments in para 19 where he states that when he was sent to judicial custody, he suffered humiliation, embarrassment, insult and inhuman treatment. He was given sub-standard food whereas he was used to live a life of comfort and luxury. That he became so weak and sick that he had to be helped by 2 persons when he came out of the jail on 27.5.2004
18. I have no hesitation in holding that as of today no cause of action has accrued to the plaintiff to file a suit against the defendant on the tort of malicious prosecution for the reason plaintiff has yet to obtain, if at all, acquittal in his favor or a discharge. One ingredient to be established has yet to be born.
19. Shri Bagai, learned Counsel for the plaintiff stated that the suit is also based on the tort of libel for which stand, learned Counsel referred to the last part of para 19 of the plaint and para 21 of the plaint.
20. Pertaining to defamation, only averment made in the plaint in last part of para 19 is as under:
The defendant not only made false report but also circulated false stories about the plaintiff and got them published in various newspapers like Times of India, Hindustan Times, Rashtriya Sahara etc., wherein the plaintiff’s name appeared but it was also mentioned that he is guilty of forgery and has forged documents and it was further alleged that he had decamped with crores of rupees of Late Shri J.S.Premi and has thereby cheated the defendant.
21. In para 21, plaintiff has pleaded as under:
21. That the newspapers published the false news/story wherein the report of the plaintiff’s arrest and his alleged involvement in the embezzlement of the funds was printed and widely circulated in thousands and lakhs of copies in Delhi and else where. Thousands of people including plaintiff’s relatives, neighbours, friends and other persons known to the plaintiff went through these stories.
22. Offending newspaper reports have been filed at pages 45, 46 and 47 of the list of documents.
23. The said newspaper reports have referred to registration of the case against the plaintiff and his arrest. They did not contain any defamatory statements about the plaintiff made by the defendant. As pleaded by the plaintiff, the newspaper reports merely report a statement of fact being that an FIR stands registered against the plaintiff and that he stands arrested. The newspaper reports disclose the nature of offence alleged against the plaintiff.
24. A statement published, unless it is defamatory per-se, is actionable on proof of that it is false and is defamatory. Further, a complaint to a lawful authority is not actionable if it is not defamatory per-se unless it is established that the complaint is false and is defamatory. As a consequence, a newspaper report pertaining to a complaint made to a lawful authority cannot be actionable unless the allegations are of a kind that a case of defamation per-se is made out. Thus, till before the Court of Law it is not established that the FIR in question is based on a false allegation, no action is even maintainable on the newspaper reports.
25. Be that as it may, case is principally based on the tort of malicious prosecution evidenced by the fact that while invoking Order 7 Rule 11 CPC, defendant has categorically stated that since investigation is still on, plaint does not disclose a cause of action. In response, plaintiff has stated that the result of investigation discloses no offence being committed. Plaintiff has not stated anywhere that the plaint is based primarily on the newspaper reports which have defamed him.
26. I allow the application and dismiss the plaint as not disclosing a cause of action. I hold that the action is premature.