JUDGMENT
Hemant Gupta, J.
1. This is defendant’s revision arising out of suit for damages on account of malicious prosecution.
2. Briefly stated, the facts are that the plaintiff filed suit for recovery of Rs. 2,00,000/- as damages on account of malicious prosecution alleging therein that he was elected Sarpanch of Village Mansa Khurd and was vested with the control and supervision over panchayat Property, funds, income and expenditure and that he is owner of 32 acres of urban area. Further the case of the plaintiff is that he is a transporter and runs the buses in the capacity of Managing Director of Shergili Bus Service, Mansa. It is alleged that the defendants are closely related to one Bakhtaur Singh who was defeated by the plaintiff in the election of Sarpanch and the defendants have made a party with said Bakhtaur Singh to defame him. The defendants filed an application before the Director, Panchayat Development, Chandigarh on 27.8.1993 on false allegations and further followed said application by reminder dated 26.5.1994 alleging that the plaintiff had misappropriated the panchayat land by getting the same allotted to his father and near relatives and had also encroached upon the drains besides cutting and selling the Panchayat trees. Such allegations were supported by affidavit as well. The Secretary, District Board, Sangrur made preliminary enquiry and found the plaintiff to be guilty of the allegations. Consequently, the plaintiff was suspended but as a result of regular enquiry which was afterwards conducted by the Deputy Commissioner, Mansa, the plaintiff was exonerated and reinstated. Thereupon the plaintiff filed suit for recovery claiming damages on account of malicious prosecution, as aforesaid.
3. Learned trial Court relied upon the judgment in Kapoor Chand Rikhi Ram Mahajan v. Hakim Jagdish Chand Siripat Rai and Anr., A.I.R. 1974 Punjab and Haryana 215 and returned a finding that the malicious prosecution does not mean prosecution in criminal court alone but even if a person does an act which castes a slur on the plaintiff, he is entitled to damages. The trial Court found that the plaintiff has succeeded in proving that the allegations made by the defendants against him were of criminal nature and he was exonerated of the allegations vide report of the Deputy Commissioner (Exhibit P-6). The proceedings were terminated in favour of the plaintiff. It has been found that the complaint was made on account of party faction in the village since the plaintiff had defeated Bakhtaur Singh in the election of Sarpanch, it was also found that the defendants knew the allegations made by them were not based upon facts as they are residents of the same village, The allegations were levelled in absence of any reasonable or probable cause. Consequently, in view of the circumstances of the case and the status, of the plaintiff, the trial court held him to be entitled to Rs. 10,000/- as damages for mental stress suffered by him.
4. Aggrieved against the judgment and decree passed by the trial Court, the defendants filed an appeal before the District Judge, Bathinda. The plaintiff also filed cross-objections claiming enhancement in the amount of damages awarded by the trial Court. The appeal as well as the cross-objections were dismissed by the District Judge thereby affirming the finding recorded by the trial Court.
5. The defendant has relied upon the judgment in Harpal Singh v. Markfed Punjab, rendered by a Single Judge of this Court in R.S.A. No. 1418 of 2002 decided on 22.5.2002 to contend that a finding has to be recorded in the proceedings in respect of damages which are sought to be claimed. Order dated 22.5.202 reads as under:-
“I do not find any infirmity in the judgment and decree passed by the lower Appellate Court vide which the judgment and decree dated 10.5.1999 passed by the trial Court has been reversed.
The plaintiff had filed a suit for claiming damages on the ground of having been prosecuted in a criminal case and that having been involved in malicious prosecution, his honour has been damaged.
The criminal Court came to a finding that the prosecution, has not been able to prove its case against the plaintiff beyond shadow of reasonable doubt, resultantly, the benefit of doubt had been given and the plaintiff had been acquitted. The learned Magistrate has nowhere opined or even made a reference that the plaintiff has been involved in a malicious prosecution. The acquittal has been earned by him for want of cogent evidence but the filing of the case has not been defined as a case to harass the plaintiff. Thus the trial Court erred in coming to the conclusion that the plaintiff had been involved in a malicious prosecution.
It is argued that the lower Appellate Court has observed that the plaintiff had been acquitted because of the benefit of doubt but no finding has been returned that the prosecution is tainted as malicious prosecution. Whereas, finding has been given by the trial. Thus, the judgment of the lower Appellate Court deserved to be set aside and that of Trial Court be affirmed.
I am afraid this argument is not sustainable. In fact, trial court fell into error in holding that the plaintiff-appellant was involved in a malicious prosecution. There is no observation of the Court of Magistrate to this effect. The Civil Court could not sit in judgment of the Criminal Court to arrive at such conclusion.
In view of the above, I find no infirmity in the judgment and decree passed by the trial Court vide which the suit of the plaintiff has been dismissed.
No merit. Dismissed.
6. In the Law of Torts by Salmond, Fourteenth Edition (1965) at page 588, it has been stated as follows:-
“In order an action shall lie for malicious prosecution or the other forms of abusive process which have been referred to, the following conditions must be fulfilled:-
(1) The proceedings must have been instituted or continued by the defendant;
(2) He must have acted without reasonable and probable cause;
(3) He must have acted maliciously;
(4) In certain classes of cases the proceedings must have been unsuccessful – that is to say, must have terminated in favour of the plaintiff now suing.”
7. The said principles were approved by Division Bench of this Court in Major Gian Singh v. S.P. Batra, A.I.R. 1973 Punjab and Haryana 400. The Division Bench concluded as under:-
“In a suit for malicious prosecution, the burden of proving that the proceedings were initiated without any reasonable and probable cause lies on the plaintiff who seeks damages. It is no doubt true that the acquittal of the plaintiff in the earlier proceedings may some times give rise to a presumption that there was no reasonable and probable cause for his prosecution, but this presumption is rebuttable. The defendant in such a suit has merely to prove that the facts and circumstances did exists which gave rise to a belief in his mind that the other party was guilty. These facts and circumstances do not have to be viewed or weighed as would be done by a Court of law, for otherwise in all those cases in which the prosecution fails, the complainant or the prosecutor would become liable for damages. All the four conditions mentioned by Shri John Salmond must co-exist before a defendant in a suit for malicious prosecution can be burdened with liability. Again, in the case of such a transaction in which fraud is alleged, the person defrauded remains ignorant of all or some of the attendant circumstances of the case till a late stage. If a person could visualise or foresee what is going to happen in future, he would never become a victim of fraud.
8. In Kambhampati Venkata Satyanarayana v. Kambhampati Pedi Subbarao and Ors., A.I.R. 1969 A.P. 2, a Division Bench was considering the question whether the filing of a complaint itself can lead to an action for malicious prosecution, The Division Bench made reference to a judgment of their Lordships of the Privy Council in Mohamed Amin v. Jogendra Kumar, A.I.R. 1947 P.C. 108 where the following question was considered:-
“At what stage will criminal proceedings instituted falsely and maliciously before a Magistrate under the provisions of the Indian Code of Criminal Procedure, lay the foundation for a suit for damages for malicious prosecution”?
9. It was held that mere presentation of a false complaint which seeks to set criminal law in motion does not furnish a cause of action. If a magistrate dismisses the complaint as disclosing no offence, it may well be that there has been nothing but an unsuccessful attempt to set criminal law in motion. It also considered the Division Bench judgment of Andhra Pradesh High Court rendered in Seshi Reddi v. Chandra Reddi, A.I.R. 1957 A.P. 347, where on perusal of the case, the complaint was dismissed as frivolous in nature. It was found that this finding by the criminal court is not conclusive. What has to be established is the four essential requisites in a suit for damages, as mentioned above.
10. The acquittal in a criminal case or dismissal of a complaint, may or may not
contain a finding that the prosecution lacks bona fide or is frivolous. Such findings are
recorded only for the purpose of dismissal of the complaint or criminal prosecution. In
an action for malicious prosecution, the plaintiff has to prove the necessary ingredients
as mentioned above. The findings recorded in such proceedings are not binding on civil
court. A civil court has to return a finding in an action for malicious prosecution in the
manner mentioned above.
11. In view of the above, the argument of the petitioner that the finding of malicious prosecution should be recorded in the previous proceedings, is not in accordance with the view taken by Division Bench of this Court.
12. Consequently, I do not find any merit in the present revision. Both the Courts have returned a concurrent finding of fact that the plaintiff has proved the necessary ingredients of malicious prosecution. Resultantly, the civil revision is dismissed.
