High Court of Punjab And Ha D Haryana
Case Details
Page 1 of 12 12 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH 219 RSA-2176-2014 (O&M) Date of decision: 20.01.2025 ...Appellant(s) ...Respondent(s) Anil Kumar & r & Others Ashwani Kum umar Sabbarwal Vs. CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- Mr. Vishal Aggarwal, Advoc for the appellants. dvocate Mr. Vishal Munjal, Advocat for the respondent. ocate NIDHI GUPTA, PTA, J. *** The defendants are in sec urt second appeal before this Court against the co e concurrent findings of the learne he arned Courts below whereby the suit of the re e respondent/plaintiff for recovery as very of Rs.4 lakh as damages has been decreed reed by both the Courts below i.e ee w i.e. vide judgment and decree dated 01.12.2 .12.2011 passed by the learned on, ed Civil Judge, Junior Division, Pathankot pa passed in Civil Suit No.273 of uly of 14.10.2003; which was duly affirmed by th y the learned District Judge, Pathan ee thankot vide judgment and decree dated 07.08.20 8.2013 in Civil Appeal No.12 dated ted 13.01.2012. 2. The parties shall hereinaft eir inafter be referred to as per their status before t ore the learned trial Court i.e. the ap ts’; e appellants are ‘the defendants’; and the respon spondent is ‘the plaintiff’. 3. The brief facts of the case re case as set out in the plaint are that the plaint laintiff belongs to a respectable fam nd family, who is a married man and SUNENA 2025.01.27 19:30 I attest to the accuracy and integrity of this document (cid:1) his wife is a s a housewife. The plaintiff himse Page 2 of 12 12 (cid:1) ice imself is employed in the Venice Hotel, Dhangu angu Road, Pathankot and has bee he been passing a peaceful life. The
Legal Reasoning
plaintiff is the the son of the defendants no. 2 an is 2 and 3 and the defendant no. 2 is liable to pay a ay a sum of Rs. 1.70 lakhs taken as ini n as loan to Rajinder Parshad Saini of Mohalla Saingarh, Pathankot. It has be on s been further averred that on 10.1.2013 wh when the plaintiff was sitting at t er at the shop of aforesaid Rajinder Parshad the de e defendants no. 1 and 2 came ther of there and wanted to pay a sum of Rs. 70,000/- to Rajinder Parshad towards th nt s the repayment of loan amount due to him bu m but he refused to accept the sa he e same, on the grounds that the amount tende endered by them was too meagre tal agre in comparison to the total amount due fr ue from the defendant no. 1. The p ne he plaintiff to his utter misfortune intervened on d on behalf of Rajinder Parshad and . 1 and advised the defendants no. 1 and 2 to be re e reasonable in the matter. At this ed this both the defendants got irked and threatene tened the plaintiff of dire conseque ed quences. It has been also averred that on 14.2.2 .2.2003, defendants no. 1 to 3 with d a with common intention, lodged a written comp omplaint against the plaintiff wit ce, with Superintendent of Police, Gurdaspur fals r falsely alleging that the plaintiff ha of ff has usurped the loan amount of Rs. 1 lakh pay payable to defendant no. 1 and th he d the request was made that the plaintiff shoul hould be hauled up under the crim int criminal laws. The said complaint was marked fo ed for enquiry. As all this was not s lso ot sufficient, defendant no. 1 also sent another ther complaint on similar lines a SP, es against the plaintiff to SSP, Gurdaspur wh r who marked it for enquiry to D), to Deputy Superintendent (D), Gurdaspur an r and for conducting enquiry, pol he police visited the house of the SUNENA 2025.01.27 19:30 I attest to the accuracy and integrity of this document (cid:1) plaintiff numb umber of times and plaintiff was ta Page 3 of 12 12 (cid:1) e a s taken under police escort like a fugitive to the the office of DSP (D), Gurdaspur full pur and SP City, Pathankot in full public view to to the entire shock and amusem ed sement of the persons collected there and the the plaintiff was made to sit for hou nd hours in these enquiry places and was interroga ogated like a criminal. Each time th rits e the defendants with high spirits have been c n coming there and have been as een creating high level dramas repeating thei their false allegations and calling b ith ng bad names to the plaintiff with all the endeav deavour to humiliate the plaintiff ice tiff in the presence of the police officials and th nd the respectable who used to com he come there to the rescue of the plaintiff. 4. It was further contended ed by the plaintiff in the plaint that the abov bove said inquiries remained pend pending against the plaintiff for almost six mo months during which time he rem remained under intense physical and mental ag al agony. Besides this, the plaintiff ntiff had also suffered immense humiliation d n due to the pending compla plaints and the proceedings conducted th thereupon which complaints we were actuated by malice and without reaso easonable probable cause only w ly with the view to cause to humiliate the the plaintiff and cause him phys hysical and mental agony and defamation. n. As a result of which the society o ety of the plaintiff is shunted for no fault of hi f his and he and his family have b ve become the most unwanted persons in the the Illaqa. As such the plaintiff fi iff filed the present suit seeking damages of R of Rs.4 lakh which were liable to to be paid by the defendants jointly and sev severally. Even a demand notice d ice dated 27.09.2003 was served SUNENA 2025.01.27 19:30 I attest to the accuracy and integrity of this document (cid:1) Page 4 of 12 12 (cid:1) upon the de defendants. However, no reply ply was received thereto. The defendants we s were even asked to pay the said aid amount, but they adamantly refused to do o do so. Hence the plaintiff filed filed the present suit claiming damages from from defendants for: Defamation – – Rs.2 lakh; Mental & physical agony – Rs.1,5 s.1,50,000/-; Waste of time and inq inquiry – Rs.50,000/-; Total Rs.4 lakh. 5. Upon notice, the defenda eir endants appeared and filed their written state tatement taking preliminary obje objection that the suit ot is not maintainable ble and is counterblast to the by the criminal complaint filed by defendant No No.1 against the plaintiff. Various o ed ous other contentions were raised by the defenda endants contesting the suit on meri erits as well. 6. On the basis of pleading o es ng of the parties, following issues were framed: ed:- “1. Whether the plaintiff is entit 4, entitled to the recovery of Rs. 4, 00,000/- as damages? OPP 2. Whether the suit is false, frivolo rivolous and vexatious? OPD 3. Whether the plaintiff has not an not come to the court with clean hands and has concealed materia terial facts? OPD 4. Whether the plaintiff has no the s no cause of action to file the present suit? OPD 5. Whether the sit is not maintain PD tainable in the present form? OPD 6. Relief.” 7. Upon consideration of the the entire oral and documentary evidence brou brought on record by the parties, th s, the learned trial Court decreed the suit with c ith costs against defendant no.1 on .1 only by deciding issue No.1 in favour of the the plaintiff and against the defen efendants; and issues No.2 to 5 SUNENA 2025.01.27 19:30 I attest to the accuracy and integrity of this document (cid:1) were decided ded against the defendants and in in favour of the plaintiff as the Page 5 of 12 12 (cid:1) defendants fa s failed to lead any evidence to pr o prove the said issues or make any argumen ments thereupon. Defendant N No.1 was directed to pay Rs.50,000/- as as damages for defamation and and Rs.50,000/- for mental and physical agony gony to plaintiff within period of 2 f 2 months. Defendants went in appeal before fore the learned District Judge, Pat Pathankot which was dismissed vide judgmen ment and decree dated 07.08.20 8.2013. Hence, present second appeal. 8. Learned counsel for the the appellants/defendants has vehemently a ly argued before this Court th t that the question for the consideration tion of this Court is whether filing filing of police complaint would amount to m o malicious prosecution. Learned ned counsel contends that the complaint file filed by the appellant no.1 before fore the police authorities never even materiali rialised into an FIR. Both the Courts urts below decreed the suit only against defend fendant No.1/brother of the plain laintiff. It is submitted that the learned Cour ourts below failed to appreciate ciate that in actual fact, the defendants we s were left with no recourse except cept to file complaint against the plaintiff as the s the defendants were the victims h s having been duped of money by the plainti aintiff. It is submitted that it has has also been admitted by the plaintiff that t at there was money dispute betwe tween the parties. As such, it is proved that th at there was reasonable and probab obable cause for the defendants to make the the complaint. Even no malicious cious intention on part of the defendants to s to file the complaint against the p he plaintiff is established. Rather SUNENA 2025.01.27 19:30 I attest to the accuracy and integrity of this document (cid:1) it has been es n established by the defendant that that whatever he did was to get justice; and and the plaintiff has ailed failed to prove the basic Page 6 of 12 12 (cid:1) requirements/ nts/ingredients of malicious prosec osecution i.e. i) the proceedings must have bee been instituted or continued by the y the defendant; ii) he must have acted without hout reasonable and probable cau cause; iii) he must have acted maliciously; iv y; iv) in certain classes of cases the the proceedings must have been unsuccessful t ful that is to say, must have termina minated in favour of the plaintiff now suing. It . It is submitted that as such, ch, it cannot be said that the defendants ha s have maliciously prosecuted the p the plaintiff as, merely moving a complaint doe does not mean that a person on has been ‘prosecuted’. It is submitted tha that to come within the purview o ew of malicious prosecution the complaint has has to be made before a Judicia icial Authority; whereas in the present case, se, admittedly only one complaint aint was filed by the defendants before the Po Police Authorities; even which co h complaint did not fructify into an FIR. It is re is reiterated that merely giving of of a complaint does not mean that a person rson has been prosecuted. As per per established law, prosecution would mean lo an lodging of an FIR and to undergo ergo trial, which is not so in the present case. se. In support of his contentions, ns, learned counsel relies upon judgment of M of Mysore High Court in “Bolanda andauda Pemmayya & Another Vs. Ayaradara dara Kushalappa” Law Finder Doc I oc ID # 325776; of Privy Council (From Calcutt cutta) in “Mohamed Amin Vs. Jog . Jogendra Kumar Bannerjee & Others” Law aw Finder Doc ID # 283054; and o nd of Delhi High Court in “K.B. SUNENA 2025.01.27 19:30 I attest to the accuracy and integrity of this document (cid:1) Mathur & An Another Vs. Sh. Sheel Kumar Saxe Saxena & Another” Law Finder doc Id # 4451 4511. 9. It by is further argued by learned counsel for the Page 7 of 12 12 (cid:1) appellants/de /defendants that there is no eviden idence to show that any damage or harassment ent was caused to the plaintiff. The The learned Appellate Court has observed that that the amount has been granted nted on account of defamation and mental pa al pain and agony; whereas there is re is nothing on record to show that the plain laintiff was defamed. In fact, ther there was no evidence to show that any dam damage or harassment had been en caused to the plaintiff. It is accordingly pr ly prayed that the concurrent jud judgments and decrees of the learned Courts urts below be set aside. 10. Per contra, leaned counsel nsel for the plaintiff vehemently opposes the he prayer made on behalf of the the appellants/defendants and submits that at the arguments and submissions
Legal Reasoning
ons made by learned counsel for the appellant lants are misleading as in the prese resent case, it is not as though only one com complaint was made against the pl e plaintiff. It is submitted that a bare perusal o sal of the FIR would reveal that as t as many as 6 complaints were made by the d he defendants against the plaintiff. I tiff. It is also submitted that even a complaint w int was made before the Magistra istrate concerned. As such it is again mislead leading for the learned counsel for l for the defendants to suggest that only one one complaint was made and that that too only before the Police Authorities. Le s. Learned counsel accordingly prays rays for dismissal of the appeal. 11. No other argument is raise aised on behalf of the parties. SUNENA 2025.01.27 19:30 I attest to the accuracy and integrity of this document (cid:1) 12. I have heard learned co counsel for the parties and Page 8 of 12 12 (cid:1) perused the ca e case file in great detail. 13. It has been argued on beha behalf of learned counsel for the appellants/def /defendants that mere filing of one one complaint before the Police Authorities wo s would not constitute malicious pr prosecution; and therefore, no ground was m as made out for grant of the impugn pugned damages to the plaintiff. However, a pe a perusal of the record reveals that that it is not just ‘one’ complaint which was sub submitted by the defendants aga against the plaintiff. As per the deposition of of Head Constable Devinder Pal Si al Singh/PW1, a complaint dated 08.04.2003 wa was made by the defendants aga s against the plaintiff as evident from the entry ntry found in the Peshgi Register of r of the Complaint Branch Office of SSP, Gurdas rdaspur at serial No.237. Upon inve investigation, the said complaint was forward r arded to DSP(D), Gurdaspur for f investigation and was subsequently f tly filed on 25.06.2003. 14. It is curious for learned co d counsel for the defendants to argue that on t only the above said singular com complaint was made by them against the pl e plaintiff as it was the own case o se of the defendants before the learned Court ourts below that several complaint aints (Ex.D1 to D5) were moved by defendant dant No.1 namely Anil Sharma ma against the plaintiff. Said complaints we s were produced on record by the the defendants themselves as Ex.D1 to D5 D5. Thus, the learned trial court urt correctly held that the first ingredient req required for malicious prosecution tion stands duly proved as far as only D1 is con concerned. However, the plaintiff f tiff failed to bring on record any SUNENA 2025.01.27 19:30 I attest to the accuracy and integrity of this document (cid:1) Page 9 of 12 12 (cid:1) document to to show that defendants No.2 o.2 and 3 have also instituted proceedings gs against the plaintiff along w g with defendant No.1. The defendants ha s have produced on record copie opies of complaint which were moved by def defendant No.1 against plaintiff a tiff as Ex.D1 to Ex.D5. All these were moved b ed by defendant No.1. As such, the , the suit was correctly decreed with costs aga against defendant no.1. 15. It has next been argued o ed on behalf of the defendants that no com complaint was made by them b m before the Magistrate; and therefore the there was no malicious prosecu ecution by them as only one complaint had had been made before the police a ce authorities. However, the said contention of n of the defendants is contrary to to the evidence as the plaintiff had further pr r proved on record the certified cop copy of the complaint preferred by defendant ant No.1 against the plaintiff and and two other persons under Sections 420, 20, 468, 406 and 34 IPC before the the Magistrate. The plaintiff had also produced ced on record certified copy of deta detailed order dated 07.03.2011 vide which t h the above said complaint file filed by defendant No.1 was dismissed und under Section 203 Cr.P.C. on the the ground that the defendant No.1 had faile failed to produce any cogent evide vidence to prove his averments. Relevant findin indings of the learned trial Court in rt in this regard are in Para 21 of the impugned ned judgment dated 1.12.2011, whi which is as under: - “21. The plaintiff has produced ced on record certified copy of order dated 7.3.2011 which has has been passed with regard to above mentioned complaint an t and vide detailed order the complaint filed by the defendan dant no. 1 has been dismissed SUNENA 2025.01.27 19:30 I attest to the accuracy and integrity of this document (cid:1) Page 10 of 12 12 (cid:1) under section 203 Cr.P.C. Peru Perusal of order reveals that complainant (defendant no. 1) fa 1) failed to bring on record any cogent evidence in the form o rm of document to prove his averments. Thus, the defendan ndant no. 1 has moved first application against the plaintiff ntiff to the police, then to the court also and at both forums his s his complaint was not found to be worth actionable as he has has failed to lead any cogent evidence to prove his allegations. ons.” 16. In order to prove whether her the actions of the defendant No.1 amount ounted to malicious prosecution tion, the learned trial Court examined eac each complaint filed by the defen efendants in detail. The learned trial Court al t also referred to certified copy py of order dated 15.09.2010 produced by by the plaintiff with regard to co o complaint filed by defendant No.1 against t st the plaintiff under Section 138 o 8 of the Negotiable Instruments Act, 1881, wh , which was moved by one Rajinder der Prashad Saini against father of defendant N ant No.1. Upon considering the enti entire evidence, in this aspect it was found tha that: - “22....From these arguments wh s which has been raised by the father of the defendant no. 1, in fa 1, in complaint which has been pending against him under s er section 138 of Negotiable Instrument Act, it is amply clear t lear that father of the defendant no. 1 has admitted this fact tha t that his son had availed loan from UCO Bank and it is the same fro same loan transaction regarding which the defendant no. 1 has has preferred complaint to the police against the plaintiff and h nd has also preferred complaint in the court also.” SUNENA 2025.01.27 19:30 I attest to the accuracy and integrity of this document (cid:1) 17. From the above facts, it i , it is clearly made out that the Page 11 of 12 12 (cid:1) defendant no. no.1 had made not just one comp mplaint against the plaintiff but several comp omplaints being Ex.D1 to Ex.D5 x.D5. It is further irrefutably established th d that the said complaints were ma made not just before the Police Authorities bu s but also before the Magistrate. Th e. Thus, ingredients of malicious prosecution a n are seen to be satisfied. Furthe rthermore, the defendants can derive no be benefit from the relied upon j n judgment as the same are distinguishable able on facts as well as law as in s in all the said judgments, only ‘one’ complain plaint was in issue; whereas in the the present case admittedly as many as 5-6 c 6 complaints have been filed by by the defendants against the plaintiff. From rom the above facts, it is also made ade out that the defendants had instituted pro proceedings against the plaintiff tiff which were malicious, and apparently w y without reasonable and prob robable cause; all of which proceedings h gs had terminated in favour of the the plaintiff resulting in damage caused to him him. 18. The plaintiff had claimed d ed damages to the tune of Rs.2 lakh for defa defamation; Rs.1,50,000/- for men mental & physical agony; and Rs.50,000/- fo for expenses incurred for persona sonal treatment, loss of earning, waste of time time and energy. The learned Cour ourts below correctly held that the plaintiff is iff is not entitled to damages for exp r expenses incurred for personal treatment, los , loss of earning as plaintiff has n as not produced on record any document to s to show that he has incurred any e ny expenses for his treatment. In loss of earning rning, plaintiff deposed in his cross oss-examination that he had not SUNENA 2025.01.27 19:30 I attest to the accuracy and integrity of this document (cid:1) changed his jo is job nor he was put under any su y suspension for any negligence Page 12 of 12 12 (cid:1) in performing ing his duty in 2003. Waste of tim time & energy were held to be covered unde nder mental and physical agony. . In regard to defamation the plaintiff has e as examined PW3 Rakesh Kumar w ar who stated that defendants had made seri serious allegations of cheating and and fraud against the plaintiff as a result he h e has lost all his respect. Accord cordingly, Defendant No.1 was directed to pa o pay Rs.50,000/- as damages for for defamation and Rs.50,000/- for mental an l and physical agony to plaintiff wi ff within period of 2 months. In appeal, the le e learned 1st Appellate Court held held the findings of the learned trial court hold holding that it was proved from cro cross-examination of defendant No.1 that he he applied for advancement of R of Rs.1 lakh unemployed youth whereafter he r he became defaulter. The bank ha k has also registered FIR against him; it was pr s provedthat the plaintiff has been een defamed by defendant No.1 by moving fals false complaints due to which he s he suffered physical and mental agony. 19. Learned counsel for the ap e appellants is unable to dispute or controvert vert the above said evidence/find findings orgive any satisfactory explanation fo n for the same.
Decision
In view of the above, prese resent appeal is dismissed. Pending application(s) if an if any also stand(s) disposed of. 20. 21. 20.01.2025 Sunena Whether spea Whether repo peaking/reasoned: eportable: SUNENA 2025.01.27 19:30 I attest to the accuracy and integrity of this document (cid:1) (Nidhi Gupta) Judge Yes/No Yes/No