2004(3) ALL MR 625
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
S.T. KHARCHE, J.
Vishweshwar Shankarrao Deshmukh & Anr.Vs.Narayan Vithoba Patil
Second Appeal No.310 of 1991
6th May, 2004
Petitioner Counsel: Mr. S. P. HEDAOO
Respondent Counsel: Mr. V. N. PATIL
Torts - Malicious Prosecution - Damages - Prosecution initiated against plaintiff - Village Sarpanch on basis of false FIR filed by defendants alleging offence under S.353, IPC - Plaintiff had to suffer to a great extent and had to attend court on various dates - He had to spend money and his image was also tarnished in Society - Plaintiff ultimately acquitted - Award of Rs.12,500/- as damages is just, fair and reasonable. (Para 13)
JUDGMENT :- By invoking the jurisdiction of this Court under Section 100 of the Civil Procedure Code, the unsuccessful Defendants throughout have filed this Second Appeal being aggrieved by the Judgment, dated 19th December, 1990, passed by learned Additional District Judge in Regular Civil Appeal No.171 of 1989, whereby the Appeal has been dismissed with costs and the Judgment and Decree passed by the Trial Court on 31st December, 1987 directing both the Defendants to pay jointly and severally damages to the tune of Rs.12,500=00 on account of malicious prosecution has been confirmed.
Relevant facts are required to be stated as under :-
2. The Respondent (Plaintiff) was the Sarpanch of Village Shirputi in the year 1980 and the Defendant No.1 was in the service as Gram Sevak under the Zilla Parishad and the Defendant No.2 was the Teacher in the school run by Zilla Parishad. The Plaintiff contended that he had made several reports against the Defendants about their misconduct. The report was made against Defendant No.1 for his misbehaviour, defalcation and forgery of the accounts, and also against Defendant No.2 for his absence from duties and for other irregularities. It is contended that both the Defendants, therefore, hatched the conspiracy to involve the Plaintiff in a criminal prosecution and as such the Defendant No.1 had lodged the First Information Report at the Police Station on the allegation that he being Public Servant, was assaulted by the Plaintiff while he was discharging his official duties. On the basis of the First Information Report and the investigation conducted by Police, offence under Section 353 of the Indian Penal Code was registered against the Plaintiff and then the criminal prosecution was launched in the Court of Judicial Magistrate First Class, which was registered as Criminal Case No.1984 of 1980 against the Plaintiff. The Defendants had examined themselves only in the said criminal prosecution and ultimately the learned Judicial Magistrate acquitted the Plaintiff from the charge levelled against him. It is contended that on the basis of the First Information Report lodged by Defendant No.1, the Plaintiff was arrested by Police and the criminal prosecution against him was with malicious intention on the part of the Defendants. The criminal prosecution was launched without any reasonable and probable cause and due to the false prosecution, there was a loss in his prestige and reputation and he was lowered down in the eyes of the society being a Sarpanch of the village and being a politician. The Plaintiff further contended that he had to attend the various dates in the Criminal Court and incurred expenses to the tune of Rs.2,500=00. He contended that his image was tarnished and, therefore, he has claimed general damages to the tune of Rs.10,000=00, thereby making the total claim of Rs.12,500=00.
3. The Defendant No.1 combated the claim of the Plaintiff by filing his Written Statement and contended that the criminal prosecution launched against the Plaintiff was not with malicious intention and that the Plaintiff was acquitted for want of evidence after giving him the benefit of doubt. He contended that on 12th August, 1980, when he went to Gram Panchayat Office, the Plaintiff did not allow him to open the cupboard and also obstructed and assaulted him and, therefore, he had lodged the First Information Report at the Police Station. He contended that the suit filed for claiming damages is baseless and is liable to be dismissed. The Defendant No.2 also combated the suit claim by filing his Written Statement and contended that he did not take active part in the prosecution, except that he was an eye-witness to the incident occurred on 12th August, 1980 and that he did not hatch any plan or conspiracy to launch the criminal prosecution against the Plaintiff and the suit is liable to be dismissed against him.
4. On the aforesaid pleadings, the Trial Court framed only two issues, namely whether the Plaintiff has established that he was maliciously prosecuted in Criminal Case No.1984 of 1980 by the Defendants and whether he is entitled for damages as claimed for. The Plaintiff had examined in all six witnesses, including Government Servants, and relied on ocular testimony as well as the documentary evidence in support of his contentions, whereas the Defendants had examined themselves only in support of their contentions. The Trial Court, on consideration of the evidence, recorded the finding that the Plaintiff has proved that the criminal prosecution was launched maliciously by the Defendants by hatching a conspiracy against the Plaintiff, at whose instance Departmental Enquiries against them were started. The Trial Court also recorded the findings that the criminal prosecution was launched without any reasonable and probable cause and that the Plaintiff is entitled to receive the damages of Rs.12,500=00, which included general damages and the expenses incurred by the plaintiff for defending himself in the criminal prosecution. Consistent with these findings, the Trial Court decreed the suit with costs on 31st December, 1987. The Defendants, being aggrieved by this Judgment and Decree of the Trial Court, carried appeal to the District Court. The learned Additional District Judge, on hearing the learned Counsel for the parties, confirmed the Judgment and Decree passed by the Trial Court and dismissed the Appeal by his Judgment, dated 19th December, 1990. This Judgment of the Appellate Court is under challenge in this Second Appeal.
5. Mr. Hedaoo, the learned Counsel for the Defendants, contended that the onus was on the Plaintiff to prove that he was maliciously prosecuted without any reasonable and probable cause. He contended that the Defendant No.1 had lodged the First Information Report in relation to the incident which occurred at the Gram Panchayat Office on 12th August, 1980 and Police conducted the investigation and found that prima facie the offence under Section 353 of the Indian Penal Code has been made out. He contended that, therefore, the prosecution was launched by the State, and not by the Defendant No.1. He contended that the Defendant No.2 was examined as a witness in the said criminal prosecution and by no stretch of imagination, it could be said that he had launched the criminal prosecution against the Plaintiff. He contended that it was the duty of the Court to find out the truth in the First Information Report lodged by Defendant No.1 on the basis of the evidence led in this Civil Suit and both the Courts below have swayed away by the Judgment of acquittal passed by the Criminal Court. Mr. Hedaoo further contended that the prosecution of the Plaintiff was not actuated with malice and, therefore, the prosecution was not without any reasonable and probable cause and as such both the Courts below have committed an error in misconstruing the evidence. Mr. Hedaoo further contended that there is no yardstick to measure the damages and, therefore, the Courts below erroneously held that the Plaintiff is entitled to recover the amount of Rs.12,500=00 on account of damages for the criminal prosecution said to have been launched maliciously by the Defendant No.1. He, therefore, contended that the impugned Judgments cannot be sustained-in-law.
6. Mr. V. N. Patil, the learned Counsel for the Plaintiff, contended that the concurrent findings of both the Courts below are not liable to be interfered with, because the Defendants hatched a criminal conspiracy against the Plaintiff for involving him in a false criminal prosecution and the Defendant No.1 had lodged the false report at the Police Station, making allegations that he was assaulted by the Plaintiff in the Gram Panchayat Office while he was discharging his official duties. He contended that the various documents placed on record would indicate that the Defendants had an axe to grind against the Plaintiff, because the latter had made several serious complaints against both the Defendants and a Departmental Enquiry was also held by the Block Development Officer. He contended that the Report, dated 18th September, 1980, submitted by the Block Development Officer to the Chief Executive Officer, Zilla Parishad, indicates that the Defendant No.1, being Gram Sevak, had indulged in not maintaining the accounts properly, had committed forgery and defalcation of the accounts and that the Defendant No.2, being a Teacher, was most irregular in attending his duties resulting in the loss of education of the children. He contended that since the Plaintiff was instrumental in making the complaints against both the Defendants, the latter have hatched the plan to involve him in a criminal prosecution and ultimately the First Information Report lodged by Defendant No.1 is the outcome of the said conspiracy. He contended that the Plaintiff was involved in the false criminal prosecution and the evidence has been properly construed by both the Courts below and the findings of fact that the Plaintiff was maliciously prosecuted and there was no reasonable and probable cause for lodging the First Information Report by Defendant No.1 have been recorded. He contended that both the Courts were perfectly justified in awarding the damages of Rs.12,500=00 and no Substantial Question of Law arises in this Appeal and the same may kindly be dismissed with costs.
7. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that the Plaintiff was working as a Sarpanch of the village at the relevant time, whereas the Defendant No.1 was working as Gram Sevak and the Defendant No.2 was working as a Teacher under the Zilla Parishad. It is also not in dispute that the Defendant No.1 had lodged the First Information Report at the Police Station, on the basis of which the criminal prosecution was launched against the Plaintiff, which was registered as Criminal Case No.1984 of 1980, on the allegations that on or about 12th August, 1980, in the Office of the Gram Panchayat, the Plaintiff had assaulted the Defendant No.1 and prevented him from opening the cupboard while he was discharging his official duties. It is also not in dispute that the Defendant No.1 has examined himself as a victim of the incident and Defendant No.2 has examined himself as an eye-witness to the said incident. The Plaintiff has examined one defence witness, who was a Chowkidar in the Gram Panchayat Office. It is also not in dispute that the Criminal Court, on consideration of the evidence, acquitted the plaintiff, as the prosecution could not prove the offence beyond reasonable doubt.
8. Perusal of the Judgment, dated 29th September, 1984, of the Criminal Court would reveal that the Defendant No.1, though deposed that the Plaintiff had assaulted him by bearing and snatching away of the keys, admitted that this incident occurred in a closed room of the Office of the Gram Panchayat and nobody was present at that time, who could have witnessed the said incident. In view of this admission, the Criminal Court rightly recorded the finding that the evidence of Defendant No.2 that he witnessed the incident cannot be accepted as trustworthy. The Criminal Court also recorded the finding that the prosecution was the result of an enquiry held against the Defendant No.1 and due to inimical relations between the parties. Both the Courts have considered this aspect of the matter and recorded concurrent findings that the criminal prosecution was launched by Defendant No.1 with conspirary of Defendant No.2 without any reasonable and probable cause.
9. What is pertinent to note is that the First Information Report of the incident of 12th August, 1980 was lodged at Ankhoda Police Station on 27th August, 1980 at about 19.30 P.M. No reason has been assigned by the Defendant No.1 as to why there was so much delay in lodging the First Information Report at the Police Station. This leads to the legitimate inference that F.I.R., was the result of the deliberation on the part of Defendants to lodge F.I.R., for victimization of Plaintiff. However, the name of Defendant No.2 as a witness also has not been mentioned in the First Information Report. Since the Defendant No.1 clearly admitted in his cross-examination in that criminal prosecution that nobody had witnessed the incident, it is obvious that there was no reason for the Defendant No.2 to give false evidence in the Court that he had witnessed the said incident and this leads to the irresistible conclusion that he and Defendant No.1 hatched criminal conspiracy to involve Plaintiff in false criminal prosecution.
10. However, it is pertinent to note that the Defendant No.1 was guilty of misconduct and was very irregular in remaining present at the headquarters and he was not taking any interest in calling the meetings of the Gram Panchayat and on one occasion he had withdrawn the amount of Rs.2,000=00 from the Bank, but did not remit the same to the contractor and also recorded a bogus entry in the Cash Register and ultimately a receipt to that effect was also not found in the Vouchers' File. That, on 7th August, 1980, just before five days of the incident, the Plaintiff had gone to the Panchayat Samiti and made a complaint to the Block Development Officer and Extension Officer about irregularities in the work of Defendant No.1. The Extension Officer (P.W.3) has testified to the aforesaid effect and also stated that the Plaintiff was directed by the Extension Officer not to allow the Defendant No.1 to touch the record of the Gram Panchayat. The evidence of Arun Nimbolkar indicates that the Defendant No.1 sent the false abstracts of the Proceedings Book in respect of the meetings of the members of Panchayat Samiti. The evidence of P.W.4 reveals that he had searched the file of the abstracts given by Defendant No.1 to the Panchayat Samiti; but the same was found misplaced from the Office and further it was noticed that the same was replaced. The Enquiry Report (Exh.55) submitted by Block Development Officer, Panchayat Samiti, against Defendant No.1 is based on the enquiry conducted on the report of the Plaintiff, dated 7th August, 1980 and it would clearly reveal from this report that the Defendant No.1 was guilty of misconduct and also committed defalcation of Rs.2,000=00.
11. The Plaintiff was working as a Sarpanch and naturally at his behest two resolutions were passed by the Gram Panchayat against Defendant No.2. Those resolutions are dated 22nd January, 1979 and 10th December, 1979 and one resolution was passed against Defendant No.1 on 28th November, 1980. Perusal of these resolutions would clearly reveal that the Defendant No.1 was guilty of forgery and making false entries in the Cash Book and, therefore, the Plaintiff submitted report, dated 7th August, 1980, against him to the Authorities concerned and the permission was accorded for taking action against the Defendant No.1. The resolutions of the Gram Panchayat against Defendant No.2 would clearly reveal that he used to remain absent from the school on number of occasions, because of which the education of the children suffered and, therefore, the Plaintiff had brought the misconduct of Defendant No.2 to the notice of the Extension Officer and Block Development Officer of the Panchayat Samiti and on the basis of which, the Departmental Enquiry was started against Defendant No.1. The Report (Exh.55) of the Block Development Officer would reveal that he had recorded the statements of witnesses and he then recorded the finding that the Defendant No.1 was guilty of the charges levelled against him in the Report, dated 7th August, 1980, submitted by the Plaintiff. This entire documentary evidence has been scrutinized by both the Courts below, and particularly the Appellate Court has recorded the finding concurring with the Trial Court that the prosecution of the Plaintiff was actuated with malice and that the prosecution was launched by hatching a plan and conspiracy against the Plaintiff and there was no reasonable or probable cause for lodging the First Information Report by Defendant No.1 at the Police Station. The Appellate Court has specifically observed that the Block Development Officer is an independent authority and had come to the conclusion that no incident had taken place on 12th August, 1980, as alleged by Defendant Nos.1 and 2 and the entire complaint is false and the same has been made by Defendant No.1 with a view to pressurize the Plaintiff to suppress their own misconduct and, therefore, there is no difficulty in holding that the Defendant No.1 had an axe to grind against the Plaintiff and because of this, the Defendant No.1 had lodged a false First Information Report at the Police Station.
12. The presence of Defendant No.2 in the Gram Panchayat Office on the date of alleged incident of assault, i.e., 12th August, 1980, was not proved and it is obvious that the Defendant No.2 was not the eye-witness to the said incident of assault and in spite of that he entered into witness box before the Criminal Court and tendered evidence in support of the allegations made by Defendant No.1, which would indicate that he had a malicious intention to support the Defendant No.1 in the said criminal prosecution. Therefore, it is obvious that the contention of Mr. Hedaoo that both the Courts below have misconstrued the evidence and erroneously recorded the finding that the criminal prosecution against the Plaintiff was malicious, cannot be accepted. It is obvious that the fact that since both the Defendants had an axe to grind against the Plaintiff and as the latter had made complaints against both of them just 4-5 days before the alleged date of incident, dated 12th August, 1980 and that there was unexplained and inordinate delay in lodging the First Information Report without mentioning the name of the so called eye-witness (Defendant No.2) would go to indicate that both the Defendants had hatched a conspiracy to involve the Plaintiff in a false criminal prosecution out of the sheer enmity and only to suppress their misconduct. In such circumstances, it is not possible to accept the contention of Mr. Hedaoo, the learned Counsel for the Defendants, that the Defendant No.2 did not actually participate in the criminal prosecution and, therefore, he is not liable to pay the damages.
13. Coming to the quantum of damages, the evidence on record would clearly reveal that the Plaintiff was working as a Sarpanch in the village for several years and he was also a politician. It is not disputed that after launching the criminal prosecution against him at the behest of Defendants, the Plaintiff was required to attend various dates before the Criminal Court for a long period of four years and, therefore, the conclusion drawn by both the Courts that he must have incurred the expenses as well as must have suffered the mental torture and agony, cannot be said to be not based on the evidence adduced on record. The Plaintiff, after lodging the First Information Report against him, was even arrested by the Police and thereafter he had to undergo the trial and ultimately he was acquitted by the Criminal Court, as the prosecution did not establish the offence beyond reasonable doubt. The fact remains that there was a hanging sword on the head of the Plaintiff for the long period of four years till he was acquitted and, therefore, both the Courts below were perfectly justified in coming to the conclusion that award of damages of Rs.12,500=00 would be just, fair and reasonable in the facts and circumstances of the present case. There is no reason for this Court to interfere into the concurrent finding recorded by both the Courts below regarding the quantum of damages.
14. On close scrutiny of the material brought on record and the Judgments of the Courts below, this court is of the considered view that no Substantial Question of Law arises in this Appeal and it is not possible to accept the contention of Mr. Hedaoo, the learned Counsel for the Defendants, that the Courts below have misconstrued the evidence in coming to the conclusion that the Plaintiff has been maliciously prosecuted by the Defendants and that the prosecution was launched without probable and reasonable cause and, therefore, they are liable to pay damages of Rs.12,500=00. In the result, this Court does not find any merit in this Appeal and consequently the same is dismissed with costs throughout.