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TMI Blog2017 (5) TMI 1056X X X X Extracts X X X X X X X X Extracts X X X X ..... he tort of malicious prosecution requires proof of (a) initiation or continuation of a lawsuit; (b) lack of probable cause; (c) malice; and, (d) and favorable termination of lawsuit. The plaintiff in a suit for malicious prosecution has to necessarily disclose in the plaint the ulterior reason or purpose for which the defendant prosecuted him. The plaintiff in the present case has not disclosed any such particulars whatsoever. Though it is pleaded that the defendant is the son of the younger brother of the plaintiff but there is no averment as to the purpose sought to be achieved by the defendant by so prosecuting the plaintiff. As in this context enquired from the counsel for the plaintiff, whether not the dishonoured cheques were drawn on the bank account of the plaintiff.The counsel for the plaintiff replied in the affirmative.There is absolutely no averment in the plaint as to how the said cheques landed in the hands of the defendant and as to what motive the defendant was seeking to attain by prosecuting the plaintiff. Thus hold the plaint to be not disclosing a cause of action for the relief claimed of compensation for malicious prosecution. Thus the suit is misconceived and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (viii) the plaintiff has suffered enormously for about five years for which the said complaints remained pending; inspite of being innocent, the plaintiff had to suffer and the sufferings and harassment caused to the plaintiff was solely because of malicious prosecution initiated by the defendant and which ultimately resulted in acquittal of the plaintiff; (ix) the plaintiff had also to bear the legal cost and expenses in defending the complaints; (x) there was never any criminal complaint/ case against the plaintiff till now; (xi) the entire family of the plaintiff has become aware of the said criminal cases against the plaintiff and the plaintiff has suffered humiliation and loss of goodwill and reputation in the eyes of the entire family; (xii) the plaintiff is entitled and the defendant is liable to pay damages and compensation to the plaintiff for malicious prosecution; (xiii) that the defendant has now filed appeals against the judgment dated 28th November, 2015 being Criminal LP.No.150/2016 and Criminal LP.No.152/2016 and the same are pending decision; (xiv) however the filing of the said appeals have no bearing on the present suit. 6. The suit alongwith the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid would be the termination of the prosecution and not the acquittal from the first Court. 10. It was also put to the counsel for the plaintiff on 6th March, 2017 that no particulars of the prosecution being malicious appeared in the plaint; there are no averments as to why the defendant was interested in prosecuting the plaintiff; it was enquired from the counsel for the plaintiff, whether the plaint without such averments discloses a cause of action for a claim for malicious prosecution inasmuch as a mere acquittal does not always lead to the inference of the prosecution being malicious. 11. On request of the counsel for the plaintiff on 6th March, 2017, hearing was adjourned to 14th March, 2017 and thereafter to today. 12. The counsels have been heard further. 13. I will take up first the aspect, whether the suit is premature in view of pendency of appeal against the order of acquittal of the plaintiff in the complaint filed by the defendant of offence under Section 138 of the NI Act. 14. Article 74 of the Schedule to the Limitation Act, for a suit for compensation for malicious prosecution prescribes limitation of one year commencing from the date when the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the prosecution is otherwise terminated" but the word "finally" cannot be added to these words; (viii) a mere appeal cannot be said to do away with the effect of the original acquittal and cannot therefore suspend the period of limitation for compensation for a malicious prosecution which commences to run on the order of acquittal. 17. Per contra, the counsel for the defendant has contended that the view taken by the other High Courts on interpretation of Article 74 supra is different. He has in this regard relied on- (A). B. Madan Mohan Singh Vs. B. Ram Sunder Singh AIR 1930 All 326 (DB) reasoning (i) that if this view were not to be accepted, the result would be that the discharged person would be compelled to institute his suit for damages even though the matter is still sub-judice and is being considered by the Sessions judge or by the High Court and that it will be unfair to compel a plaintiff to sue even when the issue of acquittal of the plaintiff is still at large; (ii) that prosecution cannot be said to have finally terminated till the period of appeal or revision has expired and no appeal or revision has been preferred or till the said appeal or revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enged in appeal or revision before the superior Court, by virtue of the applicability of the doctrine of merger, the original order is merged in the order that is passed by the superior Court in appeal or revision and the operative order would be the order of the superior court and therefore, the period of limitation will have to be computed from the date of the order of the superior court in appeal or revision; (ii) that while construing Article 23 of the schedule to the Limitation Act it has to be borne in mind that the said Article prescribes the period of limitation for a suit for compensation for malicious prosecution and that in such a suit the plaintiff has to prove that the prosecution has terminated in his favour and that the prosecution was instituted against him without any reasonable and probable cause; the cause of action for such a suit is thus dependent on the result of the proceedings complained of; (iii) that the other view would result in multiplicity of legal proceedings and hardship to the plaintiff. (H). Laxmi Narayan Soni Vs. Roop Chand Soni (2002) 99 DLT 186 reasoning that it is only when the order of acquittal attains finality the cause of action would aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 74 (DB) has taken the same view. The High Courts of Karnataka and Calcutta in Basappa Sangappa Timmapur Vs. Narayanappa Kariyappa Holokoti 1973 SCC Online Kar 69(DB) and Bibhuti Bhusan Chakravarti Vs. Tarun Gupta AIR 1978 Cal 302 respectively are also of the same view. 20. Resultantly this suit for compensation for malicious prosecution filed during the pendency of the appeal against the order of acquittal is held to be premature and the plaint liable to be rejected on this ground alone. 21. Though in view of the above there is no need to pronounce on the other aspects to which attention of the counsel for the plaintiff was drawn on 6th March, 2017 and as recorded above but for the sake of completeness, I proceed to do so also. 22. In my view all prosecutions ending in an acquittal cannot be said to be malicious. I have in Sannam Bharti Vs. D.T.C. 2013 SCC Online Del 3104 and in Akbar Ali Vs. State 2014 SCC Online Del 1547 held so. There is no presumption in law of a prosecution ending in an acquittal being malicious. Thus a plaint in a suit for compensation for malicious prosecution merely stating that the plaintiff was prosecuted by or at the instance of the defendant and was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him were instituted by the defendant for malicious motives i.e. for indirect or improper motive and that only when the plaintiff has led some evidence to this effect can the defendant be called upon to show the existence of such a cause and the onus lies heavily upon the plaintiff, even though the rule may appear to require the plaintiff to prove a negative. 31. Attention was also invited to Thangavel Udayar Vs. R.K. Raju Mudaliar 1996 SCC Online Mad 459 holding that in the absence of a specific pleading regarding malice, a suit for malicious prosecution cannot be entertained. 32. Reference in this respect, besides to the judgments referred in Gangadhar Padhy supra can also be made to (i) Ravinder Singh Vs. Sukhbir Singh (2013) 9 SCC 245 (ii) West Bengal State Electricity Board Vs. Dilip kumar Ray (2007) 14 SCC 568; and, (iii) Deepak Rathaur Vs. Shashi Bhushan Lal Dass 2016 SCC Online Del 5319. 33. I thus hold the plaint to be not disclosing a cause of action for the relief claimed of compensation for malicious prosecution. 34. In view of the aforesaid need to decide, whether the defendant, if the suit were to be entertained, would have a right to prove that the cheques were i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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