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TMI Blog2017 (2) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... oduction was only being a coffee and chat show in the Gemini T.V. and that she wanted her sister Ms.Vinaya Krishnan to get into production, the plaintiff has discussed with her mother Ms.Kutty Padmini and after discussion with her mother, the plaintiff herein had set up a new team, brought in producers and created the concept. Few weeks later, the plaintiff herein along with the defendant, herein started a partnership firm by name RDV Staarlight Works since Mrs.Ramya Krishnan wanted her sister namely the defendant to be a part of the new firm RDV Staar Works . The plaintiff and the defendant co-produced Kalasam with Visiontime Ramamurthy, Mrs.Ramya Krishnan as a lead heroine and Ms.Kutty Padmini Creative Director. 3. In the year 2009, the entire venture Kalasam all of a sudden halted either without the consent of the plaintiff or without her knowledge. Many issues have cropped up and the defendant herein along with her sister Mrs.Ramya Krishnan, ended Kalasam serial and started another serial called Thangam with the very same producer Visiontime Ramamurthy. The plaintiff herself was shocked and she was also thorough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agony, harassment and also personal and professional reputation of the entire plaintiff's family was put to jeoparadise and shame not only in the general public but also in the eyes of the friends and relatives, public at large and the in entire cine circle which cannot be measured in terms of money or whatsoever. It is also stated by the plaintiff that the above complaint was referred as mistake of fact by the XXIII Metropolitan Magistrate and the police filed the final report after obtaining expert opinion and the forgery alleged by the defendant found to be false. Thus, based on a false and frivolous complaint, the plaintiff was put to both physical and mental torture which has completely maligned her reputation in the eye of her clients and general public, cine industry and her reputation was also completely tarnished. Hence, this suit for damages for a sum of Rs. 50,00,000/-. 6. The brief contention of the written statement filed by the defendant : It is the contention of the defendant that the plaintiff having branched out from her mother expressed her desire to join hands with the defendant and her sister and proposed a joint venture. Thus, the plaintiff and the defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the plaintiff on the debit entry. Furthermore, this transaction was not reflected in the statement of accounts of the partnership firm carried on with the plaintiff in the name of M/s.RDV Staarlight Works. If it had been a legitimate transaction, the plaintiff would have certainly disclosed the same in the accounts of the partnership which she had deliberately omitted to do so. These facts raised a genuine apprehension in the mind of the defendant about some foul play and as such she lodged a complaint with the Deputy Commissioner of Police, Mylapore which was forwarded to E.4 Abiramapuram Police Station, which was registered in Crime No.669 of 2009 on 12.09.2009. The defendant has stated her grievance in the complaint and by no stretch of imagination, the lodging of a complaint on a genuine apprehension can be found fault with. 8. The allegation that the plaintiff was put to irreparable loss and injury is also denied. The police have closed the F.I.R. without providing sufficient opportunity to the defendant. The plaintiff taking advantage of the fact that the defendant has not proceeded further as against the plaintiff for the illegalities committed by her, she has rushed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendant and her sister started another teleserial in Telugu version and all of a sudden there was a huge loss in the year 2009. In the year 2009, the police implicated the plaintiff for the alleged offence under section 465 and 471 o IPC. The defendant has filed a complaint against the plaintiff for the alleged forgery committed by her for withdrawing a sum of Rs. 2,65,000/-. During the investigation, it came to light that the alleged forgery has not been established and the Judicial Magistrate has also closed the FIR on the basis of the expert opinion filed along with the final report. The entire complaint itself is manipulated and has been given without proper reasonable cause and the same has been given with malice. The plaintiff being a known sine artist her reputation has been lowered in the eye of the public, relatives and also general public. Ex.P.1 to 6 has been marked and the evidence of P.W.1 clearly show that the complaint given by the defendant was without any proper and reasonable cause. The defendant has also not chosen to examine herself and same clearly show that she has not come to the box to get herself exposed. Therefore, it is the contention of the learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, prayed for dismissal of the suit. In support of the arguments, he relied upon the judgments reported in 1956 (69) LW 1017 (Syamalambal Vs. Namberumal Chettiar); 2000 (III) CTC 37 (Venkittu Achari Vs. C.Vaithiyanathan); 2007 (14) SCC 568 (West Bengal State Electricity Board Vs.Dilip Kumar Ray) and 2016 SCC Online 14219 (D.Arun Vs. P.Subramani). 13. In the light of the above submissions, this Court has to analyse the issues one by one. 14. Issue Nos.1 to 5 : It is not in dispute by both sides that the plaintiff and the defendant has entered into a partnership in the year 2008 for producing a teleserial in the name 'Kalasam'. It is also not in dispute by both sides that the said serial 'Kalasam' came to an end in the year 2009. It is also admitted by both sides that the defendant's sister started producing Telugu version of 'Thangam' and also started Telegu version of 'Kalasam'. From the pleadings of both sides, it can be easily seen that there were dispute arose between partners with regard to the ending of the serial 'Kalasam'. These facts can be seen from the pleadings and evidence of P.W1. 15. Now the crux of the issue involved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaint and getting FIR registered which leads to arrest of the person unnecessarily and finally if the complaint is closed, one cannot contend that since the complaint was already closed, there was no prosecution. Therefore, this Court is of the view that the contention of the learned counsel for the defendant cannot be sustained in law. 18. It is an admitted fact that the complaint was given by the defendant against the plaintiff for certain financial aspects. Ex.P.2 is the certified copy of the F.I.R. filed against the plaintiff when carefully seen, the defendant has narrated the affairs in the partnership firm between the plaintiff and the defendant and she has also alleged that the plaintiff has failed to render proper accounts of the partnership firm. Since she has failed to complete the accounts and hand over the same to the auditors inspite of several requests, in order to verify the accounts, the defendant sought for the verification of the accounts from the Standard Chartered Bank and found that there was a debit entry to the tune of Rs. 2,25,000/- on 08.06.2009 in favour of the plaintiff's company M/s.Starlight Works. It is also alleged in the complaint that any au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint infact was given on the apprehension that somebody has forged the signature of the defendant. Though the Handwriting Expert report shows that there was no forgery, it is to be noted that Ex.P.5 final report does not show how the investigation officer collected the evidence or documents and there is no evidence whatsoever with regard to the collection of specimen signature from the defendant. The Investigating Officer was also not examined before the Court. The final report just discloses the fact that the plaintiff was examined and the witnesses who are acquainted with the case were examined and their respective statements were recorded and subsequently, the documents were collected. Absolutely there is no whisper in the final report with regard to how and from where the documents were collected for sending the same for Handwriting Expert opinion. Similarly, the Handwriting Expert was also not examined before the Court. The opinion of the Handwriting Expert was not based on the exact science and unless the expert is examined before the Court of law any opinion cannot be taken as evidence. Further the final report also does not disclose whether the signature found in the all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounts of the firm to the auditor. However, she has admitted that there was no employee in the name of Firhin in the firm. She has also admitted that a sum of Rs. 2,25,000/- has been withdrawn from the defendant's account and she has received the same. The said sum was withdrawn by a pay slip towards her salary and she has also deposited the pay slip through her personal employee to her savings account and subsequently, the amount was transferred into current account in the same bank. She has also admitted that the said amount was also transferred to M/s.Staarlight Works concern. 22. From the pleadings and the evidence, it can be seen that it is not the case of the plaintiff that defendant having signed the pay slip, has filed a false complaint. Whereas, it is the contention of the defendant that on verification of the accounts and seeing debit entry in her account, she found that a sum of Rs. 2,25,000/- was withdrawn and her signature has been forged. She has given a complaint on genuine apprehension. That being the case, it is the duty of the plaintiff to establish that the pay slip infact was signed by the defendant and thereafter, the defendant has falsely given a compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as and that it was wrong, or by showing that the imputting some wrong or indirect motive to the prosecutor; for example, depredations, the levying of blackmail, or the correction of the accused in respect of some unconnected matter,, such as the obtaining of compensation or restitution from the accused (the civil law, not the criminal, being the appropriate instrument for this purpose). Again, a prosecution is not malicious merely because inspired by anger for the injury suffered, for this, is one of the motives on which the law relies to secure the prosecution of offenders against the criminal law. 25. In 2007 (14) SCC 568 (West Bengal State Electricity Board Vs. Dilip Kumar Ray), it has been observed that Malicious prosecution Malice. - Malice means an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill will. It may be due to a desire to obtain a collateral advantage. The principles to be borne in mind in the case of actions for malicious prosecutions are these:- Malice is not merely the doing of a wrongful act intentionaly but it must be established that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sation, to bring the same to the notice of the appropriate police authority in order to probe the matter in accordance with law and in such a way, a complaint has been rightly lodged with the Central Crime Branch through its personnel, i.e. second defendant. But this, the real intention of the first defendant is only to curb such fraudulent transactions and to find out the real culprits. These circumstances show that while filing the complaint with the police, the defendants had reasonable explanation for its grievance about fraudulent transaction alone. There is no malicious intention to rposecute plaintiff for any other reason which could be discernible from the pleadings. The performance of a duty imposed by law, such as the institution of a prosecution as a necessary condition precedent to a civil action, does not constitute malice . In the complaint, second defendant stated that the signature found on the charge slip do not tally with the original signature of the card holder. Thus, the complainant proceeded to state that there is a reasonable apprehension of forging the card and the signature of the card holder with the connivance of the merchant. It is pertinent to n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the entire evidence and pleadings and the complaint filed by the plaintiff, this Court is of the view that there was no malice on the part of the defendant to give a complaint. 30. Further, it is contention of the learned counsel for the plaintiff that the defendant has failed to appear before the Court, hence adverse inference has to be drawn against her and relied upon the judgment 2011(6) CTC 422 (K.A.Shamugam and another Vs. Tamilarasi and others) wherein the issue involved is with regard to the cancellation of the settlement deed and the mother of the plaintiff, who is a party to the document, has not been examined. Therefore, the Court has drawn adverse inference against the plaintiff considering the facts and circumstances of the case. 31. Similarly in 2004(4) L.W. 408 (Kanagambaram Ammal Vs. Kakammal and others), the Honourable Division Bench of this Court has drawn adverse inference and held that non examination of the second defendant is vital to the defence. In the above case also the adverse inference has been drawn on the ground that it was executed by a minor and his father has signed as an identifying witness in the surrender deed. The question was whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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