9911796707
TMI Blog2021 (5) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice was upheld by the ld. Supreme Court on 18th August, 2017. Considering the fact that the show-cause notice had also raised issues which were overlapping in nature, it is possible to take a view that until and unless this show cause notice finally terminated, with the judgment of the Supreme Court, the limitation does not begin for the Plaintiff to avail her remedy to file a civil suit - In the present case, however, the Court need not even venture so far. The date of the acquittal of the Plaintiff/Respondent is 11th April 2007 and the suit for malicious prosecution was instituted by her on 11th April 2008. As per Section 12(1) of the Limitation Act, the date from which the period of limitation is to be reckoned, is to be excluded while calculating the said period. This would clearly mean that the date, as on which the order of acquittal of the Plaintiff was pronounced by the ld. Sessions Judge, would have to be excluded for the purpose of calculating the limitation of one year for filing of the suit for malicious prosecution. Thus, the limitation, under Section 3 of the Limitation Act r/w Entry 74 of the Schedule would commence only on 12th April 2008. The suit for mali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w-cause notice which was issued to the Plaintiff by the then Assistant Director, Directorate of Revenue Intelligence, on 12th December 2002, was also challenged by the Plaintiff. This challenge was allowed by this court on 13th September 2006, and the said show cause notice was quashed. This decision of the Delhi High Court, was challenged before the Supreme Court in Civil Appeal No. 4403 of 2010. 7. Thus, there were two parallel proceedings which were going on - one for alleged offences under Section 132 and 135 of the Customs Act, and the second being the adjudicatory proceedings arising out of the show-cause notice. 8. Post her acquittal by the ld. Sessions Judge on 11th April 2007, the Plaintiff/ Respondent, on 4th December 2007 is stated to have issued notice under Section 155(2) of the Customs Act to Defendant Nos.1 to 3, in order to claim damages and other reliefs for malicious prosecution, in a suit, which was to be filed by her. There is some dispute as to whether, at this stage, notice was actually issued to the Union of India or not. The Trial court has held that the notice was issued and on this aspect no submissions have been made by ld. Counsels for the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act has been given before filing of the suit. Suit has been filed thereafter. The construction agitated/being given that the suit has not been filed within a period of three months from the date of the accrual of cause of action is only to be adopted in my humble opinion when no notice is given. Otherwise, the word or would be read as/ become and which was never the intention of the legislature. That being the scenario, the arguments advanced by DRI are not tenable. Now the word the prosecution is otherwise terminated as per the case of the plaintiff was when she was acquitted by ld. ASJ, however it can also be said that the final date when the matter was put to rest the order dated 18th August 2017 passed by the Hon ble Apex Court. That being the situation, in my opinion, I do not find any justifiable reason for dismissing the suit on the said score. The trial court has on the basis of the aforesaid reasons, upheld the maintainability of the suit. It is this order that has been challenged before this court in the present petition. Submissions on behalf of the Petitioners 13. Mr. Mishra, ld. counsel appearing for the Petitioner Nos. 2 and 3 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, has no application. In her submission, the said period of one month for a notice, and three months for the filing of a suit, only applies in the case of other proceedings and not in the case of a civil suit. In support of this submission, she relies upon the Madras High Court Judgment in Crl. R.C. (MD) Nos. 494, 495 of 2018 titled Assistant Commissioner of Customs (Prosecution) v. Job Jacob. 18. She further submits that in order for 155(2) of the Act to be satisfied, the Department has to prove that the Act was done in good faith, which would require evidence. She relies upon first issue framed in the suit- in respect of whether the prosecution was in good faith or not 19. She also submits that the limitation, in the present case, cannot be calculated with effect from 2007, when she was acquitted as the acquittal attained finality only when the Supreme Court dismissed the SLP on 18th August 2017. The Plaintiff could have waited till the decision of the Supreme Court in order to file its suit for malicious prosecution. Thus, in her submission, the suit of the Plaintiff is not barred by limitation under the provisions of the Limitation Act, 1963 as well. Finally, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on taken under the Act (1) No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Government or a local authority for anything which is done, or intended to be done in good faith, in pursuance of this Act or the rules or regulations (2) No proceeding other than a suit shall be commenced against the Central Government or any officer of the Government or a local authority for anything purporting to be done in pursuance of this Act without giving the Central Government or such officer a month s previous notice in writing of the intended proceeding and of the cause thereof, or after the expiration of three months from the accrual of such cause. Insofar as Section 155(1) is concerned, there is sufficient case law laying down the legal position as to the bar against filing of suits against the Government or any officer thereof, when any act is done in good faith . The question whether the suit for malicious prosecution, filed by the Respondent Plaintiff, would lie on merits and whether the actions complained of were in good faith or not is not being considered in this petition, as the same would have to be adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice from the date of accrual of cause and file the proceedings within three months from the date of accrual of cause; viii) In respect of other proceedings, the procedure in the absence of one month s notice would be, to file within a period of three months from the date of accrual of a cause; Since, such varying interpretations of this provision are possible, in order to arrive at the correct conclusion, it is useful to consider a provision in the Sea Customs Act of 1878, which had a similar provision. 28. Section 198 of the Sea Customs Act, 1878, reads as under: Notice of Proceedings. 198. No proceeding other than a suit shall be commenced against any person for anything purporting to be done in pursuance of this Act without giving to such person a month s previous notice in writing of the intended proceeding, and of the cause thereof; or Limitation. after the expiration of three months from the accrual of such cause 29. A perusal of the above provision under the Sea Customs Act, 1878, which was the predecessor legislation to the Customs Act 1962, shows tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct which is available to Servants of either Government/local authority who have done any act in good faith and in pursuance to the provision of Customs, Act is not applicable to the respondents. 14. The second limb of the provision is regarding proceeding other than the suit. The act bars commencement of action without affording one month previous notice in writing or after expire of three months from the date of cause. This protection is not in respect of the suit, since the provision started with no proceeding other than a suit . The Madras High Court in the judgment above has thus held that Section 155(2) of the Customs Act applies to proceedings other than suits. 32. In Atul Dikshit v. CBI (Crl. M.C. 4143/2016, decided on 23rd January 2017), while considering the provisions of the Central Excise Act, 1973, a ld. Single Judge of this Court observed as under: 10. Section 40 of Central Excise Act was substituted w.e.f. 01.9.1973. The former Section reads as follows: S. 40. Bar of suits and limitation of suits and other legal proceedings- (1) No suit shall lie against the Central Government or against any officer of the Government in respect of any or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of Atul Dikshit (supra), the Court has taken the view that criminal proceedings would not be barred, under section 155(2) of the Customs Act, as also the amended Section 40 of the Central Excise Act, as the word prosecution is conspicuously missing in the said provisions. However, this Court is currently not considering the question as to whether any criminal prosecution is maintainable or not. 34. Even the Kerala High Court in C.C. Baby and Ors v. Central Bureau of Investigation, Anticorruption Bureau (ACB) and Ors. (2020 (3) KHC 499) has, while dealing with Section 155(2) of the Customs Act, 1962, held: 33. Sub section (1) of section 155 of the Customs Act provides a complete bar of any suit or other legal proceedings, if the act under challenge was done or intended to be done in good faith. Hence, irrespective of whether the act done was unjustifiable or illegal, or otherwise could not be justified, it would be still be not cognizable, if the authority or the officer is able to establish that it was done or intended to be done in good faith. Consequently, an act which otherwise could not stand the scrutiny of law, may not give rise to an action, if the authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eckoned, shall be excluded. (2) .. (4) Explanation - In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded. xxx THE SCHEDULE (PERIODS OF LIMITATION) [See sections 2(j) and 3] FIRST DIVISION-SUITS Description of suit Period of Limitation Time from which period begins to run 74. For compensation for a malicious prosecution xxx One year When the plaintiff is acquitted or the prosecution is otherwise terminated 38. A perusal of the provisions of The Limitation Act, 1963, extracted above, shows that the period of limitation for filing of a suit for malicious prosecution is one year, from the date when the Plaintiff is acquitted or when the prosecution against the Plaintiff is otherwise terminated. 39. In the present case, the Plaintiff was acquitted on 11th April 2007. Parallelly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occasion to consider the applicability of Section 12 of the Limitation Act, 1963, which specifically provides that the date on which the cause of action of a suit arises, has to be omitted while calculating the limitation period. In fact, in the said two cases, even if the benefit of Section 12(1) was given, the proceedings therein would have been barred by limitation, as they were not filed within the limitation period. Hence the said two cases are distinguishable and not applicable to the facts and circumstances of the present case. 42. Hence, this court is of the opinion that the suit is well within limitation, as the period of limitation under Section 3 and Section 12 of the Limitation Act, 1962, r/w Entry 74 of the Schedule of the Limitation Act, would have ended only on 12th April 2008, which is one day after the date when the suit for malicious prosecution was presented by the Plaintiff/Respondent. The suit is thus within limitation. 43. In view of the above observations, the present petition fails and is accordingly, dismissed. The ld. Trial Court is however, directed to decide the suit expeditiously. 44. All applications are disposed of. No further orders are call ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
