IN THE COURT OF DISTRICT JUDGE, NAGAON,ASSAM. PRESENT ©: — Smti, H.D. Bhuyan, District Judge, Nagaon Money APPEAL NO. 1 OF 2014 This Money Appeal is directed against the Order & Judgment dated 28-03-2014 passed by learned Civil Judge, Nagaon in M.S Case No. 07 of 2013. . Sri Dilip Sarkar S/O Late Gopal Sarkar Sri Dipankar Sarkar S/O Sti Dilip Sarkar |. Smti. Ruma Das Sarkar D/O Sri Dilip Sarkar W/O Sri Dipankar Das AIL R/O 140 Rash Bihari Sarani, P.S.Silliguri Dist. Darjeeling (West Bengal) . VERSUS - Sri Kalyan Dutta S/O Late Kalipada Dutta R/O vill- Nadirpar Near Sitala Bari (Rail Quarter) Lumding District Nagaon(Assam) Office Address- SSE/C & W/ LMG/NFR, Technician/11(CF), N.F.Railway, Lumding District: Nagaon (Assam)....... Respondent. ADVOCATES WHO APPEARED IN THIS CASE For the appellant : Sri Dullal Dey, Advocate For the respondent : Sri D.B.Sarmah, (Sr. Advocate) ‘Smti, Mallika Sarmah, Advocate Date of argument : 05-06-2015 Date of judgment : 30-06-2015.JUDGMENT 1 Assailing the judgment and decree dated 28-03-2014 passed by learned Civil Judge, Nagaon in connection with M.S. Case No.07/2013, the instant appeal is preferred U/S 96 R/W Order 41, Rule 1 of C.P.C. by the appellants, namely, Dilip Sarkar and 2 others against the respondent, namely, Sri Kalyan Dutta praying passing a decree in favour of the respondents/defendants for damage caused due to malicious prosecution by the defendants and setting aside the impugned judgment and decree passed by the learned trial Court. 2. The facts leading to this money appeal is that appellant/plaintiff No.3 who is the daughter of appeliant/plaintiff No.1 instituted a complaint at NIP out post under Bhaktinagar Police Station, Jalpaiguri, state of West Bengal against the defendant and his relatives under Section 498(A)/323/307 IPC and in the said case, charge-sheet and supplementary charge-sheet were filed and case is pending in the Court of leamed Additional Sessions Judge, 4" Court at Jalpaiguri vide Sessions Case No.317/2011 for trial. It is the contention of the plaintiffs/appellants that the defendant/respondent with ill-motive and for illegal gain and to harass the plaintiffs lodged a complaint on 11-12-2008 in the court of learned S.D.J.M., Sankardev Nagar, Hojai, Nagaon against the appellants/plaintiffs, namely, Dilip Sarkar, Dipankar Darkar and Smti. Ruma Das Sarkar alleging that they along with some other persons being armed with Khukri, dagger criminally trespassed into the house of defendant and voluntarily caused hurt to him and the same was registered as CR. Case No.533/2008 and the plaintiffs after receiving summons surrendered before the said Court in connection with the case and later on, released on bail and trial was held. Further averment in the plaint is that after completion of trial, judgment was delivered by the said Court acquitting the appellants/plaintffs from the offence with which they were charged with. Further contention of the plaintiffs/appellants is that during pendency of the said CR. Case No.533/2008, the present plaintiff moved a petition before the Hon'ble High Court under Section 482 Cr.P.C. for quashing the proceeding and the Hon'ble High Court by final order dated 23-04- 2009 dismissed the said petition giving direction that petitioner shall be at liberty to file an appropriate application under Section 205 of the Cr.P.C. and the same shall be considered by the trial Magistrate. Itis alleged that during the pendencyof the said CR. Case No.533/08, the defendant threatened plaintiffs on 30-04- 2009 and with intent to harass them and to malice them and to lower their reputation before the society, he has filed the criminal case which was numbered as CR.Case No.533/08 against the plaintiffs. Hence, the plaintiffs filed this case for damage for malicious prosecution. 3. The defendant/respondent contested the suit by filing written statement, By their written statement the answering defendant pleaded inter alia that there is no cause of action for the plaintiffs for filing the suit, that the suit is not maintainable, that the sult is barred by limitation and non-joinder of necessary party etc. The case of the defendant in brief is that he is a resident of Lumding and he married from North Bengal and his wife is the daughter of Bijendra Kr. Das. It is also stated by the answering defendant that Ruma Das who is the sister-in-law of this answering defendant is the wife of Dipankar Das. and there occurred matrimonial dispute between Ruma Das and her husband and Ruma Das instituted a criminal proceeding against her husband Dipankar Das and in that case, Ruma Das made the present defendant also as an accused but the present defendant is a permanent resident of Lumding and he had nothing to do with the matrimonial matter between Ruma Das and her husband, He also added that he asked the father of Ruma Das to make a compromise amongst themselves and express his dissatisfaction for impleading him falsely in the case and then, the plaintiff No.1 assured him that he has another daughter living at Lumding and some other relatives are also staying at Lumding and as situation of Nabagram was tense at that time, so, they would come to Lumding to talk with him, It is further stated in the written statement of the answering defendant that though the plaintiffs came to Lumding but they were attacking mood and attacked the defendant/appellant and physically assaulted him and when neighboring people came, plaintiffs left his house and thereafter, the defendant/respondent instituted a criminal case against the plaintiffs but as a talk of compromise regarding the matrimonial dispute Ruma Das and Dipankar Das was going on to mediate on the matter, so, he was advised by the relatives of parties to withdraw the case and as per their advice he instructed his advocate to withdraw the same but his advocate advised him not to file any withdrawal petition and asked by him to remain absent in the court on date fixed and accordingly, he did not appear in the Court. He stated that he is trying tocompromise the matrimonial matter between Ruma Das and her husband and nothing else and suit of the plaintiff is false and vexatious. 4 Upon pleadings of the parties, the learned trial court has framed the following issues: 1. Whether cause of action arose for the suit ? 2. Whether the suit is maintainable in its present form ? 3. Whether the defendant maliciously prosecuted plaintiff by filing criminal case CR-533/08 ? 4, Whether defendant caused personal injury and lowered reputation and defame plaintiff by filing criminal case CR 533/08 against plaintiff ? 5. Whether plaintiff is entitled for decree as prayed for ? 6. To what relief/relief(s), the parties are entitled for ? 5. In support of their claims the plaintiffs examined plaintiff No.1- Dilip Sarkar as P.W.1 while the defendant did not cross examine the P.W.1 nor adduce any evidence in support of his pleas. 6. After hearing arguments for the plaintiff side, the learned Civil Judge, Nagaon, has delivered her judgment vide judgment and decree dated 28- 03-2014 and dismissed the suit of the plaintiffs. Being highly aggrieved by and dis-satisfied with the impugned judgment and decree dated 28-03-2014 passed by learned Civil Judge, Nagaon in M.S. Case No. 07/2013, the present appellants has preferred this appeal on the following grounds: - i) That the learned lower court erred both in law and facts in passing the impugned judgment and decree; ii) The learned lower court failed to properly marshall the facts of the case and evidence on record in its true perspectives and it thus came*to a wrong finding while passing the impugned judgment and decree ;ili) That the learned lower court discussed the evidence on record from a wrong angle and thus, arrived at’a wrong d The court below also misconceived the provisions of law while passing the impugned judgment and decree; iv) That the learned court below has mis-appreciated the pleading of the plaintiffs and evidence on record. As such its decision was vitiated by illegality; v) That certain important issues relevant in the case have not been framed; vi) That the observation of learned lower court in deciding the issue No.3 were absolutely wrong and perverse; vii) That the learned lower court also failed to appreciate that in a civil case the preponderance of probability is the main criteria for deciding the same.; vili) That the judgment and decision of the learned lower court are also hit by the provisions of Order 20 Rule 5 of the C.P.C. for not stating the courts finding/decisions with reasons upon the Issue Nos.1,3,4,5 and 7 separately; ix) That the learned lower court was also very much wrong and perverse in deciding the issue No.1 against the plaintiffs as there was absolutely cause of action for the suit and so the said issue ought to have been decided in favour of the plaintit x) That the learned lower court failed to see that from the facts and circumstances of the case and evidence on records the plaintiffs’ case was duly proved and were as such entitled to reliefs claimed in the plaint and a decree in the suit with costs. xi) That serious miscarriage of justice has been caused to the appellants/plaintiffs by the learned lower court in dismissing the suit ;xdi) For that in any view of the matter the suit of the plaintiffs deserves to be decreed; 8. I have heard arguments for both sides. I also perused the impugned judgment and decree dated 28-03-2014 passed by learned Civil Judge, Nagaon in M.S. Case No.07/2013. 9. Now, the point for decision before me is ~ whether the impugned order appealed against is sustainable in law ? 10. My findings and reasons ther wre as foll During hearing of this Money appeal, the learned counsel for the appellants submitted that the learned Court below committed great error of law and facts at the time of passing the impugned judgment and decree and misunderstood and misconstrued the evidence adduced by the plaintiff side and misconstrued the documents exhibited in the said suit. His further submission is that the learned Court below has failed to appreciate the evidence on record in its true perspective and failed to consider the fact that by filing criminal case against the plaintiffs with serious charges harming the reputation of the plaintiffs in the eye of the society and plaintiffs had to travel to the Court of Sankardev Naga, Hojai from long distance and the learned trial Court failed to discuss as to whether personal injury was caused or not to the plaintiffs by the said malicious prosecution. Referring to the case law in Shri Ravindra Kumar Sharma —Vs- The State Of Assam reported in (1991)1 G.ILR.(NOC) 9, the learned counsel for the appellant further submit that the learned trial Court committed wrong while deciding issue No.3 in as much as in a civil case, the preponderance of probability is the main criteria for deciding the same and the learned lower court failed to see that from the facts and circumstances of the case and evidence on records the plaintiffs’ case was duly proved and the said criminal case filed by the defendant are sufficient to ruin the good name, fame, reputation of the plaintiffs/appellants in the eye of society and the defendant/respondent by his illegal acts of defaming the plaintiffs by filing a false case against them is liable to pay damage to the plaintiffs. Upon the above premises, the learned counsel for the appellants prays for allowing the appealand setting aside the impugned judgment and decree passed by the learned Court below and pass a decree for damage in favour of the plaintiffs/appellants for malicious prosecution. Controverting the submissions raised by learned counsel for the appellants, learned counsel for the respondent submitted that as the plaintiff No.3- Ruma Das instituted a criminal case against her husband and the present respondent, he asked the plaintiff No.1 to settle the matrimonial dispute between the said Ruma Das and her husband and thereafter, the plaintiff No.1 assured him to come to Lumding to have a talk with him over the matter and though plaintiffs came to Lumding but they were attacking mood and attacked the defendant/respondent and physically assaulted him for which the defendant/respondent instituted a criminal case against the plaintiffs. His further submission is that the trial Court, after considering the pleadings of the plaintiffs and proper appreciation of the evidence, oral as well as documentary has rightly held that the plaintiffs are not entitled for a decree for damage for malicious prosecution. Relying on the case law of Amar Singh-Vs- Smti, Bhagawati reported in AIR 2001 Rajasthan 14, the learned counsel for the respondent further submits that in a suit for damage for malicious prosecution, the burden is on the plaintiff to prove the malice on the part of the defendant for wrongful prosecution and in the instant suit the plaintiffs have failed to prove that the defendant filed the said criminal case with a malicious intention to harm the reputation of the plaintiffs. With the above submission, the learned counsel for the respondent prays for dismissing the appeal and to affirm the impugned judgment and decree passed by learned trial court. 11. Thave given my thoughtful consideration as regards the rival submissions made by learned counsels for both the parties. It is seen that the plaintiff side adduced oral evidence that their reputation was defamed in the society due to the filing of the criminal case bearing No.C.R.533/08 where they were acquitted of the offence and hence, the defendant is guilty of such malicious prosecution. In the case law reported in AIR (31) 1944 Privy Council 4, it was observed in para 4(d) as follows :-"In order to succeed in an action for malicious prosecution the plaintiff must in the first instance prove two things: (1) that the defendant was malicious and (2) that he acted without reasonable and probable cause. Malice has been said to mean any wrong or indirect motive, but a prosecution is not malicious merely because it is inspired by anger. However wrongheaded a prosecutor may be, if he honestly thinks that the accused has been guilty of a malice alone is not enough: there must also be shown to be absence of reasonable and probable cause.” In the instant suit, the plaintiff exhibited the judgment of C.R.Case No.533/08 passed by learned S.D.J.M., Hojai. On perusal of the said judgment, it is seen that the witnesses for the complainant side adduced evidence in that case. From the judgment dated 16-08-2012 passed by the learned S.D.J.M., Hojai in CR. Case No.533/2008 it is seen that the leaned S.D.J.M., Hojai passed the said judgment of acquittal as he satisfied from the evidence adduced in the case that the ingredients of offence U/S 448/506/352/34 of LP.C. were not proved. However, he did not observed that the case before him filed by the answering defendant falsely with malafide intention to harass the plaintiffs. Only because the plaintiffs who were accused in the C.R. case No.533/08 were acquitted of the charge, that will not be ground to hold the defendant filed the said the said criminal case with a malicious intention to harm the reputation of the plaintiffs and he acted without any reasonable and probable cause. The ratio of law laid down in AIR (31) 1944 Privy Council 1 guided me to hold that filing of the C.R. case No. 533/08 by the answering defendant before the learned S.D.J.M., Sankardev Nagar, Hojal can not be termed as malicious prosecution as because malicious intention on the part of defendant cannot be established by the plaintiffs and the defendant had a reasonable and probable cause for filing the said case. Accordingly, the plaintiffs have no cause of action to maintain an action for damages for malicious prosecution against the answering defendant. Thus, after scrutinizing all the meticulous aspects of law and facts, the evidence in record, this court is of the opinion that the plaintiffs/appellantshas not been able to establish the fact that that filing of the C.R. case No. 533/08 by the answering defendant before the learned S.D.J.M., Sankardev Nagar, Hojai had caused damage to the plaintiffs and lowered their reputation in the estimation of others. Situated thus, I am of the opinion that the plaintiffs/appellants has failed to prove the damage caused to him due to the filing of the C.R. case No. 533/08 by the answering defendant before the learned S.D.J.M., Sankardev Nagar, Hojai and hence, the findings of the learned trial Court regarding issue Nos.1 and 3 need not be interfered in this appeal. 12. Regarding issue No.2, itis seen that the plaintiffs filed the suit on basis of the judgment passed in the C.R. case No. 533/08 by the learned S.D.J.M., Sankardev Nagar, Hojai and they can file a suit for damage in the trial Court for malicious prosecution and as such, it is seen that the suit of the plaintiffs is maintainable and hence, nothing wrong was committed by the learned trial Court while deciding issue No.2. 13. Regarding issue Nos. 5 and 6, it is seen from the discussion made in issue Nos.1 and 3 and decision held therein that the plaintiffs are not entitled for any relief in suit for malicious prosecution and hence, findings of the learned regarding these two issues do not suffer from any infirmities. 14, Thus, after considering all the matters in its entirety, I find nothing to hold that the impugned judgment and decree passed by the learned Court below do suffer from any irregularities or infirmities and as such, the same need not called for interference with by this appellate Court. oO R D EF R 15. In the result, the appeal is dismissed on contest. The Judgment and decree 28-03-2014 passed by the learned Civil Judge, Nagaon_in Money Suit No. 07/2013 is hereby affirmed. The parties shall bear their own cost.Prepare decree accordingly. Send back the L.C.R. with a copy of this judgment to the Court below. Judgment is pronounced in open court, written on separate sheets and enclosed with the C.R. Given under the seal of this Court and I signed and delivered this judgment on this day 30” Day of June 2015 at Nagaoni. pe Zofoc/rolS pele Mrs. ). Bhuyan) ‘Mrs.H.D,Bhuyan) See See NageansAssam) ” Nagaon(Assam) Dictation taken and Transcribed by me Ovaper Paftowre (N. Rajkhowa) Stenographer.