1995CLC735 (PLP)

7. On the pleadings of the parties, the learned Judge has framed the followed issues:‑‑ (1) Whether the suit is not maintainable? (2) Whether the defendant launched the criminal prosecution against the plaintiffs by lodging false F.I.R. dated 25‑1‑1979 under section 341/34, P.P.C.? (3) Whether the prosecution was malicious? (4) Whether the plaintiff is entitled to any damages? (5) What should the decree be?

8. The finding of the learned Civil Judge for Issues Nos. 1 to 4 is negative, and the suit was dismissed. According to the learned Judge the respondent by seeking aid of law enforcing agency for redressing his grievances, cannot be said to have initiated malicious prosecution. He has further held that the respondent had reasonable and probable cause to lodge the F.I.R.

9. Appeals against the dismissal of the suit was also dismissed on the ground that applicants had failed to prove the essential elements for malicious prosecution. Respondent has nowhere made any allegation of immorality or bad character against the applicants.

10. The learned Advocate for the applicants has argued that judgment of the two lower Courts are not based on correct interpretation of law in respect of malicious prosecution. He has further contended that both applicants are pardanashin ladies and belonged to respectable family. He has further contended that learned Magistrate in his acquittal order under section 249‑A, Cr.P.C. has clearly given finding that the accusations against the applicants are not only groundless but a false and vexatious. This finding of the learned Magistrate clearly indicates that the applicants were prosecuted with malicious intentions.

11. The learned Advocate for the respondent has argued that respondent has filed complaint with police as he was restrained by the applicants from opening his shop. He has not exaggerated the facts to make a case of graver offence. He has set the law in motion for his rightful cause of running his shop. He has not caused any aspersions on the character of the ladies. The applicants have not led any evidence to show as how they are entitled for the general damages.

12. Mere acquittal in a criminal case will not give a right to the applicants to claim damages for malicious prosecution. The burden is heavily on the applicants who were plaintiffs in the original suit to prove the charges. 12‑A. Heard the arguments of the learned counsel and considered the law produced by them.

13. To prove the fact of malicious prosecution the applicants/plaintiffs are under onus to show that: (1) they were prosecuted by defendants on criminal charge; (2) prosecution terminated in applicants/plaintiffs' favour; (3) the prosecution was malicious, and (4) the prosecution was without reasonable probable cause.

14. In this case so far as the first two ingredients are concerned applicants/plaintiffs have proved that they were prosecuted on a criminal charge and the prosecution terminated in their favour. Court has to consider whether the prosecution was malicious, and whether prosecution was without any reasonable and probable cause. The question of reasonable and probable cause for the prosecution is an independent question and should not be regarded as finally answered in respondent's/defendant's favour on grounds that the conviction was not secured in the Court.

15. Mere judgment of acquittal in a criminal case only decides that accused has not been proved guilty of the offences with which he had been charged; and to that extent only and no more. Of course in order of acquitta under section 249‑A, Cr.P.C., the learned Magistrate has held charge against the applicants to be groundless, false and vexatious; but he has not given any cogent reasons as to why the charge is false and vexatious. It appears that in his order he was influenced by the fact that the Investigating Officer did not attend the Court and there were some contradictions between the evidence of the applicants/plaintiffs and his witnesses; and there was delay of few hours in lodging of the F.I.R. These can be grounds for giving benefit of doubt to the accused but will not be sufficient for determining the proceedings as malicious.

16. Malice means working of improper and indirect motives, which applicants/plaintiffs must prove affirmatively. In this case it is admitted by the applicant/plaintiff Husan Bano in his cross‑examination that there were criminal litigations pending between the parties in various Courts. The respondent has filed a simple case alleging that he was not allowed to open his shop. The applicants were released on bail immediately by the Police as it was a bailable offence. They were exempted from attending the Court. The applicants have not led any evidence in criminal Court or in civil suit to the effect that case was false, and initiated with malicious intentions against them.

17. In my view both the Courts below have rightly held that the applicants have failed to prove that the criminal proceedings were initiated against them with malicious intention and they are entitled for damages. With these observations both the Revision Applications are dismissed with no order as to costs. AA:/A‑1517/K Revision dismissed.