Mere acquittal in a criminal case does not establish malicious prosecution; the burden of proving malicious prosecution lies with the plaintiff.

Sureshwar Thakur, Judge (Oral)

This appeal is directed against the impugned judgment and decree, rendered on 10.09.2004, by the learned Addl. District Judge (Presiding Officer Fast Track Court), Solan, in case No.4 FT/1 of 2004/98, whereby, the learned Additional District Judge, Solan dismissed the suit instituted by the appellant/plaintiff for recovery of damages on account of malicious prosecution.

2. The brief facts, of the case, are that the plaintiff instituted a suit for recovery of damages on account of defamation and malicious prosecution. The plaintiff was working as Exn. Kasauli Division from August, 1994 to 7th July, 1995, while the defendant was a class-D contractor listed with H.P. Government. The defendant had been allotted some works. He had failed to start some works, due to which general public was suffering. Notices were issued by the plaintiff to the defendant in respect of 9 such works, to start the work within 7 days, failing which the earnest money deposited by him with the State of Himachal Pradesh would have been forfeited and contracts terminated. Despite such notices, the defendant/respondent did not start the work. Notices dated 19.5.95 and 22.5.95 were then issued to defendant/respondent intimating him that for his failure to start the work earnest money stood forfeited and the contract stood closed. It is further averred that the defendant visited the plaintiff’s office on 23.5.95 and 24.5.95 in connection with some tenders which were likely to be opened on 25.5.1995. Due to non performance of works previously allotted to the defendant, the tender forms were not supplied to the defendant. At this, the defendant/respondent averred to have raised hue and cry and openly threatened that he would not spare the plaintiff. The defendant again visited the plaintiff’s office at Kasauli on 25.5.1995 accompanied by his father and some relatives and fiends and asked for tender forms. All of them advance threats and tried to get tender forms, but forms were not supplied to them. They then left the office stating that they would not spare the plaintiff. An FIR against the plaintiff was lodged by the defendant with Police Station Anti Corruption Zone Soolan on 26.5.1995. The allegation was that the plaintiff demanded bribe of Rs.1000/- from the defendant. It is averred that the allegation was false. No bribe was ever demanded. The allegation was made with malice to lower the reputation of the plaintiff. Pursuant to the registration of FIR the plaintiff was arrested and after investigation police submitted the challan. However, the plaintiff was acquitted by the learned Special Judge, Solan on 6.12.97 finding the allegations to be false. It is further averred that no appeal or revision against the judgment was filed by the State of H.P., however, the defendant preferred a revision. It is further averred by the plaintiff that due to false propaganda made by defendant about the alleged demand of the bribe and be getting him prosecuted, he suffered socially mentally and physically. A sum of Rs.80,000/- has been claimed by the plaintiff as litigation expenses, a sum of Rs.2,50,000/- has been claimed for loss of reputation and a sum of Rs.1,50,000/- has been claimed on account of mental and physical pain and agony. Hence this suit.

3. The defendant resisted and contested the suit of the plaintiff and filed the written statement wherein he had taken preliminary objections inter alia non joinder of necessary parties, the suit being pre-matured. On merits, the factum of lodging of FIR was admitted. It was pleaded that there was no manipulation on the part of the defendant to involve the plaintiff in a false case. The demand of bribe was actually made and thus the report made to the police was genuine. It was further averred that there was no malice on the part of the defendant. As regard the findings of the learned Special Judge, it was stated that they called for no comment as the matter was pending before the Hon’b