A suit for malicious prosecution is premature if the plaintiff remains an accused in ongoing criminal proceedings, as the cause of action does not exist until the prosecution is terminated.

ORDER

This revision under Article 227 of the Constitution of India is preferred against the order, dated 22.01.2024, dismissing I.A.No.140 of 2022 in O.S.No.21 of 2013 on the file of the Court of the Senior Civil Judge, Piler, filed by the defendant under Order VII rule 11 CPC to reject the plaint.

2. Heard the learned counsel for the petitioner.

3. The revision petitioner herein is the 1^st defendant and the 1^st respondent is the plaintiff.

4. The case of the petitioner/1^st defendant, as stated in the affidavit filed in support of the petition, is as follows:

a. The plaintiff filed the suit against the defendants for recovery of damages on the ground that they have done malicious acts against the plaintiff. The defendants filed written statement resisting the suit.

b. The plaintiff is doing jaggery business and has dealing with the 1^st defendant. On the assurance of the plaintiff, the 1^st defendant snet a jiggery load, i.e., 340 bags each weighing 50 Kgs each worth of Rs.1,39,400/- in a lorry bearing No.AP 16 X 5182., vide way bill No.3791889, dated 29.05.2024. On 20.05.2024, the driver of the vehicle handed over the load to the plaintiff at Jaggayyapeta in the godown of the plaintiff and took the lorry rent and when enquired about the load of jiggery, the plaintiff replied that the load was handed over to Chandrasekhar. When the 1^st defendant contacted K. Chandrasekhar for payment, he denied of receiving the load of jaggery. Thereafter, the 1^st defendant along with others went to Jaggayyapeta and called the plaintiff and K.Chandrasekhar together and enquired about the load. They both blame each other with an intention to cheat the 1^st defendant without paying the amount and thus committed criminal breach of trust with common intention. Basing on the complaint of the 1^st defendant, the 2^nd defendant who was the then Sub Inspector of Police, Bhakarapet P.S registered a case in Crime No.50 of 2004 for the offences punishable under Sections 420 and 406 IPC. During the course of investigation, the 2^nd defendant arrested the plaintiff near Lakshmi Traders Godown of the plaintiff at Jaggayyapeta and seized 184 bags of jaggery pertaining to the case under the cover of a mahazarnama in the presence of the mediators and on the same day, at 4 PM, and further the defendant No.2 arrested K. Chandrasekhar at Huzurnagar bus stand and sent the plaintiff and K.Chandrasekhar for judicial custody. After completion of the investigation, the 2^nd defendant filed charge sheet against the plaintiff and Chandrasekhar before the Court of the Judicial First Class Magistrate, Piler and the same was numbered as C.C.No.264 of 2004. After full-fledged trial, the learned Judicial First Class Magistrate, Piler, acquitted both the accused on 14.08.2012. Therefore, the plaintiff filed the present suit for wrongful gain. After passing of the acquittal order in C.C.No.264 of 2004, the 1^st defendant preferred Criminal Appeal No.312 of 2012. After full-fledged hearing, the appeal was allowed by judgment, dated 31.03.2022, by the learned XI Additional District & Sessions Judge, Piler, by setting aside the judgment, dated 14.08.2012, in C.C.No.264 of 2004 and remanded the matter to the trial Court. Hence, this petition.

c. The respondent/plaintiff filed counter denying the allegations and further contending that the plaint cannot be rejected merely on the ground that the plaintiff is not entitled to any relief in the suit. The defendants filed this petition in order to defeat the interest of the plaintiff. It is finally prayed to dismiss the petition.

4. After hearing both parties, the trial Court, by the impugned order, dismissed the petition.

5. Aggrieved thereby, the defendants preferred this revision.

6. The revision petitioner/defendant mainly raised the following grounds:-

(i) The order of acquittal in C.C.No.264 of 2004 on the file of the Court of the Additional Judicial Magistrate of First Class, Piler, has been set aside in appeal, vide Criminal Appeal No.312 of 2012