TaxTMI 
TaxTMI 
TaxTMI 
2017 (5) TMI 1056
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....that the defendant is the son of the younger brother of the plaintiff; (iii) that the defendant, in or about July 2010, filed two false criminal complaints against the plaintiff under the provisions of Section 138 of the Negotiable Instruments Act, 1881, (NI Act) with ill intention to harass the plaintiff and with ill motive to extract money from the plaintiff by prosecuting the said false complaints; (iv) the complaints were filed on the basis of false allegation that the plaintiff had issued two cheques in the sum of Rs. 6 crores each in favour of the defendant on account of alleged family settlement and that when the said cheques were presented for encashment, the same were dishonoured on the ground of insufficiency of funds; (v) summons in both the complaints were issued to the plaintiff and the plaintiff had to appear as an accused before the Court and was granted bail on fulfillment of the necessary formalities; (vi) the plaintiff was thereafter served with notice under Section 251 of the Code of Criminal Procedure, 1973 and pleaded not guilty; (vii) that the plaintiff was prosecuted by the defendant in the said complaints upto 28th November, 2015 when both the crimi....
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....son; he however stated that the proceedings in the suit may be stayed sine die till the decision of the appeal or the proceedings in the suit may continue but ultimate judgment may await the outcome of the appeal. 7. However upon attention of the counsel for the plaintiff being drawn to the averments in the plaint itself about the filing of leave to appeal, the counsel for the plaintiff apologised for the factual errors made earlier and stated that leave to appeal had been filed by the defendant but the leave was granted and the appeal admitted on 27th September,2016 i.e. after the institution of the suit. 8. I had on 6th March, 2017 further inquired from the counsel for the plaintiff whether not the defendant in a suit for compensation for malicious prosecution of a complaint of offence under Section 138 of NI Act supra, again has an opportunity to prove that the cheque had been given by the plaintiff for consideration and if so, what would be the fate of the appeal against the order of acquittal if it were to be held in this suit that the cheque was indeed given for consideration - whether the finding in this suit, being of a civil court, would bind the court in which the appea....
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....ch commences to run from the date of order of acquittal; (viii) the language of Article (23 of the Limitation Act 1908 and which is pari materia to Article 74 of the 1963 Act) leaves no room for argument as it provides specifically that limitation is to run from the date of acquittal. 16. The Division Bench of High Court of Bombay in Bhaskar Narhar Deshmukh supra further reasoned (i) a prosecution may end, either in acquittal or conviction; (ii) if it is the first, then it is governed by the first part of the Article, and if it is the second, there can be no case for a suit; (iii) a prosecution may also result in an order of discharge, or in a dismissal of the complaint if the complainant is absent on the date fixed for the hearing; (iv) the words "the prosecution is otherwise terminated" are intended for such cases; (v) whenever the Legislature intended that the time should commence to run from the final order, it has expressly said so in the Limitation Act; (vi) the only effect of filling an appeal or a revision application to a superior Court against an order of acquittal would be to stay further proceedings in the suit for malicious prosecution and it is only if that revision ....
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.... of the suit in the regular course of it. (D). SK Mehtab Vs.Balaji AIR 1946 Nag 46 reasoning i) that the word 'prosecution' has been used in a wider sense than a trial and will include criminal proceedings by way of appeal or revision; ii) an order of acquittal can be set aside on appeal or revision; iii) that no action for malicious prosecution lies till the prosecution is still pending in appeal or revision; even if the order of the first court is of acquittal, it is only from the date of final acquittal that the limitation would commence running. (E). Jagdev Singh Vs. Pritam Singh 1969 SCC Online P&H 184. (F). Ramvilas Vs. Gopal Lal 1972 SCC Online Raj 195 reasoning (i) that the words " when the plaintiff is acquitted" must not be read independently of the words "or the prosecution is otherwise terminated"; (ii) the illogical distinction between the cases of acquittal and those where the prosecution is terminated by discharge would only lead to hardship and one will have to incur expenditure of filing the suit even before the order of acquittal passed in his favour is still subjudice under appeal or revision filed by the complainant or the State. (G). Ramdhan Vs. Kanmal 1981....
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....in his favour attains finality. (J). Krishna Gupta Vs. DD Sadhotra AIR 2014 J&K 81 reasoning that the word "or" between the words "when the plaintiff is acquitted" and the words "the prosecution is otherwise terminated" represents a disjunctive particle that marks an alternative generally corresponding to either. 18. The counsel for the defendant has fairly also drawn attention to Chanda Chandra Dash Vs Niranjan Panda 1993 SCC Online Ori 334 and Purshottam Vithaldas Shet Vs. Ravji Hari Athavale AIR 1922 Bom 209(DB) which have also taken the same view as the judgments relied upon by the counsel for the plaintiff. 19. Having considered the reasoning given by the High Courts of Bombay, Allahabad and Orissa relying whereon the plaintiff appears to have filed this suit even during the pendency of the appeal against the order of acquittal and the reasoning given by the High Courts of Allahabad, Madras, Oudh, Nagpur, Punjab and Haryana, Rajasthan, Madhya Pradesh, Jammu and Kashmir as well as this court, I am not only bound to follow the view taken by this court but even otherwise I agree with the said reasoning and do not have anything further to add. I may also notice that the High Co....
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....e plaintiff in the present case has not disclosed any such particulars whatsoever. Though it is pleaded that the defendant is the son of the younger brother of the plaintiff but there is no averment as to the purpose sought to be achieved by the defendant by so prosecuting the plaintiff. 26. I had in this context enquired from the counsel for the plaintiff, whether not the dishonoured cheques were drawn on the bank account of the plaintiff. 27. The counsel for the plaintiff replied in the affirmative. 28. There is absolutely no averment in the plaint as to how the said cheques landed in the hands of the defendant and as to what motive the defendant was seeking to attain by prosecuting the plaintiff. 29. The counsel for the plaintiff generally argued that the defendant wanted to harass and humiliate the plaintiff and drew attention to the said averments in the plaint. 30. I am not satisfied that such general averments would qualify as a plea of malice. Though the counsel for the plaintiff has not cited any case law in this regard but the counsel for the defendant has drawn attention to Gangadhar Padhy Vs. Prem Singh 211 (2014) DLT 104 where I have on a conspectus of case law he....