TaxTMI 
TaxTMI 
1972 (5) TMI 74
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....e 4th of March, 1960. Some more letters were also exchanged between Mr. Chona and the respondent. The respondent wrote to Messrs. P. L. Sahni and Co., Property Dealers, on March 16, 1960, wherein he stated, that he had paid a sum of Rs. 6,862.25 as the price of the plot, that the dealers commission would be 2 per cent. only, that the costs involved in registration and transfer of plot will be paid by the purchaser, and that- "In view of the time and the money involved in coming over to Chandigarh for the transaction it will be much appreciated that the transfer may be completed by the property dealers on my behalf on behalf on receipt of a letter of authority from me. He may kindly be requested to send me a pro forma to be filled up, and if necessary to be countersigned by a Magistrate." It was also mentioned that if these terms and conditions were acceptable to the dealers, the respondent would have no objection to release the plot at the quoted price of Rs. 7,500/-. Messrs. P. L. Sahni and Co., Property Dealers while answering the queries made by the respondent, mentioned as follows in their letter dated March 19, 1960:-- "(2) Since the site above said is not....
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....stless. He wrote to the Estate Officer. Chandigarh, that the respondent be debarred from selling the plot to anybody else. On August 3, 1960, the respondent wrote back to the Property Dealers and in this letter it was mentioned, inter alia as follows:-- 'With above background of not having received any correspondence, from your end, your letters seem to be rather impolite and unbecoming of a business concern of your standing. There has been no reluctance on my part to finalise the case while the deal had not been completed, some other party had independently offered me better price for the plot and since you were handling the deal the matter was referred for further consideration. In your opinion, as stated in your letter of July the 18th, it was not legally and morally right for me after having accepted the earnest money. The cheque, even today has not been encashed by me and as such, no liability accrues on me on this account. The non-encashment of the cheque would be evident to you from your bank account returns. As stated by Major Gian Singh, a copy of his letter enclosed by you, that he had deposited full price of the plot with you, was not duly notified to me." ....
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....his application, the affidavit sent by the respondent and an application signed by the appellant were also submitted to the Estate Officer. This affidavit and the application run as follows:-- "Affidavit of transfer. I, S. P. Batra, Resident Engineer D. V. C. Durgapur Thermal Power Station, Post Office Durgapur Steel Project, District Burdwan (West Bengal) do solemnly affirm that I want to transfer my title in the No. 57, Sector, 9-A, (R. P. No. 168), Chandigarh Capital, to Major Gian Singh son of Shri Kahan Singh of village and post office Dakha, District Ludhiana, and will have no claim over the site after its transfer. No Profiteering is involved in this transaction. I have not drawn any loan under any scheme sponsored by the Government. Dated the 16th August, 1960. (Sd-) S.P. Batra (S. P. Batra) Deponent." The application filed by the appellant runs as follows:-- "To The Estate Officer, Capital Project, Chandigarh. Sir, Application for the transfer of plot No. 57 street Sector 9-A, R. P. No. 168. It is submitted as under:-- That I have purchased the rights and title in the above cited plot from Shri S. P....
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....ty Dealers forwarded a cheque for Rs. 6828/- to the respondent along with their letter dated December 22, 1960. This cheque when presented for payment was returned unpaid to the respondent. The respondent then wrote to the Estate Officer, Chandigarh, requesting him either to refund the price of the plot or to direct the appellant to remit the same to him. The plot having been transferred as a consequence of the application purported to have been made by the respondent. the Estate Officer was naturally not in a position the accede to either of the requests made by the respondent in his letter D/- April 1, 1961. On June 15, 1961, the respondent preferred a complaint under Section 420/417/409, Indian Penal Code in the Court of Sub-Divisional-Magistrate Asansol against the appellant (described as respondent No. 1) and Shri B. S. Dhillon of Messrs P. L. Sahni Co., the property Dealers, (described as respondent No. 2). The relevant portions of this complaint run as follows:-- 2. That the accused No. 1 in collusion with the accused No. 2 approached the complainant for the sale of the aforesaid plot of land and the complainant agreed to transfer the land at a price of Rs.....
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....arh, on the allegations that in instituting the criminal complaint against him the respondent acted maliciously and without any reasonable or proper cause. The appellant had to incur expenses to the tune of Rs. 14,395/- for defending this criminal case. On account of loss of re-employment up to the age of 53 years he claimed damages to the extent of Rs. 75,000/- and for mental worries and physical inconvenience and loss of reputation a claim of Rs. 10,000/- was made. The appellant, however, scaled down his claim to Rs. 25,000/- in order to save court-fee. In the written statement, the respondent alleged that he was unaware of what transpired between the appellant and the Property between the appellant and the Property Dealers, Messrs P. L. Sahni & Co., nor did he know that the appellant and had paid any amount to them. It was further submitted that the affidavit of transfer dated August 16, 1960, only expressed the desire of the respondent to transfer the plot but it itself was not a document actually authorising the transfer of the plot to the appellant. The actual transfer of the plot t in the books of the Estate Officer, if any, was wrongful and unauthorized. The cheque sent by ....
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....nd in favour of the respondent. Regarding the quantum of damages the Court was of the view that the appellant vide his statement Dated March 26, 1965, restricted his claim only to the extent of Rs. 25,000/- and gave up balance claim of Rs. 74,395/-. From this, it was inferred that the appellant had reduced proportionately the amount of damages said to have been actually suffered under the three heads, namely, the expenses incurred by him for defending himself in the criminal case instituted at Asansol, the loss of earnings because of the appellant failing to get re-employed, and the damages on account of mental worries. In this manner, the amount of damages on account of mental worries and expenses incurred by the appellant on his defence were calculated at Rs. 6,150/- only. No damages for loss of re-employment were awarded because it was regarded to be an uncertain matter. The matter contained in Issue No. (5) was covered by Issue No. (4) and as such no separate finding was given upon it. Issue No. (6) was decided against the respondent and as a consequence of the decision given by the learned Trial Court on these issues the suit of the appellant was dismissed. 10. In appeal it....
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....d the Estate Office that the plot had actually been sold by him. (e) The application to the Estate Office to the effect that the respondent had sold the plot was made by one Shri Ahuja, who was an employee of the Property Dealers and who had not, in fact, been given any authority by the respondent to effect the transfer on his behalf. (f) The appellant in his application to the Estate Officer mentioned that he had paid the whole of the consideration money to the transfer. It was not made clear in the application that the consideration money had been paid to the Property Dealers as agents of the respondent. (g) The Estate Office, Chandigarh, did effect the transfer of the plot in favour of the appellant, who, in due course, apprised the respondent of this fact, and requested him to send the necessary documents, including the payment receipts. (h) The respondent of this stage treated the transfer as an accomplished fact and did not lodge any protest to the appellant as to how this transfer had been collected in his favour in the absence of any written authority given by him to Shri Ahuja, an employee of the Property Dealers. He merely requested the....
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....ondent has urged before us that the respondent, being as aggrieved person, had merely set the law in to motion by placing the facts before a competent Court. The Court itself forwarded the complaint to the Police for investigation. If, as a result of this investigation, the Police had actually arrested the appellant and put him for trial before a Court of law, the respondent could not be held liable for any damages. In short, it was submitted that the respondent could not be regarded as a prosecutor. We are unable to agree with the contention advanced by the learned counsel for the respondent. A defendant in a suit for prosecution can escape liability only if he places true and correct information before the Police or a Magistrate having jurisdiction to take cognizance of the offence charged against the plaintiff. Where a defendant conceals the material facts or distorts them to an unreasonable extent, he cannot be allowed to urge that he was not the prosecutor. In Balbhaddar Singh v. Badri Sah, AIR 1926 PC 46, it was observed as follows:-- "In any country where, as in India, prosecution is not private, an action for malicious prosecution in the most literal sense of the w....
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....im after completion of the sale. After the sale had been effected, the applicant in the latter never protested as to how the disputed plot came to be transferred in favour of the appellant. The dispute merely related to the payment or non-payment of money and no reasonable man could have come to the conclusion that the appellant ant had committed any fraud upon the respondent. We are, however, of the view that the findings arrived at by the learned Trial Court on this point are really unassailable. In a suit for malicious prosecution, the burden of proving that the proceedings were initiated without any reasonable and probable cause lies on the plaintiff who seeks damages. It is no doubt true that the acquittal of the plaintiff in the earlier proceedings may sometimes give rise to a presumption that there was no reasonable and probable cause for his prosecution, but this presumption is rebuttable. The defendant in such a suit has merely to prove that the facts and circumstances did exist which gave rise to a belief in his mind that the other party was guilty. These facts and circumstances do note have to be viewed or weighed as would be done by a Court of law, for otherwise in all ....
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.... 46 (supra), the privy Council observed as follows:-- "The question is not, "Did the plaintiff commit the offence' or did defendant invent the offence against plaintiff, the two queries exhausting the possibilities of the situation. The question is: Has plaintiff proved that defendant invented and instigated the whole proceedings for prosecution." The use of the phrase 'whole proceedings' in this passage is very significant. The Court has to reach the core of the matter and to see whether the substratum of the offence exists or not. The most important circumstances in this case were: firstly, that the property was transferred in favour of the appellant on the basis of an application which was neither signed by the respondent nor by his duly appointed attorney, and secondly that the appellant represented to the Estate Officer that the consideration money had been paid to the respondent. The appellant can also derive little benefit from the fact that when he informed the respondent about the completion of the transfer of the plot in his favour the respondent never raised any protest. The respondent was living at Asansol at the material time and probably he did....
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....ead evidence on a particular point, no presumption can be drawn in his favour. 17. The next argument advanced by the learned counsel that the respondent had utilized the facts constituting a civil action for making a criminal complaint against the appellant is also without any substance. In Ram Nath v. Bashir-ud-Din, AIR 1953 Punj 213, it has been held that if the defendant has a reasonable and probable cause for setting the criminal law in motion the mere fact that he might have pursued a civil remedy cannot render him liable for malicious prosecution. 18. The circumstance that the proceedings were instituted at Asansol instead of being instituted at Chandigarh also does not help the appellant. It is the admitted case of the parties that the negotiations regarding the sale of the plot were made with the respondent while he was posted at Asansol. The cheque in respect of the sale price was also sent to him and was dishonoured at Asansol. In K. Satwant Singh v. State of Punjab, AIR 1960 SC 266, it was held that whereas "the misrepresentation by the accused was at Simla and the consequence was at Lahore as the Government of Burma was induced by the misrepresentation to deliver ....