- (1.) THE plaintiff Nandlal filed a suit in the Court of Senior Civil Judge, Udaipur, in forma pauperis against (1) THE State of Rajasthan, (2) Shri Jainarain Vyas, its Ex-Chief Minister, and its two other Ex-Ministers (3) Shri Tikaram Paliwal and (4) Shri Ram Karan Joshi, for the recovery of Rs. 1, 25, 000/-, as genaral damages and Rs. 500/-, as special damages for malicious prosecution.
(2.) THE material facts of the plaintiffs case are that he was appointed as an Adviser to the former State of Rajasthan, with its capital at Udaipur, in August, 1948, on an honorarium of Rs. 1200/- p. m. , and an allowance of Rs. 30/-, per diem. THE plaintiff prepared several schemes for the development of agriculture, forest, industries, secondary education etc. His plan for the advancement of agriculture was approved by the then Government and steps were taken for its implementation. As his varied activities made him popular, some high officers of the State having become jealous wanted to get rid of him. Accordingly when he had gone on leave to Khamgaon (Bombay) on October 22, 1948, the Chief Secretary of the former State of Rajasthan intimated to him through a telegram on November 1, 1948, that his services were terminated. Despite such an intimation, he joined his duties on November 6, 1948 On November 17, 1948, Shri Sobhagmal Talesra, Acting Director of Agriculture, former State of Rajasthan, tried to assume charge of his, office, but on to the intervention of the States Ministry, Government of India, New Delhi, and the then Regional Commissioner, Mount Abu, attempts on the part of the Government officers to drive him out of the office were foiled. A notice was served on him by the Accountant General on December 30, 1948, alleging that he had withdrawn and utilised Government money to the tune of Rs. 4000/-, but he had failed to give account of Rs. 1283/4/3-, and that amounted to criminal offence on his part. THE plaintiff denied the charge, THEn the Chief Secretary sent an intimation to the Inspector General of Police on, January 24, 1949, stating that a sum of Rs 4000/-, remained outstanding as an advance against him and that as he failed to render accounts of a large portion of that amount, it was suspected that criminal breach of trust was committed. THE Chief Secretary, therefore, asked the Inspector General of Police, to launch legal proceedings against him. In March 1959, the State of former Rajasthan was merged into the greater Rajasthan, with its capital at Jaipur. THE plaintiff also shifted his office to Jaipur. On November 17, 1949, Shri Vishnudutt Sharma, Secretary Agriculture Department, gave him a notice that he had received Rs 500/- on September 6, 1948, in the capacity of Adviser, Agriculture Department, for travelling expenses, but no accounts thereof for over a year had been submitted nor had the money been refunded. That act of the plaintiff, therefore, amounted to criminal offence under sec. 409, I. P. G. THE plaintiff further alleged that he sent replies to the notices through the States Ministry, Government of India. On June 13, 1953, the plaintiff again received a letter from the Director of Agriculture, Rajasthan, Jaipur, that some amounts remained outstanding against him. THE plaintiff met the Director in his office at Jaipur on June 15, and 22, 1953. A written reply had been given to him that nothing was due from him and that if the papers of 1948 were made available to him, he could clarify the position. He on the other hand had overspent about Rs. 10,000/-, from his own pocket on behalf of the Govt. He explained the whole position to the defendants but none of them paid heed to him. On the contrary they were bent upon impairing his reputation. THE police wrongly got the plaintiff declared absconding. He was arrested suddenly on July 10, 1953, at Bassi, District Jaipur. THEre he was taken around the Bazzars and the streets for about 5 hours with, a view to lower down his status in the eyes of the general public, THEreafter he was put in the police lockup, where he was inhumanly,treated. THEre he also fell ill and was removed to the S. M. S. Hospital, Jaipur. THE Doctor advised at least 4 days' complete rest to him. THE police paid scant attention to it and he was taken to Udaipur and produced before the court of the City Magistrate. He was,sent to the judicial lock-up and on November 5, 1953, he was released cm bail. He was again arrested, but on an habeaus corpus petition filed by him in the High Court, he was ordered to be released. He was later prosecuted under sec. 409, I. P. C. , in the court of the City Magistrate, Udaipur, on the first information report No. 199, -dated April 13, 1949. He was discharged by the City Magistrate on October 21, 1954, as the charge levelled against him was malafide and baseless. THE Government then filed a revision-petition against the order of discharge in the court of the District Magistrate, Udaipur. That application was rejected by the said court on March 29, 1955. THE plaintiff claimed to be a fellow of the Banaras Hindu University. He further asserted that he had worked as Director, Agriculture Department, Central Provinces. He also claimed to be a research scholar in plant physiology and ecology. His further allegation was that before his arrest and detention in jail he was conducting research in synthesis of the respiratory water in the plant cells and submitted papers to the Indian Science Congress, held in January, 1953. Owing to his arrest and prosecution he could not complete his work, otherwise he expected to have won the Nobel Prize. THE plaintiff's case is that there was no reasonable and probable cause for his prosecution by the Defendants. His prosecution was motivated by malice on account of which he suffered great mental agony and loss -of reputation. He gave a notice to the defendants under sec. 80, Civil Procedure Code. THEreafter he filed the present suit claiming Rs. 1,25,000/- on account of general damages and Rs. 500/-, as special damage. THE plaintiff also claimed future interest at the rate of 6% per annum on the decretal amount. The suit was contested only by the defendant No. 1, i. e. the State of Rajasthan. Defendants Nos. 2, 3 and 4 did not put in appearance, notwithstanding notice having been served on them. Ex parte proceedings were accordingly ordered against them Defendant No. 1 in its written statement, dated November 4, 1958, traversed the plaintiff's main allegations. It was, however, admitted that the plaintiff was appointed temporarily as Adviser in connection with the compost work and agricultural development work. His services were terminated on November. 1, 1948 In spite of such termination, the plaintiff suffered from a delusion that he still continued to be in service and was not prepared to relinquish his office and defied the Government order to hand over charge. Charge was, however, secured on November 20, 1948, by breaking open the lock of his office room and taking possession of the cash and other articles, which were found therein The Accountant General discovered that out of Rs 4000/-, drawn by the plaintiff as advance, he failed to render accounts in respect of Rs. 1282/4/3. A notice was given to him that failure to submit accounts amounted to criminal breach of trust. He was, consequently, asked to render accounts of the said amounts or to refund the money. Despite such a correspondence, the plaintiff neither furnished accounts of the Government money received by him, nor did he make an attempt to explain how the money entrusted to him had been spent. The plaintiff always took a hostile attitude and it was very difficult to deal with him. It was under these circumstances, that 6n January 24, 1943, the Chief Secretary was constrained to intimate to the Inspector General of Police that as the plaintiff had not rendered any account for the money entrusted to him and as it was suspected that a criminal breach of trust had been committed by him, legal proceedings should be launched against him, if necessary. It was further alleged in the written statement that neither the Government, nor the Chief Secretary or any of the Government Officers or, other defendants bore any -ill-will or malice against the plaintiff. After a case under sec. 409, I. P. C. , was instituted in the court of the City Magistrate, Udaipur, the plaintiff evaded the service of the process. Thereupon, a proclamation under sec. 87; Cr. P. C. had to be issued, on June 11, 1953 by the Court. It was further averred in the written statement that all the proceedings were taken by the police or the Magistrate in the normal course of its or his duty for which the State could not be held liable. The defendant denied that the plaintiff suffered any mental agony or loss in reputation. The receipt and the validity of the notice under sec. 80, C. P. C, were also challenged. The suit was further contested on the ground of limitation. The trial court framed 7 issues on April 14, 1959. One more issue was added on the plaintiff's application on October 1959. In support of his case the plaintiff examined himself as P. W. 1 and a other witnesses. He produced 56 documents. The contesting defendant, i. e. , the State of Rajasthan, examined 7 witnesses and produced 26 documents in rebuttal. The trial court, by its judgment dated March 22, 1960, dismissed the plaintiff's suit with costs to the contesting defendant. Its main findings were: (i) That the suit having been filed after the decision of the revision application in the criminal case was within time; (ii) that the plaintiff gave a valid notice to the defendant State in accordance with the provisions of S. 80. C. P. C. (iii) that the plaintiff completely failed to prove that the defendants were real prosecutors and that the prosecution was started against him with malice and without any reasonable and probable cause. Aggrieved by the above judgment, the present appeal has been taken by the plaintiff Nandlal. He personally argued his case and raised a number of points. The first contention of the appellant is that the falsity of the allegations of the criminal breach of trust of Rs. 1283/4/3 was positively known to the defendant No. 1, through its concerned officers. On November 15, 1948, Narendra Singh Lodha, Office Superintendent attached to the plaintiff's office, soonafter the receipt of the last instalment of Rs. 1250/-, made report Ex. D. 10 to defendant No. 1, through its Chief Secretary, to the effect that after the submission of the accounts of the advances of Rs. 2750/, he had drawn a new advance of Rs. 1250/ -. out of which he had to pay Rs. 1000/-, for papers purchased for the office use. Besides, out of the amount. Rs. 25/, had been paid to the cashier for day today office expenses. In this manner, the accounts of Rs. 4000/-, entrusted to the agriculture section of the Adviser's office, were clear and complete to the knowledge of defendant No. 1 and yet it ordered his prosecution. That shows how his prosecution was malicious and was without reasonable and probable cause. In this connection, P. D. 1 Nandlal, plaintiff, has stated, in his statement recorded by the trial Judge, on July 13, 1956, that the Inspector General of Police had reported that the Government had already accepted the account for Rs 2716/-, and that a sum of Rs. 1000/-, had been paid by the clerk Suganchand to the Advani Company for purchasing papers and a sum of Rs. 250/-, had been spent on a party which was an excess expenditure. All the details worked out in the course of arguments by the plaintiff are not available in his above statement. Narendra Singh, P. W. 2, was put a pointed question on this aspect of the matter. His answer was the the Adviser had purchased paper from Bombay in November, 1948. I do not know whether I made any payment in that connection or not. Similarly Tej Singh, D. W. 4, a clerk in the office of the Adviser, was put a pointed question His reply was: From the 'udrat' account [advance money] the balance came to Rs. 1283/4/3/. This amount remained with the Adviser. This evidence, adduced before the Senior Civil Judge is not sufficient to establish that the accounts in respect of the amount of Rs. 4000/-, were clear or complete to the knowledge of the defendant and the defendant was aware of the falsity of the allegations of the criminal breach of trust. The plaintiff has referred to the judgment of the City Magistrate, Udaipur, dated, October 21, 1954 wherein certain comments on some documents were made. In a suit for the recovery of damages for malicious prosecution mere production of the judgment of a criminal court is not sufficient for the plaintiff to discharge the burden of proving malice and want of reasonable and probable cause. Criminal court may either acquit or discharge a person. There may not be sufficient ground for proceeding with a criminal case, for the evidence adduced by the prosecution might not have been relied upon for some reason or the other and yet the defendant might have good grounds for launching prosecution against the plaintiff. The fact that the prosecution ended in the discharge or acquittal of the accused does not necessarily warrant that the accusation made was baseless to the knowledge of the prosecutor: vide Rishab Kumar vs. K. G. Sharma (1 ). In a suit for malicious prosecution it is no part of the duty of the civil court to take into consideration all the documents submitted before the criminal court to offer comments on the dictum of the criminal court. Its function is to consider the evidence produced before it and then decide whether or not the plaintiff has succeeded in making out a case against the opposite party. In support of the above proposition, a reference may be made to a passage occurring in Wiffen V. Bailey and others (2 ). It runs as follows: - "i take it that this was a criminal prosecution, or a prosecution in a criminal matter, but that is not sufficient to support an action for malicious prosecution. " (Per Lord Phillimore) In Channappa vs. Sivarunrappa (3) it was laid down: - "but it is, however, clear that the grounds, on which the order of discharge or acquittal rested are irrelevant evidence. The civil court before which a suit is instituted for the recovery of compensation for malicious prosecution should independently record a finding whether the person prosecuted was or was not guilty of the offence with which he was charged and whether the prosecution was commenced without reasonable or probable cause. " In Nagendra Kumar Vs. Etwari Sahu (4) a Division Bench of the Patna High Court said: "the judgment of the Criminal Court is in no way binding upon the Civil Court in such a case, and, it cannot be pleaded as a bar to prevent the defendant from proving that the charge made by him against the plaintiff was in fact true, and, that on that ground the plaintiff's prosecution could not be considered to be malicious so as to entitle him to damages. Such a judgment is evidence and, a conclusive evidence merely to show the acquittal of the plaintiff as a fact in issue. " Likewise in Gobind Chandra vs. Upendra Padhi (5) Barman, J. , observed: - "a Civil Court has to go into the matter on the evidence adduced before it in the civil suit independently of the view expressed by the criminal court. " In this case the appellant wants us to rely upon certain documents, referred to by the criminal court in its judgment and reach the conclusion in his favour. But law does not permit us to do so. We, therefore, refuse to take into consideration the documents discussed in the judgment of the criminal court, as they do not form part of the record of the civil proceedings, For the foregoing reasons, we, in the absence of the convincing and credible evidence on the record, decline to hold that the plaintiff had already submitted clear and complete accounts and his prosecution was actuated by malice and without reasonable and probable cause. The plaintiff has placed great reliance upon the letter from the defendant No. 1 through its Agriculture Secretary in support of his case of malice and want of reasonable and probable cause. The letter referred to above reads as under: - "from your letter No. Q, 1 dated 15 11-48, addressed to the Chief Secretary, Rajasthan Government, it is found out that Rs. 125)/-, as temporary advance have been drawn from the State Treasury for expenditure You are hereby informed that this amount has been drawn irregularly and not a pie out of it be spent. You shall be personally responsible if this amount is spent, and you should report yourself to me as early as possible with the amount. You are to note that Shri Dr. Sharma's appointment as Agriculture Adviser no longer stands and therefore he is not entitled to act as the Agricultural Adviser. " The above letter shows that an amount of Rs. 1250-/, was irregularly drawn. Therefore, Narendra Singh, Office Superintendent, was directed not to spend the money, otherwise, he would be held personally responsible. The letter does not indicate that the amount in question had already been spent by Narendra Singh, for which he could be made personally liable The services of the plaintiff were terminated with effect from 1-11-1948, through a telegram. Thereafter the Secretary, Agriculture Department, with a view to safeguard the financial interest of the State intimated to the office Superintendent not to spend the money in question. That does not mean that the said amount remained with Narendra Singh and not with the plaintiff. Plaintiff's own witness Narendra Singh (P. W. . 2) has deposed that whatever money had been received from the accounts office it was kept with the Adviser. The amount for meeting expenses was drawn with the permission of the Adviser. Similar is the testimony of the clerk of the office of the Adviser, Tej Singh (D W. 4 ). That being the position, letter of the Secretary Agriculture Department, dated November 16, 1948, does not absolve the plaintiff from rendering accounts. Besides what has been said above, no direct plea on the point raised was taken by the plaintiff in his plaint, nor was any specific issue framed thereon. The decision of a case cannot be based on a ground outside the pleadings of the parties and it is the case pleaded that has to be looked into: Vide Trojan and Co. , vs. Negappa 6 ). In M. M. B. Catholics vs. T. Paulo Avira (7), it has been observed: "it was now impossible to permit the plaintiff respondent to go outside the pleadings and set up a new case. . . . . . " Thus, the plea raised by the appellant that the letter from the Agriculture Secretary threw the whole burden on Narendra Singh for rendering accounts is not tenable,
(3.) NEXT point urged by the appellant is that there was no material before defendant No. 1, on the basis of which he could have been prosecuted and, therefore, it should be inferred that his prosecution was based on indirect or improper motive. It is on the record that the services of the plaintiff were terminated through defendant No. l's telegram, dated November 1, 1948. Nonetheless he refused to hand over charge upto November 16, 1948. Shri Sobhagmal Talesara, Acting Director of Agriculture, had received from the Agriculture Secretary a letter Ex. A. 18, dated November 17, 1948, directing him to assume charge from the plaintiff. Shri Talesara addressed to the plaintiff a letter dated November 19, 1948 (Ex. A26), requesting him to hand over charge, but he did not do so. The Agriculture Secretary sent another message to Shri Talesara on November 18. 1948 (Ex. A. 27), asking him to takeover charge of the Adviser's Office by breaking open its lock. In compliance with that order, Shri Talesara got the office lock broken through police in the presence of respectable persons. He took over possession of cash amounting to Rs. 221/8/6, along with other articles under memo Ex. A. 28. Later oh, Bakhtawarmal, Audit Inspector, attached to the office of the Accountant General, inspected the plaintiff's account. He made a report Ex. A. 7, dated November 24, 1948, in which he mentioned that the plaintiff had received from the Government the following amounts: 1. Rs. 500/-, on 7 9-48 2. Rs. 1250/-, on 16 8-48 3. Rs. 1000/-, on 22-10-48 4. Rs. 1250/-, on 15-11-48 Rs. 4000/-, Of the above amounts, Rs. 1716/11/9 had been accounted for. No account had been submitted in respect of Rs. 1283/4/3/ -. Entries in the cash book Ex. A. 8 pertain to the accounts in dispute. They are in the handwriting of Tej Singh D. W. 4. They bear the signatures both of Tej Singh, D. W. 4 Narendra Singh, P. W. 2. The entries relate to the period from 7-3-48 to 16-11-48. Tej Singh, D. W. 4, says that Rs. 1283/4/3 remained with the Adviser. He further says that the money used to be given to the Adviser for safe custody and that he used to deposit the amount in the Bharat Bank, Udaipur, in his personal account. This fact is corroborated by the entry in the last column of page No. 1 of the cash book. Plaintiff's own witness, Narendra Singh P. W. 2, deposed that whenever he got any money from the government, he handed it over to the Adviser Nandlal. All these amounts entered in the cash-book of the Adviser's office. The money was kept with the Adviser and the amount for expenditure was taken with the permission of the Adviser. Several persons worked on the post of clerk, one of whom was Vijai Kumar. It is borne out from the record that the plaintiff' had received certain amounts from the Government and that he deposited the same in his personal bank account with the Bharat Bank, Udaipur. The personal account is marked Ex. A, 1, which has been admitted by the plaintiff. The plaintiff received Rs, 500/-, from the Government through one Himmat Ram on 6th September, 1948 : vide Ex. 6. The same amount was deposited in the Bharat Bank account of the plaintiff vide Ex. A. l on 7-9-1948. Rs. 1250/ -. , were received from the Government Treasury on 16-9-1948, through Narendra Singh Lodha. Rs. 1225/-, were deposited in the Bharat Bank account on 16-9-1948. The plaintiff admits that Rs. 200/-, were given to one Vijai Kumar, a clerk of his office on 30-9-1938. It is noted at item No. 2 of Ex. A. l. The plaintiff also admits that Rs. 500/-, and Rs. 600/ , were given to Narendra Singh Lodha on September 20 and October 4, 1948, respectively, though he conveniently gave an evasive reply that he does not remember whether or not these amounts were really utilised for Government work. There is another entry of Rs. 1225/-, in Ex. A. 1 made on September 16, 1948. The plaintiff says that this amount was brought by Sugan Chand, an employee in the Research Department from his house at Khamgaon. He has not produced Suganchand into the witness box. He has, however, produced P. 5 Ramchander, who has stated that he used to visit Khamgaon in connection with cotton seed business. His friend Suganchand was also with him. Plaintiff Nandlal's father had sent Rs. 1500/-, with him and this amount was handed over to the plaintiff. Nandlal gave this amount to the witness for depositing it with the Bank and that he did so. In the cross-examination the witness has stated that Khamgon is in Rajasthan. He does not know the name of the railway station situate just before Khamgaon. He further says that Suganchand was plaintiff's servant at Khamgaon. The cross-examination shatters the testimony of this witness. No documentary evidence is forthcoming to show whether the plaintiff actually received some money from his house at Khamgaon and the same was deposited in the Bank. From the above evidence it is plain that amounts which were entrusted to the plaintiff by the Government were deposited by him either in full or in part in his personal bank account Ex. A. 1 with the Bharat Bank, Udaipur. This fact is supported from the testimony of Tej Singh, D. W. 4, and Narendra, P. W. 2 and the documents referred to above. The accounts further reweal that some amounts had been drawn by the clerks of the Adviser's office for official use. On receipt of the Audit Inspector's report, the Accountant General moved the Chief Secretery (Ex A. 7 (2), inviting his attention to the misappropriation of the amount of Rs. 1,283/4/3 by the plaintiff and requesting him to take necessary action in the matter. In the meantime the Chief Secretary addressed a letter on November 22, 1948 (Ex. A 3) to the plaintiff asking him to submit the accounts as he had already been relieved of his office. Ex. A. 5, dated December 28, 1948, is another letter from the Chief Secretary to the plaintiff. It is based upon the Accountant General's letter, dated November 24, 1948. In that communication the plaintiff Nandlal was told by the Chief Secretary that he had not submitted accounts for Rs. 1283/4/3 and that if he failed to do so, he was liable for prosecution. He was further directed that his explanation should be submitted by December 31, 1948. Ex. A, 6, dated December 30, 1948, is the reply sent by the plaintiff to the Chief Secretary. In that reply the plaintiff stated that he had forwarded his reply to the States Ministry, Government of India, through the Regional Commissioner, Abu, and that the addressee could approach the authorities concerned and obtain a copy of his explanation. The Accountant General also wrote a letter (Ex. A. 4) to the plaintiff on January 4, 1949, asking him to render accounts. It appears that no reply to this communication was sent by the plaintiff to the Accountant General. Eventually the Chief Secretary wrote a letter to the Inspector General of Police on January 24 1949 (Ex. A. 10 ). The letter of the Chief Secretary is reproduced below - "as you probably know Dr. Nandlal Sharma had been appointed as an Honorary Adviser to the Government of the United State of Rajasthan for compost making and other agricultural developments. His services were dispensed with by the Government on the 1st of November, 1948, and he was consequently asked to hand over charge. The Accountant General's report is that a sum of nearly Rs. 4000/-, (Rs. four thousand) is outstanding as an advance against him and he has failed to account for a large portion of it in spite of repeated demands. "it is suspected that a criminal breach of trust has been committed in respect of the amount that remains unaccounted for. It is learnt that some amount which might also include Government money has been deposited by him in his current personal account at the local branch of the Bharat Bank Ltd. , and that he is taking steps to transfer this amount to his home Bank at Khamgano. I am, therefore, to request you to start legal proceedings forthwith to get the case fully investigated and put the matter in court if an offence is made out against the said Dr. Nandlal Sharma. Copies of the reports of the Accountant General are forwarded herewith for your information. " The contents of the above letter show that the Chief Secretary simply asked the Inspector General of Police to get the case fully investigated and put the matter before the court, if an offence was really made out against Dr. Nandlal. ;