1 2025:CGHC:1886 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 42 of 2015 • Smt. Parmila Bai W/o Late Premlal Aged About 45 Years, By occupation- Agriculturist R/o Village Karvaari, Tahsil Dongargarh, Distt. Rajnajdgaon, C.G. ... Appellant/Defendant. versus 1 - Vinod Kumar Kesri Aged About 35 Years S/o Ishwar Lal Kesri, Advocate and Sarpanch Gram Panchayat Karvaari, Tahsil Dongargarh, Distt.- Rajnandgaon, C.G.(plaintiff.) 2 - Premlal (Defendant )Died Thru-Lrs- a. Kanchan D/o Late Premlal Kore Aged About 34 Years. b.Ajay Kumar Kore S/o Late Premlal Kore Aged About 30 Years. Lrs. A and B are R/o Village Karvaari, Tahsil Dongargarh, Distt.- Rajnajdgaon, C.G. c.Smt. Sarsata @ Sarvaswati Aged About 28 Years R/o Near Tunnu Lal Hathi Mari Majar, Kalmana Nagpur, M.H. d. Vijay Kumar S/o Late Premlal Kore Aged About 22 Years R/o Village Karvaari, Tahsil Dongargarh, Disttt. Rajnandgaon, C.G. e.Smt. Sangita S/o Premlal Kore Aged About 20 Years R/o Village Girola, Pot And Than Salekasa, Maharashtra. AVINASH SHARMA Digitally signed by AVINASH SHARMA Date: 2025.01.15 16:50:04 +0530 2 f. Ku. Sunita D/o Premlal Kore Aged About 18 Years. g. Akshay Kumar S/o Premlal Kore Aged About 15 Years (now major aged about 22 years.) Lrs. f and g are R/o Village Karvaari, Tahsil Dongargarh, Distt. Rajnandgaon, C.G. 3 - Smt. Panchkala Bai W/o Jaikaran Mahar Aged About 33 Years, By occupation-Agriculturist R/o Village Karvaari, Tahsil Dongargarh, Distt. Rajnajdgaon, C.G. ... Respondent(s) For Appellant : Ms. Bhavika Kotecha appears on behalf of Shri Parag Kotecha, Advocate. For Respondent No.1 : Shri FS Khare, Advocate. For Respondent No.2 & 3 Shri Parth Shrivastava appears on behalf of Shri Anand Shukla, Advocates. Hon'ble Shri Justice Deepak Kumar Tiwari Judgment on Board 13/01/2025 1. This First Appeal has been preferred by the appellant/defendant against the judgment and decree dated 13.12.2014 passed by Additional District Judge, Link Court, Dongargarh, District Rajnandgaon Chhattisgarh in Civil Suit No.9-B/2007 whereby, suit preferred by Respondent No.1/plaintiff for malicious prosecution has been partly decreed against the appellant/defendant and damages to the tune of Rs.50,000/- has been awarded to plaintiff. 3 2. Necessary facts of the case are that appellant had lodged an FIR against Respondent No.1/plaintiff and two others namely Manik Mahar and Tulsiram stating that on 18.07.2001, at night around 09:30 hours, when she was alone in her home with two minor children, accused persons pushed the door and entered her house. Appellant asked the accused persons as to why they had entered her house. Appellant’s minor child namely Tetku, aged about 8 years, seeing the accused person started shouting, because of which, respondent/plaintiff and another accused namely Manik ran away and other accused namely Tulsiram committed rape with appellant. Based on such information, offence under Sections 376, 450/34 of Indian Penal Code was registered by Police Station, Dongargarh vide FIR No.170/01 against all three accused persons(Ex.P/10). After regular trial, Tulsiram was convicted for the offence under Sections 450, 376(2)(g) of IPC and other two accused namely Vinod Kumar/plaintiff and Manik have been acquitted of the aforesaid charge vide judgment dated 23.11.2002(Ex.P/1). Thereafter, respondent/plaintiff instituted a civil suit on 21.11.2003 and plaintiff(PW- 1) has examined himself along with Santosh(PW-2) and exhibited 23 documents i.e. (Ex.P/1 to Ex.P/23). Appellant has examined herself and Defendant No.3-Smt. Panchkala Bai as DW-2. 3. Learned trial Court after evaluating the evidence reached to the conclusion that there was enmity between complainant/appellant and respondent/plaintiff and allowed the suit filed by plaintiff for malicious prosecution and awarded damages to the tune of Rs.50,000/-. However, charges against other persons namely Premlal and Panchkala bai were not 4 established, therefore the same has been allowed partly only against the appellant. Hence this appeal. 4. Learned counsel for the appellant would submit that learned trial Court only on the basis of presumption decreed the suit against the appellant though reasonable cause lies with the complainant to lodge an FIR which was proved after investigation, hence charge-sheet was filed. 5. Learned counsel for the appellant would further submit that inspite of the fact that in regular trial due to certain omission and non-examination of the eye-witness/minor son of complainant, there was enmity and political differences though incident has been supported by DW-2, and the case has not been proved beyond reasonable doubt against the respondent/plaintiff, he has been acquitted. So only on the ground of acquittal, it could not be said that the launching of criminal prosecution was only due to malice and without any reasonable cause. Learned counsel for the appellant prays to allow the appeal and set aside the impugned judgment and decree. 6. On the other hand, learned counsel for Respondent No.1/plaintiff would support the impugned judgment and decree. 7. Learned counsel for legal representatives of Respondent No.2 (a to g) and for Respondent No.3 would submit that trial Court has exonerated Defendant No.2-Premlal. 8. Admittedly, appellant has lodged an FIR (Ex.P/10) against the plaintiff along with two other accused persons. In the said FIR, she only narrated the incident that the plaintiff on the date of incident came along with other two accused persons and that one of the accused persons Tulsiram committed rape with her. During trial, Tulsiram has been convicted and the plaintiff has been acquitted. 5 9. From perusal of judgment (Ex.P/1), it appears that taking into consideration the various aspects and principles of criminal trial it has been found that there was political difference and enmity between the parties. Further taking into consideration the improved and exaggerated version of the victim which was not supported by the other witnesses and an important eye witness/minor son of the victim has not been examined, the trial Court reached to the conclusion that, case against the Respondent No.1/plaintiff was not established and he has been acquitted of the charges. 10. It is well settled that enmity is a double-edged weapon. Considering the evidence led in the case, it could not be said that there was reasonable and probable cause and FIR has been lodged only due to malice. In the present case, criminal trial was ended in conviction of one of the accused persons. 11.It is well settled that 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 also well settled that every case has to be viewed or weighed otherwise in all those cases in which the prosecution fails, the complainant or the prosecutor would become liable for damages. When the matter ends in acquittal, a case is made out for malicious prosecution. In the matter of Major Gian Singh v. S.P. Batra, AIR 1973 Punjab and Haryana 400, the following was materially observed at page 406 of AIR:- “…….. 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 6 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 not have to be viewed or weighed as would be done by a Court of law, for otherwise in all those cases in which the prosecution fails the complainant or the prosecutor would become liable for damages…..” 12.Taking into consideration the aforesaid principles and the evidence on record, this Court is of the view that the trial Court only on the basis of presumption allowed the suit and passed a decree against the appellant for damages, which is not sustainable as the complainant has duly established that she had reasonable and probable cause for prosecuting the plaintiff. 13.Resultantly, this Appeal is allowed and the impugned judgment and decree dated 13.12.2014 is hereby set aside. 14.There shall be no order as to costs. 15.A decree be drawn accordingly. Sd/- (Deepak Kumar Tiwari) Judge Avinash