Barasha Borah Bordoloi vs Diganta Borah

Heard Mr. J. I. Borbhuiya, the learned counsel for the appellant. Also heard Mr. B. Dutta, the learned senior counsel assisted by Mr. S. Deka, the learned counsel for the respondent.

This appeal under Section 96 of the Code of Civil Procedure, 1908 has been preferred by the appellant, Smt. Barasha Borah Bordoloi, challenging the judgment and decree dated 29.02.2024 passed by the Court of learned Civil Judge (Senior Division), Dibrugarh in Title Suit No. 70/2015, whereby the said suit filed by the present appellant was dismissed on contest.

The facts relevant for consideration of the instant appeal, in brief, are that the present appellant had filed a suit against the present respondent before the Court of learned Civil Judge, Dibrugarh claiming special and exemplary damages to the tune of Rs. 5,25,00,000/- (Rupees Five Crores Twenty-Five Lakhs only) from the present respondent for loss sustained by the appellant. The said suit was registered as Title Suit No. 70/2015 before the Court of learned Civil Judge, Dibrugarh.

In the plaint filed by the present appellant before the Trial Court, it was contended that the present appellant was employed as the Deputy Superintendent of Excise in the Department of Excise, Government of Assam at Gohpur, whereas, the respondent was posted as the Superintendent of Police, Dhubri.

It was averred in the plaint that the present appellant came to know the respondent for the first time in the year 2008 when the respondent was posted as Additional Superintendent of Police (HQ) at Dibrugarh and the appellant was posted as Inspector of Excise at Dibrugarh. Thereafter, both of them were transferred to Tinsukia District, and in the course of time, the relationship between them became friendly and cordial.

It was stated in the plaint by the present appellant that on 27.03.2009, the respondent, taking advantage of the cordial relationship between them, asked the appellant to come to Tinsukia Police Guest House, and when she went there, he forcefully outraged her modesty. It was further stated in the plaint that later on, on 10.05.2009, the respondent again, taking advantage of the fact that the appellant was alone at her home at Dibrugarh, forcefully established physical relationship with her.

It is further averred that though the appellant contemplated of lodging a complaint against the respondent before the authorities, however, the respondent, by playing with her emotions, convinced her not to do so, put her under constant fear, and by playing with her emotions, continued to have physical relationship with her.

It is further contended in the plaint that such state of affairs continued till the appellant could no longer bear the physical and mental exploitation by the present respondent upon her, and as such, she told her husband about the entire facts. It is contended that her husband suggested her either to take recourse of law against the present respondent or he would himself take such recourse. Situated thus, the appellant tried to sort out the matter amicably. However, the present respondent rather threatened her that he would falsely implicate her and her family members in various criminal cases if she approaches any higher authority.

Under the aforesaid circumstances, the appellant approached the Inspector General of Police of Eastern Range, namely, Dr. L. R. Bishnoi, informing him about the incident. However, no action was taken on her complaint, and the respondent was transferred to Karimganj district as the Superintendent of Police of that district. Thereafter, the appellant lodged a formal complaint against the present respondent on 19.05.2011 before the Director General of Police, Assam, alleging mental and physical exploitation of the appellant by the present respondent.

The filing of formal complaint by the present appellant alarmed the respondent, and as such, he lodged a false and frivolous complaint against the appellant on 30.08.2011 before the Officer-in-Charge of Karimganj Police Station. It is pertinent to mention herein that being Superintendent of Police of the said district, the said police station was under his direct superintendence and control.

In the First Information Report filed by the present respondent, it was alleged that the present appellant along with her husband, Shri Dharani Bordoloi, and one Deepanjali Dutta, advocate of Dibrugarh Bar Association, and Smt. Upasana Gogoi, have entered into a criminal conspiracy to extort money from the present respondent by putting him and his family in the fear of injury to their reputation. On the basis of the said first information report, the Officer-in-Charge of Karimganj Police Station registered Karimganj P.S. Case No. 483/2011 under Section 120B/384/385/389/353 of the Indian Penal Code read with Section 66A of the Information Technology Act, 2008.

It is also alleged in the plaint that though the police station case was registered on the basis of the FIR lodged by the present respondent, however, no action was taken on the complaint filed by the appellant before the Director General of Police against the present respondent, in spite of serious allegations made therein against the present respondent.

It is further contended in the plaint that only after the media took up the cause of the present appellant, the complaint filed by her before the Director General of Police was registered as CID Case No. 95/2011 under Section 341/354/506 of the Indian Penal Code, after a lapse of about 5 months from the date of filing of the complaint by her.

It is further contended in the plaint that on filing of the FIR by the present respondent against her, the police party from Karimganj police Station came to the residence of the appellant at Dibrugarh in early hours on 29.10.2011 and made certain search without disclosing anything and seized three numbers of Nokia Mobile sets along with Sim cards, an I-pad and a laptop, about which there was no complain in the FIR and issued a copy of the seizure list to the appellant. It is contended in the plaint that when the said search was made by Karimganj police, the respondent was the Superintendent of Police of the Karimganj district, and it was at his behest that the appellant was harassed by searching her house by the officials of Karimganj Police Station. Thereafter, the appellant moved Gauhati High Court seeking bail in the said case, which was granted to her.

Thereafter, the appellant approached this Court by filing a writ petition seeking transfer of the investigation of Karimganj P.S. Case No. 483/2011 to some other independent investigating agency. The said writ petition was registered as W.P.(C) No 931/2012. The appellant and her husband also preferred a criminal petition for quashing of the first information report dated 30.08.2011 filed by the respondent. The said criminal petition was registered as Criminal Petition No. 554/2011. This Court by order dated 26.06.2012, dismissed the said criminal petition. However, a direction was issued to the Inspector General of Police (Prosecution) to ensure a fair and impartial investigation by the CID in both the cases.

Being aggrieved by the judgment dated 26.06.2012 passed in the aforementioned criminal petition, the present appellant preferred a Special Leave Petition before the Supreme Court of India, under Article 136 of the Constitution of India. The Apex Court, by its order dated 30.09.2013, directed that in both the cases, that is one filed by the appellant and another filed by the respondent, the investigation should be carried out by one officer, who should be of a rank higher than that of the respondent. The SLP filed by the present appellant was disposed of by the Apex Court on 27.10.2014 after taking note that in both the cases, the final report was submitted by the investigating agency, giving liberty to both the parties to raise objection as regards the final reports in accordance with the provisions of the Code of Criminal Procedure, 1973.

The appellant, after coming to know about the final report given in respect of CID P. S. Case No. 95/2011 (which was registered on the basis of complaint filed by the present appellant), had filed objection before the Court of learned Chief Judicial Magistrate, Kamrup (M), and same is still pending before the Court. Whereas, in Karimganj P.S. Case No. 483/2011, though the present respondent filed his objections, same were rejected by the Court of learned Chief Judicial Magistrate, Karimganj by its order dated 15.05.2015, and the final report submitted by the Investigating Officer was accepted.

The present appellant has further contended in her plaint before the Trial Court that the FIR dated 30.08.2011 was lodged by the present respondent against her in order to wreak vengeance against her for filing complaint dated 19.05.2011 before the Director General of Police, Assam. It was further contended that the allegation of extortion made by the present respondent against the present appellant was found to be completely false.

It was further alleged that the present respondent, by misusing his official position, sent a police party from Karimganj to Dibrugarh for making search in the house of the present appellant on the basis of a false FIR dated 30.08.2011, and same has caused immense damage to reputation of the appellant and her family members.

It was further contended that the false criminal charges made by the respondent against the present appellant has led to loss of her reputation and dignity at her workplace and the appellant, till acceptance of final report in Karimganj P.S. Case No. 483/2011, had to live a life full of shame and humiliation, and same has caused unbearable trauma to the appellant. It is also alleged that the appellant suffered due to the fact that she was emotionally and physically exploited, and thereafter humiliated by initiating a false and malicious prosecution.

The present respondent had contested the Title Suit No. 70/2015 by filing written statement. In his written statement apart from taking usual defence of lack of maintainability and absence of cause of action for suit, he pleaded complete denial of allegations made by the present appellant in her plaint, he denied the allegation of outraging the modesty of the appellant by him, as well as the allegation of forceful establishment of physical relationship by him with the appellant.

It is also pleaded in the written statement that the present appellant used to disturb the respondent by calling on his mobile phone and by sending text messages every now and then. It is also stated in the written statement that in order to achieve her goal, she hatched a conspiracy in association with her husband and one Deepanjali Dutta and one Upasana Gogoi by pressurizing the respondent to come to an amicable settlement.

It is also stated in the written statement that the appellant, along with her associates, started blackmailing the respondent by threatening him to disclose publicly by fabricated and manufactured messages, and, as such, the respondent was left with no other option but to lodge an FIR in the Karimganj Police Station.

It was also contended that the search made by the Karimganj Police Station in Karimganj P. S. Case No. 483/2011 was never declared as unauthorized or illegal by any court of law. Rather, in the Writ Petition No. 931/2012, which was filed by the appellant, the High Court did not grant the relief which was sought for by the present appellant.

It is also stated in the written statement that the protest petition filed by the appellant in CID P.S. Case No. 95/2011 was rejected by the Court of learned Chief Judicial Magistrate, Kamrup (Metro) by its order dated 11.12.2012, and the final report, which was submitted in the said case, was accepted.

The respondent in his written statement has categorically denied that he had maliciously tarnished the reputation, goodwill, and image of the present appellant, by filing a false and frivolous complaint. Rather, it is alleged that the acts and the conduct of the present appellant has damaged the reputation of the respondent.

On the basis of the pleadings of the parties, the Trial Court has framed the following issues:

In support of her case, the present appellant adduced the evidence of four numbers of witnesses, including herself, and exhibited 17 documents. On the other hand, the present respondent did not adduce any evidence to counter the case of the plaintiff. Ultimately, by judgment and decree dated 29.02.2024 passed in Title Suit No. 70/2015, the Trial Court had dismissed the suit filed by the present appellant.

Mr. J. I. Borbhuiya, the learned counsel for the appellant has submitted that the Trial Court had erred in dismissing the suit filed by the present appellant without taking into consideration the fact that the witnesses for the plaintiff side have established that the FIR by the present respondent in Karimganj P. S. Case No. 483/2011 was filed with a mala-fide intention and with an improper motive to harass the appellant in order to wreak vengeance against her.

He further submits that the trial court failed to take into consideration that the FIR lodged by the present respondent in Karimganj P. S. Case No. 483/2011 was in fact a counterblast against the complaint lodged by the present appellant before the Director General of Police on 19.05.2011.

The learned counsel for the appellant further submits that the Trial Court has erred in not framing a specific issue as to whether due to filing of a false and frivolous FIR against the present appellant by the respondent, the present appellant had to suffer immense trauma and damage to her reputation. He submits that the Trial Court only considered the aspect as to whether the present respondent subjected the appellant to malicious prosecution, that too erroneously.

The learned counsel for the appellant further submits that the Trial Court has failed to take into consideration that by filing the FIR on 30.08.2011, without any reasonable cause, the respondent wrongfully set the machinery of the criminal law into motion causing injuries to the appellant. He submits that to maintain a suit for damages for malicious prosecution, it is not at all necessary that the criminal process initiated by the defendants should have reached a stage where a plaintiff might have formally prosecuted and then acquitted. He submits that the prosecution and the acquittal in strict legal sense are not the condition required for maintaining a suit for malicious prosecution. He submits that what is required is that the criminal law was set in motion against the plaintiff, and she suffered damages due to the initiation of the criminal law and ultimately that process of criminal law ended in favour of the plaintiff. In support of his submission the learned counsel for the appellant has cited a ruling of the Punjab and Haryana High Court in the case of “Roop Singh and Another Vs. Amarjeet Singh and Other” reported in (2017) 4 ICC 516.

The learned counsel for the appellant submits that in the final report which was submitted in Karimganj P. S. Case No. 483/2011 by the Investigating Officer, it is apparent that no evidence was found against the present appellant to implicate her under Sections 120B/384/385/389/353 of the Indian Penal Code read with Section 66A of the Information Technology Act, 2008. He submits that the Trial Court failed to take into consideration this aspect as well as the fact that the Criminal Law was maliciously set into motion against the present appellant by the respondent causing trauma and harm to reputation of the appellant which justifies payment of due compensation to the present appellant by the respondent. The learned counsel for the appellant, therefore, prays for setting aside the impugned judgment and decree by reversing the same and directing the respondent to pay the compensation as sought for by the appellant for damages sustained by the appellant.

On the other hand, Mr. B. Dutta, the learned senior counsel for the respondent has submitted that the facts involved in the instant case portrays a story of love, betrayal and frustration. He submits that the Trial Court has correctly dismissed the suit after considering the materials on record including the evidence led by the plaintiff’s side in the Title Suit No. 70/2015.

He submits that the Title Suit No. 70/2015 was mainly filed by the present appellant seeking compensation on account of defamation of the appellant due to alleged malicious prosecution by the present respondent. He submits that the Trial Court has rightly framed issue No. 3 in the aforesaid suit on the basis of pleading of both the parties. He submits that the said issue takes cares of the contention regarding damage to the reputation of the plaintiff as well as the question regarding malicious prosecution.

The learned senior counsel for the respondent has submitted that during cross examination of the PW-1, she has admitted that she sent one Dipanjali Dutta, Advocate to the defendant in the month of August 2010 to talk to him regarding the issues between the parties. He further submits that the appellant has also admitted that she wrote two letters to the mother of the present respondent in the year 2012 asking her to search out the ways to settle the matter amicably outside the Court by playing a neutral role. He submits that the final report which was exhibited as Exhibit-13 in the above-mentioned title suit, it is clearly mentioned that the complainant (i.e., the present appellant) made all possible attempts to restore their earlier relationships. The learned senior counsel submits that, however, when her attempts yielded no results, she filed the above-mentioned title suit without any basis for the same. The learned senior counsel for the respondent has also submitted that during her cross-examination, as PW-1, on 18.09.2018, the appellant also deposed that she has filed the suit both for getting compensation as well as for settling the issues between her and the defendant.

The learned senior counsel for the respondent has further submitted that the Trial Court rightly dismissed the suit after taking into consideration that the plaintiff (present appellant) failed to establish as to before whom she was defamed as none has adduced evidence regarding this aspect apart from the PW-1 herself. The learned senior counsel for the appellant also submits that the appellant has not even prayed for any relief, in her plaint, for a declaration to the effect that the respondent has maliciously prosecuted her the lodging the FIR dated 30.08.2011 before the Karimganj Police Station. He further submits that no declaration was sought for to the effect that the allegations made in the FIR dated 30.08.2011 are false, baseless, fabricated, concocted, malicious and defamatory. He submits that under such circumstances the suit for damages filed by the appellant is not maintainable and the Trial Court has committed no wrong by dismissing the same.

The learned senior counsel for the respondent further submits that for maintaining a suit for malicious prosecution, it is necessary for the plaintiff to be prosecuted before a Court of law. However, he submits that in the instant case, as final report has been submitted in Karimganj P. S. Case No. 483/2011, no formal prosecution of the appellant was initiated before a criminal court, hence, no case has been made out by the appellant against the present respondent for malicious prosecution.

The learned senior counsel for the respondent further submits that it is evident from the materials on record that most of the telephonic communication as well as SMS between the present appellant and respondent were made at the behest of the present appellant and when the respondent declined to receive phone calls or reply to SMS, the appellant made several attempts to restore her relationship with the present respondent. He submits that the search at the residence of the appellant by police of Karimganj Police Station in connection with Karimganj P. S. Case No. 483/2011 was in accordance with procedure for investigation mandated by law and the appellant failed to show that it was abuse of authority by the present respondent.

The learned senior counsel for the respondent further submits that out of the four plaintiff’s witnesses examined by the present appellant in the aforesaid suit, except the plaintiff herself none of the witnesses deposed that he had formed an adverse opinion about the reputation of the appellant on the basis of any action taken with regard to lodging of FIR dated 30.08.2011 or investigation carried out in connection with Karimganj P. S. Case No. 483/2011. He submits that the Trial Court has correctly dismissed the suit as there is no credible evidence except that of the PW-1 to show that the reputation of the appellant has been dented in any manner.

He submits that in paragraph No. 10.35 to paragraph No. 10.39 of the impugned judgment the Trial Court has rightly discussed the evidence adduced by the plaintiff to come to the conclusion that the present appellant has failed to establish that her reputation has been lowered in the estimation of others. Hence, he submits that there is no infirmity or irregularity committed by the Trial Court in dismissing the Title Suit No. 70/2015 justifying any interference by this Court. Hence, he submits that this appeal is liable to be dismissed.

I have considered the submission made by the learned counsel for both sides and have gone through the materials on record. I have also gone through the rulings cited by the learned counsel for both sides in support of their respective submissions.

On perusal of the plaint filed by the present appellant in Title Suit No. 70/2015, it appears that the present appellant was aggrieved mainly with the action of the respondent in filing the FIR on 30.08.2011, on the basis of which the Karimganj P.S. Case No. 483/2011 was registered. Her main contention in the plaint was that the respondent set the machinery of criminal law in motion on totally false and frivolous grounds, which has caused trauma and humiliation to the appellant, and which has also maligned the image, reputation, goodwill, and dignity of the appellant. However, it appears that in the prayer portion of the plaint, the present appellant had only prayed for a decree of damages against the respondent to the tune of Rs. 5,25,00,000/- (Rupees Five Crores Twenty-Five Lakhs only) without seeking any declaration that the respondent has maliciously prosecuted her or that the acts of the respondent have defamed her or maligned her reputation or that it caused trauma to her in any manner.

It also appears that though a decree of damages to the extent of Rs. 5,25,00,000/- (Rupees Five Crores Twenty-Five Lakhs only) was sought for, however, no justification has been given in the plaint as to on what basis the quantum of compensation sought for has been computed in the plaint so as to arrive at the figure of Rs. 5,25,00,000/- (Rupees Five Crores Twenty-Five Lakhs only).

Be that as it may, this Court is of considered opinion that by framing Issue No. 3, the Trial Court has taken into consideration the crux of the dispute between the parties as to whether the defendant had maliciously prosecuted the plaintiff by instituting Karimganj P.S. Case No. 483/2011, causing any damage to her reputation. This Court is of considered opinion that since the basis of the alleged trauma suffered by the appellant is the alleged malicious prosecution by the respondent in lodging the FIR on 30.08.2011, which led to the registration of Karimganj P.S. Case No. 483/2011, as well as the alleged loss to her reputation due to the action of the respondent, the Issue No. 3 framed by the Trial Court takes care of the same. As such, the Trial Court may not be faulted with in not framing a separate issue regarding the plea raised by the appellant about her defamation or maligning of reputation by the acts of the respondent and consequent trauma suffered by her for such acts.

This Court agrees with the submissions made by the learned counsel for the appellant that the foundation of law for action for malicious prosecution lies in the abuse of the process of court by wrongfully setting the law in motion by the defendant. It is also in agreement with the proposition that it is not at all necessary to maintain a suit for damages of malicious prosecution that the criminal process initiated by the defendant should have reached a stage where the plaintiff might have been formally prosecuted and then acquitted. It is of the view that what is required is that criminal law was set in motion with mala fide intention against the plaintiff and she suffered damages due to initiation of criminal law, and ultimately the process ended in favor of the plaintiff.

However, it is for the plaintiff to prove by adducing reliable and cogent evidence that she suffered injury in the form of loss of reputation, as well as that the respondent with mala fide intention had lodged the FIR on 30.08.2011, on the basis of which Karimganj P.S. Case No. 483/2011 was registered. It is for the plaintiff to prove that the FIR dated 30.08.2011 was lodged by the present respondent without any reasonable or probable cause, and that it was lodged with malicious intentions.

On perusal of the FIR lodged by the respondent on 30.08.2011, on the basis of which Karimganj P.S. Case No. 483/2011 was registered, it appears that basically the respondent has alleged therein that the appellant was trying to contact him over mobile phone and was sending several SMS to him in order to persuade him to accede to the unethical, immoral, and illegal demand made by the appellant.

It appears from the materials on record that there was some sort of relationship between the appellant and the respondent, however, some misunderstanding arose between them, and the respondent started avoiding the appellant, and the appellant was trying to settle the matter amicably, which yielded no results. Ultimately, the matter aggravated and it led to the filing of complaints against each other. It also appears that on the basis of the complaints of both the parties separate police cases were registered. The CID P. S. Case No. 95/2011 was registered on the basis of complaint filed by the present appellant against the present respondent and the Karimganj P. S. Case No. 483/2011 was registered on the basis of FIR lodged by the present respondent against the present appellant. The matter even reached the Supreme Court of India and as per direction of the Apex Court, both the cases were investigated by a common Investigating Officer, who was in the rank of Inspector General of Police. However, in both the cases, final reports were submitted by the Investigating Officer and in spite of filing of objections by both the parties in respective cases, the final reports were accepted by the respective Courts and the matters was closed.

In the Title Suit No. 70/2015 filed by the present appellant, though, the PW-1 has deposed that the filing of the First Information Report by the present respondent against her and her husband has destroyed her reputation in the eye of public as well as the society where she lives in. However, no witness from the said society has been examined to corroborate the testimony of PW-1, and this aspect has been taken into consideration by the trial court while not relying on the testimony of PW-1.

The trial court in paragraph number 10.39 of the impugned judgment has observed that in order to succeed in a case of defamation, the plaintiff had to adduce at least one witness who have formed such an opinion regarding the lowering of the prestige, goodwill, respect of the plaintiff in his or her estimation or the estimation of the society. However, in the instant case, no such independent witness could be examined by the plaintiff who has deposed regarding lowering of her reputation due to the acts of the present respondent. As such, the findings arrived at by the trial court in the impugned judgment that the plaintiff/present appellant failed to establish that her reputation was maligned due to lodging of FIR by the present respondent may not be faulted with.

Moreover, the evidence on record also suggests that once when the respondent stopped to communicate with the appellant, she continued to send SMS from her mobile phone as well as other mobile phone and made all attempts to amicably settle the matter between them. The Investigating Officer who was investigating both the cases filed by the parties hereto against each other also came to a finding that the relationship between the appellant and respondent was not merely an acquaintance or friendship, and it was more than that. Under such circumstances, when the appellant tried to continue to contact the respondent in spite of the fact that he was avoiding her and also tried to contact him through other persons, it may not be said that the lodging of the FIR dated 30.08.2011 by the respondent is without any reasonable or probable cause.

Under such circumstances, the finding arrived at by the Trial Court that the present appellant, as plaintiff, in Title Suit No. 70/2015 has failed to establish that the defendant lodged the FIR dated 30.08.2011 against her with mala fide intention and thereby her reputation was harmed cannot be faulted with on any count.

The search and seizure procedure conducted during investigation of Karimganj P. S. Case No. 483/2011 may also not be faulted with as same was done in accordance with the provisions of the procedure laid down by law for conduct of investigation. No evidence to show that any excess was committed during such search and seizure procedure has been adduced by the plaintiff's side before the Trial Court and as stated earlier, there is no evidence of independent witnesses to indicate that due to such search and seizure procedure conducted at the Dibrugarh residence of the appellant, her reputation was lowered in the estimation of public or her society.

As such, the findings arrived at by the Trial Court against Issue No.3 framed by it and all other issues may not be faulted with, and this Court, therefore, sees no ground to interfere with such findings.

In view of the discussions made and reasons cited in the foregoing paragraphs, this Court does not find any reason to interfere with the impugned judgment of the Trial Court.

This appeal is, therefore, dismissed.

However, considering the facts and circumstances of this case, the parties are left to bear their own costs.

The Registry shall send back the record of the Trial Court along with a copy of this judgment to the Trial Court immediately.