Mohan Banerjee vs State of Delhi and Others

Sudershan Kumar Misra, J.

RFA No. 311/2011

This Regular First Appeal has been filed by the appellant against the order dated 24.12.2010 passed by Shri L.K. Gaur, Additional District

Judge, New Delhi in Suit No. 384/2010 wherein the suit of the appellant was dismissed on the ground of limitation. The appellant had been facing

trial since 1990 on the allegation that he used to give false sureties by impersonation on the basis of forged and fabricated documents. The charge

had been framed against the appellant, along with other accused persons, by a common order dated 6.5.2005. On 4.10.2008, the

appellant/plaintiff was acquitted.

On 22.12.2009, the appellant sent a legal notice to the State through Lt. Governor for compensation, to which he did not receive any reply.

Thereafter, the appellant/plaintiff preferred a Writ Petition No. 1810/2010 before this Court against the State seeking compensation, which was

dismissed as withdrawn with liberty to file a suit in the appropriate Court.

The appellant then filed a civil suit for compensation of Rs. 20,00,000/- for causing harassment, mental agony, economical and physical losses,

loss of reputation etc. due to false implication in a criminal case.

In that matter, the learned court below concluded that compensation was claimed by the appellant in the suit on the basis of malicious

prosecution; for which the period of limitation prescribed is one year under Article 74 of the Limitation Act, to be counted from the date of

acquittal from prosecution. It has held that, even after excluding the period when the writ petition was pending before this Court between

10.3.2010 & 23.04.2010; as well as the time spent in obtaining the certified copy of the judgment of the trial court acquitting him, the suit is still

barred by limitation.

Aggrieved of this order dismissing his suit on the ground of limitation, the appellant has appealed to this Court.

Counsel for the appellant states that the appellant is an old man aged above 90 years of age. He has been harassed by the

defendants/respondents for more than 19 years by falsely implicating him in a criminal case and making him face many hearings and accusations

from which he has been honourably and completely acquitted.

He further states that the trial court fell into an error in dismissing his suit on the ground of limitation considering it to be covered under Article 74

of the Limitation Act, being a suit for malicious prosecution.

It is the case of the appellant that his suit is not one for malicious prosecution; and that he is only seeking damages for the mental agony and

defamation, loss of reputation etc. that he has suffered for so many years at the hands of the respondents. He states that his case cannot be

considered under Article 74 of the Limitation Act at all and is covered under some other provision of law.

The suit of the plaintiff was thrown out on a preliminary objection with regard to limitation, holding that the appellant had preferred a suit for

compensation for malicious prosecution which was covered by Article 74 of the Limitation Act and the time available to institute such a suit was

one year from the date of the accrual of cause of action, which had long expired.

Even counsel for the appellant concedes that if Article 74 were to apply, the suit is beyond limitation. Therefore, the only question that remains

is under what provision the case of the appellant is covered. His case appears to be that this is not a case for compensation for malicious

prosecution; and that it is simply a claim for damages. It is, however, obvious that the basis of that claim for damages appears to be malicious

prosecution. In fact, counsel for the appellant is unable to demonstrate any other basis for the suit brought by his client.

In this case, the time began to run w.e.f. 4.10.2008, when the appellant was acquitted of the charge leveled against him. It expired on

3.10.2009, i.e. after a period of one year in terms of Article 74 of the Limitation Act. But the appellant had filed the suit on 6.10.2010, which

shows that there is a delay of 368 days.

Counsel for the appellant, however, contends that a suit of the nature filed by the appellant would, in fact, be treated as one for damages; in

which case, the limitation prescribed is three years; and looked at in that perspective, it could not be said that the suit was barred by limitation. In

support of this contention that the suit brought by him is one for damages and therefore covered under some other provision, counsel relies on the

decision of a single Judge of this Court in Balbir Singh Vs. Government of NCT of Delhi and Others, . To my mind, this decision which examines

the bar to a suit for malicious prosecution raised by Section 140 of Delhi Police Act 1978, has no application to the facts at hand. Admittedly, the

appellant has not been non-suited because of the bar of Section 140 of the Delhi Police Act, 1978 but because of bar of limitation in terms of

Article 74 of the Limitation Act, 1963.

Counsel for the appellant points out that even in Balbir Singh''s case (supra), the suit for compensation was brought by the plaintiff about 14

months after the acquittal, and therefore, was clearly barred by at least 2 months if Article 74 of the Limitation Act were to be applied. A perusal

of the judgment shows that this aspect of the matter never came up for consideration at all. All that was being considered was whether the plea in

bar in terms of Section 140 of the Delhi Police Act, which was raised by the respondent/defendant in that case by way of an interim application,

was well founded or not; and the Court ultimately disagreed with the defendant on this aspect of the matter. But there is nothing to suggest that

having decided that Section 140 of the Delhi Police Act would not operate as a bar to the institution of the suit; it was also decided that the matter

was not controlled by Article 74 of the Limitation Act 1963; or that Article 74 had no application whatsoever to the case as being contended by

counsel for the appellant at the bar.

Except for a general submission, which is repeated many times, that the period of limitation in such a case is three years; Counsel for the

appellant is unable to show any other provision of the Limitation Act, which may apply to the matter instead of Article 74 thereof.

In that view of the matter, there appears to be no infirmity in the impugned order, and I do not find any merit in this appeal. The appeal is

dismissed.