Chanda Chandra Dash Vs. Niranjan Panda and ors.

Decided On : Dec-24-1993

Court : Orissa

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			'appealno' => 'Second Appeal No. 200 of 1984',
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			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  2500/-.The suit was filed on 19th of July, 1982. 3. The defendant in the written statement admitted about institution of the criminal case by him as well as the fact that it ended in acquittal but contended that the allegations made in the criminal case were true and the criminal case ended in acquittal for reasons other than absence of reasonable and probable cause. 5. Before the lower appellate Court, however, the defendant- appellant reiterated the plea of limitation as well as the plea that the trial Judge was not justified in coming to the conclusion that the criminal case had been prosecuted without any reasonable and probable cause. The Sower appellate Court relying upon a decision of the Allaha- bad High Court came to hold that it is the date of the appellate order from which the period of one year has to be counted and accordingly held that tits suit is not barred by limitation. Sheo Narain (AIR 1935 Oudh 392) as well as the earlier decision of the same Allahabad High Court in AIR 1930 Allahabad 326 Madan Mohan Singh v.',
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			'counselplain' => 'B.H. Mohanty, Adv.',
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			'court' => 'Orissa',
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			'decidedon' => '1993-12-24',
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			'judge' => 'G.B. Pattnaik, J.',
			'judgement' => '<p style="text-align: justify;">G.B. Pattnaik, J.</p><p style="text-align: justify;">1. This is a defendant's appeal against a confirming judgment in a suit for compensation for malicious prosecuticm' and the only question that is urged by the appellant's counsel is that the suit is barred by limitation.</p><p style="text-align: justify;">2. Plaintiffs filed the suit alleging that without any basis or any reasonable cause, the defendant who is a veteran litigant prosecuted the plaintiffs by filing a complaint case, being complaint case No. 83 of 1977 on the allegation that while the plaintiffs were cutting paddy on iheir land the defendant demanded for repayment of loan from Gandu and plaintiff No, 1 instigated Gandu not to make any repayment of loan money. Said Gandu was alleged to be a Halia under the plaintiffs. When the defendant objected to such instigation by the plaintiff No. 1, the plaintiffs abused and rushed to assault him and, therefore, the complaint case was filed alleging commission of offences Under Section 504 and 3&2, IPC. The criminal case ended in acquittat and the defendant preferred an appeal. The order of acquittal was confirmed by the High Court on 18-9- 1931 and the plaintiffs filed the suit claiming compensation to the tune of Rs. 2500/-. The suit was filed on 19th of July, 1982.</p><p style="text-align: justify;">3. The defendant in the written statement admitted about institution of the criminal case by him as well as the fact that it ended in acquittal but contended that the allegations made in the criminal case were true and the criminal case ended in acquittal for reasons other than absence of reasonable and probable cause.</p><p style="text-align: justify;">4. On these pleadings six issues were struck and the parties lad evidence. The learned trial Judge came to the conclusion that the, advancement of loan to Gandu was nothing but a mystery and that the allegation that Gandu was a Halia under the plaintiff was also false. He further held that the criminal case was instituted by the defendant falsely without any reasonable and probable cause. The trial Judge came to the further finding that there was no honest belief in the accusation made by the defendant and the criminal case that was filed by the defendant was actuated by malice to harass the plaintiffs by dragging them to a Court of law taking advantage that one of them stayed more than 100 Krns. away from the Court. He also further found that the actio of the defendant in instituting the complaint case was fulll of reckless- ness and the plaintiffs are entitled to the damages claimed. With these conclusions the suit having been decreed to the tune of Rs. 2500/- together with interest both pendente lite and future, the defendant carried the matter in appeal. It is to be noticed that though one of the issues before the learned trial Judge which was as to whether the suit is barred by limitation but that issue had not been pressed before the learned trial Judge. </p><p style="text-align: justify;">5. Before the lower appellate Court, however, the defendant- appellant reiterated the plea of limitation as well as the plea that the trial Judge was not justified in coming to the conclusion that the criminal case had been prosecuted without any reasonable and probable cause. So far as the plea of reasonable and probable cause is concerned, the lower appellate Court on appreciation of the evidence on record confirmed the findings of the trial Judge and held that the finding of the trial Judge is Unassailable and cannot be interferred with. So far as the question of limitation is concerned, even though the point Had not been raised before the trial Judge, the lower appellate Court permitted the same point to be raised but being of the opinion that the period of limi- tation would run from the date of the Order of the High Court affirming the order of acquittal passed by the Magistrate he held that the suit is not barred by limitation and ultimately dismissed the appeal. Hence the present Second Appeal.</p><p style="text-align: justify;">6. There is no dispute that a suit for malicious prosecution is governed by Art. 74 of the Limitation Act and the period prescribed is one year. But the dispute centres round the question as to when does that period begin to run. the third clause of Art. 74 is to the effect:</p><p style="text-align: justify;">'When the plaintiff is acquitted or the prosecution is other- wise terminated.'</p><p style="text-align: justify;">The controversy, therefore, is as to whether it is original order of acquittal from which the period of one year has to be counted or an appeal having been filed against the order of acquittal, the period of one year has to be counted from the appellate order. As the conclusion would be that it is the date on which the order of acquittal was passed by the Magistrate from which one year has to be counted, then obviously the suit would be barred by limitation inasmuch as the order of acquittal was passed by the Magistrate in complaint case No. 83/77 on 24-9- 1S78. But if it would be the appellate order of the High Court which was passed on 18-9-1981 then the suit will not be barred by limi- tation. The Sower appellate Court relying upon a decision of the Allaha- bad High Court came to hold that it is the date of the appellate order from which the period of one year has to be counted and accordingly held that tits suit is not barred by limitation.</p><p style="text-align: justify;">7. Mr. Mohanty appearing for the appellant contends that the expression 'when the plaintiff is acquitted' in third column of Art. 74 would obviously mean the original order of acquittal and the limitation would start from that date and filing of an appeal against the said order of acquittal will not operate as a suspension of the running of time for enforcement of the decree. According to the learned counsel time begins to run from the date of the final judgment -of the Magistrate by which the criminal case ended in acquittal.</p><p style="text-align: justify;">8. On these questions there is divergence of views, the Madras High Court taking the view that if the matter is taken up in revision or appeal to a higher authority, the prosecution termitates when the procee- ding in the revision or appeal comes to an end in favour of the discha- rged person. In the case of Soora Kulasekara Chetty and Anr. v. Tholasingam Chetty (AIR 1938 Madras 349) the Full Bench of the Madras High Court interpreting Art. 23 of the Limitation Act, 1908 which corresponds to Art. 74 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> came to hold that the words 'when the plaintiff is acquitted' cannot be divorced from the words 'or the prosecution is otherwise terminated' and where therefore a person who is prosecuted is either discharged or acquitted and the revision petition filed by the complainant against the discharge or acquittal is dismissed, the prosecution proceeding terminates only when the revision petition is dismissed and not on the discharge or acquittal and, therefore, it was held that the limitation for a suit for malicious prosecution begins to run from the dismissal of revision petition and not from the discharge or acquittal passed by the Magistrate. The Rajasthan High Court also takes the view that where the order of acquittal or the order terminating the prosecution is challenged in appeal or revision before the superior Court the original order is merged in the order that is passed by the superior Court in appeal or revision and the operative order would be the order of the superior Court and, therefore, the period of limitation will have to be computed from the date of the order of the superior Court in appeal or revision. (See 1981 Rajasthan Law Weekly 88 Ramdhan v. Kanmal).</p><p style="text-align: justify;">9. The Mysore High Court also follows the Madras views in ILR 1973 Mysore 201.</p><p style="text-align: justify;">The Bombay High Court,however, takes the contrary view in the case of Bhaskar Narhar Deshmuk v. Kisanlal Sadasukhdas and Anr. (AIR 1968 Bombay 21). The Division Bench of Bombay High Court considered Art. 74 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> and dissenting from the Madras view expressed in the Full Bench decision of the Madras High Court referred to supra came to hold that time began to run from the date of acquittal in trial Court and filing of an appeal before the superior Court could not suspend the period of limitation. The Bombay High Court proceeded on the theory that the scheme of the Limitation Act suggests that once the period begins to run, there is nothing which could suspend the running of the time and Under Section 4i7(3)ot the Code of Criminal Procedure an appeal by a private party is not as a matter of right and it can only be by leave of the Court and further a mere appeal cannot be said to do away with the effect of the original acquittal recorded in the criminal case and, therefore cannot suspend the period of limitation. A learned Single Judge of the Allahabad High Court has taken the same view as that of the Bombay High Court in the case of Madho Lal v. Hari Shankar and Anr. (AIR 1963 Allahabad 547) and interpreting Art. 23 of the Limitation Act, 1908 which is same as Art. 74 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> held :</p><p style="text-align: justify;">'Art. 23 deals with two alternative cases: one envisages acquittal and the other, termination of the prosecution. The latter governs such cases as those of discharge ; the former governs the cases of acquittal. Acquittal means, acquittal from the Trial Court or if there is conviction from a Trial Court then the orderer of acquittal passed in appeal or revision. In a case where acquittal has been ordered by the Trial .Court and the complainant has filed revision, the filing of revision cannot affect the order of acquittal already passed it will remain an order of aeajuittai till the acquittal is converted into an order of sentence. Under Art. 23 the limitation would run from the date when the plaintiffs were acquitted by the Trial Court or in appeal if there was conviction from the Trial Court. Filing of a revision against an order of acquittal cannot suspend the period of limitation, which started running from the date of the order of acquittal.'</p><p style="text-align: justify;">The learned Judge followed the decision in the case of Shankar Prasadv. Sheo Narain (AIR 1935 Oudh 392) as well as the earlier decision of the same Allahabad High Court in AIR 1930 Allahabad 326 Madan Mohan Singh v. Ram Sunder Singh and differed from the Madras view reported in AIR 1938 Madras 349 (supra).</p><p style="text-align: justify;">10. In the case of Bibhuti Bhusan Chakravarti and Anr. v. Tarun Gupta (AIR 1978 Calcutta 302) where a criminal proceeding had been quashed by the High Court and an application was filed to to the Supreme Court by the complainant for leave to appeal which was later on dismissed in a suit for malicious prosecution, the question arose that whether the period of one year would start from the date of quashing of the criminal proceeding or when the application for leave to appeal to the Supreme Court was dismissed. The Calcutta High Court held that mere filing of an application to the ' Supreme Court for leave to appeal Would not make the appeal pending in the Supreme Court and thus that would not extend the period of limitation. Art. 74 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> came up for consideration before a Division Bench of this Court in the case of Jogendra Garabadu and Ors. v. Lingaraj Patra and Ors. (AIR 1970 Orissa 91). The question that arose before this Court in the aforesaid case was as to when did criminal proceeding terminate. Is it on the date when the police dropped the proceeding against them or when the cognizance was taken against the accused or a protest petition having been filed by the informant it will be the date on which the protest petition was finally disposed of The Division Bench held that the time would run from the date when the proceeding was dropped against the two persons and the period of limitation will commence from the date of such termination as the protest petition, if any, filed by defendant No. 1 cannot be treated as continuation of the proceeding.</p><p style="text-align: justify;">11. On a conspectus of the aforesaid authoritative decisions of the different High Courts, I am in respectful agreement with the views expressed by the Bombay and Allahabad High Courts and the reasonings advanced by the Division Bench of this Court referred to supra also supports the aforesaid view of the Bombay High Court and consequently the suit not having been filed within one year from the date of the order of acquittal passed by the Magistrate, the suit must be held to be barred by limitation. The lower appellate Court committed an error of law in holding that the suit is not barred by limitation.</p><p style="text-align: justify;">12. In the aforesaid premises, the impugned judgments and decrees of the two Courts below are set aside and the Second Appeal is allowed. The suit is dismissed being barred by limitation. There would be no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'id' => '530872',
		'acts' => '<a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Schedule - Article 74',
		'appealno' => 'Second Appeal No. 200 of 1984',
		'appellant' => 'Chanda Chandra Dash',
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		'casename' => 'Chanda Chandra Dash Vs. Niranjan Panda and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  2500/-.The suit was filed on 19th of July, 1982. 3. The defendant in the written statement admitted about institution of the criminal case by him as well as the fact that it ended in acquittal but contended that the allegations made in the criminal case were true and the criminal case ended in acquittal for reasons other than absence of reasonable and probable cause. 5. Before the lower appellate Court, however, the defendant- appellant reiterated the plea of limitation as well as the plea that the trial Judge was not justified in coming to the conclusion that the criminal case had been prosecuted without any reasonable and probable cause. The Sower appellate Court relying upon a decision of the Allaha- bad High Court came to hold that it is the date of the appellate order from which the period of one year has to be counted and accordingly held that tits suit is not barred by limitation. Sheo Narain (AIR 1935 Oudh 392) as well as the earlier decision of the same Allahabad High Court in AIR 1930 Allahabad 326 Madan Mohan Singh v.',
		'caseanalysis' => null,
		'casesref' => 'Jogendra Garabadu and Ors. v. Lingaraj Patra and Ors.;',
		'citingcases' => '',
		'counselplain' => 'B.H. Mohanty, Adv.',
		'counseldef' => 'None',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1993-12-24',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'G.B. Pattnaik, J.',
		'judgement' => '<p style="text-align: justify;">G.B. Pattnaik, J.</p><p style="text-align: justify;">1. This is a defendant's appeal against a confirming judgment in a suit for compensation for malicious prosecuticm' and the only question that is urged by the appellant's counsel is that the suit is barred by limitation.</p><p style="text-align: justify;">2. Plaintiffs filed the suit alleging that without any basis or any reasonable cause, the defendant who is a veteran litigant prosecuted the plaintiffs by filing a complaint case, being complaint case No. 83 of 1977 on the allegation that while the plaintiffs were cutting paddy on iheir land the defendant demanded for repayment of loan from Gandu and plaintiff No, 1 instigated Gandu not to make any repayment of loan money. Said Gandu was alleged to be a Halia under the plaintiffs. When the defendant objected to such instigation by the plaintiff No. 1, the plaintiffs abused and rushed to assault him and, therefore, the complaint case was filed alleging commission of offences Under Section 504 and 3&2, IPC. The criminal case ended in acquittat and the defendant preferred an appeal. The order of acquittal was confirmed by the High Court on 18-9- 1931 and the plaintiffs filed the suit claiming compensation to the tune of Rs. 2500/-. The suit was filed on 19th of July, 1982.</p><p style="text-align: justify;">3. The defendant in the written statement admitted about institution of the criminal case by him as well as the fact that it ended in acquittal but contended that the allegations made in the criminal case were true and the criminal case ended in acquittal for reasons other than absence of reasonable and probable cause.</p><p style="text-align: justify;">4. On these pleadings six issues were struck and the parties lad evidence. The learned trial Judge came to the conclusion that the, advancement of loan to Gandu was nothing but a mystery and that the allegation that Gandu was a Halia under the plaintiff was also false. He further held that the criminal case was instituted by the defendant falsely without any reasonable and probable cause. The trial Judge came to the further finding that there was no honest belief in the accusation made by the defendant and the criminal case that was filed by the defendant was actuated by malice to harass the plaintiffs by dragging them to a Court of law taking advantage that one of them stayed more than 100 Krns. away from the Court. He also further found that the actio of the defendant in instituting the complaint case was fulll of reckless- ness and the plaintiffs are entitled to the damages claimed. With these conclusions the suit having been decreed to the tune of Rs. 2500/- together with interest both pendente lite and future, the defendant carried the matter in appeal. It is to be noticed that though one of the issues before the learned trial Judge which was as to whether the suit is barred by limitation but that issue had not been pressed before the learned trial Judge. </p><p style="text-align: justify;">5. Before the lower appellate Court, however, the defendant- appellant reiterated the plea of limitation as well as the plea that the trial Judge was not justified in coming to the conclusion that the criminal case had been prosecuted without any reasonable and probable cause. So far as the plea of reasonable and probable cause is concerned, the lower appellate Court on appreciation of the evidence on record confirmed the findings of the trial Judge and held that the finding of the trial Judge is Unassailable and cannot be interferred with. So far as the question of limitation is concerned, even though the point Had not been raised before the trial Judge, the lower appellate Court permitted the same point to be raised but being of the opinion that the period of limi- tation would run from the date of the Order of the High Court affirming the order of acquittal passed by the Magistrate he held that the suit is not barred by limitation and ultimately dismissed the appeal. Hence the present Second Appeal.</p><p style="text-align: justify;">6. There is no dispute that a suit for malicious prosecution is governed by Art. 74 of the Limitation Act and the period prescribed is one year. But the dispute centres round the question as to when does that period begin to run. the third clause of Art. 74 is to the effect:</p><p style="text-align: justify;">'When the plaintiff is acquitted or the prosecution is other- wise terminated.'</p><p style="text-align: justify;">The controversy, therefore, is as to whether it is original order of acquittal from which the period of one year has to be counted or an appeal having been filed against the order of acquittal, the period of one year has to be counted from the appellate order. As the conclusion would be that it is the date on which the order of acquittal was passed by the Magistrate from which one year has to be counted, then obviously the suit would be barred by limitation inasmuch as the order of acquittal was passed by the Magistrate in complaint case No. 83/77 on 24-9- 1S78. But if it would be the appellate order of the High Court which was passed on 18-9-1981 then the suit will not be barred by limi- tation. The Sower appellate Court relying upon a decision of the Allaha- bad High Court came to hold that it is the date of the appellate order from which the period of one year has to be counted and accordingly held that tits suit is not barred by limitation.</p><p style="text-align: justify;">7. Mr. Mohanty appearing for the appellant contends that the expression 'when the plaintiff is acquitted' in third column of Art. 74 would obviously mean the original order of acquittal and the limitation would start from that date and filing of an appeal against the said order of acquittal will not operate as a suspension of the running of time for enforcement of the decree. According to the learned counsel time begins to run from the date of the final judgment -of the Magistrate by which the criminal case ended in acquittal.</p><p style="text-align: justify;">8. On these questions there is divergence of views, the Madras High Court taking the view that if the matter is taken up in revision or appeal to a higher authority, the prosecution termitates when the procee- ding in the revision or appeal comes to an end in favour of the discha- rged person. In the case of Soora Kulasekara Chetty and Anr. v. Tholasingam Chetty (AIR 1938 Madras 349) the Full Bench of the Madras High Court interpreting Art. 23 of the Limitation Act, 1908 which corresponds to Art. 74 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> came to hold that the words 'when the plaintiff is acquitted' cannot be divorced from the words 'or the prosecution is otherwise terminated' and where therefore a person who is prosecuted is either discharged or acquitted and the revision petition filed by the complainant against the discharge or acquittal is dismissed, the prosecution proceeding terminates only when the revision petition is dismissed and not on the discharge or acquittal and, therefore, it was held that the limitation for a suit for malicious prosecution begins to run from the dismissal of revision petition and not from the discharge or acquittal passed by the Magistrate. The Rajasthan High Court also takes the view that where the order of acquittal or the order terminating the prosecution is challenged in appeal or revision before the superior Court the original order is merged in the order that is passed by the superior Court in appeal or revision and the operative order would be the order of the superior Court and, therefore, the period of limitation will have to be computed from the date of the order of the superior Court in appeal or revision. (See 1981 Rajasthan Law Weekly 88 Ramdhan v. Kanmal).</p><p style="text-align: justify;">9. The Mysore High Court also follows the Madras views in ILR 1973 Mysore 201.</p><p style="text-align: justify;">The Bombay High Court,however, takes the contrary view in the case of Bhaskar Narhar Deshmuk v. Kisanlal Sadasukhdas and Anr. (AIR 1968 Bombay 21). The Division Bench of Bombay High Court considered Art. 74 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> and dissenting from the Madras view expressed in the Full Bench decision of the Madras High Court referred to supra came to hold that time began to run from the date of acquittal in trial Court and filing of an appeal before the superior Court could not suspend the period of limitation. The Bombay High Court proceeded on the theory that the scheme of the Limitation Act suggests that once the period begins to run, there is nothing which could suspend the running of the time and Under Section 4i7(3)ot the Code of Criminal Procedure an appeal by a private party is not as a matter of right and it can only be by leave of the Court and further a mere appeal cannot be said to do away with the effect of the original acquittal recorded in the criminal case and, therefore cannot suspend the period of limitation. A learned Single Judge of the Allahabad High Court has taken the same view as that of the Bombay High Court in the case of Madho Lal v. Hari Shankar and Anr. (AIR 1963 Allahabad 547) and interpreting Art. 23 of the Limitation Act, 1908 which is same as Art. 74 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> held :</p><p style="text-align: justify;">'Art. 23 deals with two alternative cases: one envisages acquittal and the other, termination of the prosecution. The latter governs such cases as those of discharge ; the former governs the cases of acquittal. Acquittal means, acquittal from the Trial Court or if there is conviction from a Trial Court then the orderer of acquittal passed in appeal or revision. In a case where acquittal has been ordered by the Trial .Court and the complainant has filed revision, the filing of revision cannot affect the order of acquittal already passed it will remain an order of aeajuittai till the acquittal is converted into an order of sentence. Under Art. 23 the limitation would run from the date when the plaintiffs were acquitted by the Trial Court or in appeal if there was conviction from the Trial Court. Filing of a revision against an order of acquittal cannot suspend the period of limitation, which started running from the date of the order of acquittal.'</p><p style="text-align: justify;">The learned Judge followed the decision in the case of Shankar Prasadv. Sheo Narain (AIR 1935 Oudh 392) as well as the earlier decision of the same Allahabad High Court in AIR 1930 Allahabad 326 Madan Mohan Singh v. Ram Sunder Singh and differed from the Madras view reported in AIR 1938 Madras 349 (supra).</p><p style="text-align: justify;">10. In the case of Bibhuti Bhusan Chakravarti and Anr. v. Tarun Gupta (AIR 1978 Calcutta 302) where a criminal proceeding had been quashed by the High Court and an application was filed to to the Supreme Court by the complainant for leave to appeal which was later on dismissed in a suit for malicious prosecution, the question arose that whether the period of one year would start from the date of quashing of the criminal proceeding or when the application for leave to appeal to the Supreme Court was dismissed. The Calcutta High Court held that mere filing of an application to the ' Supreme Court for leave to appeal Would not make the appeal pending in the Supreme Court and thus that would not extend the period of limitation. Art. 74 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> came up for consideration before a Division Bench of this Court in the case of Jogendra Garabadu and Ors. v. Lingaraj Patra and Ors. (AIR 1970 Orissa 91). The question that arose before this Court in the aforesaid case was as to when did criminal proceeding terminate. Is it on the date when the police dropped the proceeding against them or when the cognizance was taken against the accused or a protest petition having been filed by the informant it will be the date on which the protest petition was finally disposed of The Division Bench held that the time would run from the date when the proceeding was dropped against the two persons and the period of limitation will commence from the date of such termination as the protest petition, if any, filed by defendant No. 1 cannot be treated as continuation of the proceeding.</p><p style="text-align: justify;">11. On a conspectus of the aforesaid authoritative decisions of the different High Courts, I am in respectful agreement with the views expressed by the Bombay and Allahabad High Courts and the reasonings advanced by the Division Bench of this Court referred to supra also supports the aforesaid view of the Bombay High Court and consequently the suit not having been filed within one year from the date of the order of acquittal passed by the Magistrate, the suit must be held to be barred by limitation. The lower appellate Court committed an error of law in holding that the suit is not barred by limitation.</p><p style="text-align: justify;">12. In the aforesaid premises, the impugned judgments and decrees of the two Courts below are set aside and the Second Appeal is allowed. The suit is dismissed being barred by limitation. There would be no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			(int) 26 => 'Jogendra Garabadu'
		),
		'CARDINAL' => array(
			(int) 0 => '83',
			(int) 1 => '1',
			(int) 2 => '1',
			(int) 3 => '18',
			(int) 4 => '1982.3',
			(int) 5 => 'six',
			(int) 6 => 'one',
			(int) 7 => 'more than 100',
			(int) 8 => '2500/-',
			(int) 9 => '5',
			(int) 10 => '74',
			(int) 11 => '83/77',
			(int) 12 => '24',
			(int) 13 => '23',
			(int) 14 => '74',
			(int) 15 => '201.The',
			(int) 16 => '74',
			(int) 17 => '547',
			(int) 18 => '23',
			(int) 19 => '74',
			(int) 20 => '23',
			(int) 21 => 'two',
			(int) 22 => 'one',
			(int) 23 => '23',
			(int) 24 => '392',
			(int) 25 => '326',
			(int) 26 => '1938',
			(int) 27 => '74',
			(int) 28 => '91',
			(int) 29 => 'two',
			(int) 30 => '1',
			(int) 31 => 'two'
		),
		'DATE' => array(
			(int) 0 => '1977',
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			(int) 2 => '2500/-',
			(int) 3 => '19th of July',
			(int) 4 => 'one year',
			(int) 5 => '74',
			(int) 6 => 'one year',
			(int) 7 => 'one year',
			(int) 8 => 'one year',
			(int) 9 => '18-9-1981',
			(int) 10 => 'one year',
			(int) 11 => '1938',
			(int) 12 => '1908',
			(int) 13 => '1963',
			(int) 14 => '1981',
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			(int) 16 => '1963',
			(int) 17 => '1908',
			(int) 18 => '1963',
			(int) 19 => 'one year',
			(int) 20 => '1963',
			(int) 21 => 'one year'
		),
		'ORG' => array(
			(int) 0 => 'Gandu',
			(int) 1 => 'IPC',
			(int) 2 => 'the High Court',
			(int) 3 => 'Gandu',
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			(int) 21 => 'The Mysore High Court',
			(int) 22 => 'AIR 1968',
			(int) 23 => 'Bombay High Court',
			(int) 24 => 'Court',
			(int) 25 => 'Court',
			(int) 26 => 'The Bombay High Court',
			(int) 27 => 'Court',
			(int) 28 => 'the Allahabad High Court',
			(int) 29 => 'the Bombay High Court',
			(int) 30 => 'AIR 1963 Allahabad',
			(int) 31 => 'the Trial Court',
			(int) 32 => 'Trial Court',
			(int) 33 => 'the Trial Court',
			(int) 34 => 'the Trial Court',
			(int) 35 => 'AIR 1935 Oudh',
			(int) 36 => 'Allahabad High Court',
			(int) 37 => 'AIR 1930',
			(int) 38 => 'Allahabad',
			(int) 39 => 'AIR',
			(int) 40 => 'AIR 1978 Calcutta 302',
			(int) 41 => 'the High Court',
			(int) 42 => 'the Supreme Court',
			(int) 43 => 'the Supreme Court',
			(int) 44 => 'The Calcutta High Court',
			(int) 45 => 'the ' Supreme Court',
			(int) 46 => 'the Supreme Court',
			(int) 47 => 'Court',
			(int) 48 => 'Ors',
			(int) 49 => 'Lingaraj Patra and Ors',
			(int) 50 => 'AIR 1970',
			(int) 51 => 'Court',
			(int) 52 => 'The Division Bench',
			(int) 53 => 'the Division Bench',
			(int) 54 => 'Court',
			(int) 55 => 'the Bombay High Court',
			(int) 56 => 'Magistrate',
			(int) 57 => 'Court'
		),
		'GPE' => array(
			(int) 0 => 'Halia',
			(int) 1 => 'Halia',
			(int) 2 => 'Art',
			(int) 3 => 'ILR',
			(int) 4 => 'Bombay'
		),
		'ORDINAL' => array(
			(int) 0 => 'Second',
			(int) 1 => 'third',
			(int) 2 => 'third'
		),
		'LOC' => array(
			(int) 0 => 'Madras',
			(int) 1 => 'Madras',
			(int) 2 => 'Madras'
		),
		'NORP' => array(
			(int) 0 => 'Bhaskar'
		),
		'EVENT' => array(
			(int) 0 => 'Bombay 21'
		),
		'FAC' => array(
			(int) 0 => 'Bibhuti Bhusan Chakravarti'
		)
	),
	'desc' => array(
		'Judgement' => array(
			'id' => '530872',
			'acts' => '<a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Schedule - Article 74',
			'appealno' => 'Second Appeal No. 200 of 1984',
			'appellant' => 'Chanda Chandra Dash',
			'authreffered' => '',
			'casename' => 'Chanda Chandra Dash Vs. Niranjan Panda and ors.',
			'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  2500/-.The suit was filed on 19th of July, 1982. 3. The defendant in the written statement admitted about institution of the criminal case by him as well as the fact that it ended in acquittal but contended that the allegations made in the criminal case were true and the criminal case ended in acquittal for reasons other than absence of reasonable and probable cause. 5. Before the lower appellate Court, however, the defendant- appellant reiterated the plea of limitation as well as the plea that the trial Judge was not justified in coming to the conclusion that the criminal case had been prosecuted without any reasonable and probable cause. The Sower appellate Court relying upon a decision of the Allaha- bad High Court came to hold that it is the date of the appellate order from which the period of one year has to be counted and accordingly held that tits suit is not barred by limitation. Sheo Narain (AIR 1935 Oudh 392) as well as the earlier decision of the same Allahabad High Court in AIR 1930 Allahabad 326 Madan Mohan Singh v.',
			'caseanalysis' => null,
			'casesref' => 'Jogendra Garabadu and Ors. v. Lingaraj Patra and Ors.;',
			'citingcases' => '',
			'counselplain' => 'B.H. Mohanty, Adv.',
			'counseldef' => 'None',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1993-12-24',
			'deposition' => 'Appeal allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'G.B. Pattnaik, J.',
			'judgement' => '<p style="text-align: justify;">G.B. Pattnaik, J.</p><p style="text-align: justify;">1. This is a defendant's appeal against a confirming judgment in a suit for compensation for malicious prosecuticm' and the only question that is urged by the appellant's counsel is that the suit is barred by limitation.</p><p style="text-align: justify;">2. Plaintiffs filed the suit alleging that without any basis or any reasonable cause, the defendant who is a veteran litigant prosecuted the plaintiffs by filing a complaint case, being complaint case No. 83 of 1977 on the allegation that while the plaintiffs were cutting paddy on iheir land the defendant demanded for repayment of loan from Gandu and plaintiff No, 1 instigated Gandu not to make any repayment of loan money. Said Gandu was alleged to be a Halia under the plaintiffs. When the defendant objected to such instigation by the plaintiff No. 1, the plaintiffs abused and rushed to assault him and, therefore, the complaint case was filed alleging commission of offences Under Section 504 and 3&2, IPC. The criminal case ended in acquittat and the defendant preferred an appeal. The order of acquittal was confirmed by the High Court on 18-9- 1931 and the plaintiffs filed the suit claiming compensation to the tune of Rs. 2500/-. The suit was filed on 19th of July, 1982.</p><p style="text-align: justify;">3. The defendant in the written statement admitted about institution of the criminal case by him as well as the fact that it ended in acquittal but contended that the allegations made in the criminal case were true and the criminal case ended in acquittal for reasons other than absence of reasonable and probable cause.</p><p style="text-align: justify;">4. On these pleadings six issues were struck and the parties lad evidence. The learned trial Judge came to the conclusion that the, advancement of loan to Gandu was nothing but a mystery and that the allegation that Gandu was a Halia under the plaintiff was also false. He further held that the criminal case was instituted by the defendant falsely without any reasonable and probable cause. The trial Judge came to the further finding that there was no honest belief in the accusation made by the defendant and the criminal case that was filed by the defendant was actuated by malice to harass the plaintiffs by dragging them to a Court of law taking advantage that one of them stayed more than 100 Krns. away from the Court. He also further found that the actio of the defendant in instituting the complaint case was fulll of reckless- ness and the plaintiffs are entitled to the damages claimed. With these conclusions the suit having been decreed to the tune of Rs. 2500/- together with interest both pendente lite and future, the defendant carried the matter in appeal. It is to be noticed that though one of the issues before the learned trial Judge which was as to whether the suit is barred by limitation but that issue had not been pressed before the learned trial Judge. </p><p style="text-align: justify;">5. Before the lower appellate Court, however, the defendant- appellant reiterated the plea of limitation as well as the plea that the trial Judge was not justified in coming to the conclusion that the criminal case had been prosecuted without any reasonable and probable cause. So far as the plea of reasonable and probable cause is concerned, the lower appellate Court on appreciation of the evidence on record confirmed the findings of the trial Judge and held that the finding of the trial Judge is Unassailable and cannot be interferred with. So far as the question of limitation is concerned, even though the point Had not been raised before the trial Judge, the lower appellate Court permitted the same point to be raised but being of the opinion that the period of limi- tation would run from the date of the Order of the High Court affirming the order of acquittal passed by the Magistrate he held that the suit is not barred by limitation and ultimately dismissed the appeal. Hence the present Second Appeal.</p><p style="text-align: justify;">6. There is no dispute that a suit for malicious prosecution is governed by Art. 74 of the Limitation Act and the period prescribed is one year. But the dispute centres round the question as to when does that period begin to run. the third clause of Art. 74 is to the effect:</p><p style="text-align: justify;">'When the plaintiff is acquitted or the prosecution is other- wise terminated.'</p><p style="text-align: justify;">The controversy, therefore, is as to whether it is original order of acquittal from which the period of one year has to be counted or an appeal having been filed against the order of acquittal, the period of one year has to be counted from the appellate order. As the conclusion would be that it is the date on which the order of acquittal was passed by the Magistrate from which one year has to be counted, then obviously the suit would be barred by limitation inasmuch as the order of acquittal was passed by the Magistrate in complaint case No. 83/77 on 24-9- 1S78. But if it would be the appellate order of the High Court which was passed on 18-9-1981 then the suit will not be barred by limi- tation. The Sower appellate Court relying upon a decision of the Allaha- bad High Court came to hold that it is the date of the appellate order from which the period of one year has to be counted and accordingly held that tits suit is not barred by limitation.</p><p style="text-align: justify;">7. Mr. Mohanty appearing for the appellant contends that the expression 'when the plaintiff is acquitted' in third column of Art. 74 would obviously mean the original order of acquittal and the limitation would start from that date and filing of an appeal against the said order of acquittal will not operate as a suspension of the running of time for enforcement of the decree. According to the learned counsel time begins to run from the date of the final judgment -of the Magistrate by which the criminal case ended in acquittal.</p><p style="text-align: justify;">8. On these questions there is divergence of views, the Madras High Court taking the view that if the matter is taken up in revision or appeal to a higher authority, the prosecution termitates when the procee- ding in the revision or appeal comes to an end in favour of the discha- rged person. In the case of Soora Kulasekara Chetty and Anr. v. Tholasingam Chetty (AIR 1938 Madras 349) the Full Bench of the Madras High Court interpreting Art. 23 of the Limitation Act, 1908 which corresponds to Art. 74 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> came to hold that the words 'when the plaintiff is acquitted' cannot be divorced from the words 'or the prosecution is otherwise terminated' and where therefore a person who is prosecuted is either discharged or acquitted and the revision petition filed by the complainant against the discharge or acquittal is dismissed, the prosecution proceeding terminates only when the revision petition is dismissed and not on the discharge or acquittal and, therefore, it was held that the limitation for a suit for malicious prosecution begins to run from the dismissal of revision petition and not from the discharge or acquittal passed by the Magistrate. The Rajasthan High Court also takes the view that where the order of acquittal or the order terminating the prosecution is challenged in appeal or revision before the superior Court the original order is merged in the order that is passed by the superior Court in appeal or revision and the operative order would be the order of the superior Court and, therefore, the period of limitation will have to be computed from the date of the order of the superior Court in appeal or revision. (See 1981 Rajasthan Law Weekly 88 Ramdhan v. Kanmal).</p><p style="text-align: justify;">9. The Mysore High Court also follows the Madras views in ILR 1973 Mysore 201.</p><p style="text-align: justify;">The Bombay High Court,however, takes the contrary view in the case of Bhaskar Narhar Deshmuk v. Kisanlal Sadasukhdas and Anr. (AIR 1968 Bombay 21). The Division Bench of Bombay High Court considered Art. 74 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> and dissenting from the Madras view expressed in the Full Bench decision of the Madras High Court referred to supra came to hold that time began to run from the date of acquittal in trial Court and filing of an appeal before the superior Court could not suspend the period of limitation. The Bombay High Court proceeded on the theory that the scheme of the Limitation Act suggests that once the period begins to run, there is nothing which could suspend the running of the time and Under Section 4i7(3)ot the Code of Criminal Procedure an appeal by a private party is not as a matter of right and it can only be by leave of the Court and further a mere appeal cannot be said to do away with the effect of the original acquittal recorded in the criminal case and, therefore cannot suspend the period of limitation. A learned Single Judge of the Allahabad High Court has taken the same view as that of the Bombay High Court in the case of Madho Lal v. Hari Shankar and Anr. (AIR 1963 Allahabad 547) and interpreting Art. 23 of the Limitation Act, 1908 which is same as Art. 74 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> held :</p><p style="text-align: justify;">'Art. 23 deals with two alternative cases: one envisages acquittal and the other, termination of the prosecution. The latter governs such cases as those of discharge ; the former governs the cases of acquittal. Acquittal means, acquittal from the Trial Court or if there is conviction from a Trial Court then the orderer of acquittal passed in appeal or revision. In a case where acquittal has been ordered by the Trial .Court and the complainant has filed revision, the filing of revision cannot affect the order of acquittal already passed it will remain an order of aeajuittai till the acquittal is converted into an order of sentence. Under Art. 23 the limitation would run from the date when the plaintiffs were acquitted by the Trial Court or in appeal if there was conviction from the Trial Court. Filing of a revision against an order of acquittal cannot suspend the period of limitation, which started running from the date of the order of acquittal.'</p><p style="text-align: justify;">The learned Judge followed the decision in the case of Shankar Prasadv. Sheo Narain (AIR 1935 Oudh 392) as well as the earlier decision of the same Allahabad High Court in AIR 1930 Allahabad 326 Madan Mohan Singh v. Ram Sunder Singh and differed from the Madras view reported in AIR 1938 Madras 349 (supra).</p><p style="text-align: justify;">10. In the case of Bibhuti Bhusan Chakravarti and Anr. v. Tarun Gupta (AIR 1978 Calcutta 302) where a criminal proceeding had been quashed by the High Court and an application was filed to to the Supreme Court by the complainant for leave to appeal which was later on dismissed in a suit for malicious prosecution, the question arose that whether the period of one year would start from the date of quashing of the criminal proceeding or when the application for leave to appeal to the Supreme Court was dismissed. The Calcutta High Court held that mere filing of an application to the ' Supreme Court for leave to appeal Would not make the appeal pending in the Supreme Court and thus that would not extend the period of limitation. Art. 74 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> came up for consideration before a Division Bench of this Court in the case of Jogendra Garabadu and Ors. v. Lingaraj Patra and Ors. (AIR 1970 Orissa 91). The question that arose before this Court in the aforesaid case was as to when did criminal proceeding terminate. Is it on the date when the police dropped the proceeding against them or when the cognizance was taken against the accused or a protest petition having been filed by the informant it will be the date on which the protest petition was finally disposed of The Division Bench held that the time would run from the date when the proceeding was dropped against the two persons and the period of limitation will commence from the date of such termination as the protest petition, if any, filed by defendant No. 1 cannot be treated as continuation of the proceeding.</p><p style="text-align: justify;">11. On a conspectus of the aforesaid authoritative decisions of the different High Courts, I am in respectful agreement with the views expressed by the Bombay and Allahabad High Courts and the reasonings advanced by the Division Bench of this Court referred to supra also supports the aforesaid view of the Bombay High Court and consequently the suit not having been filed within one year from the date of the order of acquittal passed by the Magistrate, the suit must be held to be barred by limitation. The lower appellate Court committed an error of law in holding that the suit is not barred by limitation.</p><p style="text-align: justify;">12. In the aforesaid premises, the impugned judgments and decrees of the two Courts below are set aside and the Second Appeal is allowed. The suit is dismissed being barred by limitation. There would be no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1994(I)OLR108',
			'ratiodecidendi' => '',
			'respondent' => 'Niranjan Panda and ors.',
			'sub' => 'Limitation',
			'link' => null,
			'circuit' => null
		)
	),
	'args' => array(
		(int) 0 => '530872'
	)
)
$title_for_layout = 'Chanda Chandra Dash Vs. Niranjan Panda and ors. Semantic Analysis'
$shops = array(
	'LAW' => array(
		(int) 0 => 'Section 504',
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		(int) 23 => 'Ram Sunder Singh',
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	'CARDINAL' => array(
		(int) 0 => '83',
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		(int) 15 => '201.The',
		(int) 16 => '74',
		(int) 17 => '547',
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		(int) 19 => '74',
		(int) 20 => '23',
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		(int) 27 => '74',
		(int) 28 => '91',
		(int) 29 => 'two',
		(int) 30 => '1',
		(int) 31 => 'two'
	),
	'DATE' => array(
		(int) 0 => '1977',
		(int) 1 => '1931',
		(int) 2 => '2500/-',
		(int) 3 => '19th of July',
		(int) 4 => 'one year',
		(int) 5 => '74',
		(int) 6 => 'one year',
		(int) 7 => 'one year',
		(int) 8 => 'one year',
		(int) 9 => '18-9-1981',
		(int) 10 => 'one year',
		(int) 11 => '1938',
		(int) 12 => '1908',
		(int) 13 => '1963',
		(int) 14 => '1981',
		(int) 15 => '1973',
		(int) 16 => '1963',
		(int) 17 => '1908',
		(int) 18 => '1963',
		(int) 19 => 'one year',
		(int) 20 => '1963',
		(int) 21 => 'one year'
	),
	'ORG' => array(
		(int) 0 => 'Gandu',
		(int) 1 => 'IPC',
		(int) 2 => 'the High Court',
		(int) 3 => 'Gandu',
		(int) 4 => 'Court',
		(int) 5 => 'Court',
		(int) 6 => 'Court',
		(int) 7 => 'Court',
		(int) 8 => 'Court',
		(int) 9 => 'Magistrate',
		(int) 10 => 'Magistrate',
		(int) 11 => 'Magistrate',
		(int) 12 => 'the High Court',
		(int) 13 => 'Sower',
		(int) 14 => 'Court',
		(int) 15 => 'Magistrate',
		(int) 16 => 'Magistrate',
		(int) 17 => 'Court',
		(int) 18 => 'Court',
		(int) 19 => 'Court',
		(int) 20 => 'Court',
		(int) 21 => 'The Mysore High Court',
		(int) 22 => 'AIR 1968',
		(int) 23 => 'Bombay High Court',
		(int) 24 => 'Court',
		(int) 25 => 'Court',
		(int) 26 => 'The Bombay High Court',
		(int) 27 => 'Court',
		(int) 28 => 'the Allahabad High Court',
		(int) 29 => 'the Bombay High Court',
		(int) 30 => 'AIR 1963 Allahabad',
		(int) 31 => 'the Trial Court',
		(int) 32 => 'Trial Court',
		(int) 33 => 'the Trial Court',
		(int) 34 => 'the Trial Court',
		(int) 35 => 'AIR 1935 Oudh',
		(int) 36 => 'Allahabad High Court',
		(int) 37 => 'AIR 1930',
		(int) 38 => 'Allahabad',
		(int) 39 => 'AIR',
		(int) 40 => 'AIR 1978 Calcutta 302',
		(int) 41 => 'the High Court',
		(int) 42 => 'the Supreme Court',
		(int) 43 => 'the Supreme Court',
		(int) 44 => 'The Calcutta High Court',
		(int) 45 => 'the ' Supreme Court',
		(int) 46 => 'the Supreme Court',
		(int) 47 => 'Court',
		(int) 48 => 'Ors',
		(int) 49 => 'Lingaraj Patra and Ors',
		(int) 50 => 'AIR 1970',
		(int) 51 => 'Court',
		(int) 52 => 'The Division Bench',
		(int) 53 => 'the Division Bench',
		(int) 54 => 'Court',
		(int) 55 => 'the Bombay High Court',
		(int) 56 => 'Magistrate',
		(int) 57 => 'Court'
	),
	'GPE' => array(
		(int) 0 => 'Halia',
		(int) 1 => 'Halia',
		(int) 2 => 'Art',
		(int) 3 => 'ILR',
		(int) 4 => 'Bombay'
	),
	'ORDINAL' => array(
		(int) 0 => 'Second',
		(int) 1 => 'third',
		(int) 2 => 'third'
	),
	'LOC' => array(
		(int) 0 => 'Madras',
		(int) 1 => 'Madras',
		(int) 2 => 'Madras'
	),
	'NORP' => array(
		(int) 0 => 'Bhaskar'
	),
	'EVENT' => array(
		(int) 0 => 'Bombay 21'
	),
	'FAC' => array(
		(int) 0 => 'Bibhuti Bhusan Chakravarti'
	)
)
$desc = array(
	'Judgement' => array(
		'id' => '530872',
		'acts' => '<a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> - Schedule - Article 74',
		'appealno' => 'Second Appeal No. 200 of 1984',
		'appellant' => 'Chanda Chandra Dash',
		'authreffered' => '',
		'casename' => 'Chanda Chandra Dash Vs. Niranjan Panda and ors.',
		'casenote' => ' - STATE FINANCIAL CORPORATIONS ACT, 1951 [63/1951]. Section 29; [P.K. Tripathy, A.K. Parichha & N.Prusty, JJ] Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled]. -- STATE FINANCIAL CORPORATIONS ACT, 1951. 
Section 29; Discharge of loan  Orissa Forest Act (14 of 1972), Section 56  Confiscation of vehicle - Held, The Authorities under Section 56 of the Orissa Forest Act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of Orissa State Financial Corporation when such vehicles were purchased on being financed by the Orissa State Financial Corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. Concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. On the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the Department which initiated the confiscation proceeding. Apart from that, the claim of the Orissa State Financial Corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the State Financial Corporation Act, 1951 or the heirs and successors of such persons. Procedure is provided in the Act, 1951 and the Rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. If such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. The Financial Corporation is concerned with repayment of loan either from the property or persons offered as surety. Thus, a vehicle, which is subject matter of confiscation proceeding under the Act, 1872, being not available to the Orissa State Financial Corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the Orissa State Financial Corporation. Agreement between the Orissa State Financial Corporation and the loanee is a pure and simple contract governed by the provisions of the Contract Act, 1872 read with the provisions in the Act, 1951 and its Rules. On the other hand, a confiscation proceeding under the Act, 1972 is punitive in nature for commission of a forest offence. Thus, by virtue of the provision in Section 56 read with Section 64 (2) of the Act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by Orissa State Financial Corporation. By doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the Orissa State Financial Corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. In other words, on payment of the sale proceeds of the confiscation proceeding to the Orissa State Financial Corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. Then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. Such a concept is totally not conceivable from any provision in the Act, 1972 or the Act, 1951. [AIR 2002 Orissa 130 Overruled].  -  2500/-.The suit was filed on 19th of July, 1982. 3. The defendant in the written statement admitted about institution of the criminal case by him as well as the fact that it ended in acquittal but contended that the allegations made in the criminal case were true and the criminal case ended in acquittal for reasons other than absence of reasonable and probable cause. 5. Before the lower appellate Court, however, the defendant- appellant reiterated the plea of limitation as well as the plea that the trial Judge was not justified in coming to the conclusion that the criminal case had been prosecuted without any reasonable and probable cause. The Sower appellate Court relying upon a decision of the Allaha- bad High Court came to hold that it is the date of the appellate order from which the period of one year has to be counted and accordingly held that tits suit is not barred by limitation. Sheo Narain (AIR 1935 Oudh 392) as well as the earlier decision of the same Allahabad High Court in AIR 1930 Allahabad 326 Madan Mohan Singh v.',
		'caseanalysis' => null,
		'casesref' => 'Jogendra Garabadu and Ors. v. Lingaraj Patra and Ors.;',
		'citingcases' => '',
		'counselplain' => 'B.H. Mohanty, Adv.',
		'counseldef' => 'None',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1993-12-24',
		'deposition' => 'Appeal allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'G.B. Pattnaik, J.',
		'judgement' => '<p style="text-align: justify;">G.B. Pattnaik, J.</p><p style="text-align: justify;">1. This is a defendant's appeal against a confirming judgment in a suit for compensation for malicious prosecuticm' and the only question that is urged by the appellant's counsel is that the suit is barred by limitation.</p><p style="text-align: justify;">2. Plaintiffs filed the suit alleging that without any basis or any reasonable cause, the defendant who is a veteran litigant prosecuted the plaintiffs by filing a complaint case, being complaint case No. 83 of 1977 on the allegation that while the plaintiffs were cutting paddy on iheir land the defendant demanded for repayment of loan from Gandu and plaintiff No, 1 instigated Gandu not to make any repayment of loan money. Said Gandu was alleged to be a Halia under the plaintiffs. When the defendant objected to such instigation by the plaintiff No. 1, the plaintiffs abused and rushed to assault him and, therefore, the complaint case was filed alleging commission of offences Under Section 504 and 3&2, IPC. The criminal case ended in acquittat and the defendant preferred an appeal. The order of acquittal was confirmed by the High Court on 18-9- 1931 and the plaintiffs filed the suit claiming compensation to the tune of Rs. 2500/-. The suit was filed on 19th of July, 1982.</p><p style="text-align: justify;">3. The defendant in the written statement admitted about institution of the criminal case by him as well as the fact that it ended in acquittal but contended that the allegations made in the criminal case were true and the criminal case ended in acquittal for reasons other than absence of reasonable and probable cause.</p><p style="text-align: justify;">4. On these pleadings six issues were struck and the parties lad evidence. The learned trial Judge came to the conclusion that the, advancement of loan to Gandu was nothing but a mystery and that the allegation that Gandu was a Halia under the plaintiff was also false. He further held that the criminal case was instituted by the defendant falsely without any reasonable and probable cause. The trial Judge came to the further finding that there was no honest belief in the accusation made by the defendant and the criminal case that was filed by the defendant was actuated by malice to harass the plaintiffs by dragging them to a Court of law taking advantage that one of them stayed more than 100 Krns. away from the Court. He also further found that the actio of the defendant in instituting the complaint case was fulll of reckless- ness and the plaintiffs are entitled to the damages claimed. With these conclusions the suit having been decreed to the tune of Rs. 2500/- together with interest both pendente lite and future, the defendant carried the matter in appeal. It is to be noticed that though one of the issues before the learned trial Judge which was as to whether the suit is barred by limitation but that issue had not been pressed before the learned trial Judge. </p><p style="text-align: justify;">5. Before the lower appellate Court, however, the defendant- appellant reiterated the plea of limitation as well as the plea that the trial Judge was not justified in coming to the conclusion that the criminal case had been prosecuted without any reasonable and probable cause. So far as the plea of reasonable and probable cause is concerned, the lower appellate Court on appreciation of the evidence on record confirmed the findings of the trial Judge and held that the finding of the trial Judge is Unassailable and cannot be interferred with. So far as the question of limitation is concerned, even though the point Had not been raised before the trial Judge, the lower appellate Court permitted the same point to be raised but being of the opinion that the period of limi- tation would run from the date of the Order of the High Court affirming the order of acquittal passed by the Magistrate he held that the suit is not barred by limitation and ultimately dismissed the appeal. Hence the present Second Appeal.</p><p style="text-align: justify;">6. There is no dispute that a suit for malicious prosecution is governed by Art. 74 of the Limitation Act and the period prescribed is one year. But the dispute centres round the question as to when does that period begin to run. the third clause of Art. 74 is to the effect:</p><p style="text-align: justify;">'When the plaintiff is acquitted or the prosecution is other- wise terminated.'</p><p style="text-align: justify;">The controversy, therefore, is as to whether it is original order of acquittal from which the period of one year has to be counted or an appeal having been filed against the order of acquittal, the period of one year has to be counted from the appellate order. As the conclusion would be that it is the date on which the order of acquittal was passed by the Magistrate from which one year has to be counted, then obviously the suit would be barred by limitation inasmuch as the order of acquittal was passed by the Magistrate in complaint case No. 83/77 on 24-9- 1S78. But if it would be the appellate order of the High Court which was passed on 18-9-1981 then the suit will not be barred by limi- tation. The Sower appellate Court relying upon a decision of the Allaha- bad High Court came to hold that it is the date of the appellate order from which the period of one year has to be counted and accordingly held that tits suit is not barred by limitation.</p><p style="text-align: justify;">7. Mr. Mohanty appearing for the appellant contends that the expression 'when the plaintiff is acquitted' in third column of Art. 74 would obviously mean the original order of acquittal and the limitation would start from that date and filing of an appeal against the said order of acquittal will not operate as a suspension of the running of time for enforcement of the decree. According to the learned counsel time begins to run from the date of the final judgment -of the Magistrate by which the criminal case ended in acquittal.</p><p style="text-align: justify;">8. On these questions there is divergence of views, the Madras High Court taking the view that if the matter is taken up in revision or appeal to a higher authority, the prosecution termitates when the procee- ding in the revision or appeal comes to an end in favour of the discha- rged person. In the case of Soora Kulasekara Chetty and Anr. v. Tholasingam Chetty (AIR 1938 Madras 349) the Full Bench of the Madras High Court interpreting Art. 23 of the Limitation Act, 1908 which corresponds to Art. 74 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> came to hold that the words 'when the plaintiff is acquitted' cannot be divorced from the words 'or the prosecution is otherwise terminated' and where therefore a person who is prosecuted is either discharged or acquitted and the revision petition filed by the complainant against the discharge or acquittal is dismissed, the prosecution proceeding terminates only when the revision petition is dismissed and not on the discharge or acquittal and, therefore, it was held that the limitation for a suit for malicious prosecution begins to run from the dismissal of revision petition and not from the discharge or acquittal passed by the Magistrate. The Rajasthan High Court also takes the view that where the order of acquittal or the order terminating the prosecution is challenged in appeal or revision before the superior Court the original order is merged in the order that is passed by the superior Court in appeal or revision and the operative order would be the order of the superior Court and, therefore, the period of limitation will have to be computed from the date of the order of the superior Court in appeal or revision. (See 1981 Rajasthan Law Weekly 88 Ramdhan v. Kanmal).</p><p style="text-align: justify;">9. The Mysore High Court also follows the Madras views in ILR 1973 Mysore 201.</p><p style="text-align: justify;">The Bombay High Court,however, takes the contrary view in the case of Bhaskar Narhar Deshmuk v. Kisanlal Sadasukhdas and Anr. (AIR 1968 Bombay 21). The Division Bench of Bombay High Court considered Art. 74 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> and dissenting from the Madras view expressed in the Full Bench decision of the Madras High Court referred to supra came to hold that time began to run from the date of acquittal in trial Court and filing of an appeal before the superior Court could not suspend the period of limitation. The Bombay High Court proceeded on the theory that the scheme of the Limitation Act suggests that once the period begins to run, there is nothing which could suspend the running of the time and Under Section 4i7(3)ot the Code of Criminal Procedure an appeal by a private party is not as a matter of right and it can only be by leave of the Court and further a mere appeal cannot be said to do away with the effect of the original acquittal recorded in the criminal case and, therefore cannot suspend the period of limitation. A learned Single Judge of the Allahabad High Court has taken the same view as that of the Bombay High Court in the case of Madho Lal v. Hari Shankar and Anr. (AIR 1963 Allahabad 547) and interpreting Art. 23 of the Limitation Act, 1908 which is same as Art. 74 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> held :</p><p style="text-align: justify;">'Art. 23 deals with two alternative cases: one envisages acquittal and the other, termination of the prosecution. The latter governs such cases as those of discharge ; the former governs the cases of acquittal. Acquittal means, acquittal from the Trial Court or if there is conviction from a Trial Court then the orderer of acquittal passed in appeal or revision. In a case where acquittal has been ordered by the Trial .Court and the complainant has filed revision, the filing of revision cannot affect the order of acquittal already passed it will remain an order of aeajuittai till the acquittal is converted into an order of sentence. Under Art. 23 the limitation would run from the date when the plaintiffs were acquitted by the Trial Court or in appeal if there was conviction from the Trial Court. Filing of a revision against an order of acquittal cannot suspend the period of limitation, which started running from the date of the order of acquittal.'</p><p style="text-align: justify;">The learned Judge followed the decision in the case of Shankar Prasadv. Sheo Narain (AIR 1935 Oudh 392) as well as the earlier decision of the same Allahabad High Court in AIR 1930 Allahabad 326 Madan Mohan Singh v. Ram Sunder Singh and differed from the Madras view reported in AIR 1938 Madras 349 (supra).</p><p style="text-align: justify;">10. In the case of Bibhuti Bhusan Chakravarti and Anr. v. Tarun Gupta (AIR 1978 Calcutta 302) where a criminal proceeding had been quashed by the High Court and an application was filed to to the Supreme Court by the complainant for leave to appeal which was later on dismissed in a suit for malicious prosecution, the question arose that whether the period of one year would start from the date of quashing of the criminal proceeding or when the application for leave to appeal to the Supreme Court was dismissed. The Calcutta High Court held that mere filing of an application to the ' Supreme Court for leave to appeal Would not make the appeal pending in the Supreme Court and thus that would not extend the period of limitation. Art. 74 of the <a href="/act/50905/limitation-act-1963-36-of-1963-complete-act">Limitation Act, 1963</a> came up for consideration before a Division Bench of this Court in the case of Jogendra Garabadu and Ors. v. Lingaraj Patra and Ors. (AIR 1970 Orissa 91). The question that arose before this Court in the aforesaid case was as to when did criminal proceeding terminate. Is it on the date when the police dropped the proceeding against them or when the cognizance was taken against the accused or a protest petition having been filed by the informant it will be the date on which the protest petition was finally disposed of The Division Bench held that the time would run from the date when the proceeding was dropped against the two persons and the period of limitation will commence from the date of such termination as the protest petition, if any, filed by defendant No. 1 cannot be treated as continuation of the proceeding.</p><p style="text-align: justify;">11. On a conspectus of the aforesaid authoritative decisions of the different High Courts, I am in respectful agreement with the views expressed by the Bombay and Allahabad High Courts and the reasonings advanced by the Division Bench of this Court referred to supra also supports the aforesaid view of the Bombay High Court and consequently the suit not having been filed within one year from the date of the order of acquittal passed by the Magistrate, the suit must be held to be barred by limitation. The lower appellate Court committed an error of law in holding that the suit is not barred by limitation.</p><p style="text-align: justify;">12. In the aforesaid premises, the impugned judgments and decrees of the two Courts below are set aside and the Second Appeal is allowed. The suit is dismissed being barred by limitation. There would be no order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1994(I)OLR108',
		'ratiodecidendi' => '',
		'respondent' => 'Niranjan Panda and ors.',
		'sub' => 'Limitation',
		'link' => null,
		'circuit' => null
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LAW: Section 504, the Limitation Act, the Limitation Act, the Limitation Act, the Limitation Act, the Limitation Act, Section 4i7(3)ot the Code of Criminal Procedure, the Limitation Act, the Limitation Act, the Limitation Act

PERSON: G.B. Pattnaik, J.1, Said Gandu, Art, Mohanty, Art, Soora Kulasekara Chetty, Anr, Tholasingam Chetty, Art, Art, Rajasthan Law Weekly, Narhar Deshmuk, Kisanlal Sadasukhdas, Anr, Art, Madho Lal v. Hari Shankar, Anr, Art, Art, Shankar Prasadv, Sheo Narain, Mohan Singh, Ram Sunder Singh, Anr, Tarun Gupta, Jogendra Garabadu

CARDINAL: 83, 1, 1, 18, 1982.3, six, one, more than 100, 2500/-, 5, 74, 83/77, 24, 23, 74, 201.The, 74, 547, 23, 74, 23, two, one, 23, 392, 326, 1938, 74, 91, two, 1, two

DATE: 1977, 1931, 2500/-, 19th of July, one year, 74, one year, one year, one year, 18-9-1981, one year, 1938, 1908, 1963, 1981, 1973, 1963, 1908, 1963, one year, 1963, one year

ORG: Gandu, IPC, the High Court, Gandu, Court, Court, Court, Court, Court, Magistrate, Magistrate, Magistrate, the High Court, Sower, Court, Magistrate, Magistrate, Court, Court, Court, Court, The Mysore High Court, AIR 1968, Bombay High Court, Court, Court, The Bombay High Court, Court, the Allahabad High Court, the Bombay High Court, AIR 1963 Allahabad, the Trial Court, Trial Court, the Trial Court, the Trial Court, AIR 1935 Oudh, Allahabad High Court, AIR 1930, Allahabad, AIR, AIR 1978 Calcutta 302, the High Court, the Supreme Court, the Supreme Court, The Calcutta High Court, the ' Supreme Court, the Supreme Court, Court, Ors, Lingaraj Patra and Ors, AIR 1970, Court, The Division Bench, the Division Bench, Court, the Bombay High Court, Magistrate, Court

GPE: Halia, Halia, Art, ILR, Bombay

ORDINAL: Second, third, third

LOC: Madras, Madras, Madras

NORP: Bhaskar

EVENT: Bombay 21

FAC: Bibhuti Bhusan Chakravarti