Case Note & Summary
The applicant, Mr. Abhijeet B. Chavan, filed a Civil Revision Application before the Bombay High Court, Circuit Bench at Kolhapur, challenging an order dated 2nd January 2024 passed by the learned Trial Court. The Trial Court had rejected the applicant's application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC), seeking rejection of the plaint in a suit for malicious prosecution filed by the respondent, Mr. Pradeep Nee Sachin Tukaram Kadam. The background of the dispute is that the applicant had previously instituted proceedings under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) against the respondent, based on the dishonour of a cheque that was admittedly issued by the respondent. The respondent was acquitted in those proceedings. Thereafter, the respondent filed a suit for malicious prosecution against the applicant, claiming damages. The applicant moved an application under Order VII Rule 11 CPC, arguing that the plaint did not disclose a cause of action because the mere fact of acquittal in the Section 138 proceedings, without any allegation of malice or lack of reasonable and probable cause, was insufficient to sustain a suit for malicious prosecution. The Trial Court rejected this application, leading to the present revision. The applicant's counsel, Mr. Satyajeet Chavan, submitted that the suit was not maintainable and relied on the Delhi High Court judgment in Nau Nihal Singh Rana v. Sunil Kumar, 2013 Supreme (Del) 927, where the court allowed a similar application under Order VII Rule 11 CPC, holding that statements made in previous proceedings cannot form the basis of a defamation suit. He argued that the same principle applies to malicious prosecution suits. The respondent's counsel, Mr. Chetan G. Patil, opposed the revision, but the court did not find merit in his submissions. The High Court, presided over by Justice Mehroz K. Pathan, allowed the civil revision application. The court held that the plaint did not disclose a cause of action for malicious prosecution. It reasoned that the institution of proceedings under Section 138 of the NI Act on the dishonour of a cheque admittedly issued by the respondent does not, by itself, constitute malicious prosecution, even if the respondent was acquitted. The court emphasized that for a suit for malicious prosecution to succeed, the plaintiff must plead and prove that the defendant acted without reasonable and probable cause and with malice. Since the plaint lacked such allegations, it was liable to be rejected under Order VII Rule 11 CPC. The court set aside the Trial Court's order and rejected the plaint. The decision was rendered on 2nd July 2026.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11 CPC - Malicious Prosecution - Cause of Action - The court considered whether a plaint for malicious prosecution based solely on an acquittal in proceedings under Section 138 of the Negotiable Instruments Act, 1881, discloses a cause of action. The court held that the mere fact of acquittal does not, by itself, furnish a cause of action for malicious prosecution, as the plaintiff must also plead and prove malice and lack of reasonable and probable cause. The court allowed the revision and rejected the plaint. (Paras 1-5) B) Negotiable Instruments Act - Section 138 - Dishonour of Cheque - Malicious Prosecution - The court examined the interplay between proceedings under Section 138 of the Negotiable Instruments Act, 1881, and a subsequent suit for malicious prosecution. It held that the institution of proceedings under Section 138 on the dishonour of a cheque admittedly issued by the plaintiff does not, without more, constitute malicious prosecution, even if the accused is acquitted. The court relied on the principle that the initiation of criminal proceedings on a legitimate complaint does not give rise to a claim for damages. (Paras 2-5)
Issue of Consideration
Whether an acquittal in proceedings under Section 138 of the Negotiable Instruments Act, 1881, by itself, furnishes a cause of action for a suit for malicious prosecution, and whether the plaint in such a suit is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908.
Final Decision
The court allowed the Civil Revision Application, set aside the order of the Trial Court dated 2nd January 2024, and rejected the plaint in the suit for malicious prosecution.
Law Points
- Order VII Rule 11 CPC
- Malicious Prosecution
- Cause of Action
- Section 138 Negotiable Instruments Act
- 1881
