Where the accusation against the plaintiff was in respect of an offence which the defendant claimed to have seen him commit, and the trial ends in an acquittal on the merits, the presumption will be not only that the plaintiff was innocent, but also that there was no reasonable and probable cause for the accusation.

Raj Kishore Prasad, J.

1. Plaintiffs are the appellants. They have appealed from the concurrent decisions of the Court below dismissing their suit for damages for malicious prosecution on the ground that they had failed to prove that the criminal case instituted by defendant 1 was maliciously false and without reasonable and probable cause.

2. Admittedly, Plot 184 was a Gair-mazarua-am ditch, and water, which accumulated therein, was used for irrigating the adjoining lands. Plaintiffs alleged that the fishery right in the said ditch was never settled with anybody; but the defendants said that it is true so long Zamindari remained there was never any settlement of fishery right but since after the vesting of the estate, the State of Bihar began to settle the fishery right, year after year, and, at the time of the occurrence, which was on 24-4-1960, defendant 1 was the settlee from the State of Bihar.

3. Defendant 1 lodged a first information report with police to the effect that on 24-4-1960. the plaintiffs were stealing fish of the ditch, which he had taken settlement of from the State of Bihar, and, therefore, the plaintiffs had committed an offence of theft under Sec.379 I. P. C. The plaintiffs were put on trial, but the criminal court acquitted the plaintiffs. Thereafter, the present suit was instituted by the plaintiffs for damages for malicious prosecution which has been dismissed by both the courts below, as stated above.

4. In second appeal, it was contended by Mr. Sidheshwar Prasad Singh who appeared for the appellants, that defendant 1, who was examined as D. W. 9, admitted that on the day and at the time of occurrence he was present at the spot and he remained standing there for 2 1/2 to 3 hours till the plaintiffs left the place with the caught fish but this admission of defendant 1 has not been considered by any of the two courts below. He contended that here was a case in which the defendant alleged that he was an eye-witness to the occurrence and if even then the plaintiffs are acquitted, the presumption would be not only that the plaintiffs were innocent but also that there was no reasonable and probable cause for accusation, and, therefore, the plaintiffs suit should have been decreed, since the finding of the courts below that the criminal case was without reasonable and probable cause is illegal. In support of his contention, he relied on certain decisions.

5. The first case relied upon was Taharat Karim V/s. Malik Abdul Khaliq, AIR 1938 Pat 529 = 19 Pat LT 889 which was decided by Dhavle and Agarwala JJ. In that case it was held that where the accusation against the plaintiff was in respect of an offence which the defendant claimed to have seen him commit, and the trial ends in an acquittal on the merits, the presumption will be, not only that the plaintiff was innocent, but also that there was no reasonable and probable cause for the accusation- Their Lordships relied in this connection on the decision of the Privy Council in Balbhaddar Singh V/s. Budri Sah, AIR 1926 PC 46=ILR 1 Luck 215.

6. The next case relied upon was a Bench decision of the Allahabad High Court in Shubrati V/s. Shamsuddin, AIR 1928 All 337 = ILR 50 All 713. which was decided by Sulaiman and Kendall, JJ. Their Lordships held that it is not at all incumbent upon the plaintiff to prove that he was innocent of the charge upon which he was tried; but, if the defendant pleads that his complaint was true and leads evidence to substantiate it, the question of the truth or falsity of the complaint may arise at the instance of the defendant and when such facts are professed to be within the knowledge of the defendant, the question of the truth or falsity of the complaint may also determine the question of want of reasonable and probable cause. His Lordship Sulaiman, J., as he then was, who delivered the joint judgment of the Court, relied on Radhelal V/s. Munnoo, (1913) 11 All LJ 125=18 Ind Cas 280, in which it was held that "no question