1. The substantial question of law involved, formulated and to be answered in this defendant's second appeal is as under: -

“Whether the first appellate court has erred in law by holding that factum of maliciously prosecution is proved against the appellant?”

(For the sake of convenience, parties would be referred hereinafter as per their status shown in the plaint before the trial Court.)

2. The respondent/plaintiff filed a suit for malicious prosecution valued at Rs. 10,000/- stating inter alia that on 22-4-1988, he had gone to the Treasury headed by defendant Kiran Kumar Baxi as Sub-Treasury Officer and had deposited some challans at the installments of three challans each and afterwards, deposit of challan was obstructed by the defendant despite there was no rush in the office on that day and when the plaintiff asked reason from the defendant for not accepting the challans, he lodged a written complaint with Police Station Bhilai Bhatti alleging that the plaintiff has trespassed into the office and thereby committed the offence under Sections 447 and 353 of the Indian Penal Code on the basis of which Crime No. 155/1988 was registered in which the plaintiff was tried in the Court of Judicial Magistrate First Class, Durg, and he was acquitted on 28-2-1992. It was further stated that the criminal court has already recorded a finding that the prosecution case was false and fictitious by which it has been proved that the defendant acted without reasonable and probable cause actuated by malice and initiated the proceedings against the plaintiff intentionally to harass and lower down his reputation in the society as well as to defame him by taking advantage of his official capacity as Sub-Treasury Officer by which the plaintiff has lost his reputation, credit and confidence amongst his colleagues and society and thereby, he is entitled for total damages of Rs. 10,000/- from the defendant along with interest.

3. The defendant/appellant filed his written statement and denied the allegations made in the plaint stating inter alia that on the date of incident, he was having the additional charge of Treasury Officer and for the sake of convenience of public, it was decided to accept only three challans at a time from one person and the plaintiff was instructed not to deposit more than three challans at a time. It was further stated that the FIR was lodged on correct and verified facts on the basis of which the plaintiff was prosecuted and offence was registered strictly in accordance with law by the State police. It was also stated that the plaintiff was prosecuted and he did not receive any summons for appearance in the criminal court and as such, the case was closed and the plaintiff was acquitted by the trial Court and therefore no case is made out for grant of damages for the alleged malicious prosecution. FIR was lodged as the plaintiff obstructed in the performance of public work.

4. The trial Court framed four issues in view of the pleadings of parties and after appreciating oral and documentary evidence on record, came to the conclusion that the plaintiff has failed to establish the plea of malicious prosecution and not entitled for damages along with interest.

5. In appeal preferred by the plaintiff, the first appellate Court decreed the suit and granted damages to the extent of Rs. 10,000/- against which this second appeal has been preferred in which the substantial question of law has been framed and set out in the opening paragraph of this judgment.

6. Mr. Adhiraj Surana, learned counsel appearing for the appellant/defendant, would submit that the first appellate Court is absolutely unjustified in granting decree in favour of the plaintiff overlooking the fact that the plaintiff has failed to plead and prove that prosecution was instituted against him without reasonable and probable cause and prosecution was instituted with malicious intention and as such, the decree passed by the first appellate Court deserves to be set