The burden of proving absence of reasonable and probable cause in an action for malicious prosecution is on the plaintiff, and a decision on an erroneous assumption as regards burden of proof and basing it on the evidence of the defendant alone, when no duty is cast upon him to adduce any, cannot be allowed to stand.

JUDGMENT:- The facts giving rise to this appeal may be stated briefly. A criminal case was instituted against the plaintiff by the defendant as per his complaint (Ext.A-4). In Ext.A-4, it was alleged that the defendants (in the instant suit) had earlier instituted proceedings under Sections 107 and 145, Cr.P.C. against the plaintiff and thereafter the plaintiff, in order to harass the defendant and also to take over possession of his land, trespassed into a part of his land and forcibly erected some posts thereon, with the object of putting up a fence. In the schedule of the said complaint (Ext.A-4), where the boundaries of the land were given, it was also stated that the plaintiffs had put up a fence within the said land for about 7 cubits. Various dates for hearing were fixed by the learned Magistrate upon receipt of this complaint, but finally vide the learned Magistrates order dated 29-4-68 the following order was passed-

"On the other hand the case is being dragged in this way since 1966. So, I do not find any justification to drag this two years old case any further. Hence the accused persons are acquitted under Section 247, Criminal Procedure Code."

2. Hence this suit for damages for malicious prosecution against the defendant (complainant in Ext.A-4).

3. In order that an action for malicious prosecution may succeed, the following elements must be proved by the plaintiff.

(1) The proceedings must have been instituted or continued by the defendant;

(2) The proceedings must have been unsuccessful - that is to say, must have terminated in favour of the plaintiff now suing;

(3) The defendant must have acted without reasonable and probable cause;

(4) The defendant must have acted maliciously.

4. There is no dispute, in the instant case, that the proceedings were instituted by the defendant, upon his complaint as per Ext.A-4, nor is there any dispute that the proceedings, so commenced and continued, terminated in favour of the plaintiff-respondent. The questions that fall for adjudication in this second appeal are, therefore, how far the defendant can be held to have acted maliciously and how far he also acted without reasonable and probable cause.

5. Undoubtedly, existence of malice as well as of reasonable and probable cause are questions of fact. As has been held in Chellu v. Palghat Municipality, AIR 1955 Mad 562, by Govinda Menon, J.-

"It seems to me that if the finding (regarding the absence of reasonable and probable cause and malice) is based upon relevant and admissible evidence then the question is one of fact and I am precluded from going behind the conclusion of fact arrived at by both the courts below."

6. Their Lordships in the Privy Council had also held in Sabhapathi v. Huntley, AIR 1938 PC 91-

"The finding of the learned Judge of first instance on the question of malice is a finding in fact. The state of a mans mind, as has been said, is as much a fact as the state of his digestion. Their Lordships see no reason for disturbing the finding of the trial Judge on this question of fact."

7. The question posed in this second appeal, however, is whether the learned Court below overlooked any material evidence in coming to its finding as regards the existence of malice and of reasonable and probable cause and also whether it mis-read and mis-construed any material evidence in doing so.

8. Mr. A.K. Dutta, learned Counsel appearing for the appellant, has drawn my attention to the following observations by the learned Appellate Court below-

"In his cross-examination he (D.W.3) further says that he did not see the fencing being put up or any posts being attached at the alleged place of occurrence. He did not even see how many posts were attached and on how much land."

9. Mr. Dutta has drawn my attention to the deposition of this witness, from the record of which I find that all that this witness stated was-

"I did not see the fencing being put up; I saw only the posts being erected. I cannot say how many posts were erected or u