The burden of proof in establishing malicious prosecution lies on the plaintiffs, and the discharge by the criminal court raises a presumption that the charge was without reasonable and probable cause.

1. This second appeal is by the plaintiffs, whose suit for damages for malicious prosecution, though decreed by the Munsiff, has been dismissed on appeal by the District Judge. It is conceded that the prosecution launched by the defendant against the plaintiffs, who are husband and wife, under S.323, 341 and 447 read with S.34, I.P.C., for assaulting the defendant on his land, ended in a discharge. The Munsiff found "the defendant had filed the complaint without any reasonable and probable cause and maliciously". The District Judge found that the plaintiffs have not proved malice or want of reasonable and probable cause for the prosecution and therefore reversed the Munsiff. Counsel for the appellant contends that the District Judge's finding is based on an erroneous view of onus of proof and pointed out that there is a material distinction in this context between complaints on personal knowledge and complaints laid on information believed. In the former case, but not in the latter, the discharge by the criminal Court raises a presumption that the charge was without reasonable and probable cause.

2. In Taharat Karim v. Malik Abdul Khaliq (AIR. 1938 Patna 529) the learned judges observed that 'the onus of establishing that the defendants had no reasonable and probable cause for the prosecution undoubtedly lay on the plaintiffs' and continued:

"Where however, 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."

3. The above proposition was challenged before but was followed by S.K. Das, J., in Darsan Pande v. Ghaghu Pande (AIR. 1948 Patna 167) and his Lordship cited the observations Of Bowen, L.J. in (1883) 11 Q.B.D. 440 in full support thereof. The same view has been taken in Gobind Chandra v. Upendra Padhi (AIR. 1960 Orissa 29).

In Nagendra Kumar v. Etwari Sahu (AIR. 1958 Patna 329) the rule is again declared thus:

T, therefore, a man acts on his personal knowledge, then the fact that the complaint was a false one will raise a presumption that there was absence of reasonable and probable cause, and, that malice existed, unless it is shown that his memory was defective, and, that there was some valid ground for misapprehension.

Where, therefore, the charge is of such a nature as must be true or false to the knowledge of the defendant, then no question of reasonable and probable cause can arise. Falsity of the evidence by the prosecutor himself would go to show want of reasonable and probable cause and further go to show malice on the part of the prosecutor".

The District Judge has therefore erred in his view of the burden of proof and his judgment on the basis of such erroneous view of burden of proof cannot stand. All the witnesses in the case had been examined before the Munsiff who delivered the judgment of the trial Court and unless there was definite reason to reverse his appreciation of the oral testimony the appellate Court should not have disturbed his findings of fact.

4. In the result, in reversal of the judgment of the District Judge, that of the Munsiff is restored to effect. The appellants are entitled to their costs in this second appeal. Allowed.