The judge, not the jury, determines reasonable and probable cause in a malicious prosecution case, and the plaintiff bears the heavy burden of proving the absence of reasonable and probable cause.

Jackson, J.

1. Plaintiff sues defendant for Rs. 500 for malicious prosecution. The District Munsif dismissed the suit and the Subordinate Judge decreed it for Rs. 200. Defendant appeals. It was argued for plaintiff that the Sub-Judges judgment is final upon what is a bare question of fact and nothing remains for discussion on second appeal. Reliance is placed upon the rulings of a single Judge in a law magazine: Sita Bam v. Thakur Prasad AIR1929All429 ; but the matter is concluded by the Privy Council in Pestonji M. Mody v. Queen Insurance Co. [1901] 25 Bom.332 It is for the Judge and not for the jury to determine what is reasonable and probable cause in an action for malicious prosecution. The jury finds the facts, the Judge draws the proper inference from the findings of the jury in that sense it is a question of law.

2. The judgment then proceeds But where the case is tried without a jury there is really nothing but a question of fact to be determined by one and the same person.

3. This passage refers to the particular case. Both Courts below had found that there was no evidence to show that the prosecution was instituted without reasonable and probable cause. Then of course there was nothing but a question of fact. On the jury finding that there was no evidence the Judge conld not possibly consider whether the evidence established probable cause. The Privy Council ruling has been interpreted in this sense by the Chief Justice of the Calcutta High Court in Haris Chundra Neogy v. Nishi Kanta Banerjee [1901]28 Cal.591. This Court therefore has to discover what facts have been found upon the evidence and then decide whether upon those facts it can be said that the prosecution was instituted without reasonable and probable cause. There are the facts. On 14th February 1922, worshippers in the Conjeevaram temple found a door by which they usually made their exit locked. They broke the lock and took it away. A Chetti reported this to the defendant, a temple trustee accusing the plaintiff of breaking and taking the lock. The defendant called up the village headman and together they went to the door and found the lock missing. At midnight the defendant reported the circumstance to the police. The learned Subordinate Judge finds on these facts that the defendant had absolutely no reasons for believing that the complaint which he made against plaintiff had any truth in it.

4. This finding cannot be said to be upon the proved facts. The complaint had this much of truth in it, that the lock had been taken away, and in order to show that defendant had no reasons for believing the Chetti, the plaintiff on whom the onus lies must show that he had good reason for disbelieving the Chetti. This has not been shown. Much stress has been laid on the fact that the Chetti Was on the wrong side of the door and first saw what was going on through a crack. But when the door was opened he saw everyone as they passed out and plaintiff had the lock in his hand. This was reasonable cause for suspecting the plaintiff unless the defendant knew that the Chetti was a liar. The best test to see if he was speaking the truth was to go at once to the spot and see if the lock was there. This it is found, the defendant did. It is also found that plaintiff was probably present in the crowd when the lock was picked. He was seen soon afterwards by the defendant and the headman, and they did not then question him. The defendant said that considering the relations between them he would not give a proper reply, which, in any view of the case seems to be probable. It is found that defendant and the Chetti conspired together to bring a false case, and two of the temple servants under defendants influence were made to figure as eyewitnesses; but this finding is not only based upon no evidence, but it is contradicted by an earlier finding that these two persons were influenced to come forward because the defendant was executive trustee. It can even be said that a conspi