In a suit for malicious prosecution, the acquittal of the plaintiffs in the criminal case raises a presumption of absence of reasonable and probable cause and malice on the part of the defendant, especially when the complaint was based on personal knowledge of the defendant.

S. BARMAN, J.

( 1 ) IN this second appeal, the defendant is the appellant from a decision of the learned Subordinate Judge, Balasore, confirming a decision of the learned Munsif of Bhadrak in a suit for damages filed by the plaintiffs-respondents for malicious prosecution.

( 2 ) THE matter out of which this case arose was a criminal case filed by the defendant-complainant against the plaintiff-accused under Sections 392 and 323, Indian Penal Code. Plaintiff No. 1 was the uncle of plaintiff No. 2 and they were living jointly. They were the Sevayats of the famous deity Akhandaleswar at Aradi in the district of Balasore. It appears that since before the date of the incident there were both criminal and civil litigations between the defendant-complainant and the plaintiffs-accused with the result that feelings between the parties were embittered and the alleged animosity of the defendant-complainant against the plaintiffs-accused is stated to be the genesis of the criminal case in which the defendant was the complainant against the accused plaintiffs. On 25-10-1951 the defendant-complainant lodged First Information Report recorded by the A. S. I. P. W. 2 in charge of the local police station alleging that while he was coming that day at 9 A. M, to Chandbali with a sum of Rs. 100/ received from one Naran Padhi to be delivered to one Maheswar Behera, he is alleged to have been robbed of the said amount by plaintiff No. 2 after which plaintiff No. 1 came and assaulted him. The Police however submitted Final Report in the case. The defendant, not being satisfied with the Police report, pursued the matter and filed a petition to the Magistrate and thereupon the accused persons were summoned. Plaintiff No. 2 was charged under Section 323, Indian Penal Code. In due course, the accused persons were tried and they were acquitted by the Sub-divisional Magistrate by an order made by him on 17-2-1953.

( 3 ) UPON the criminal case having failed, the plaintiffs-accused brought the suit against the defendant-complainant for malicious prosecution. The plaintiffs-accused claimed that they are respectable men in the locality being the worshippers and Sevayats of Lord Akhandaleswar, a renowned deity installed in village Aradi and having jajmans from all parts of the country. As for the background of the criminal case it is stated that the defendant had some animosity towards plaintiffs as they had purchased certain property from one Laxmi Bewa in competition with the defendant-complainant. It is also in evidence that the defendant-complainant had earlier filed several petitions against plaintiff No. 2 and also brought another criminal case against both the plaintiff-accused under Sections 323 and 379, Indian Penal Code and in all the Courts -- from the Court of the Magistrate right up to the High Court - the defendant-complainant could not secure their conviction. It was in this back ground that in October 1951 the defendant-complainant is stated to have lodged the false First Information Renort before the Police alleging that the plaintiffs-accused had robbed and assaulted him as aforesaid. The damages that the plaintiffs-accused prayed for in the plaint for loss of prestige and for mental agony were claimed to be Rs. 1,000/- and Rs. 920/4/ as costs of defending themselves in the Criminal case: but later on they gave up the claim of Rs. 920/4/- and sued for recovery of Rs. 1000/ -.

( 4 ) THE learned Munsif as the court of first instance decreed the suit in part for a sum of Rs. 456/- with full costs in favour of the plaintiffs-accused. The defendant-complainant appealed from the decision of the learned Munsif and the said appeal was dismissed by the learned Subordinate Judge. It is against this decision of the learned Subordinate Judge that the defendant has filed the present appeal before this Court.

( 5 ) MR. Harihar Mohapatra, learned counsel appearing for the defendant-appellant, contended that the plaintiffs-accused not having made a case