The central legal point established in the judgment is the application of the burden of proof in cases of malicious prosecution and the extension of the presumption of malice to witnesses who claim to have seen the alleged offense.

A. K. PARICHHA, J.

( 1 ) THIS appeal is directed against the judgment and decree passed by the learned Subordinate Judge, bhawanipatna in Money Suit No. 11 of 1978 decreeing the claim of the plaintiff-appellant in part.

( 2 ) APPELLANT as the plaintiff, filed the above suit pleading, inter alia, that due to previous enmity with him, respondent Nos. 2 and 3 set up respondent No. 1, who was working as maid servant in his house to lodge a false complaint against him and accordingly, respondent no. 1 lodged a complaint vide ICC no. 1 of 1976 (T. R. No. 113/76) in the Court of S. D. J. M. , Bhawanipatna alleging therein that while she was sweeping the room in the house of the appellant, at about 8. 00 p. m. on 7-12-1975, the appellant entered into the room, closed the door, pulled her saree and tried to rape her and that when she resisted, the appellant dealt slaps and fist blows causing some injuries on her face. That case was transferred to the Court of learned Subordinate judge-cum-J. M. F. C. , Bhawanipatna, where after trial an order of acquittal was recorded. According to the appellant, because of lodging of false complaint, his reputation in the society was severely affected and he also suffered mental agony and financial loss and therefore, he filed the suit for malicious prosecution claiming compensation from the respondents.

( 3 ) RESPONDENTS, as defendants filed joint written statement denying the allegations. of the plaintiff-appellant, pleading, inter alia, that the allegations made by respondent No. 1 in the complaint petition were true and that in fact the appellant outraged the modesty of respondent no. 1. They denied any loss of reputation or prestige of the appellant indicating that the appellant has no reputation at all.

( 4 ) FROM the pleadings of the parties, the following issues were framed by the trial Court.

1. Whether the defendant Padma Debi prosecuted the plaintiff in criminal Court without any reasonable and probable cause and maliciously? 2. whether the other defendants are liable for the factors of the defendant-Padma bewa? 3. Whether the plaintiff is entitled to the quantum of the claim? 4. To what relief the plaintiff is entitled to?"

( 5 ) THE plaintiff examined himself and two witnesses and produced the certified copy of the judgment in ICC No. 1 of 1976, some portions of depositions of the witnesses and copy of the complaint petition, which were marked as Exts. 1 to 6. Defendants examined defendant nos. 1 and 3 as D. Ws. 1 and 2 respectively and did not produce any document. After perusing the evidence led by the parties, learned Subordinate Judge came to hold that respondent No. 1 Padma Bewa prosecuted the appellant in the criminal court maliciously without any reasonable and probable cause. He accordingly directed the said respondent to pay a compensation of Rs. 2,000/- to the appellant by way of damages. Learned trial Court, however, came to the conclusion that although there was inimical feeling between the appellant on one hand and the respondent Nos. 2 and 3 on the other, there was lack of material to prove that these defendants set up respondent no. 1 to lodge the false complaint. He accordingly, dismissed the claim of the appellant against defendants 2 and 3. Aggrieved by this order of dismissal of the claim against respondent Nos. 2 and 3, the plaintiff-appellant has filed this appeal.

( 6 ) MR. B. N. Misra, learned counsel submitting on behalf of mr. S. K. Nayak-1 contends that not only there is evidence on record to show that the respondent Nos. 2 and 3 were actively associated with the filing of false complaint against the appellant, but their evidence in the complaint case as well as in the suit are also there to show that they got the appellant falsely prosecuted in order to defame him and harm his reputation. He claims that the conclusion of the learned trial Court on issue No. 2 is against the weight of evidence on record and is highly unreasonable. He further states that when