In a suit for malicious prosecution, the onus of proof regarding the presence of reasonable and probable cause is on the Plaintiff.

JUDGMENT :

Misra, J. - Defendant is the Appellant against a, confirming judgment. Plaintiff claims Rs. 150/- as damages for malicious prosecution. The relevant facts are as follows Defendant used to live in the house of his brother in law, Dwari Mohanti. After the death of Dwari and his widow, Baidhar Patra (P.W. 3) succeeded to the property of Dwari as being the son of his maternal uncle. Defendant also laid claim to Dwari's poverty. In 1955 Defendant asked the Plaintiff to help him in getting the aforesaid property. But as the Plaintiff refused Defendant threatened him with revenge. On 5th December 1955 Defendant invented a false story and filed criminal case No. 405 of 1955-1956 in the court of the Sub-Divisional Magistrate, Balasore, against the Plaintiff and others on the allegation that the Plaintiff instigated the other accused person to remove paddy from the lands of Dwari Mohanti which were in possession of the Defendant. The criminal cases ended in acquittal on 1st October 1956. There was no occurrence and the entire allegation was false. There was absence of reasonable and probable cause on the part of the Defendant in the aforesaid prosecution which was started maliciously.

2. The defence case is that the Plaintiff is a villain and litigant. The Defendant used to look after the property of Dwari Mohanti who had no issues through his sister. After their death, the Defendant was in possession in his own right. Baidhar Patra (P.W. 5) was not an heir in respect of the property of deceased Dwari and never entered into possession thereof. The Defendant never approached the Plaintiff for any help nor gave him threats. The criminal case was true and it was not falsely and malicious brought without reasonable and probable cause.

3. The trial court dismissed the Plaintiff's suit. The lower Appellate court decreed the suit on the finding that elements of malicious prosecution had been established in this case.

4. The quantum of damages decreed is not challenged. Mr. Dhal raised the following contentions:

(i) The lower Appellate court acted contra.ry to law in placing the onus of proof on the Defendant to estalish that there was presence of reasonable and probable cause and absence of malice on his part.

(ii) The finding as to absence of reasonable and probable cause is based on certain errors of record relating to the evidence of P.Ws. 1 and 2 which vitiate the finding.

(iii) The finding as to existence of malice is contrary to law as there are no materials on record showing existence of previous enmity or litigation between the Plaintiff and the Defendant.

5. In a suit for malicious prosecution, it is incumbent upon the Plaintiff to establish that:

(i) the proceedings must have been instituted or continued by the Defendant;

(ii) the Defendant must have acted without reasonable and probable cause;

(iii) the Defendant must have acted maliciously; and

(iv) the proceedings terminated in favour of the Plaintiff. It is admitted that the Defendant filed the criminal case against the Plaintiff and some others in which they were acquitted.

6. The lower Appellate court placed the onus, of proof regarding presence of reasonable and probable cause on the Defendant. In Taharat Karim and Another Vs. Malik Abdul Khaliq and Others, a Bench of the Patna High Court held:

In an action for malicious, prosecution the onus of establishing that the Defendant had no reasonable and probable cause for the prosecution lies on the Plaintiff. At the same time, it is not right in a case of this kind to can upon the Plaintiff to prove his innocence, for the foundation of the action is only that the proceedings complained of terminated in favour of the Plaintiff if from their nature they were so capable of terminating. Where, however accusation against the Plaintiff was in respect of an offence which the Defendant claimed to have seen him committed and the trial end in an acquittal on merit, the presumption will be not only that the Plaintiff is innocent but also that t