JUDGMENT

S.S. Dhavan, J. - This is a defendant's second appeal from the decree of the First Civil Judge of Saharanpur reversing the decree of the Munsif, Havali Saharanpur and awarding the plaintiff-respondent damages against the appellant for malicious prosecution. The facts are these. The defendant-appellant Smt. Devi Atma Nand, who is described as a Sanyasin, filed a criminal complaint under Section 420 of the Indian Penal Code against three persons one of whom was the respondent in this appeal-Shambhoo Lal Master a who has filed this suit for malicious prosecution. Devi Atma Nand alas leged in her plaint that one of the accused-Kamta Prasad sold her a house by a sale deed dated the 14th a of January 1954; that the second accused Ganga Prasad who was a broker dealing with landed property conspired with Kamta Prasad in defrauding the complainant; that the third accused Shambhu Lal Master (the plaintiff in the present suit for malicious prosecution) was the scribe of the sale deed and a party to the fraud: that the accused did not disclose to the complainant that a portion of the house had already been sold to another woman by the name of Vidya Vati, and on, the contrary assured her that there was no charge or encumbrance of any kind on the property and that Kai Prasad had a good title to the entire house; that the complainant subsequently discovered that a part of the house had already been sold by Kamta Prasad to the aforesaid Vidya Vati and thus she had been cheated; that all the three accused had acted in collusion and were S. guilty of the offence of cheating under Section 420, I. P. C. The three accused were tried by a Magistrate of First Class, and two of them, Kamta Prasad and Ganga Prasad were convicted and sentenced to eighteen months' rigorous imprisonment which on appeal was set aside in the case of Ganga Prasad and was reduced in the case of Kamta Prasad to imprisonment till the rising of the court. The appellate court also imposed a fine of Rs. 500 on Ganga Prasad. The third accused, Shambhu Lal, was acquitted by the trial court. The complainant's application before the District Magistrate for the filing of an appeal against his acquittal was dismissed. Thereupon Shambhu Lal Master filed the present suit for malicious prosecution and claimed a sum of Rs. 800/- as compensation. The defendant contested the suit and denied that she had filed the criminal complaint without reasonable and probable cause. The trial court held that the appellant had not acted maliciously or without reasonable and probable cause and dismissed the suit. On appeal the learned Civil Judge reversed both these findings and held that the appellant had acted without reasonable or probable cause and with malice, and awarded the plaintiff a decree for Rs. 400/- as compensation. The defendant has now come up in second appeal to this Court.

2. I have heard Mr. Deoki Nandan who holds the brief for Mr. N. D. Pant, for the appellant and Mr. N. D. Pant, for the respondent and perused the judgments of the courts below as well as the pleadings of the parties. Portions of the evidence were also read out before me. I am of the opinion that the decision of the learned appellate Judge is manifestly erroneous. It is elementary that a plaintiff who claims damages for having been made a victim of malicious prosecution must prove that the defendant prosecuted him without reasonable or probable cause and was also actuated by malice. The absence of reasonable cause and malice are two separate ingredients to be proved in every suit for malicious prosecution and a plaintiff will not succeed if he proves absence of reasonable cause but not malice or vice-versa. In the present case the learned Judge came to the conclusion that there was no reasonable cause for appellant (complainant in the criminal proceedings) to file her complaint, and this finding is binding on this Court in second appeal though I think it is very unsatisfactory and I would have reversed it without