In a malicious prosecution case, the prosecutor must have reasonable and probable cause to initiate the prosecution, and must not act with malice. If the prosecutor fails to establish these elements, the plaintiff may be entitled to damages.

( 1 ) THIS Letters Patent appeal by the plaintiff in a suit for damages for malicious prosecution is from a judgment of Tare, J. , in second appeal No. 243 of 1957 whereby reversing the decision of the Second Additional District Judge, Sagar, he dismissed the plaintiffs suit.

( 2 ) THE plaintiff's case, stated quite broadly, was that he was a respectable citizen of Khurai and of the State and was also President of the All India Digamber Jain Parwar Sab^a and of Municipal Committee, Khorai; that the respondent Sharma was on inimical terms with him and bore malice against him for various reasons; that in order to disgrace him Sharma as President of the Municipal Committee lodged a report with Khurai police that a road roller belonging to the Municipal Committee Bad been stolen by him and was lying on his farm; that when the police declined to take any action on this report the said respondent directed the second respondent Shridhar Ghanshayam, an employee of the Municipal Committee, to lodge a complaint against him, his brother and an agent in respect of an offence under Sections 379 and 411 I. P. C; and that on the 17th July, 1952, the complaint was dismissed by the Second Class Magistrate, Khurai, and he and the other co-accused were all discharged. The plaintiff proceeded to aver that the prosecution launched by the respondents was without reasonable and probable cause and was with malicious intention- that the respondent knew full well that the roller had been sent by the Municipal Committee to the plaintiff's brother Dhannalal for the repair of a road leading to the plaintiff's farm and after the completion of repair works it was lying idle; and that on 11th January, 1951, his agent Kishansingh had addressed a letter to the President that the roller was lying idle on the farm and seeking instructions as to where the roller should be delivered. Kishansingh had also added in the letter that even previously he had asked several' times the Municipal employees to nominate the place for the delivery of the roller but they failed to give any reply. On these allegations the plaintiff claimed damages to the extent of Rs. 3,901-8.

( 3 ) BOTH the defendant-respondents defied the plaintiff's claim and the allegations about malice and the prosecution having been instituted without reasonable and probable cause. The respondent Sharma pleaded that when the matter of loss of roller was brought to his notice by the other respondent he as the President of the Municipal Committee made a report to the police and, on the failure of the police to take any action, approved the filing of criminal complaint against the culprits; and that in doing so he acted bona fide and in the interest of the Municipal Committee. The other defendant also raised a similar plea.

( 4 ) THE Civil Judge, Class II, Khurai, who tried the suit found that the prosecution of the appellant was not without any reasonable and probable cause and with malicious intention. He accordingly dismissed the plaintiffs suit. In appeal, the learned Additional District Judge found both want of reasonable and probable cause and malice established. He, therefore, gave to the plaintiff a decree for Rs. 3,908-8 made up of Rs. 101-8 on account of expenses incurred in defending himself in the criminal case and general damages of Rs. 2,300/- on account of mental worry and Rs. 1,500/- on account of loss of reputation. In second appeal. Tare, J. , took the view that the respondents had succeeded in establishing that the prosecution was with reasonable and probable cause and with the intention of carrying the law into effect and not with any malicious intention. On this finding the decision of the Additional District Judge was set aside and the judgment of the trial Court dismissing the plaintiff's suit was restored.

( 5 ) THERE is no dispute that the criminal proceedings which were initiated on the complaint filed by the respondent Shridhar Ghanshyam on the instructions of the respon