This appeal is directed against the judgment and decree dated 2.4.1993 in Civil Suit No. 40-B/85 by the learned Fifth Additional District Judge, Ujjain who was pleased to dismiss the suit of the plaintiff with cost.

The short facts giving rise to this appeal are that the appellant being the resident of city, Ujjain and was doing the vocation of architecture and builder. The respondent No. 1 arrested him on 12.1.1984 without any offence being committed by him and was taken to Dewas Gate Police Station. On the said day the appellant was offering flowers to Maulana Dargah at the relevant time. After trial the lower Court held that the appellant did not prove that the arrest and prosecution of the appellant was ma1afidesince the evidence does not make out those ingredients for compensating the appellant for a malicious prosecution. The lower Court held that the plaintiff has failed to prove that there was any malafide or malice in the act of the respondents. It held that on the contrary the record shows that the appellant's name appears in the register of criminals and there are many criminal cases against him.

The learned counsel for the appellant Shri Garg argued that merely because of name of anyone in the criminal register, he cannot be arrested by the police without there being any proof of committed offence. He argued that in the case of appellant, he was acquitted of the offence under the Arms Act since the prosecution could not proved that the appellant had any arms with him.

Shri Singh appearing for the other side argued that there was ample reason for the respondent to prosecute the appellant. He argued that it must also be borne in mind that against the appellant there are many criminal cases including one for which he was tried. He argued that it is a different thing to say that the Court has convicted the accused or not then to say that in every acquittal the police officer can be used for malicious prosecution. He argued that the very basis of the claim for compensation in the Court is absent and that the appellant has not proved that there was any malice or ma1afide in the action of the respondent in the given case.

I concur with the lower Court's findings that the appellant has failed to prove the malafide on the part of the respondent. The lower Court was right in bearing in mind that the appellant was an enlisted in the Criminal's list and there are many criminal cases pending against the appellant. In such circumstances, the arrest and prosecution cannot simply said to be malafide act. Mere acquittal in a case does not straight away call for compensation for malicious prosecution. The plaintiff must prove the malafide rather than lack of bonafide. It must also be borne in mind that while trying the case against the government servant who is in discharge of his duties are required to do certain things, whether ultimately the case is proved or not is more upon the cases or not proved have many reasons. One of them might be want of proof to the satisfaction of a particular proof. In such circumstances, I do not think there is any reason for this Court to interfere with the conclusions and the ultimate decree passed by the lower Court. I concur with the lower Court in dismissing the suit and as I find no substance in the appeal, the same is dismissed with cost. The advocate's fee as may be proved.