1. Being aggrieved by the judgment and decree dated 20.12.2001 passed by Fifth Additional District Judge, Gwalior in Civil Appeal No. 60A/06 whereby judgment and decree dated 19.3.1996 passed by Ninth Civil Judge Class II, Gwalior in Civil Suit No. 350A/94 was confirmed and the appeal was dismissed, present revision has been filed.

2. Short facts of the case are that Tahir Khan who was Predecessor-in-title of the respondents tiled a suit for compensation of Rs. 4,950/- alleging that civil litigation is pending between the petitioner and the deceased Tahir Khan in the Court of V Civil Judge Class II. Gwalior. It was alleged that a criminal case is also pending on the complaint of the deceased Tahir Khan which is pending before the Judicial Magistrate, Gwalior. It was also alleged that civil suit has also been tiled by the petitioner which is pending in the Court of Fourth Civil Judge Class I. Gwalior. It was alleged that a false FIR was lodged by the petitioner on 3.10.1985 against deceased Tahir Khan in the Police Station, Madhav Ganj, Gwalior on the basis of which a criminal case was registered against him under sections 341/323, IPC in which deceased Tahir Khan was arrested on 23.10.1985 and was released on 24.10.1985. Challan was filed before the Court of Judicial Magistrate First Class, Gwalior. After trial, vide judgment dated 28.2.1987 deceased Tahir Khan was acquitted as charges were not found proved. In the plaint, it was alleged that because of malicious prosecution filed by the petitioner, deceased Tahir Khan was entitled for compensation, hence, the suit was tiled.

3. Petitioner tiled the written statement wherein all the plaint allegations were denied. It was denied that the complaint lodged by the petitioner was baseless. It was prayed that the suit be dismissed.

4. On the basis of pleadings of the parties, learned trial Court framed issues, recorded evidence and decreed the suit for a sum of Rs. 4,950/against which appeal was tiled which was dismissed, hence, the present revision.

5. Learned counsel for the petitioner submits that from perusal of the judgment passed in criminal case which is exhibited as Ex. P-1, it is evident that benefit of doubt was given to the deceased Tahir Khan. It was submitted that it is not the case in which the acquittal is on the basis of lodging of false complaint. Learned counsel further submitted that it was for the plaintiff to prove that his prosecution is malicious and without reasonable and probable cause. Reliance was placed on a decision in the case of Bhanwarlal v. Fatesingh, [1984 JLJ 505], wherein it was held that it is for the plaintiff to prove that the defendant invented whole of the story as far as it implicated the plaintiff. This is a very heavy onus of proof and unless the plaintiff sustains it, the plaintiff must fail. Further reliance was placed on a decision in the matter of Bharat Bhushan v. Chandra Mohan, [1982 JLJ 1351 wherein Division Bench of this Court has observed that to succeed in an action for damages for malicious prosecution, a plaintiff must prove (i) the prosecution by the defendant of a criminal charge against the plaintiff before a Tribunal into whose proceedings the civil Courts are competent to enquire;

(ii) that the proceedings complained of terminated in his favour. if from their nature they were capable, of so terminating; (iii) that the defendant instituted or carried on such proceedings maliciously; (iv) that there was an absence of reasonable and probable cause for such proceedings; and (v) that the plaintiff has suffered damages. It was also observed that reasonable and probable cause may be defined to be an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accused to the conclusion that the pers