T.S. Misra, J.
1. This is an appeal by the defendant. It arises in the following circumstances.
2. A dacoity took place at the house of Ali Raza in village Bankata, P.S. Raunapar in the night of July 21/22. 1949. The plaintiff was prosecuted in that case under Section 412, Indian Penal Code for being found in possession of a 'hansuli' alleged to be belonging to Ali Raza on the charge-sheet submitted by the defendant No. 1 against him. The defendant No. 1 submitted a search memo in the capacity of Station Officer, P.S. Raunapar. The defendants Nos. 2 and 3 were search witnesses. The plaintiff was ultimately acquitted by the Court of Session on 9th October, 1950. Thereafter the plaintiff gave a notice to the defendant No. 1 under Section 80 Civil Procedure Code, which was, however, returned refused by the defendant No. 1. The plaintiff thereupon filed a suit for damages on the ground of malicious prosecution claiming a sum of Rs. 1000.00 from the defendants Nos. 1, 2 and 3. It was alleged by the plaintiff that one Amir Singh and the defendants Nos. 2 and 3 were his enemies and were plotting and conspiring to cause harm to him by various ways. With that end in view and taking unlawful advantage of the dacoity which took place at the house of Ali Raza, the defendants Nos. 2 and 3 conspired together to falsely implicate him as an accused under Section 412, Indian Penal Code in the said dacoity case. The defendant No. 1 also joined hands with the defendants Nos. 2 and 3 to secure that object. The plaintiff alleged that he neither participated in the said dacoity nor received any stolen property but he was maliciously and without any reasonable and probable cause, prosecuted by the defendants. He alleged that the defendant No. 1 who was then the Station Officer P.S. Raunapar, kept him illegally detained in lock up for a day and then challaned him as an accused in the aforeaid dacoity case. As none could identify the plaintiff in the identification parade, the defendants and Amir Singh cooked up another case to keep the plaintiff entangled in the dacoity case by falsely implicating him in the case under Section 412, Indian Penal Code. The plaintiff further alleged that the defendant No. 1 prepared a false and totally wrong sketch map of the plaintiffs house. He never made any search of the house of the plaintiff and the alleged 'hansuli' was not recovered from his house. The suit was contested by the defendants.
The defendant No. 1 contended that he started a case under Section 412, Indian Penal Code against the plaintiff in a bona fide manner and pleaded that the plaintiff was prosecuted on the strength of the investigation made by him. He further alleged that he had made a search of the house of the plaintiff in connection with the dacoity which had taken place at the house of All Raza and had recovered a 'hansuli'. The allegations of the plaintiff to the contrary were denied by him. The defendant No. 1 denied the receipt of the notice under Section 30, Civil Procedure Code and pleaded bur of Section 42 of Police Act and Limitation Act, The defendants Nos. 2 and 3 supported the case of the defendant No. 1 and alleged that a search of the plaintiff's house did take place in their presence and they were not liable for any damages. The trial Court repelled all the contentions raised by the defendants and held that the plaintiff was maliciously prosecuted by the defendants without any reasonable and probable cause. It accordingly decreed the suit for damages to the tune of Rs. 1,000.00. The defendants preferred an appeal from the said decree. The Appellate Court below on a consideration of the evidence on the record and surrounding circumstances affirmed the findings recorded by the trial Court and dismissed the appeal. Aggrieved, the defendant No. 1 preferred the second appeal No. 293 of 1965 whereas the defendants Nos. 2 and 3 filed a Second Appeal No. 3633 of 1964. Both the appeals were ordered to be connected and to be heard together.
3. The Appeal No. 3633 of 1964 was filed by Deo Saran Chaube and Moti Chaube. DeO Saran Chaube died during the pendency of the appeal. His heirs and legal representatives filed an application for being substituted in place of the deceased Appellant No. 1. Notice of that application for substitution had, however, not been served either on the plaintiff respondent No. 1 or on the defendant respondent No. 2. The application for substitution was thereafter dismissed for not taking steps and the appeal abated so far as Appellant No. 1 was concerned. None appeared on behalf of Moti Chaube, Appellant No. 2 to press second Appeal No. 3633 of 1964. Consequently the Appeal No. 3633 of 1964 must fail.
4. In Second Appeal No. 293 of 1965, the learned Counsel for the appellant urged that there was no proof that the defendant No. 1 was actuated by malice in prosecuting the plaintiff in the aforesaid case and therefore no decree for damages on the ground of malicious prosecution could be passed against him. It is by now well settled that in order to succeed in an action for malicious prosecution, the plaintiff has to prove (1) that there was want of reasonable and probable cause for the prosecution, (2) that the proceedings were initiated in a malicious spirit and (3) that the plaintiff was acquitted. Malice is said to mean any wrong or indirect motive. If the proceedings were initiated from an indirect or wrong motive and not in furtherance of justice it would be said that the defendant was malicious; there need not necessarily be a feeling of enmity, spite or ill-will. Want of reasonable and, probable cause and existence of malice must however, concur in order to constitute the wrong of malicious prosecution. Absence of reasonable cause owing to the defendant's want of belief in the truth of his charge would be evidence of malice. It appears from Ex. 1 that Harbans Chaube, the plaintiff was given the benefit of doubt by the Sessions Judge and was acquitted. The appellate court below on a consideration of the evidence both documentary and oral as well as the circumstances of the case came to the conclusion that no search of the house of the plaintiff was ever made and everything against him was concocted by the defendant No. 1 in conspiracy with the defendants Nos. 2 and 3 and Amir Singh. The action of the defendant No. 1 was also mala fide. The defendants Nos. 2 and 3 were not only witnesses but were actual prosecutors of the plaintiff. The defendant No. 1 also took active part in the prosecution of the plaintiff. He was the man who set the law into motion against the plaintiff. These findings are based on the appreciation of evidence. Sufficiency or adequacy of evidence to support a finding of fact is a matter of decision of court of facts and cannot be agitated in a second appeal (See Madamanchi Ramappa v. Muthaiuru Bojjappa, AIR 1963 SC 1633).
5. The learned counsel for the appellant, however, urged that the appellate court below arrived at those findings by considering some evidence which was inadmissible and therefore the whole finding is vitiated. In this connection he referred to that portion of the judgment of the appellate court below where reliance was placed on the statement of Mst. Kabutari. It appears that she was produced as a witness for the prosecution before the Sessions Judge to prove that hansuli said to have been recovered from the house of the plaintiff belonged to Ali Raza. She had admitted in the court of sessions that she was not in a position to tell whether Hansuli, Ex. 2 was the same which her husband had sold to AH Raza. A certified copy of her statement made before the Sessions Judge was filed In the suit which has given rise to the present appeal and the appellate court below referred to that statement of Mst. Kabutari and observed that even from her statement, it was clear that the plaintiff's house was not searched by the defendant No. 1 at the time and date allowed and the alleged hansuli was not recovered from the plaintiff's house. It is true that the certified copy of the statement of Mst. Kabutari has not established that she was dead or could not be found or her presence could not be obtained without an amount of delay or expenses which under the circumstances of the case the court considered unreasonable. It may, however, be noticed that the statement of Kabutari was not the only evidence on which the appellate court below relied to come to the conclusion that no search of the house of the plaintiff was ever made by the defendant No. 1 and that the hansuli was not recovered from the plaintiffs house. On the other hand, the appellate court below made a careful scrutiny of the entire evidence both oral and documentary to come to that conclusion. In view of the clear findings on fact recorded by the courts below that that no search of the house of the plaintiff was ever made and everything against him was concocted in conspiracy with the defendants Nos. 2 and 3 and Amir Singh and that the defendant No. 1 took active part in the prosecution of the plaintiff clearly made out that the defendant No. 1 was actuated by wrong or indirect motive to prosecute the plaintiff.
6. The learned coursel then urged that the plaintiff failed to establish that the prosecution was without reasonable and probable cause. I find no merits in this contention. As indicated above the courts below have found that everything against the plaintiff was concocted by the defendant No. 1 in conspiracy with defendants Nos. 2 and 3 and Amir Singh and that no search, of the house of the plaintiff was made and that the article in question was not recovered from his place. There was, therefore no reasonable and probable cause for the defendant No. 1 to prosecute the plaintiff.
7. The learned counsel for the appellant further argued that the plaintiff was given benefit of doubt by the Sessions Judge and, therefore, it was not a case of clean acquittal. This contention has also no merits. The fact remains that the plaintiff was acquitted of the charges. The fact also remains that the plaintiff was prosecuted. The Civil Court had in the suit which pave rise to the present appeal, to examine the evidence on the record and to come to its own conclusion whether there was any reasonable or probable cause for the defendants to prosecute the plaintiff. Both the courts below after examining the evidence adduced by the parties recorded a finding that there was no reasonable and probable cause for the prosecution of the plaintiff and that the whole thing was concocted.
8. The learned Counsel for the appellant laid great stress on the plea of limitation raised by the defendant No. 1. He submitted that Article 2 of the Indian Limitation Act 1908 was applicable. There is no merit in this submission. Article 2 of the Limitation Act dealt with the suits for compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in India, whereas Article 23 dealt with the suit for compensation for a malicious prosecution. A claim in respect of compensation for malicious prosecution would fall under Article 23 which was the more specific Article and not under Article 2 which applied to cases where the defendant acted under colour of statute.
9. In the present case it was found that the prosecution of the plaintiff ended in his acquittal on 9-10-1950. The suit for damages for malicious prosecution could be filed only thereafter. The plaintiff filed the suit on 14-8-1951, that is, within one year, hence it was not barred by time.
10. No other point was urged on behalf of the appellant. This appeal must also, therefore, fail.
11. In the result both the appeals Nos. 293 of 1965 and 3633 of 1964 arc dismissed. The plaintiff respondent shall be entitled to his costs in both the appeals.