1. This is a second appeal by the defendant in a suit for damages for an alleged malicious prosecution. The defendant-appellant prosecuted the 15 plaintiffs, respondents in the Criminal Court on charges of criminal trespass, mischief and criminal, intimidation. The Criminal Court discharged the plaintiffs without framing a charge holding that the evidence produced by the complainant to substantiate his complaint did not justify the framing of a charge. Thereafter the plaintiffs brought a suit for damages against the defendant alleging, that the complaint had been lodged against them on account of enmity without any adequate cause. The defence was that the allegations in the complaint were true. The main issue framed by the trial Court of the Subordinate Judge, Pali, district Ranikhet, was in these terms, 'whether the defendant prosecuted the plaintiffs without reasonable or probable cause.' The plaintiffs examined themselves and produced six witnesses in support of their case that the complaint against them was untrue and without reasonable and probable cause. The defendant did not go into the witness-box, but produced one witness and the village patwari in support of his case. The trial Court proceeded on the basis that 'the whole question hangs upon whether the substance of the accusation against the plaintiffs was false and whether the defendant knew it was false' and after discussing the evidence of the plaintiffs and their witnesses came to the following conclusion:
I cannot find positively that the criminal accusation made against the plaintiffs was a false one. There is certainly no good evidence that they did commit any crime but it is one thing to prove a crime in a Criminal Court and another to show that the accusation had no reasonable or probable cause. In fact I find there was reasonable and probable cause for the accusation. There may very well have been malice but malice alone has no effect where there was reasonable or probable cause; give your enemy a chance to prove you have committed a crime and he may do so.
2. On the above finding the suit of the plaintiff was dismissed. The plaintiffs then appealed to the District Judge who accepted the appeal in part and gave a decree for Rs. 230 with proportionate costs. The basis of the decision of the lower Appellate Court was that the burden of proof in this case rested on the defendant and he having failed to discharge it and having failed to prove that the complaint was true, the claim for damages should be decreed against him. The following quotation from the judgment of the lower Appellate Court will indicate the point of view with which that Court considered the case:
In this case An Singh, defendant, had complained that he was seeing all what the accused were doing. His complaint was based on his own personal knowledge and not on any information received from anybody else. No question of reasonable or probable cause arises in this case. The plaintiffs being discharged by the Criminal Court, starts the presumption in their favour.
3. Then the learned Additional District Judge proceeded to consider the evidence of the defendant and at the end remarks as follows:
The defendant has thus utterly failed to prove that his complaint was true and it was improperly dismissed. It appears quite unlikely to me that the plaintiffs may have taken their womenfolk for committing such offences as alleged by the defendant. I hold that the complaint has not been proved to be true. Malice under such circumstances ought to be presumed. It is admitted that there is enmity between the parties. I therefore hold the complaint was made maliciously and was not true.
4. On behalf of the appellant I have been referred to the cases reported in Balbhaddar Singh v. Budri Sah (1926) 13 A.I.R. P.C. 46, Basdeo v. Shyama Charan : AIR1936All532 , Shubrati v. Shamsuddin : AIR1928All337 and Bhawani Shanker v. Raghubar Dayal : AIR1937All417 , and it has been argued that the lower Appellate Court wrongly cast the burden of proof on the defendant and its finding is vitiated by reason of the wrong point of view with which it considered the evidence of the parties. The oases referred to above leave no doubt that the law is settled that in an action for damages for malicious prosecution the plaintiffs must establish inter alia that there was no reasonable or probable cause for the defendant to prosecute the plaintiff and further that if the facts alleged by the defendant in the criminal case are such as, from their nature, were necessarily true or false to his knowledge, the plaintiff must establish that the defendant's story was false; and if he proves; that the defendant's story was false, he should be deemed to have proved that there was no reasonable and probable cause for the defendant to prosecute the plaintiff.
5. In the present case the defendant alleged facts which were true or false to his own knowledge and it was therefore necessary for the plaintiffs, before they could succeed, to prove that the complaint against them was false and that it was false to the knowledge of the defendant. The mere fact that the judgment of the Criminal Court ended in favour of the plaintiffs did not relieve them of the necessity of proving in the suit for damages filed in the Civil Court that the complaint was false to the knowledge of the defendant or was without reasonable and probable cause. The view of the lower Appellate Court that the order of discharge passed in favour of the plaintiffs started a presumption of innocence in their favour and shifted the burden of proof on the defendant to establish that his complaint was not true is obviously wrong. In support of the view taken by the lower Appellate Court learned Counsel for the plaintiffs has referred to a single Judge case of this Court reported in Kishan Mal v. Sakal Raj Mal : AIR1929All878 . That was a case in which the defendant himself was present at the time of the alleged occurrence. The learned Judge who decided that case made the following observations in his judgment:
To throw the burden on the plaintiff to prove that the charge brought by the defendant against the plaintiff was false was tantamount to putting the plaintiff to proof of his innocence without giving him the benefit of acquittal obtained by him in the Criminal Court.... The burden will therefore shift on to the defendant to prove in the Civil Court that the charge disbelieved by the Criminal Court was true and under the circumstances of the present case, no particular burden of proof is thrown on the plaintiff. The Civil Court is called upon from a balance of the evidence, and after taking into consideration the acquittal of the plaintiff by the Criminal Court, to record a definite finding whether the complaint instituted by the defendant was false or true. The evidence of both sides should be considered and a definite finding recorded.
6. As to this case I am not aware that it has been followed in any subsequent case in this Court. In the first place that case is distinguishable from the present inasmuch as in that case the question of the innocence or guilt of the accused had been definitely determined by the Criminal Court and an order of acquittal had been passed. In the present case there has only been an order of discharge and the guilt or innocence of the accused has not been definitely determined. Further this (sic) case was considered by a Bench of the Madras High Court in the case reported in Venkatapathi v. Balappa (1933) 20 A.I.R. Mad. 429 and the learned Judges of the Madras High Court made the following observations about it:
There has been some discussion in this case as to what lies on the plaintiff to prove and what use can be made of the judgment of the Criminal Court. The Privy Council have in Balbhaddar Singh v. Budri Sah (1926) 13 A.I.R. P.C. 46 now made it clear what are the several elements which in a case of this description have to be satisfied. Besides the fact of the prosecution and of its termination in favour of the plaintiff, it has to be shown that the prosecution was instituted against him without any reasonable and probable cause and that it was due to a malicious intention. This pronouncement has been somewhat curiously construed in the judgment of a single Judge of the Allahabad High Court which has been drawn to our attention : Mohammad Daud Khan v. Jai Lal : AIR1929All265 . The learned Judge would appear to think that some presumption arises from the mere fact that the plaintiff has been acquitted by the Criminal Court in cases where there is no scope for surmise and where evidence was given by the defendant of what he actually saw. I think that this case goes a good deal further than the usually accepted position, which is not affected by the Privy Council judgment, that it lies upon the Civil Court itself to undertake an entirely independent enquiry before satisfying itself of the absence of reasonable and probable cause. (The italics are mine). Indeed I am unable to agree that our Evidence Act justifies an examination of the judgment of the Criminal Court in order to ascertain the grounds upon which the acquittal proceeded and the views taken by the trying Magistrate of the evidence. Under Section 43, Evidence Act, it appears to me that that judgment can be used only to establish the fact that an acquittal has taken place as a fact in issue in the civil suit. I know of no provision of the Act which will justify the Civil Court in taking in to consideration the grounds upon which that acquittal was based.
7. In another Bench case of this Court reported in Sah Chaturbhuj v. Sah Mauji Ram : AIR1936All537 , it was laid down that where the charge is of such a nature as must be true or false to the knowledge of the defendant, then no question of reasonable and probable cause can arise, and the fact that the Criminal Court has entered a judgment of acquittal in favour of the plaintiff in a suit for malicious prosecution does not raise any presumption in favour of the plaintiff, as regards want of reasonable and probable cause and malice, nor can the judgment be any evidence of those facts. It was further held in that case that in every case of malicious prosecution the Civil Court must hear evidence on both sides and decide for itself, independently of the findings of the Criminal Court, whether or not the prosecution of the plaintiff was without reasonable and probable cause and malicious, and it will not take into consideration the judgment or the reasons, which may have led the Criminal Court to an order of acquittal.
8. It is unnecessary to multiply authorities or to pursue the matter further. It will be clear from what has been stated above that it has been consistently held in this Court and such is now the settled law that in a case like the present the burden of proof initially rests on the plaintiff. In so far as the decision of the single Judge of this Court on which reliance has been placed on behalf of the respondents is inconsistent with what has been the consistent view of this Court, I must respectfully decline to follow it. In my opinion the judgment of the lower Appellate Court in this case is clearly vitiated by a mistaken view on the law of burden of proof and it appears necessary that the evidence should be considered by that Court in the proper perspective. I therefore allow this appeal, set aside the judgment and decree of the lower Appellate Court and remand the case to that Court with a view to considering the evidence of the parties and disposing of the appeal according to law. Costs here and heretofore shall abide the result. The court-fee may be refunded to the appellant.