R.N. Misra, J.
1. This appeal is by the defendant against the reversing decree of the learned Additional District Judge of Cuttack. The plaintiff sued the defendant for damages of Rs. 2,000/- for malicious prosecution. It was alleged that the plaintiffs wife was the owner of a touring cinema named Pragati Cinema. One Basudeb Das was the manager. In 1956 shows were being given at Banki. During that period Basudeb made purchases of daily necessaries from the defendant who was a grocer at Banki. He also made loans of rupees twelve hundred under two different promissory notes of rupees six hundred each from the defendant by pledging some cinema implements. In due course it was planned that the Cinema would shift to Athgarh. At that time Basudeb approached the defendant for release of me cinema implements and promised that payment would be sent from Athgarh. But the defendant did not agree to do so until he was paid off. The plaintiff stepped in and gave a letter to the defendant on 20th of December, 1956, (Ext. C) standing surety for repayment. In spite or such letter of the plaintiff given by the manager to the defendant, the latter did not release the machine parts. The defendant was paid from Athgarh in instalments. The plaintiff called upon the defendant to settle the accounts and release the articles. The defendant, however, did not release the same and claimed more money. With a view to harassing the plaintiff, the defendant started a false prosecution under Section 420 of the Indian Penal Code in the Criminal Court at Banki. There was absolutely no reasonable and probable cause for the prosecution and the case was instituted mala fide out of malice. The plaintiff averred loss of prestige and social status. The criminal case continued for more than two years and ultimately ended in acquittal on 21-3-1961. The plaintiff sued for recovery of damages of rupees one thousand and an equal amount for reimbursing himself in respect of expenses incurred in his defence. The suit was filed on 15-2-1961.
2. The defendant claimed that the criminal case was brought about genuinely and upon legal advice. The plaintiff held out a false assurance to the defendant on the basis whereof the defendant had acted to his prejudice. Thus an offence of cheating had really been committed. The judgment of acquittal was not proper.
3. The learned trial Judge found that there was not much of dispute in regard to the facts. He found that the defendant had taken the advice of a senior advocate at Cuttack and on his advice the criminal case had been instituted. He further found that the plaintiff had failed to prove that the defendant's dues bad beencleared before or by the time the criminal case was brought. He ultimately dismissed the suit. The learned appellate judge drew adverse inference against the defendant from his conduct, from the fact that his suit for realisation of money on the basis of the two promissory notes had failed and placed the burden on the defendant to prove want of reasonable and probable cause on the footing of the decision of this Court in the case of Gobind Chandra Sambarsingh Mohapatra v. Upendra Padhi, AIR 1960 Orissa 29. He concluded against the defendant but decreed the suit only for a sum of Rs. 500/- by way of general damages with proportionate costs. This reversing appellate decree is the subject-matter of the present second appeal.
4. Certain features of the case which are not in dispute may now be restated. Plaintiffs wife was the owner of the touring cinema known earlier as Bharati Cinema and re-named as Pragati Cinema. Basudeb Das was the manager. The defendant was a grocer at Banki and was also a registered money-lender. Basudeb had incurred. loans of rupees twelve hundred under two separate promissory notes each of the same amount by pledging some cinema machinery. He had also made certain credit purchases. The defendant demanded payment as a condition precedent to the release of the pledged articles when Basudeb wanted to shift the cinema from Banki to Athgarh. The plaintiff held out assurances of payment and agreed to stand surety in a written letter addressed to the defendant (Ext. C) dated the 20th of December, 1966. Even as per the case of the plaintiff some money out of the amount undertaken to be paid by the plaintiff was in arrears by the time the criminal case was instituted. The defendant had sued for recovery of money on the basis of the promissory notes and Ext. C and had ultimately lost.
5. The defendant claimed that he consulted an advocate and was advised that on the facts as revealed a prosecution under Section 420 of the Indian Penal Code would be maintainable and accordingly he launched the prosecution against the plaintiff. The entire basis for the criminal case was Ext. C, the undertaking given by the plaintiff to the defendant that he would make the entire payment. The defendant's stand has been that he released the goods which had been pledged with him on the basis of Ext, C. He demanded payment from the plaintiff who omitted to pay and thereafter on the advice of a senior advocate of Cut-tack he went to the criminal Court. In view of this stand of the defendant which. is more or less supported by the materials on record, it was not open to the lower appellate Court to draw adverse inference against the defendant for not having impleaded the manager Basudeb Das in the criminal case. The manager had no roleto play so far as the prosecution for cheating was concerned. The allegations in the criminal case were clear and the entire foundation of the prosecution was the undertaking in Ext. C and the subsequent default of the plaintiff to act upto the undertaking. Therefore, the conclusion of the learned appellate judge that the defendant mischievously omitted the manager from the array of the accused persons in me criminal case is without foundation. Want of notice as a condition precedent to the prosecution is again not an important circumstance. The conclusion reached in paragraph 5 of the lower appellate Court's judgment that the conduct of the defendant was obnoxious or that the defendant cannot be said to have approached the criminal Court with clean hands is unwarranted. The learned appellate Judge has nowhere found that the entire dues of the defendant had been paid by the time the prosecution was started. Ext. A is a letter written by Basudeb to the plaintiff on 3-8-1958. Therein the defendant's dues have been stated to be Rs. 1253.50 paise. Even if that is the amount, on the materials on record, it appears that a part of it remained unpaid by the time the prosecution was launched.
The learned appellate Judge in paragraph 6 of his judgment came to hold mat as the plaintiff had been making payments though the entire amount had not been liquidated it was unreasonable on the part of the defendant to approach the criminal Court. The defendant had pleaded that he approached again for clearing out his dues and the plaintiff omitted to do so. That stand of the defendant as a fact has not been clearly negatived in the appellate Court. The learned trial judge had accepted such stand. On the other hand the lower appellate Court has said:
'...... I agree with the learned advocate for the appellant arguing that Basudeb must have played some mischief in the matter as he was a man at the spot having directly contracted the loans, credit purchases and in executing documents with the defendant and as he might have given some such wrong impression that the plaintiff would be discharging the entire dues while he was representing the plaintiff in a different manner. The result was that the defendant by some such collusion was emboldened to file this complaint against the present plaintiff alone though he knew that the plaintiff was ordinarily an inhabitant of Cut-tack town and must be meeting harassment by running to Banki now and then and could conveniently omit Basudeb Das from the list of the accused persons and even not citing him as a P. W. as well though consequently the Court issued process so as to implead Basudeb. All these go to show that whatever drama was acted was practically behind the plaintiff and ultimately thetrial has ended in acquittal as stated above.'
The reasoning given by the lower appellate Court is difficult to appreciate. Admittedly Basudeb continued to be the manager of the cinema during criminal prosecution and as such the defendant could not have risked citing him as a P. W. As already indicated Basudeb was not in the picture so far as prosecution for cheating based upon Ext, C and failure of performance of the undertaking contained therein is concerned. If Basudeb had played the mischief in persuading the defendant to bona fide accept that the entire liability for what was covered by Ext. C and otherwise was of the plaintiff, in the absence of a finding that the defendant did not bona fide believe that way, nothing can be found against the defendant merely from such a fact. Basudeb's double role has not been found to have been known to the defendant. Therefore, the entire basis for a finding that there was collusion between Basudeb and the defendant stands unproved.
6. There is nothing on the record to suggest that the parties had strained relationship and the defendant wanted to use the process of the criminal Court to unduly harass the plaintiff. On the other hand it would be reasonable to assume as the trial Judge did that the defendant was prepared to accept the assurance contained in Ext. C, a mere letter, and was prepared to release the articles pledged by Basudeb with him. Thus the defendant did not have any other ill motive or reason to approach the criminal Court except the anxiety to recover his just dues.
7. Mr. Misra for the appellant contended that the lower appellate Court has committed a serious error of law in placing the burden of proving existence of reasonable and probable cause on the defendant in a suit for malicious prosecution. The learned appellate Judge has done so by placing reliance upon a decision of this Court in the case of ATR 1960 Orissa 29. This Court's decision relied upon a bench decision of the Patna High Court in the case of Taharat Karim v. Malik Abdul Khalic, AIR 1938 Pat 529. The Patna High Court had said:
'Where, however, the accusation, against the plaintiff was in respect of an offence which the defendant claimed to have seen him commit, and the trial ends in an acquittal on the merits as is the case here, the presumption will be not only that the plaintiff was innocent, but also that there was no reasonable and probable cause for the accusation,'
Their Lordships in the Patna High Court referred to the decision in the case of Balbhaddar Singh v. Badri Sah, AIR 1926 PC 46, when they said as above. Barman, J., as his Lordship then was, in the Orissa decision relied uponthe aforesaid case when he stated 'on the question of onus of proof in a case as in the present case where the complaint was made by the defendant on the facts based on his personal knowledge as aforesaid, such burden of proof is different from a case where the complaint is based on information believed to be true. In this context, I fully agree with the view of Dhavle J., AIR 1938 Pat 529, which was subsequently followed in the case of Darsan Pande v. Ghaghu Pande, AIR 1948 Pat 167, where the complaint against the plaintiffs was in respect of an offence which the defendant claimed in a criminal proceeding to have seen, them commit, as the defendant was robbed and as alleged by him, and the trial ended in acquittal on merits, there would be a presumption in favour of the plaintiffs that there was no probable and reasonable cause for the accusation.'
A Bench of the Patna High Court in the case of Ucho Singh v. Nageshwar Prasad Singh, AIR 1962 Pat 478, has held the view that AIR 1938 Pat 529 was not correctly decided and in fact the Judicial Committee of the Privy Council did not lay down the law as was accepted in AIR 1938 Pat 529. The later Patna decision also referred to a subsequent decision of the Judicial Committee in the case of Mohamed Amin v. Jogendra Kumar, AIR 1947 PC 108, for coming to the aforesaid conclusion. This Court, however, has continued to accept the earlier Patna decision to be proper. I do not propose to entertain a dispute on the question, of which view is correct particularly because on the facts of the present case that does not fall to be decided. Both in the earlier Patna case as also the Orissa decision referred to above, the defendant had posed to be an eye witness to the commission of the offence leading to the prosecution and when, that turned put to be false, the Court was right in coming to the conclusion that the defendant-prosecutor had no basis for launching the prosecution. With such conclusion there can be no dispute. Whether that was enough to place the onus on the defendant for showing presence of reasonable and probable cause is another matter, There, there is dispute.
8. In the present case, the story of the prosecution has not been found to be concocted. The promissory notes as a fact were not in dispute. The undertaking in Ext. C was not challenged. The lower appellate Court has not found that the defendant had not allowed release of the goods which had been pledged by the manager after Ext. C was delivered to him. There as been no finding that there is no truth in the substratum of the prosecution story. Thus the observation of Viscount Dunedin in AIR 1926 PC 46 has full application. The question to be posed is, 'Has the plaintiff proved that the defendant invented the story?' . The answer in the presentcase would be in the negative because the admitted facts lead to the conclusion that the defendant did not come to the criminal Court with an entirely concocted case.
The facts which gave rise to the principle indicated in the Patna and Orissa decisions referred to above could not have been applied to the facts of the present case because there is intrinsic difference between the set of facts in those cases and the facts involved in the present case. There the defendant alleged to be an eye-witness to the occurrence of assault or robbery which turned out to be false. Thus there was no justification at all for the prosecution. Here the basic facts have been accepted. Whether there was a need for prosecution or whether in law a prosecution was maintainable on such facts is in dispute. The two could not have been classed on the similar footing and the principle in those decisions could not have been attracted.
9. It is well settled that in an action for malicious prosecution, the plaintiff has to prove inter alia (i) that he was prosecuted by the defendant (ii) that the proceedings complained of terminated in his favour; (iii) that the prosecution was instituted against him without any reasonable and probable cause; and (iv) that it was due to a malicious intention of the defendant and not with a mere intention of carrying the law into effect. The courts in India have held that the entire burden in the matter of establishment of the aforesaid four ingredients rests on the plaintiff in order to entitle him to a decree for damages in an action for malicious prosecution. In the case of Braja Sunder Deb v. Bamdeb Das, AIR 1944 PC 1,-- a case going from this part of the country -- Lord Porter delivering the judgment of the Board said:
'......In order to succeed in an action for malicious prosecution the plaintiff must in the first instance prove two things; (i) that defendant was malicious and (ii) that he acted without reasonable and probable cause. Malice has been said to mean any wrong or indirect motive but a prosecution is not malicious merely because it is inspired by anger. However wrongheaded a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be the initiator of a malicious prosecution. But malice alone is not enough; there must also be shown to be absence of reasonable and probable cause. .....'
The learned appellate Judge thus placed the burden on wrong shoulders. The initial burden to establish absence of reasonable and probable cause though negative in its form was still on the plaintiff. Narasimham, C. J. in this Court in the case of Sanatan Sahu v. Kali Sahu, AIR 1964 Orissa 187, said that 'it is settled law that the initial onus of proving the absence of reasonableand probable cause is on the plaintiff even though this means that he has to prove the negative.' Salmond on Torts states as follows:--
'No action lies for the institution of legal proceedings, however malicious, unless they have been instituted without reasonable and probable cause. This is a difficult part of the law and two points may be noted at the outset. First, the burden of proving absence of reasonable and probable cause is on the plaintiff, who thus undertakes the notoriously difficult task of proving a negative. Secondly, the existence of reasonable and probable cause is a question for the judge and not for the jury.'
The first proposition has been set at rest on good authority oft quoted as a precedent. see Hicks v. Faulkner, (1878) 8 QBD 167 (170).
10. On the aforesaid analysis I have no doubts in my mind that the lower appellate Court wrongly applied the principle indicated in the Orissa decision (AIR 1960 Orissa 29) to the facts of the present case and erroneously placed the burden of proof of a necessary ingredient in a positive way on the defendant while the burden lay on the plaintiff to prove that negative. Their Lordships in the Supreme Court in the case of (Mst. Kharbuja Kuer v. Jangbahadur Rai) AIR 1963 SG 1203 have laid down that when the burden of proof is wrongly placed an error of law within the meaning of Section 100 of the Code of Civil Procedure arises. That certainly is a matter within the purview of Section 100 of the Code of Civil Procedure. I would accordingly hold that the learned appellate Judge fell into an error of law when he placed the burden in this case of proving want of existence of reasonable and probable cause on the defendant. That burden was on the plaintiff and the plaintiff had been found in trial Court not to have discharged it. On the evidence on record I do not think a different conclusion could have been reached. The lower appellate Court omitted to place the burden on the plaintiff and came to the erroneous conclusion.
11. It follows that the plaintiffs suit for damages based upon the allegation of malicious prosecution must fail. The appeal is allowed. The judgment and decree of the lower appellate Court are set aside and those of the trial Court are restored. There would be no order for costs here as also in the lower appellate Court. The defendant shall be entitled to his costs in the originalforum.