M.C. Jain, J.
1. This is a plaintiffs second appeal in a suit for damages on account of malicious prosecution. The plaintiffs' suit was dismissed by both the courts.
2. The plaintiff instituted the suit with the allegations that the defendant moved an application on 12-4-62 under Section 98 CrPC. before the Sub-Divisional Magistrate, Mount Abu in pursuance of which search was taken but ultimately the proceedings terminated in his favour and the property was ordered to be returned to him. It was alleged that the defendant was actuated by malice and that the application was based on false facts and there was no reasonable and probable cause for making the application. The plaintiff appellant claimed damages of Rs. 1200/-.
3. The defendant denied the plaintiff's allegation and stated that the plaintiff runs an ordinary Tea Hotel. The defendant is the real brother of the plaintiff and he is inmical to him The plaintiff is having a company of thieves, dacoits and robbers and purchases stolen property and the plaintiff gives shelter to them. The plaintiff presented an application under Section 107 and 110 Cr.P.C. against him, which was ultimately dismissed. The defendant admitted that he moved an application under Section 98 Cr.P.C. It was in continuation of the report Lodged by him on 1-4-1962, in pursuance of which the plaintiff was prosecuted under Section 124 of the Bombay Police Act and under Section 66B of the Bombay Prohibition Act. The plaintiffs' claim was denied and prayed that the plaintiffs suit be dismissed with costs.
4. As many as seven issues were framed. The learned Munsiff, after recording the evidence of the parties dismissed the plaintiffs' suit. It was held that the plaintiff was prosecuted by the defendant but the proceedings did not terminate in favour of the plaintiff and it cannot be said that the prosecution was without reasonable and probable cause. The issue regarding malice was not found in favour of the plaintiff and ultimately the plaintiffs' suit was dismissed The plaintiff went in appeal b it the learned Civil Judge, Stroh dismissed the plaintiffs' appeal and it was held that the issue No. 2 and issue No. 3 were rightly decided by the learned Munsiff against the plaintiff, fosse No. 2 related to the termination of the prosecution in favour of the plaintiff and issue No. 3 related to the prosecution of the plaintiff without reasonable and probable cause. As a result of the concurrent findings the plaintiffs' appeal was dismissed. He nee this second appeal
5. I have heard the. learned Counsel for the appellant. None is present on behalf of the defendant.
6. The learned Counsel for the appellant urged that the finding on issue No. 2 is erroneous. The fact is that the plaintiffs appeal against conviction was accepted and the plaintiff was acquitted of the offences with which he was accepted and. I was referred to the certified copy of the judgment in Criminal Appeal. It appears that the judgment was not placed on record in appeal. The judgment of Criminal Appeal dated 18-8-1966 was not pronounced upto the date of judgment of the trial court in this suit. The plaintiff stood convicted on the date of judgment by the Munsiff on 20-7-1965. If, the judgment in appeal would have been placed on record, the fitting on issue No. 2 would not have been confirmed in the first appeal. Even if, issue No. 2 is found in favour of the plaintiff, still it is to be seen as to whether the plaintiff was prosecuted with reasonable and probable cause. On this issue, there are concurrent findings of both the courts It may be stated that the application dated 12-4-1962 to the Magistrate was in continuation to the application dated 1-4-1962 lodged with the Police, on which investigation commenced, which culminated in the plaintiffs' prosecution. It cannot be said that the plaintiffs' prosecution under Section 124 of the Bombay Police Act was without reasonable and probable cause, more particularly. When the plaintiff was convicted by the trial court. The finding on issue No. 3 is a finding of fact based on material on record. This finding is not open to challenge in this appeal, and nothing is canvassed which may warrant interference in this finding. The plaintiffs' suit is rightly dismissed by both the courts below.
7. In the result, this appeal has to force so it is hereby dismissed.