Monoj Kumar Mukherjee, J.
1. This second appeal is by the plaintiff and it arises out of a suit for damages for malicious prosecution.
2. The plaintiff's case is that the defendants Nos. 1 and 2, in conspiracy with the defendant No. 4, set up the defendant No. 3 to lodge a false complaint before the Noapara Police Station to the effect that on May 11, 1963 he (the plaintiff) had shown his private parts and had also abused her (the defendant No. 3) in filthy language. On the basis of the said complaint a criminal proceeding was instituted which ultimately resulted in his acquittal. Due to the institution of the prosecution, the plaintiff was suspended from his service with the Ichapore Rifle Factory and during the period of suspension he was allowed to draw only subsistence allowance at Rs. 102-50 p. per month. That apart, the plaintiff had to lose over-time allowance pnd such loss was tentatively put at Rs. 200/-. The plaintiff had to defend himself by engaging a lawyer and on that account also he had to incur expenses to the extent of Rs. 200/-. In all, the plaintiff claimed a sum of Rs. 500/- from the defendants as damages.
3. The defendants filed separate written statements in support of their respective defence. The defendant No. 1 stated that he did not know about the complaint lodged by the defendant No. 3 with the Police. Later on however he was examined by the Investigating Officer and was summoned during trial to depose as a witness for the prosecution and deposed what he saw and knew. The defendant No. 2, in his written statement, stated that he did not know anything about the incident. He emphatically denied that he ever entered into any conspiracy with defendant No. 3 or anybody to falsely implicate the plaintiff. The defendant No. 3 stated that there was reasonable and probable cause for launching the prosecution against the plaintiff and that the same was not malicious. She denied that the plaintiff suffered any loss and/or that he was entitled to get any compensation. In his written statement the defendant No. 4 stated that at the request of the defendant No. 3 he accompanied her to the Police Station when the defendant No. 3 lodged the first information report with the Police. The allegations of conspiracy were emphatically denied by him.
4. For proper decision of the suit the learned Munsif formulated the following points, which were required to be proved by the plaintiff in an action for malicious prosecution:--
(i) that he was prosecuted by the defendants.
(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 the prosecution was actuated by malice.
5. On a trial on evidence the learned Munsif held that the plaintiff was prosecuted by the defendant No, 3 and not by the other defendants and that the proceedings complained of terminated in his favour. The learned Munsif further held that the prosecution was instituted against the plaintiff without any reasonable and probable cause. But as according to the learned Munsif, the plaintiff failed to discharge his onus of proving that the prosecution was actuated by malice, the suit was dismissed.
6. On appeal the appellate court also formulated the self same points for decision and proceeded to discuss the evidence observing that the burden of proof lay on the plaintiff. It concurred with the findings of the learned Munsif on the points Nos. 1, 2 and 4 and further held, disagreeing with the finding of the learned Munsif that the plaintiff failed to prove that the defendant No. 3 had no reasonable and probable cause for the prosecution. Accordingly the appeal was dismissed.
7. Mr. Rabin Mitra, the learned Advocate appearing for the plaintiff contended that the learned Judge wrongly placed the burden on the plaintiff to prove that there was no reasonable or probable cause for the prosecution and because of that erroneous approach the court arrived at a wrong conclusion. According to Mr. Mitra, when the accusation against the plaintiff was in respect of an offence which the defendant No. 3 claimed to have seen him to commit and the trial ended in an acquittal on merits, the learned Judge should have drawn a presumption that there was no reasonable and probable cause for the accusation and shifted the onus upon the defendant to rebut that presumption. Mr. Mitra submitted that as the learned Judge has viewed the entire case from a wrong angle of vision, the appeal should be remanded back with necessary directions for rehearing. Mr. Ananga Mohon Dhar, the learned Advocate appearing for the respondents, on the other hand contended that the onus to prove that the defendant had no reasonable or probable cause for the prosecution was upon the plaintiff and the learned Judge had rightly placed the onus upon the plaintiff and dismissed the appeal.
8. The point, therefore, that requires determination in this appeal is whether in an action for malicious prosecution the onus lies upon the plaintiff to prove that the prosecution was instituted against him without any reasonable and probable cause or the onus is upon the defendant to prove that he had reasonable and probable cause to institute the prosecution. To decide the point it would be necessary to advert to the decisions referred to by parties in support of their respective contentions.
9. Mr. Mitra firstly referred to the Division Bench decision of the Patna High Court in the case of Nagendra Kumar v. Etwari Sahu, reported in : AIR1958Pat329 . In paragraph 168 of the judgment, delivered by Raj Kishore Prasad, J., the following principle was laid down :--
'If a man acts on his own knowledge, and if he gives information of the commission of an offence committed in his presence, and, therefore, the accusation against the plaintiff is in respect of an offence which the defendant claims to have seen him committing, and, the trial commenced, on acquittal on the merits, the presumption will be not only that the plaintiff was innocent, but also that there was no reasonable and probable cause.
If, therefore, a man acts on his personal knowledge, then the fact that the complaint was a false one will raise a presumption that there was absence of reasonable and probable cause, and, that malice existed, unless it is shown that his memory was defective, and, that there was some valid ground for misapprehension.
Where, therefore, 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. Falsity of the evidence by the prosecutor himself would go to show want of reasonable and probable cause and further go to show malice on the part of the prosecutor.
The question of reasonable and probable cause would arise in those cases, where the truth or falsity of the charge depends upon the information which the prosecutor might have received from other persons.'
10. Relying upon the above decision Mr. Mitra submitted, that in the instant case the defendant No. 3 gave information of all offence which was committed in her presence and as the trial whichfollowed ended in an acquittal on merits of the case, the presumption will be not only that the appellant was innocent but also that there was no reasonable and probable cause for instituting the prosecution. Mr. Mitra further contended, on the basis of the above judgment, that the charge in the instant case was of showing private parts by the plaintiff to the defendant No. 3 and therefore the charge was of such a nature as must be true or false to the knowledge of the defendant and as the charge has failed, no question of reasonable or probable cause could arise. According to Mr. Mitra, as the evidence of defendant No. 3 given during trial was not accepted by the Court, it must be held to be a false one and this fact by itself would go to show absence of reasonable and probable cause as also malice on the part of the defendant No. 3.
11. Mr. Mitra next referred to the case of Satdeo Prosad v. Ram Narayan, reported in : AIR1969Pat102 wherein Raj Kishore Prosad, J. sitting singly laid down the self same principle relying upon the earlier Division Bench judgment of the Patna High Court (supra) and also other earlier judgments of the Patna High Court, Oudh High Court and Allahabad High Court, as also the observations of Bownell, J. in the case of Abrath v. North Eastern Railways Co. (1883) 11 QBD 440. Mr. Mitra also referred to the decision of the Orissa High Court in the case of Jogendra Gorabadu v. Lingaraj Patra; reported in : AIR1970Ori91 which approved the judgment of the Patna High Court in the case of Satdeo Prosad (supra) with these words :--
'Even in the decision reported in AIR 1962 Pat 478, while purporting to dissent from the view expressed in AIR 1938 Pat 529 regarding the burden of proof, to prove absence of reasonable and probable cause in cases where the defendant purported to be an eye-witness to the alleged crime, it has been recognised that the fact that defendant purported to be an eye-witness to the occurrence is a factual circumstance which should be taken into account in deciding whether plaintiff has discharged the burden of proof relating to the absence of reasonable and probable cause.
Thus, though as a broad proposition it is well settled that in an action for malicious prosecution the onus to prove absence of reasonable and probable cause rests on the plaintiff, it is subject to an exception and is qualified to this extent that in cases where the accusation against the plaintiff purports to be in respect of an offence which the defendant claimed to have seen him commit and the trial ends in an acquittal on the merits, the presumption will be not only that plaintiff was innocent, but also there was no reasonable and probable cause for the accusation. With great respect we agree with this view in spite of the observations made in the Division Bench decision reported in AIR 1962 Pat 478.'
12. As against the above decisions referred to and relied upon bv Mr. Mitra, Mr. Dhar drew my attention first to a Division Bench of this Court in the case of Sheik Muchi Osta v. Horsmull Marwari, reported in (1912) 19 Ind Cas 24 (Cal). A similar argument as to the onus of proof was raised in that case and it was contended by the defendants, who were the appellants that the plaintiff had failed to discharge the burden which, undoubtedly, lay upon him to establish to the satisfaction of the Court that the prosecution was instituted maliciously and without reasonable and probable cause and on behalf of the respondents this view was controverted. To give its reply to the contention so raised the Court decided first to consider the elements which must be established before the plaintiff can succeed in a suit for malicious prosecution. Their Lordships first referred to the case of Abrath v. North Eastern Railway Co. (supra) which laid down the law on the subject in these terms :--
'In an action for malicious prosecution, the plaintiff has to prove, first that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made; and, secondly, that there was a want of reasonable and probable cause for the prosecution, or, as it may be otherwise stated, that the circumstances of the case were such as to be, in the eyes of the Judge, inconsistent with the existence of reasonable and probable cause; and lastly, that the proceedings of which he complains were initiated in a malicious spirit; that is from an indirect and improper motive and not in furtherance of Justice. All those three propositions, the plaintiff has to make out, and if any step is necessary to make out any one of those three propositions, the burden of making good that step rests upon the plaintiff.'
The accuracy of the first of those three propositions formulated by Bowen J. was doubted during hearing before their Lordships and it was contended that it, was not necessary for the plaintiff to establish that he was innocent but it was sufficient for him to prove that his innocence was pronounced by the Tribunal before which the accusation was made and a decision of a Judicial Committee was relied in support thereof. The Court thereupon referred to the law on the subject as stated by Lord Halsbury and a number of decisions, and approved of the decision of the Judicial Committee in the case of Gunnesh Dutt Singh v. Mugneeram Chowdhry ((1872) 17 WR 283) (PC) which laid down the following propositions :--
'What evidence does he give to rebut them? He puts in the decision of the Magistrate which was neither more nor less than this, that the case is not proved against him in the opinion of the Magistrate. Their Lordships are of opinion that this decision was no evidence whatever against the defendants of the groundlessness of the prosecution. To hold that every person whom a Magistrate refuses to commit for trial is entitled to maintain an action for malicious prosecution on the bare proof (without more) of the dismissal of the charge might very injuriously affect the administration of Criminal law, it was in the power of the plaintiff himself to go into the witness box and give evidence of his own innocence. He might have proved where he was and what he did at the time of the affray. He might have stated all the circumstances within his knowledge. But he declined to give evidence.'
The Court then observed :--
'It is clear, therefore, from the judgment of the Judicial Committee that in a case of this description, it is incumbent upon the plaintiff to prove his innocence, at least to justify the inference that the prosecution was commenced without reasonable and probable cause; and in order to enable him to establish that position satisfactorily, he was in substance to prove that he was innocent. It has not been suggested, and in view of the authorities which we shall presently mention, it cannot be suggested, that the finding in the criminal case is conclusive upon this matter in the civil suit for damages for malicious prosecution.'
and after discussing the evidence given in that case, ultimately concluded :--
'But as the burden lies upon the plaintiff to prove that the prosecution was commenced maliciously and without reasonable and probable cause, the difficulty which we feel leads us to the conclusion that the plaintiff cannot succeed in this litigation. He has wholly failed to prove to our satisfaction by his own evidence and by the evidence of witnesses he has called, that he was not present at the scene of the riot as alleged by him and that the prosecution was commenced against him maliciously and without reasonable and probable cause.'
13. The next case cited by Mr. Dhar is that of Balbhaddar v. Badrisha reported in Volume (1926) 43 Cal LJ 521. In this case, though it was held by the Privy Council that it was not necessary for the plaintiff to prove that he was innocent of the charges upon which he was tried and it was sufficient to prove that the proceedings complained of terminated in his favour if from their nature they were capable of so terminating. So far as onus of proof it was expressly laid down that the appellants must show that Badrisha (the defendant/respondent in that appeal) invented the whole story so far as it implicated the appellants and tutored Raghunath and Teja (two witnesses examined by the Police) to say it. That was a very heavy onus of proof and unless they sustained it the appeal was bound to fail. After discussing the evidences adduced by the appellants their Lordships held that the appellants failed to discharge the heavy onus laid upon them.
14. The last case cited by Mr. Dhar is that of Surendra Nath Sahoo v. Bidhu-bhusan Panja reported in (1944) 48 Cal WN 12. In this decision Khundkar, J. discussed the earlier cases on the subject including Abrath v. North Eastern Railway Co., as also that of Balbhaddar Singh v. Badrisha (supra) and held that the proposition that in action for malicious prosecution the onus of establishing absence of reasonable and probable cause to justify the defendants in launching the prosecution lies, in the first instance, on the plaintiff is well settled but the onus was not however a stationary one and when the plaintiff has given such evidence which as if not answered would entitle him to succeed, the burden of proof is shifted to the defendant.
15. In view of the above decisions of our High Court and of the Privy Council I regret my inability to rely upon the views of the Patna High Court and the Orissa High Court that from an acquittal on merits in a case in which the defendant claimed to have seen commission of the offence, a presumption of absence of reasonable and probable cause is to be drawn. In the case of Muchiosta (supra) it has specifically been laid down that the finding of the Criminal case is not conclusive upon this matter in the civil suit for damages for malicious prosecution andthat the onus of proof was upon the plaintiff that the prosecution was commenced without reasonable and probable cause. The Privy Council has also in the cases discussed laid down that it was a heavy onus upon the plaintiff to prove that the prosecution was lodged without just and reasonable cause. The judgment in the case of Surendra Nath Sahoo (supra) also lays down the selfsame principle and only qualifies the principle by laying down that if the plaintiff has discharged the initial burden by giving such evidence which if not answered, would entitle him to succeed the burden shifts to the defendant to establish the contrary.
16. In the instant case the learned Lower Appellate Court relying upon the principle laid down in Surendra Nath Sahoo (supra) discussed the evidence on record to ascertain whether the plaintiff had been able to discharge his burden and pointed out that the evidence of the sole witness on behalf of the plaintiff, namely, the plaintiff himself while discharging this burden had only stated that the allegations were false. The learned Judge next took up for consideration the points raised on behalf of the plaintiff that the contradictions in evidence of the defendant's witnesses shower absence of reasonable and probable cause and held on discussion of those contradictions that it did not make any difference nor did it lead to the inference that the accusation was without reasonable and probable cause. In that view of the matter, the learned Judge rightly pointed out that the plaintiff failed to discharge his burden about absence of reasonable and probable cause.
17. Then again, both the lower Courts below upon which the duty rested of investigating and deciding questions of fart, came to the conclusion on discussion of the evidence that the plaintiff failed to prove that the prosecution was actuated by malice. There is no controversy that the onus of proving malice was upon the plaintiff. In view of the concurrent findings of fact on this essential ingredient of all action for malicious prosecution, this appeal is devoid of any merit.
18. On the conclusions as above, this appeal fails and the same is hereby dismissed with costs.