Dhavle, J.This is an appeal by defendants 1 and 2 in an action for malicious prosecution. That defendant 2 brought a case under Sections 143 and 504, I.P.C., against the plaintiffs and others (defendants second party) was common ground; that the case ended in an acquittal was also common ground. The first point raised by Mr. Akbari on behalf of the appellants is that the lower Court lightly found that the complaint was without reasonable and probable cause, on a balance of probabilities after holding that

the evidence as to the truth or falsity of this criminal case brought by defendant 2 on both sides is not satisfactory.

2. He accordingly took us into the evidence of two of the plaintiffs (P.Ws. 5 and 9) who had gone into the witness-box and of most of the witnesses for the defence. Now, the onus of establishing that the defendants had no reasonable and probable cause of the prosecution undoubtedly lay on the plaintiffs. At the same time, it is not right in cases of this kind to call upon the plaintiff to prove his innocence, for the foundation of the action is only

that the proceedings complained of terminated in favour of the plaintiff, if from their nature they were so capable of terminating

as was laid down by Lord Dunedin in Balbhaddar Singh v. Budri Sah AIR 1926 P.C. 46.

3. 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. When the evidence is read in the light of this presumption, it becomes clear that the learned Subordinate Judge only erred in favour of the defence when dealing with this question of reasonable and probable cause. Little was done in the cross-examination of the two plaintiffs who went into the witness-box to discredit their claim of innocence, and the evidence adduced for the defence was not such as to suggest that the plaintiffs may have been guilty in spite of the acquittal.

4. The complaint against the plaintiffs was also based not on information given to defendant 2 by others, but on his own knowledge (I am for the present leaving out the part of defendant 1 as it will be dealt with later in connexion with another point raised by the learned Counsel) That there had been ill-feeling between the parties for a long time was common ground. In his complaint defendant 2 said that the offences had been committed because plaintiff 1 and his men were very much annoyed on account of a prayer by defendant 1 for the arrest of plaintiff 1 in execution of a decree for damages. In his evidence in the present suit, defendant 2 also gave another reason, namely that the plaintiffs suspected that the maid, servant Kanjua, who had fled away, was probably in the house of defendant 1.

5. The story was that the plaintiffs and others came armed with lathis and sticks to the house of defendant 1, maternal uncle of defendant 2, and began to abuse them and uttered threats, whereupon defendant 2 bolted the door. But as the learned Subordinate Judge asks, if the mob came because of the suspicion that Kanjua had come to the house of defendant 1 how was it that they did not demand her production or even name her And if, as is claimed by the defence, it was an angry and furious mob, how was it that they did not even attempt to prevent defendant 2 from shutting the door

6. This must be taken with the failure of defendants 1 and 2, though they went to the thana the next morning, to lodge a first information. It was said on behalf of the defence that the Sub-Inspector declined to record a first information; but the Sub-Inspectors evidence as P.W. 10 is to the contrary, and it is to be remembered that his is not a story now told for the first time. That evening the house of defendant 1 was actually searched and the fugitive maid-servant Kanjua found there. Defendant 1 pretends that he did not hear of this till three or four days afterwards, and that from the thana he went on to Monghyr, the district head-quarters, to see about the complaint of defendant 2 which was actually preferred to the Magistrate on the following day. The Subordinate Judge has given very good reasons for disbelieving this story. Taking all this into account, it is impossible to arrive at any other conclusion than that the accusation brought against the plaintiffs was false and without any reasonable and probable cause.

7. The next point urged by Mr. Akbari was that the case against the plaintiffs was lodged not by defendant 1 but by defendant 2 only, and that whatever defendant 2 did in that matter was done by him on his own initiative. It was therefore contended that defendant 1 was not liable to pay any damages. But defendant 1 clearly had a great deal to do with the case brought by defendant 2. In his deposition in that case he admitted that that was the first criminal case which he had brought, though he now says that he does not recollect it. He went with defendant 2 first to the thana and then to Monghyr. He admits that he wanted to file a complaint and claims that he did not do so as his nephew filed one.

8. His story in cross-examination was that he did not himself become the complainant because after consultation with the pleaders they did not come to the opinion that he (defendant 1) should be so; and he added that "Zainul Abedin (defendant 2) said that he would be the complainant, he would not let him be the complainant, that was also one of the reasons". The man is a senior pleader himself, and it is impossible to believe his story that he did not become the complain, ant either because defendant 2, his own nephew, would not let him be so, or because some unnamed pleaders are said to have failed to come to the opinion that he should be the complainant.

9. The responsibility for the prosecution in such cases is a question of substance, and as Sir Andrew Scoble pointed out in Gaya Prasad v. Bhagat Singh (1908) 30 All. 525 "the answer must depend upon the whole circumstances of the case. The mere setting of the law in motion is not the criterion". Not only did defendant 1 admittedly go (with defendant 2) to the thana and afterwards to Monghyr, but he also deposed in the case and deposed from personal knowledge as regards an occurrence which also was located at his house. He is plainly the real prosecutor, defendant 2, his nephew, only taking the leading part formally.

10. The only other point raised by learned Counsel for the appellants is that there is no finding of malice as against plaintiffs 6 and 7; but the learned Subordinate Judge has expressly referred to the evidence of "ill-feeling between defendant 1 and plaintiffs 6 and 7". As regards defendant 2, he was only a party actuated by defendant 1. The prosecution of plaintiffs 6 and 7 on the complaint that was formally lodged by defendant 2 was clearly unjustified, and the malice which is essential in actions for malicious prosecution does not necessarily connote personal spite or ill-will, but only means an indirect and improper motive rather than a desire to vindicate the law. Malice in this sense is clearly established as against defendant 2 in respect of these plaintiffs.

11. In my opinion the appeal is without merit and should be dismissed with costs. The cross-objection lodged by plaintiffs-respondents 1 to 4 was not pressed and should also be dismissed.

Agarwala, J.

I agree.