Decided on June 11,1901



Maclean, C J - (1.) This case comes before us on second appeal from the District Judge of the 24- Pergunnahs. The suit was one for malicious prosecution. The first Court dismissed the suit, but Mr. Pratt, now Mr. Justice Pratt, reversed that decision and gave a decree to the plaintiff for about 2,600 rupees.
(2.) The defendant has appealed against that decree. An ingenious attempt was made by the Advocate-General, who appeared for the appellant, to allure us to go into the evidence in the case, but we felt bound to resist his invitation. We must take the facts as found by the Court below. In order to enable the plaintiff to succeed in this action, he must make out, the onus of proof being upon him--first, that he was innocent of the charge brought against him; secondly, that the defendant acted without reasonable and probable cause, in instituting the prosecution, and lastly, he must satisfy the Court that the defendant was actuated by feelings of malice in the course which he took. The question of reasonable and probable cause is, if the case is tried by a Judge with a jury, a question for the Judge and not for the jury: but here, where there was no jury, the Judge becomes himself the Judge of the law and the facts. I may refer on this point to a recent case in the Privy Council, Pestonji Mody V/s. The Queen Insurance Company (1900) I.L.R. 25 Bom. 332. There can be no doubt that the Court below has found that the defendant acted maliciously and without reasonable and probable cause. But it was argued that the Judge has not found that the defendant has proved his innocence of the charge brought against him. It is perfectly true that he has not said so in so many words, but his language clearly implies that that was his conclusion. In the early part of his judgment he states what the charge was. He states that, after a protracted trial, the plaintiff was acquitted. Then he says "that the question is whether that criminal charge was false for, if it was, there can be no doubt that it was made maliciously and without reasonable and probable cause, as Harish said he had personally given the money to the plaintiff." When we come to the conclusion of his judgment we find that the learned Judge summed up his judgment in this way: "Reviewing the whole case, I come to the very decided conclusion that the criminal prosecution was based upon a false and malicious allegation, and that the defendant had no reasonable or probable cause for instituting it." He has, therefore, found that the charge was a false charge and, if he has found that the charge was a false charge, the inference is irresistible that he considered that the plaintiff was innocent. I think that the learned Judge has found in the plaintiff's favour upon the three points, which the plaintiff had to make out, and that being so, I do not see how we can interfere, and the appeal must be dismissed with costs. Banerjee, J.
(3.) I concur.;

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