Bhagwan Das Gupta, J. - (1.) Seth, J. has referred the following question to a division Bench for recording its opinion: - - Where a person who is prosecuted on the allegation that he committed the crime in the presence of the complainant, is acquitted and he files a suit against the complainant, for malicious prosecution, can a presumption be raised that he was prosecuted maliciously and without any reasonable or probable cause; and whether in such circumstances the plaintiff can succeed in establishing, merely by producing a copy of the judgment acquitting him, that his prosecution was without any reasonable or probable cause? The facts leading to the reference are as follows: - - On the 28th March 1956, Chet Ram, arrayed as the first respondent in the appeal before us, lodged a report at police station Kotwali, Bijnor, alleging commission, by the appellants in this appeal, of offences punishable under the IPC. As some of the offences were cognizable some of the plaintiffs were arrested and kept in police custody for a few days and ultimately, after due investigation, the police submitted a charge -sheet against the appellants for offences punishable u/Ss. 147, 323, 354 and 452 IPC The appellants were ultimately acquitted on 29th December, 1955, whereafter on the 11th October, 1957 the suit giving rise to this appeal was filed. In substance it contained a claim for damages for malicious prosecution in a sum of Rs. 1,000. Besides Chet Ram, Sukhey Singh, arrayed as the second respondent in this appeal, was also impleaded as the second defendant on the assertion that the report which Chet Ram had lodged was in collusion with Sukhey Singh. It may be stated here that the prosecution case as set forward was such that there could be no doubt that Chet Ram should have had personal knowledge of the facts of the case. In defence, whilst the lodging of the report by Chet Ram was admitted, as also the fact that the plaintiffs were ultimately acquitted, the claim for damages, as also the assertion that there was collusion between the two defendants, was denied. It was asserted on behalf of the defendants that the lodging of the report was neither malicious nor without reasonable and probable cause and that the judgment of the criminal court dated 29th December 1956, by which the appellants were acquitted, was based on conjectures and surmises. Only two issues were framed which were as follows: - - (1) Whether the plaintiffs were prosecuted by the defendants maliciously and without reasonable and probable cause, (2) To what relief and damages, if any, are the plaintiffs entitled? Evidence was led by both the parties and the trial court, after considering the evidence, came to the conclusion that the defendants had in reality prosecuted the plaintiffs maliciously and without reasonable and probable cause. The suit was decreed in the sum of Rs. 750 in favour of seven of the nine plaintiffs who had instituted the suit. On appeal by the defendants, the appellate Judge came to the conclusion that in the state of evidence as it was the possibility of the incident set forward in the first information report being true could not be excluded. The learned Judge disbelieved the plaintiff's evidence and recorded the finding that the plaintiffs had failed to prove that the prosecution was false, malicious and without reasonable and probable cause. In the result the appeal was allowed and the suit of the plaintiffs was dismissed.
(2.) Thereafter the plaintiffs filed the second appeal which came up before Seth, J., who has passed the order of reference quoted at the outset of this judgment.
(3.) It is unfortunate that no one has appeared before us on behalf of the defendant respondents. However, after hearing Sri N. Chandra, who has appeared on behalf of the appellants, and considering the matter on merits, we have arrived at the conclusion that the answer to both the parts of the question referred to us must be in the negative.;