T. S. Misra, J. - (1.) THIS appeal by the plaintiff arises out of a suit for recovery of damages on the ground of his having been maliciously prosecuted by the defendant. A criminal complaint was filed in the court of Sri J. Chandra, Judicial Magistrate, Lucknow by the respondent, Dinesh Bal Dubey against Sri Krishna Shukla and Sri Niwas Shukla, the latter being the appellant before me. It was alleged in the complaint, inter alia, that the respondent Dinesh Bal Dubey was a tenant of certain accommodation in the first floor of Shukla Niwas, Golaganj, Lucknow of which Sri Krishna Shukla was said to be the landlord. It was further alleged that in a portion of that building the two accused persons also lived. Sri Krishna Shukla wanted to eject the respondent from that accommodation ; hence he got the suit filed through his wife in the Civil Court seeking that relief. But, not contended with that he started adopting other methods of harassment to secure the object. With that end in view the electric connection given in the accommodation of the respondent was got disconnected. The respondent then obtained certain order from the State Government for fixation of separate electric meter. It so happened that on 30th August, 1974 at about 9.00 a. m. while the respondent was getting electric wire laid on the wall for having a separate meter installed for his accommodation the accused No. 1 Sri Krishna Shukla unlawfully interfered with his work and abused and threatened him. In para 9 of the complaint, certified copy of which is Ex. 8 it was also alleged that the accused No. 1 showed the gun and said that he would finish the life of the complainant with gun shot if he proceeded in his work. In para 10 it was alleged that the complainant called for help and the witnesses who reached the spot saved his life. They wanted to pacify the accused No. 1 but he went on abusing and saying that he would finish the life of the complainant. In para 11 it is alleged that the accused persons used criminal force against the complainant and wanted to disturb the peace. On these allegations both the accused persons were sought to be prosecuted for an offence under Sections 352/504 and 506, IPC. The witnesses were examined in that criminal complaint case on behalf of the complainant who is the respondent in this appeal. The learned Magistrate on an appraisal of the evidence and the surrounding circumstances came to the conclusion that no case against the accused had been made out which, if unrebutted, could warrant their conviction. The accused were, therefore, discharged u/Sec. 233 (1) CrPC and the complaint was dismissed. A certified copy of that order is Ext. 9. On the termination of that criminal case the appellant filed the suit for recovery of damages on the ground that he was maliciously prosecuted which caused monetary loss and mental pain to him.
(2.) THE suit was resisted by the defendant. Both the parties adduced evidence in support of their respective versions. THE trial court decreed the suit for a sum of Rs. 1245/- as damages for malicious prosecution. Against that decision an appeal was preferred by the defendant. THE appellate court below on reappreciation of the evidence reversed the finding recorded by the trial court, allowed the appeal and set aside the decree passed by the trial court. THE plaintiff has now come to this court on second appeal. For the appellant it was urged that the appellate court below had erred in not recording its reasons as to why it rejected the statements of the witnesses for the plaintiff, it was also urged that the appellate court below had found that the plaintiff was present at the time of the occurrence but this finding would be found to be erroneous if the evidence was read and considered in its entirety. Thirdly it was urged that the appellate court below had ignored the tact that no role was assigned to the plaintiff in the F. I. R. lodged by the defendant and, therefore, it should is concluded that the prosecution was malicious. The allegation made against the present plaintiff by the defendant in the criminal case was that he had instigated his son to shoot the defendant and if that was the case then the police who had arrived at the piace of occurrence and had asked the son of the plaintiff to accompany the police to the police station should also have asked the plaintiff to accompany them and should have taken the gun in their custody. On these grounds it was submitted that the appellate court below had erred in holding that the presence of the plaintiff at the time of the occurrence was established. I was taken through the evidence on the record. As pointed out earlier this appeal stems from a suit filed for recovery of damages on the ground that the plaintiff was maliciously prosecuted by the defendant in criminal case. The essentials of malicious prosecution are by now well known. A plaintiff to secure a decree for damages in a suit based on the allegation that he was maliciously prosecuted in a criminal court must establish : (1) that the defendant had acted in instituting the criminal proceedings without reasonable and probable cause, (2) that he acted maliciously, (3) that the proceedings had teen instituted or continued against the plaintiff in the criminal court and (4) that those criminal proceedings had ended in favour of the plaintiff. The last two conditions were satisfied in the instant case, it is not in dispute that a criminal complaint had been filed against the present appellant nor is it in dispute that the proceedings had ended in favour of the plaintiff. We have now to see as to whether the defendant had acted without any reasonable and probable cause and secondly that he had acted maliciously. The burden of proof with regard to both these conditions iies on the plaintiff. It is for the plaintiff to establish by cogent and convincing evidence that there was no reasonable or probable cause for instituting the criminai complaint in question. It is also for him to establish that the defendant was situated by malice in moving the criminal machinery against him. What consitutes a reasonable and probable came ?' For this, the defendant is not required to believe that the accused is guilty, it is enough if he believes that there is reasonable probable cause for a procecution. lie need only be satisfied mat there is a proper cause to lay before the court. The belief must, however, be based and founded on reasonable grounds, Similarly an action will not lie for the institution of legal proceedings, however, destitute of reasonable and probable cause unless the criminal proceedings were taken maliciously, that is to say for some wrongful motive, To put it differently, there must be honesty of belief and honesty of motive. The honesty of belief has relevance to reasonable and probable cause whereas the honesty of motive has relevance to malice. We have to apply these tests to the present case. If it is established that when the defendant instituted criminal complaint he knew that the plaintiff was innocent it could safely be concluded that the prosecutor, namely, the defendant had no reasonable and probable cause and was actuated by malice. The trial court decreed the suit placing reliance on the testimony of the plaintiff's witnesses. The appellate court below, however, reversed the finding recorded by the trial court and found that the evidence adduced on behalf of the defendant was more reliable. In fact on a scrutiny of the evidence the appellate court below came to the conclusion that the plaintiff was also present at the time of the quarrel which took place between the plaintiff's son and the defendant. The plaintiff had admitted in his deposition before the trial court that he was present in his house when the altercation took place between his son and the defendant. He also admitted that he was informed by his wife a few minutes after the police had taken his son away to the police station. From this it was inferred that the plaintiff's version that he did not reach the place of occurrence when the incident took place was not believable. That apart, the plaintiff was found to have contradicted his own statement inasmuch as in his cross-examination he had stated that he had asked his son and the defendant not to quarrel. He was also contradicted by his witness PW 1 who had said that he had seen the ladies of the house of the plaintiff present at the place of the occurrence whereas the plaintiff had in his statement said that the ladies of his family were taking breakfast with him at the time of the occurrence. True it is that the police did not ask the plaintiff's son to surrender the gun. Equally true it is that the plaintiff was not asked to accompany the police to the police station. These circumstances were strenuously pressed to contend that the plaintiff was not present at the spot. But we cannot forget one fact that we are considering the matter in second appeal where the scope of enquiry is to be confined within the ambit of Sec. 100 CPC. Even if on re-appreciation of the evidence this court may find that it may come to a different conclusion on the question of fact it is not permissible to record a finding of fact when the finding of fact recorded by the appellate court below is not shown to be perverse or illegal or not based on evidence. The learned counsel for the appellant took me through the evidence to show that the finding to the effect that the plaintiff was present at the spot was not based on evidence. I have heard the learned counsel and have perused the evidence and I am of the view that this finding cannot be said to be perverse or not based on evidence. As pointed out in V. Ramachandra Ayyar v. Ramalin-gam Chettiar, AIR 1963 SC 302, even if the appreciation of evidence made by the lower appellate court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous that cannot be said to introduce a substantial error or defect in the procedure. Further it was pointed out that the High Court cannot interfere with the conclusions of fact recorded by the lower appellate court, however, erroneous the said conclusions may appear to be to the High Court. In this view of the matter it is not permissible to rescrutinise the evidence and to record a finding of fact as to whether the plaintiff was present at the spot when the occurrence is said to have taken place. The appellate court below has given reasons and has based its finding on evidence. Its finding is, therefore, conclusive. The learned counsel for the appellant referred me to the order passed by the criminal court discharging the present plaintiff. In that case the learned Magistrate had observed that in the F. f. R., which was a written report, curiously enough no witness was named. Further he observed that it Was also important to note that in the F. I. R. no role was assigned to accused Sri Niwas Shukla and this report also did not mention that the other accused had lifted the gun and had aimed it at the complainant. In the suit which has given rise to this appeal the plaintiff did not file the copy of the F. 1. R. nor did he try to prove it in any other manner. It is, therefore, not possible to ascertain the contents of the F. I. R. The judgment of the learned Judicial magistrate is admissible only for a limited purpose. Sections 40 to 43 of the Evidence Act deal with the relevancy of the judgment. Sec. 42 says that judgments, orders or decrees other than those mentioned in Sec. 41 are relevant if they relate to matters of a public nature relevant to the enquiry ; but such judgments, orders or decrees are not conclusive proof of that which they state. Similarly u/S. 43 judgments, orders or decrees other than those mentioned in Secs. 40, 41 and 42 are irrelevant unless the existence of such judgment, order or decree is a fact in issue or is relevant under some other provision of this Act. Sec. 41 deals with a final judgment, order or decree of a competent court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction. The aforementioned judgment of the learned Magistrate merely proved that the present plaintiff was discharged u/S. 253(1) CrPC. Its contents would not be relevant for the purpose of evidence to establish as to what was stated in the F. I. R. For that purpose the plaintiff ought to have filed the F. I. R. or proved it in any other manner enjoined by law. Having failed to do so, it would not be possible to contend that there was any discrepancy between the F. I. R. and the complaint. At any rate, the fact as to whether the plaintiff was present at the spot of the occurrence was found by the appellate court below to have been established satisfactorily and I do not find any valid reason to disagree with that finding. There is no reason to hold that there was no reasonable or probable cause for the defendant to institute the criminal proceedings in question or that he was actuated by malice. The suit was, therefore, rightly dismissed.
(3.) THERE is no merit in this appeal. It is accordingly dismised with costs. Appeal dismissed.;