JUDGMENT Dalal, J.
1. These are two suits brought against the same defendant Sakal Raj Mal, for damages on account of an alleged false prosecution. The defendant prosecuted the plaintiff in the two suits for an offence of theft. The charge brought by the defendant was that early in the morning of 27th October 1925, at 3 a.m. he got up and went out to feed his cattle, when he saw the plaintiff removing hay from his cattle shed. An alarm was raised, whereupon the plaintiff's friends arrived, and there was a lathi fight and the plaintiff was rescued. In fact some of the plaintiff's friends were badly injured and their story, according to a complaint subsequently lodged, was that there was a dispute for possession of a tree which ended in a lathi fight between the parties. The criminal Court held the theft story of the defendant to be false and acquitted the plaintiff, while the defendant was convicted for causing hurt to the plaintiff.
2. The present suits for damages were decreed by the trial Court. On appeal, the learned Judge of the lower appellate Court put before him the following issue for decision:
3. Whether the complaint brought by Sakal Raj Mal against the plaintiffs in both cases was false to his knowledge?
4. In my opinion this was not a correct point for determination. The law has now been laid down in great detail by their Lordships of the Privy Council in Balbhaddar v. Badri Sah A.I.R. 1926 P.C. 46. According to their Lordships:
In an action for malicious prosecution the plaintiff has to prove:
1. That he was prosecuted by the defendant; 2. That the proceedings complained of terminated in favour of the plaintiff, if from their nature they were capable of so terminating; 3. That the prosecution was instituted against him without any reasonable and probable cause; 4. That it was due to a malicious intention of the defendant, and not with the mere intention of carrying the law into effect.
5. In the present case the defendant himself was present at the time of the alleged occurrence. According to his version he did not act on any information received. If his complaint was not true, no question of reasonable and probable cause can arise because if it was untrue, he could have had no legitimate cause to launch the prosecution. Malice also would be presumed from the action taken by him. Their Lordships deprecated the burden of proof laid on the plaintiff by the Courts in India, that he was innocent of the charge upon which he was tried In my opinion, the lower appellate Court has laid the same burden on the plaintiff though in different words. To throw the burden on the plaintiff to prove that the charge brought by the defendant against the plaintiff was false was tantamount to putting the plaintiff to proof of his innocence, without giving him the benefit of acquittal obtained by him in the criminal Court. As observed by their Lordships in Pestonji Manekji Mody v. Queen Insurance Co. [1901] 25 Bom the acquittal of a plaintiff of a charge made against him must be taken to mean that prima facie he was innocent. The burden will therefore shift on to the, defendant to prove in the civil Court that the charge disbelieved by the criminal Court was true, and under the circumstances of the present case, no particular burden of proof is thrown on the plaintiff. The civil Court is called upon from a balance of the evidence, and after taking into consideration the acquittal of the plaintiff by the criminal Court to record a definite finding whether the complaint instituted by the defendant was false or true. The evidence of both sides should be considered and a definite finding recorded.
6. As the lower appellate Court threw the burden of proof wrongly on the plaintiff, it is not clear whether it has arrived at a just conclusion in this case or not.
7. The following issues are remanded to that Court for decision. No further evidence shall be recorded or admitted. Counsel of both parties may be heard over again.'
1. Was the complaint brought by Sakal Raj Mal against the plaintiffs in both suits true or false? 2. What was the amount of damages suffered by the plaintiffs in each case?
8. A return shall be made within four months of to-day's date when ten days shall be granted to lodge objections.