JUDGMENT
Dalal, J.
1. The view of civil Courts as to the examination of evidence in cases where damages are wanted for malicious prosecutions will have to be revised after the judgment of their Lordships in the case of Balbhaddar Singh v. Budri Sah A.I.R. 1926 P.C. 46. The common impression was that when a plaintiff came to Court after acquittal in the criminal Court, he had to prove his innocence positively before he would be entitled to claim damages. The proof of a want of reasonable and probable cause, was held to be tantamount to proof of innocence. Their Lordships pointed out that what the plaintiff was called upon to prove was that he was prosecuted by the defendant and that the prosecution ended in his acquittal. He was not called upon to prove that he was innocent of the charge. He had to prove that the prosecution was instituted against him without any reasonable and probable cause. The evidence will have to be examined from a different point of view when the burden is removed from the plaintiff of proving his innocence positively. When the plaintiff has been acquitted, there would be a presumption of want of reasonable and probable cause in an occurrence when there was no scope for surmise and the evidence was given by the defendant of what he actually saw. For what the defendant did not see himself, there may be a reasonable and probable cause of suspecting the plaintiff’s complicity. Such reasonable and probable cause may not have been thought by the criminal Court sufficient to convict the plaintiff but if such existed, the plaintiff would not be permitted to recover damages in the civil Court. Unless the plaintiff is called upon to prove his innocence, the only way he can prove want of reasonable and probable cause would be by pointing out that the defendant alleged that he actually saw the plaintiff committing the offence and yet this was not believed by the criminal Court. It is true that the defendant may be able to prove miscarriage of justice by the criminal Court and produce evidence so strong as to make it certain that the plaintiff was really guilty. In the present case no such evidence exists on behalf of the defendant. The witnesses are not of such a nature that they should be believed when they were not believed by the criminal Court. Malice must have existed when Mangat Ram falsely implicated the plaintiff, Mohammad Daud Khan, along with others who had cut the crops. It may be repeated that Mangat Ram did not merely allege that Mohammad Daud Khan must have instigated the tenants to cut the crops but he actually deposed that Mohammad Daud Khan was present at the spot. Under the circumstances I am of opinion that the plaintiff is entitled to recover damages from Mangat Ram. As against Jai Lal, there is no evidence that he instigated Mangat Ram to prosecute the plaintiff falsely
2. In the result the appeal is dismissed against Jai Lal with costs to Jai Lal. As against Mangat Ram, the appeal is decreed for a sum of Rs. 120. It is stated that three persons in making the defence spent about Rs. 150. He says in this plaint, para. 8 that he had to defray all the expenses for all the three men, who were prosecuted and acquitted. There is no evidence to the contrary. A sum of Rs. 150, however, seems to be too high. I reduce it to Rs. 120. As to other special damages, there is no evidence. I decree the appeal against Mangat Ram for Rs. 120 with proportionate costs of all the Courts.
