TAHARAT KARIM Vs. MALIK ABDUL KHALIQ

JUDGEMENT

(1.) This is an appeal by defendants 1 and 2 in an action for malicious prosecution. That defendant 2 brought a case under Secs.143 and 504, I.P.C., against the plaintiffs and others (defendants second party) was common ground; that the case ended in an acquittal was also common ground. The first point raised by Mr. Akbari on behalf of the appellants is that the lower Court lightly found that the complaint was without reasonable and probable cause, on a balance of probabilities after holding that the evidence as to the truth or falsity of this criminal case brought by defendant 2 on both sides is not satisfactory.

(2.) He accordingly took us into the evidence of two of the plaintiffs (P.Ws. 5 and 9) who had gone into the witness-box and of most of the witnesses for the defence. Now, the onus of establishing that the defendants had no reasonable and probable cause of the prosecution undoubtedly lay on the plaintiffs. At the same time, it is not right in cases of this kind to call upon the plaintiff to prove his innocence, for the foundation of the action is only that the proceedings complained of terminated in favour of the plaintiff, if from their nature they were so capable of terminating as was laid down by Lord Dunedin in Balbhaddar Singh V/s. Budri Sah A.I.R.1926. P.C. 46.

(3.) Where however, the accusation against the plaintiff was in respect of an offence which the defendant claimed to have seen him commit, and the trial ends in an acquittal on the merits as is the case here, the presumption will be not only that the plaintiff was innocent, but also that there was no reasonable and probable cause for the accusation. When the evidence is read in the light of this presumption, it becomes clear that the learned Subordinate Judge only erred in favour of the defence when dealing with this question of reasonable and probable cause. Little was done in the cross-examination of the two plaintiffs who went into the witness-box to discredit their claim of innocence, and the evidence adduced for the defence was not such as to suggest that the plaintiffs may have been guilty in spite of the acquittal.