JUDGMENT Mukherjea, J. - This appeal is on behalf of the Defendant and it arises out of a suit commenced by the Plaintiff for recovery of damages for malicious prosecution. The Plaintiff carries on business as a promoter and organiser of circuses and similar performances and the suit arose out of an incident which occurred at the Jessore railway station on September 12, 1941. The Plaintiff had been to Berhampore in connection with his business and from Berhampore he came to Jessore on September 12, 1941, reaching the Jessore railway station at about 8-30 a.m. He was to leave Jessore for Calcutta by the evening train on the same day and at about 12-30 p.m. he entered into the waiting room at the station, meant for first and second class passengers, which was opened at his request by a station employee and having taken his seat on an easy-chair he went to sleep. The Defendant, who was the District Magistrate of Jessore at that time, was proceeding to Calcutta from Jessore on the same day and he arrived at the railway station at about 1-45 p.m., with a view to catch the train which leaves Jessore at 2 p.m. He had a first class ticket and on entering the waiting room, he found the Plaintiff sleeping on the easy-chair. 2. The Plaintiff's case as made on the evidence is that he was awakened from his sleep by the Station Master who asked him why he was there. The Plaintiff said that he was waiting for his train to Calcutta. He was asked for his ticket and replied that he had not yet purchased it. The Station Master then told him to leave the chair pointing out that the District Magistrate was there; upon which the Plaintiff stood up and said, "What of "that." At this the Defendant became angry; he shouted and asked the Plaintiff by what time he had arrived at Jessore and what was his business. The Plaintiff mentioned the time of his arrival at Jessore, but hesitated to say anything about his business, as his employer was then running a circus at Jessore and the Defendant, who was the District Magistrate, might do him some harm. The Defendant then said that he was going to arrest him and on his being asked for what offence, made no reply. The Defendant then said that he was going to arrest him and on his being asked for what offence, made no reply. The Defendant then took a pen and paper and put down therein the name and address of the Plaintiff, which were correctly stated by the latter and the time of his arrival at the Jessore railway station. He enquired of the Station Master as to whether any man belonging to the railway police was available and the reply being in the negative, he called his orderly and giving him the note he had written, directed him to arrest the Plaintiff and take him to the Sub-divisional Officer, Jessore. The note runs as follows: S.D.O., Sadar: Morris of 13, Central Avenue, Calcutta, was found asleep in the waiting room of the 1st and 2nd Class passengers. He says he arrived at 8-30 a.m. He had no business to be in the waiting room. His presence definitely annoyed me. He should be prosecuted under relevant sections of Railway Act and Indian Penal Code. (Sd.) N.M. Khan. District Magistrate, 12-9-41. 3. The orderly took the Plaintiff to a motor car outside the station and drove him to the S.D.O.'s office, where he was seen by the Court Inspector. Under the direction of the latter his person was searched and he was also examined by a doctor in the hospital. After this he was made to appear before a Magistrate, where a charge was made against him u/s 120 of the Indian Railway Act, the allegation being that he was drunk and guilty of indecent behaviour at the railway station waiting room. He pleaded not guilty and the trial was held in due course. The trying Magistrate by his judgment, dated October 18, 1941, acquitted him of the charge u/s 120 of the Railway Act, but convicted him u/s 122 of the Act, being of opinion that his entry into the waiting room was unlawful, and as he refused to leave the room when he was asked to do so by the Station Master, he committed an offence u/s 122 of the Act. He was ordered to pay a fine of Rs. 20, in default to suffer simple imprisonment for a period of two weeks. He was ordered to pay a fine of Rs. 20, in default to suffer simple imprisonment for a period of two weeks. Against this conviction and sentence the Plaintiff presented a petition of revision to the Sessions Judge of Jessore, who, by his order dated December 22, 1941, made a reference to this Court u/s 438 of the Code of Criminal Procedure, recommending that the conviction and sentence might be set aside on the ground that the Plaintiff's entry into the waiting room was not at all unlawful and consequently no offence was committed by him within the meaning of Section 122 of the Railway Act. The matter came up before Edgley J., who, by his judgment dated February 10, 1942, accepted the reference and set aside the conviction and sentence of the Plaintiff u/s 122 of the Railway Act. On April 6, 1943, the Plaintiff brought the present suit claiming damages against the Defendant for malicious prosecution for a sum of Rs. 4,865. 4. The Defendant denied that he arrested the Plaintiff or made any false or malicious statement regarding him which led to his prosecution and conviction. His case was that, on entering the waiting room at about 1-45 p.m. on September 12, 1941, he found the Plaintiff stretched on the easy-chair with a handkerchief over his face. He was poorly dressed and struck the Defendant as a person who would not ordinarily travel first or second class. The Defendant called the Station Master and asked him "why that "person" (meaning the Plaintiff) was there. The Station Master woke up the Plaintiff and tried to talk to him. The latter looked dazed and at first could not give any coherent reply. Later on, he told his name and address to the Defendant and from his statements the Defendant gathered that he was an inter class passenger and had no right to be in the waiting room at all. He was asked by the Station Master to leave the room and on his refusal, the Defendant ordered his chaprasi to take him to the S.D.O. and wrote a note for that officer as referred to above. He was asked by the Station Master to leave the room and on his refusal, the Defendant ordered his chaprasi to take him to the S.D.O. and wrote a note for that officer as referred to above. The Defendant avers that the complaint made in the note was quite bona fide and he believed that the Plaintiff was a trespasser and had no right to make a nuisance of himself in the waiting room in the way he had been doing. There was reasonable and probable cause for the complaint that he made and he was not actuated by any malice whatsoever. It was further pleaded in the written statement that the Plaintiff's claim for damages was excessive and that the suit was barred by limitation. 5. The suit was heard by Gentle J., who, by his judgment dated June 21, 1945, substantially accepted the Plaintiff's story and gave him a decree. The amount of damages claimed by the Plaintiff was found to be excessive and a decree was made for a sum of Rs. 750 only. The Defendant has now come up on appeal to this Court. 6. Now, the law is perfectly well-settled that, in order to succeed in an action for malicious prosecution, the Plaintiff has got to establish: (i) that the Defendant prosecuted him; (ii) that the prosecution ended in the Plaintiff's favour; (iii) that the prosecution lacked reasonable and probable cause; and (iv) that the Defendant acted maliciously. 7. Mr. Mukerji appearing in support of the appeal has not disputed the fact that the prosecution against the Plaintiff was started on the basis of the note which the Defendant sent to the S.D.O. through his chaprasi on September 12, 1941. The Defendant was certainly the person who was instrumental in putting the law in force. The offence u/s 120 of the Railway Act is not a cognizable offence and no Magistrate can take cognizance of it without a complaint being made by somebody. In his written statement, the Defendant admitted that he made a complaint to the S.D.O. and it is perfectly clear that he intended the latter to take action upon its contents. The Plaintiff, therefore, was in fact prosecuted by the Defendant and there is no question here that the prosecution terminated in favour of the Plaintiff. 8. The contentions raised by Mr. The Plaintiff, therefore, was in fact prosecuted by the Defendant and there is no question here that the prosecution terminated in favour of the Plaintiff. 8. The contentions raised by Mr. Mukerji on behalf of the Appellant are really of a three-fold character. In the first place, he argues that the Plaintiff failed to establish that there was absence of reasonable and probable cause in the prosecution launched against him. His second contention is that the Defendant in making the complaint was not actuated by malice and thirdly, that the Plaintiff's suit is barred by limitation. 9. We will discuss these three points one after another. 10. So far as the first point is concerned, the question for consideration is whether, in the circumstances of the case, the Defendant in accusing the Plaintiff can be said to have acted without reasonable and probable cause. By "reasonable and "probable cause" is meant a reasonable belief in the existence of a state of circumstances which, assuming them to be true, would reasonably lead an ordinary prudent man to conclude that the person was possibly guilty of the crime imputed to him. Mr. Mukherji has drawn our attention pointedly to the fact that the Plaintiff in the present case was convicted by the trying Magistrate, though he was subsequently acquitted by this Court in revision. The conviction by the trying Magistrate, he says, though reversed, would be evidence of the strongest possible character against the plea of want of reasonable and probable cause. It seems to us that this point has been considered by the different High Courts in India on more occasions than one and it is proper that we should examine some of the leading authorities. The earliest pronouncements on this point so far as this Court is concerned are to be found in the cases of Doongrussee Byde v. Gridharee Mull Doogur (1868) 10 W.R. 439 and Kazee Kaibutoollah v. Motee Peshakur (1870) 13 W.R. 276. In the latter case, Jackson J. observed that an allegation of want of reasonable and probable cause can hardly be supported when there has been a conviction on the original trial and an acquittal on appeal, inasmuch as the fact of conviction by the trying Magistrate shows that there must ordinarily have been a fair cause for imputing to the Plaintiff the crime of which he was accused. These cases were followed by Sir Asutosh Mookerjee and Carnduff JJ. in Shama Bibee v. Chairman of Baranagore Municipality (1910) 12 C.L.J. 410. The same view was taken by the Allahabad High Court in Jadubar Singh v. Sheo Saran Singh (1898) ILR 21 All. 26 and by the Madras High Court in Parima Bapirazu v. Bellamkonda Chinna Venkayya (1866) 3 Mad. H.C.R. 238 and Ramayya v. Sivayya (1900) ILR 24 Mad. 549. The point was further considered by the Madras High Court in the subsequent case of Boja Reddi v. Perumal Reddi (1902) ILR 26 Mad. 506 and it was held that it was not correct to say that a suit would not lie where the Plaintiff was convicted by a competent Court and was acquitted on appeal. According to the learned Judges, the true principle is that a suit will lie, if the Plaintiff was ultimately acquitted on appeal, by reason of the original conviction having proceeded on evidence which was known by the complainant to be false or on the wilful suppression by him of a material information. The same point came up again for consideration before the Allahabad High Court in Shubrati v. Shams-ud-din (1928) ILR 50 All. 713 and Sulaiman and Kendall JJ. practically dissented from the earlier decision in Jadubar Singh v. Sheo Saran Singh (supra) and adopted a view very similar to that taken by the Madras High Court in the decision noted above. It was held that in cases where the facts alleged by the complainant were professedly within his personal knowledge, the mere fact that the first criminal Court believed the complainant's statement and convicted the accused would not be any evidence of the existence of reasonable and probable cause if the appellate Court came to a contrary conclusion. The judgments of the criminal Courts are conclusive for the purpose of showing that the prosecution terminated in favour of the Plaintiff. But it was not very much material whether it was the first Court or the appellate Court which acquitted the accused. The case of Shama Bibee v. Chairman of Baranagore Municipality (supra) was distinguished by the learned Judges on the ground that the allegations made by the municipality in that case were not true to the knowledge of the latter. But it was not very much material whether it was the first Court or the appellate Court which acquitted the accused. The case of Shama Bibee v. Chairman of Baranagore Municipality (supra) was distinguished by the learned Judges on the ground that the allegations made by the municipality in that case were not true to the knowledge of the latter. In substance, therefore, the decision of the Allahabad High Court, which, as we have said already, coincides with that in Boja Reddi v. Perumal Reddi (supra), engrafts an exception to the ordinary rule, according to which the reversed judgment of the original criminal Court would be prima facie evidence to prove the existence of reasonable and probable cause. In England, the law is thus stated in Halsbury's Laws of England, Hailsham Ed., Vol. 22, p. 12: Where there had been a successful appeal from a conviction, this would be, for the purpose of pleading a sufficient termination of the proceedings in a Plaintiff's favour. But, it seems, the conviction, though reversed, might be evidence on which the Judge might find that there was reasonable and probable cause for the. prosecution. 11. The statement of law is taken from the case of Reynolds v. Kennedy (1748) 1 Wilson K.B. 232 : 95 E.R. 591 as explained in Sutton v. Johnstone (1786) 1 Term. 493 (505) : 99 E.R. 1215 (1222). Some doubt seems to have been thrown upon this statement of law in view of the decision of the House of Lords in Herniman v. Smith (1938) A.C. 305. In that case the Plaintiff Herniman together with one Rickard was charged with conspiracy to defraud Smith and obtaining various sums of money from him on fraudulent misrepresentations from time to time. Herniman was committed to trial to the Central Criminal Court, which convicted him and. sentenced him to undergo imprisonment for twelve months. On apneal, the criminal Court of appeal reversed the conviction and sentence and acquitted him, being of opinion that there was no sufficient case to go to a jury. Herniman then started the suit for malicious prosecution against Smith. The suit was dismissed and it was held by the Court of appeal, which was affirmed by the House of Lords, that Smith, at the time of prosecuting Herniman, had, on all the facts then before him, reasonable and probable cause for doing so. Herniman then started the suit for malicious prosecution against Smith. The suit was dismissed and it was held by the Court of appeal, which was affirmed by the House of Lords, that Smith, at the time of prosecuting Herniman, had, on all the facts then before him, reasonable and probable cause for doing so. From the judgment of the House of Lords, as well as that of the Court of appeal, it does not appear that any question was raised as to the effect of the orginal conviction of Herniman by the Central Criminal Court. Professor Winfield. in the 2nd Ed. of the Law of Tort referring to this decision has observed that it is very much significant that in considering the evidence as to the existence of reasonable and probable cause no reference was made by the Law Lords to the fact that Herniman was as a matter of fact convicted by the original criminal Court and their Lordships decided the case entirely on the other evidence and came to the conclusion that as Smith had reasonable and probable cause, Herniman's suit must be dismissed. "This appears to be" Professor Winfield remarks "a much wiser way of treating "the matter than to hold that, if a man has once been convicted, then the isolated "fact of the conviction always shows that the prosecutor had reasonable and "probable cause; for in truth he may have had none whatever and may have "secured the conviction wholly through his own fraud and perjury and in such "circumstances it would be queer law if he were allowed to snatch at the fact "of conviction as giving him reasonable and probable cause where he had none "before." 12. The observation certainly is entitled to great respect, but we think that it is not necessary for us, so far as the present case is concerned, to lay down definitely what precise value is to be attached to the reversed judgment of a criminal Court which convicted the Plaintiff, in a suit for malicious prosecution. So far as the authorities of the different Indian Courts are concerned, it is clear law that prima facie such judgment can be taken as in evidence subject to the exception enunciated by the Allahabad High Court in Shubrati v. Shams-ud-din referred to above. So far as the authorities of the different Indian Courts are concerned, it is clear law that prima facie such judgment can be taken as in evidence subject to the exception enunciated by the Allahabad High Court in Shubrati v. Shams-ud-din referred to above. We are inclined to accept the view taken by the Allahabad High Court and in so doing it is not necessary for us to say anything as to the propriety or otherwise of the decision in Shama Bibee v. Chairman of Baranagore Municipality (supra), for we are definitely of opinion that on the facts of that case the allegations of the complainant could not be true to his knowledge and consequently the principle laid down by the Allahabad High Court, would have no application. 13. In the case before us, it is not disputed that the allegations made by the Defendant were matters professedly within his own knowledge. These allegations are of a two-fold character. In the first place, it is said that the Plaintiff was a trespasser and secondly, that he was drunken and behaving indecently at the station waiting room. If these facts are true, obviously the Plaintiff would not be able to make out a case of lack of reasonable and probable cause. If, on the other hand, they are false and found to be false by the Court which decided this suit, then the judgment of the original criminal Court would really not stand in the way of the Plaintiff. 14. So far as the first allegation is concerned, the Defendant's case is that as the Plaintiff was an inter class passenger he had no right to be in the waiting room which is meant for the use of first and second class passengers only, consequently he was a trespasser and the Defendant would be justified in believing him to be so if the fact transpired at that time that he was not really an upper class passenger. In the second place, if the evidence shows that the Defendant found the Plaintiff to be drunken or behaving in an improper or indecent way, he would have ample justification for lodging a complaint even though ultimately the case might-end in acquittal. 15. In the second place, if the evidence shows that the Defendant found the Plaintiff to be drunken or behaving in an improper or indecent way, he would have ample justification for lodging a complaint even though ultimately the case might-end in acquittal. 15. Now, so far as the first matter is concerned, there is no evidence to show that the Defendant knew the Plaintiff to be an inter class passenger at the time when he wrote the note to the S.D.O. and asked his orderly to take the Plaintiff to the office of the latter. In his examination-in-chief he has simply said that the Plaintiff was not properly dressed. The Plaintiff in his examination has stated on oath that no question of his being an inter class or a higher class passenger was raised at the time. The Station Master asked for his ticket and to that he replied that he had not purchased the ticket as yet. The inter class ticket from Berhampore to Jessore was indeed found in his person, but that was at a much later time when he was actually searched by the Assistant Sub-Inspector of Police at the instance of the Court Inspector. In the second place, there is absolutely no evidence to show that the Defendant found the Plaintiff drunk or lying in an indecent posture at that time which would justify him in making a complaint of the description that he actually made. The Defendant says that he had not come sufficiently near the Plaintiff to ascertain himself as to whether he was drunk or not. The Station Master, who was the only other material witness and who could possibly say anything on this matter, was not at all examined as a witness in this case. We might leave out of our consideration the evidence that was given before the trying Magistrate, but we may note simply the fact that the trying Magistrate acquitted the Plaintiff of the charge of being disorderly and indecent in his behaviour. 16. We might leave out of our consideration the evidence that was given before the trying Magistrate, but we may note simply the fact that the trying Magistrate acquitted the Plaintiff of the charge of being disorderly and indecent in his behaviour. 16. If the Defendant is disbelieved and in fact he has been disbelieved by Gentle J. and we see no reason to take a contrary view, we have no other alternative but to hold that the facts in possession, of the Defendant at the time when he arrested the Plaintiff and directed the S.D.O. to prosecute him under the relevant sections of the Railway Act or the Indian Penal Code are not at all sufficient to induce any man of ordinary prudence to come to the conclusion that he was guilty of any offence either under the Indian Penal Code or the Railway Act. This being so, we must hold that the Plaintiff has discharged the' burden which lay upon him^ of proving that there was total absence of reasonable and probable cause in the present case. 17. As regards he second point, Gentle J. has come to the conclusion that the Defendant, in arresting the Plaintiff and directing the S.D.O. to start a prosecution, was actuated by malice. By "malice" is certainly meant a motive other than a desire to bring to justice a person whom another person honestly believes to be guilty. On the findings arrived at before we are bound to say that the Defendant had no reason whatsoever to imagine that the Plaintiff was guilty of any offence. On the other hand, the evidence surely discloses that he was offended at what seemed to him to be want of respect to the Magistrate of the district by a person of the position of the Plaintiff. His intention was only to teach him a lesson and nothing else and for that purpose and that purpose alone he got him arrested and had a case filed against him. This being the position, the conclusion is irresistible that the action of the Defendant was malicious. 18. The only other point that requires discussion is the question of limitation. The criminal case ended in favour of the Plaintiff on February 10, 1942. This being the position, the conclusion is irresistible that the action of the Defendant was malicious. 18. The only other point that requires discussion is the question of limitation. The criminal case ended in favour of the Plaintiff on February 10, 1942. The Defendant being a District Magistrate, the Plaintiff had a notice served upon him before he started the suit for malicious prosecution, u/s 80 of the CPC and this notice was served upon the Defendant on April 25, 1942. It is conceded by Mr. Mukerji, who appears for the Appellant, that if the case is one which requires a notice to be served upon the Defendant u/s 80 of the Code of Civil Procedure, the Plaintiff would be entitled to an extension of the period of two months as laid down in Section 15(2) of the Indian Limitation Act and the suit would be perfectly within time. The whole controversy, therefore, centres round the point as to whether or not it is a case which required a notice to be given to the Defendant u/s 80 of the Code of Civil Procedure. Mr. Mukerji does not dispute that the Defendant is a public officer. It is not also disputed that, in order to bring a case within the purview of Section 80, it is not necessary to show that the action of the Defendant was in execution of his public duty. If the Defendant purported to act as a public officer, Section 80 of the CPC would be attracted to it. As was said by Sulaiman J. in the case of Dr. Hori Ram Singh v. The Crown (1939) F.C.R. 159, 178-9: If the act complained of is an offence, it must necessarily be not an execution of duty, but a dereliction of it. What is necessary is that the offence must be in respect of an act done or purported to be done in execution of duty, that is, in the discharge of an official duty. It must purport to be done in the official capacity with which he pretends to be clothed at the time, that is to say, under the cloak of an ostensibly official act, though of course, the offence would really amount to a breach of duty. 19. In this case it has been argued by Mr. It must purport to be done in the official capacity with which he pretends to be clothed at the time, that is to say, under the cloak of an ostensibly official act, though of course, the offence would really amount to a breach of duty. 19. In this case it has been argued by Mr. Mukerji that, in making the complaint, the Defendant was acting not in his capacity as a District Magistrate, but in the capacity of an ordinary private citizen. We are unable to accede to this contention. Not only it purported to be an official letter written by the Defendant under his designation as a District Magistrate, but it purported to be a complaint made by a public officer within the meaning of Section 200(a) of the Code of Criminal Procedure and Gentle J. has rightly pointed out that because the complaint was by a public officer that is the reason why the complainant was not examined on oath which would be incumbent upon the trying Magistrate to do if the complainant was a private individual. In our opinion, the act of the Defendant was certainly not in the discharge of his public duty, but purported to be in the exercise of his authority as a District Magistrate and consequently the provisions of Section 80 would be attracted to this case. 20. The result, therefore, is that, in our opinion, the contentions raised by Mr. Mukerji fail and this appeal is dismissed with costs. Certified for two Counsel. Harries, C.J. 21. I entirely agree.