JUDGMENT This is a second appeal and arises out of a suit for damages for malicious prosecution, which was decreed in full by the trial Court and which decree was maintained by the first Appellate Court, except that the amount of damages was reduced by Rs. 10/-. 2. It appears that the defendant and his two brothers cut on 12-11-1953, some bamboos and a tree belonging to plaintiff No. 1, Th. Kali Singh as they overhung the garden of the defendant and damaged his vegetable crops therein. There was a dispute over it, and on a complaint being filed by Kali Singh, it was sent to the Police for investigation and defendant and his two brothers were prosecuted under Ss. 447 and 326 of the I.P.C. It appears that this complaint was filed on 16-11-1953. On 18-11-1953, defendant filed a complaint, about the same incident alleging that the bamboos had been cut by mutual agreement, between them and plaintiff No. 1, but during the absence of defendant the plaintiffs had detained the father and brother of the defendant, on the ground that the bamboos were cut without their consent, and Rs. 12/-were taken from them for the same as fine after threatening them. This complaint was also sent to the Police for investigation and the Police prosecuted the plaintiffs under Ss. 342 and 384 of the I.P.C., in the same Court. 3. The Magistrate accepted the plea of the defendant and his brothers, that the cutting was done in pursuance of an agreement with the plaintiff No. 1, and acquitted them. Thereafter in the case against the plaintiffs, he discharged the plaintiffs under S. 253, Criminal P.C., as the evidence was not sufficient to warrant a conviction if a charge was framed. 4. The plaintiffs then brought this suit, alleging that their prosecution was without reasonable and probable cause and was malicious. They claimed Rs. 200/- on account of general damages, and Rs. 190/- as special damages, consisting of expenses incurred in defending the case, namely, Rs. 100/- fees paid to the counsel, and Rs. 10/- for the defence witnesses: and Rs. 80/-, on account of loss of earnings, suffered by the plaintiffs during the period the case lasted. The learned District Judge disallowed Rs. 200/- on account of general damages, and Rs. 190/- as special damages, consisting of expenses incurred in defending the case, namely, Rs. 100/- fees paid to the counsel, and Rs. 10/- for the defence witnesses: and Rs. 80/-, on account of loss of earnings, suffered by the plaintiffs during the period the case lasted. The learned District Judge disallowed Rs. 10/- claimed on account of defence Witnesses, because none were or could be examined when the case resulted in the discharge of the plaintiffs and did not reach the stage of defence evidence. No complaint was also made as regards this before me. 5. The defence was one of denial, namely, that it was denied that the prosecution was without reasonable and probable cause or that it was malicious. The allegations as regards damages were also denied. On the side of the plaintiffs, two witnesses were examined, namely plaintiff Kali Singh and Omar Singh (P.W. 1). Defendant examined himself and his brother Kala Singh (D.W. 1). Both parties also filed some documents in support of their respective cases. 6. The learned Munsiff without considering the evidence adduced in the case, came to the conclusion that the facts and circumstances involved in the case went to show that the defendant started the case against the plaintiffs in order to feed his feeling of enmity and ill-will against them. The learned District Judge also did not consider the evidence and placing reliance on what was said in the order of discharge and the depositions of the P.Ws. in the criminal case agreed with that finding of the trial Court. Much was made also of the fact that the complaint was filed six days after the incident, but it was forgotten that the complaint of plaintiff Kali Singh was also filed four days after the incident. Then again, it was not taken into consideration that the matter was first taken before the Village Elders, some of the plaintiffs being such Elders, and they held an enquiry and even took security for producing the defendant and his brothers before the Court whenever required. Their proceedings (see translation) also go to show that there was some talk about compensation, the amount of which as mentioned in their proceedings is Rs. 11/-. Their proceedings (see translation) also go to show that there was some talk about compensation, the amount of which as mentioned in their proceedings is Rs. 11/-. No doubt it is mentioned in their proceedings that this amount was voluntarily offered, but it stands to reason that this is most unlikely when the assertion of the defendants party was that the bamboos were cut by them and plaintiff No. 1 Kali Singh jointly, and with the latters consent. These circumstances thus lend some support to the allegations on the basis of which the defendant filed his complaint. 7. It is well-settled, that the proceedings in the Criminal Court are not evidence in the suit for malicious prosecution, and the Civil Court must go into evidence and decide for itself whether want of reasonable and probable cause or malice existed or not. The judgment of the Criminal Court is admissible in evidence in the Civil suit, only for the limited purpose of establishing the fact that the prosecution had ended in the plaintiffs favour and not for the purpose of ascertaining the grounds on which the judgment had proceeded. In the present case, it is clear, that both the courts below did not consider the admissible evidence on the record, and the first Court decided the case merely on probabilities and the second Court on the basis of inadmissible evidence. The result is that the findings of the Courts below are thus vitiated, and the second appeal lies though the, question involved is one of fact, and in the circumstances this Court must examine the admissible evidence and come to its own conclusion, on these questions of fact. 8. The burden to prove want of reasonable and probable cause and malice is always on the plaintiff, and it has to be examined whether in the present suit that burden was discharged by the plaintiffs. As already stated, the oral evidence consists of the testimony of plaintiff No. 1 and P.W. 1 Omar Singh, who is the Village Chowkidar. Plaintiff deposed that the case of the defendant was false and Omar Singh stated that he did not see the plaintiff taking any money from the1 defendant or his brothers. As against this Kala Singh (D.W. 1) brother of defendant swore that he was called and detained and made to pay Rs. 12/-. Plaintiff deposed that the case of the defendant was false and Omar Singh stated that he did not see the plaintiff taking any money from the1 defendant or his brothers. As against this Kala Singh (D.W. 1) brother of defendant swore that he was called and detained and made to pay Rs. 12/-. He was contradicted by some portions of his deposition before the Magistrate, but it is difficult to see how those statements would falsify the main story. The defendant also deposed in support of the defence case. In this state of evidence and the circumstances already stated, which go to show that it is not improbable that what the defendant complained of might have been true, it cannot be said that the plaintiffs discharged the burden of establishing that the complaint of the defendant was without reasonable and probable cause or was malicious. The fact that the complaint of plaintiff Kali Singh was found to be false, and the Police had also investigated into the allegations of the defendant and then put up the challan against the plaintiffs are also circumstances which lend some support to the view. 9. The plaintiffs having failed to prove want of reasonable and probable cause the other questions, namely, presence of malice, and damages do not arise for consideration, and this appeal must be accepted. 10. In the premises I accept this appeal and set aside the judgments and decrees of the Courts below and dismiss the suit of the plaintiff-respondents with costs in all the three Courts. Appeal allowed.