JUDGMENT : Das, J. - These appeals are by the unsuccessful Plaintiffs against the order of the learned Subordinate Judge, Cuttack, dismissing the Plaintiffs' suit for damages for malicious prosecution. Second Appeal No. 36 of 1956 arises out of a suit filed by Dharmananda Choudhury (M.S. No. 347 of 1948); whereas second appeal No. 64 of 1956 arises out of a suit filed by Bauribandhu Ojha (M.S. No. 617 of 1948). Both the appeals were made analogous by an order of this Court, heard together and are governed by this common judgment. 2. The facts leading to the institution of the above two suits for damages for malicious prosecution are these On July 28, 1947, the Defendants lodged an information in the police station against both the Plaintiffs alleging that they instigated one Maguni Chhatoi to assault the Defendants and the said Maguni Chhatoi assaulted them with a stick causing injuries to both of them. As a result of this report the Plaintiffs were taken into police custody at about 9 P.M. that very night and were detained until 11 A.M. the next morning, when they were released on bail. According to the police, the case as reported by the Defendants on July 28 was not cognizable. They then filed a complaint on July 30, 1947, in the court of Sub-Divisional officer. That complaint was referred to a Sub Deputy Magistrate for judicial enquiry u/s 202, Code of Criminal Procedure The Magistrate accordingly held a local enquiry in the presence of about two hundred people and c me to the conclusion that a prima facie case was not made out. As a result of this report the complaint was dismissed on October 3, 1947, u/s 203 Code of Criminal Procedure Subsequently, a proceeding u/s 107 Code of Criminal Procedure was started against the Plaintiffs on September 10, 1947. Dharmananda Chaudhury, Plaintiff in O.S. 347 of 1948 filed his suit on March 10,1948, and Bauribandhu Ojha, Plaintiff in M.S. No. 617 of 1948 filed his suit on July 24, 1948. Dharmananda Chaudhury claimed damages to the tune of Rs. 1500/- for loss of prestige in business and damages for mental and bodily pain besides the expenses in the criminal cases. Bauribandho Ojha claimed Rs. 400/ as damages for loss of reputation, prestige, bodily pain and mental agony and expenses incurred in the criminal litigation. 3. Dharmananda Chaudhury claimed damages to the tune of Rs. 1500/- for loss of prestige in business and damages for mental and bodily pain besides the expenses in the criminal cases. Bauribandho Ojha claimed Rs. 400/ as damages for loss of reputation, prestige, bodily pain and mental agony and expenses incurred in the criminal litigation. 3. The defence of the Defendants inter alia was that the arrest made by the police is not on the report of the Defendants but u/s 151, Code of Criminal Procedure for creating trouble at the police station, and that the report and the complaint petition are not malicious and were not without reasonable and probable cause. Their whole defence was that Defendant 2 is the adoptive father of Defendant 1 and has executed a deed of adoption in his favour which embarrassed Maguni Chhatoi who is an agnate of Defendant No. 2. The Plaintiff Dharmananda Chaudhury besides being a friend of Maguni is also a cousin of his and was living and running a shop jointly with him. Dharmananda ordered Maguni on July 28 to assault the 1st Defendant, and Bauribandhu Ojha held him fast when Maguni assaulted. On this the Defendants lodged information with the police and since it was a non-cognizable case they were directed to file a criminal complaint before the Sub-Divisional Officer. In the meantime the witnesses were gained over to the Plaintiffs and the Defendants could not prove their case. Hence that does not give any cause of action to the Plaintiffs to file the foregoing suits. In any case the damages claimed are rather excessive. 4. On a consideration of the above pleadings, the trial court came to the conclusion that there was reasonable and probable cause for the Defendants to lodge the information and the complaint and the prosecution started by them was not out of malice. Accordingly he dismissed both the suits. On appeal, the learned Second Additional Subordinate Judge, Cuttack, however, reversed the findings arrived at by the trial court and allowed the appeals in part. Against this decision of the lower appellate court second appeal Nos. 628 and 629 of 1950 were filed in this Court. In this Court, it was contended that the learned sub-ordinate Judge did not refer to certain documents at all let in evidence by the Defendants and marked as Exts. Against this decision of the lower appellate court second appeal Nos. 628 and 629 of 1950 were filed in this Court. In this Court, it was contended that the learned sub-ordinate Judge did not refer to certain documents at all let in evidence by the Defendants and marked as Exts. A, A(1), B, B(1), and C. This Court was of opinion that the Exts. B an B(1) which are reports sent up by the police u/s 107, Code of Criminal Procedure contained statements that after enquiry the police came to the conclusion that the Plaintiffs took part in the occurrence on July 28,1947, and were in a sense, implicated for being responsible for that occurrence. Accordingly, this Court was of opinion that the disposal of the case without considering these documents was rather unsatisfactory and eventually the decree of the learned Sobordinate Judge was set aside and the case was remanded to the court of appeal below. On remand, the learned Subordinate Judge on a fresh consideration of the evidence on record and the documents referred to above came to the conclusion that the Plaintiffs had failed to prove that there was no reasonable and probable cause for the Defendants to initiate the criminal proceeding or that they were actuated by malice. Accordingly, he dismissed both the appeals against which the present second appeals were filed. 5. The sole contention realized by Mr. Mookerjee in this Court was that the Onus was worngly placed on the Plaintiffs. The learned Subordinate Judge should have held that the onus had shifted to the Defendants when the Plaintiff had made out a prima facie case. 6. From the time of mediaeval England it is being consistently observed that perversion of the machinery of justice for improper purposes is an evil which inevitably follows the institution of actions in courts, and the courts have always attempted to put down the said evil with a stern hand. The result is that various case Jaws have now grown around it. The result is that various case Jaws have now grown around it. Thus, it is now well-settled that in an action for damages for malicious prosecutions the onus is upon the Plaintiff to prove: (1) that a proceeding was initiated against him by the Defendant; (2) that the Defendant acted without reasonable and probable cause; (3) that the Defendant was actuated with malice and the initiation of the proceeding was to a malicious intention and not with a mere intention to carry the law into effect; and (4) that the proceedings complained of terminated in favour of the Plaintiff. The same principles have been adopted in India the correctness which is now beyond any doubt; (vide AIR 1926 P.C. 46 and AIR 1944 1 (Privy Council) . 7. In the case of Nitya Nanda Mandhata Patnaik Vs. Binayak Sahu and Another this Court took the view that in an action for malicious prosecution the initial burden of proving the absence of probable cause and the existence of malice on the part 01 the Defendant in launching the prosecution against the plff. rests on the Plaintiff. The burden may shift during the trial and the nature of evidence required to discharge the initial burden depends upon the facts and circumstances of each case. 1? a man acts on his own knowledge then the fact that the complaint was a false one will raise the presumption that there was absence of teas on able and probable cause and that malice existed unless it is shown that his memory was defective or that there was some valid ground for misapprehension. This decision was met with approval by the Patna High Court in the Case of Ucho Singh v. Nageswar Prasad Singh AIR 1955 Pat. 285. 8. Mr. S.N. Dasgupta, did not question the correctness of these decisions, but urged that assuming the onus shifts on to the Defendants, the Defendants in this case, have successfully discharged that onus. Both the courts below did not believe the plea of alibi taken by Dharmananda Chaudhury. His presence at the time of occurrence was proved and both the courts came to the concurrent finding that he was present at the time of occurrence. The Defendant examined himself as D.W. 2 and deposed to the fact of the presence of Dharmananda Chaudhury. D.W. 3 supported him. His presence at the time of occurrence was proved and both the courts came to the concurrent finding that he was present at the time of occurrence. The Defendant examined himself as D.W. 2 and deposed to the fact of the presence of Dharmananda Chaudhury. D.W. 3 supported him. The evidence of P.W. 1 was that Dharmananda said: "There he goes and Maguni gave him the blow." Thus, the presence of the Plaintiffs at the time of the occurrence cannot be disbelieved. According to the court of appeal below, the evidence adduced by both parties were rather unsatisfactory. Thus, in his opinion, the Plaintiffs have failed to prove the absence of reasonable and probable cause. In the result the court of appeal below held that the defence version regarding the Plaintiffs having taken part in the quarrel between Maguni and the Defendants appears to be a more probable one. What the court of appeal below really meant to say was that the initial onus not having been discharged by the Plaintiffs, there is no question of shifting the onus onto the Defendants and they have failed to prove the absence of reasonable and probable cause. 9. The burden of proving the absence of reasonable and probable cause undoubtedly lies upon the Plaintiff. It is not for the Defendant to prove affirmatively that he had reasonable and probable cause. If, therefore, there is no sufficient evidence of absence of such cause, the judgment must be given in favour of the Defendant vide Abrath v. N.E. Rly (1883) 11 Q.B.D. 440. The same is the law in India vide Abdul Shukur v. Lipton and Co. AIR 1924 Lab. 1. There is no reasonable and probable cause unless the Defendant genuninely and honestly believed that the prosecution was justifiable. In the case of Broad v. Ham (1839) 5 Bing. N.C. 727, it was held that it would be a monstrous proposition that a party who did not believe the guilt of the accused should be said to have reasonable and probable Cause for making the charge. Even, however, if the Defendant honestly believed the proceedings to be justified, there is no reasonable ground. This question is to be determined by reference to the facts actually known to the Defendant at the time when he laid the information and subsequently proceeded with the prosecution. Even, however, if the Defendant honestly believed the proceedings to be justified, there is no reasonable ground. This question is to be determined by reference to the facts actually known to the Defendant at the time when he laid the information and subsequently proceeded with the prosecution. The English courts have taken the view that the burden of proving malice lies on the Plaintiff subject to two qualifications. The question is one for the jury and not, like that of reasonable and probable cause, one for the Judge. The first of these qualifications is that the question whether any particular motive is a proper or improper motive for the proceeding in question is a matter of law, for determination by the Judge. Malice is any motive of which the law disapproves, not any motive which is displeasing to a jury. The jury has merely to decide whether the motive exists. The second qualification is that there must be some reasonable evidence of malice otherwise the case will be withdrawn from the jury. In the case of Brown v. Hawkes (1891) 2 Q.B. 718, the court of appeal held: Of course there may be such plain want of reasonable and probable cause that the jury may come to the conclusion that the prosecutor could not only have believed in the charge he made and in that Case want of reasonable and probable cause is evidence of malice. The only other case that I would like to refer is the wen known decision of the House of Lords reported in Abrath v. N.E. Rly. (1886) 11 A.C. 247, where in it was held that in an action against the railway company for malicious prosecution the Judge directed the jury that it was for the Plaintiff to establish a want of reasonable and probable cause and malice and that it lay on him to show that the defndts. had not taken reasonable care to inform themselves of the true fact of the case and asked the July whether they would be satisfied that the defndts. did take reasonable Care to inform themselves of the true facts and that they honestly believed In the case which they laid before the Magistrate. The jury answered both the questions L in the affirmative and the judge accordingly entered judgment for the Defendants. did take reasonable Care to inform themselves of the true facts and that they honestly believed In the case which they laid before the Magistrate. The jury answered both the questions L in the affirmative and the judge accordingly entered judgment for the Defendants. Thus, in view of the above position in law both in India and in England. I am inclined to think that the view taken by the learned Subordinate Judge is correct. Having regard to the finding that Plaintiffs failed to discharge the initial onus of proving the case against the Defendants there is no question of shifting of onus in this case. Accordingly the only contention raised by Mr. Mookerjee having failed there is no merit in these appeals and the same are dismissed with costs. Appeals dismissed. Final Result : Dismissed