JUDGMENT : Misra, J. - Defendant is the Appellant against a, confirming judgment. Plaintiff claims Rs. 150/- as damages for malicious prosecution. The relevant facts are as follows Defendant used to live in the house of his brother in law, Dwari Mohanti. After the death of Dwari and his widow, Baidhar Patra (P.W. 3) succeeded to the property of Dwari as being the son of his maternal uncle. Defendant also laid claim to Dwari's poverty. In 1955 Defendant asked the Plaintiff to help him in getting the aforesaid property. But as the Plaintiff refused Defendant threatened him with revenge. On 5th December 1955 Defendant invented a false story and filed criminal case No. 405 of 1955-1956 in the court of the Sub-Divisional Magistrate, Balasore, against the Plaintiff and others on the allegation that the Plaintiff instigated the other accused person to remove paddy from the lands of Dwari Mohanti which were in possession of the Defendant. The criminal cases ended in acquittal on 1st October 1956. There was no occurrence and the entire allegation was false. There was absence of reasonable and probable cause on the part of the Defendant in the aforesaid prosecution which was started maliciously. 2. The defence case is that the Plaintiff is a villain and litigant. The Defendant used to look after the property of Dwari Mohanti who had no issues through his sister. After their death, the Defendant was in possession in his own right. Baidhar Patra (P.W. 5) was not an heir in respect of the property of deceased Dwari and never entered into possession thereof. The Defendant never approached the Plaintiff for any help nor gave him threats. The criminal case was true and it was not falsely and malicious brought without reasonable and probable cause. 3. The trial court dismissed the Plaintiff's suit. The lower Appellate court decreed the suit on the finding that elements of malicious prosecution had been established in this case. 4. The quantum of damages decreed is not challenged. Mr. Dhal raised the following contentions: (i) The lower Appellate court acted contra.ry to law in placing the onus of proof on the Defendant to estalish that there was presence of reasonable and probable cause and absence of malice on his part. (ii) The finding as to absence of reasonable and probable cause is based on certain errors of record relating to the evidence of P.Ws. (ii) The finding as to absence of reasonable and probable cause is based on certain errors of record relating to the evidence of P.Ws. 1 and 2 which vitiate the finding. (iii) The finding as to existence of malice is contrary to law as there are no materials on record showing existence of previous enmity or litigation between the Plaintiff and the Defendant. 5. In a suit for malicious prosecution, it is incumbent upon the Plaintiff to establish that: (i) the proceedings must have been instituted or continued by the Defendant; (ii) the Defendant must have acted without reasonable and probable cause; (iii) the Defendant must have acted maliciously; and (iv) the proceedings terminated in favour of the Plaintiff. It is admitted that the Defendant filed the criminal case against the Plaintiff and some others in which they were acquitted. 6. The lower Appellate court placed the onus, of proof regarding presence of reasonable and probable cause on the Defendant. In Taharat Karim and Another Vs. Malik Abdul Khaliq and Others, a Bench of the Patna High Court held: In an action for malicious, prosecution the onus of establishing that the Defendant had no reasonable and probable cause for the prosecution lies on the Plaintiff. At the same time, it is not right in a case of this kind to can 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. Where, however accusation against the Plaintiff was in respect of an offence which the Defendant claimed to have seen him committed and the trial end in an acquittal on merit, the presumption will be not only that the Plaintiff is innocent but also that there was no reasonable and probable cause for the accusation. Reliance for this proposition had been placed AIR 1926 P.C. 46 . This decision was followed by a of this Court in Second Appeal No. 490 of 1950 and in a number of Single Judge decisions. Taharat Karim and Another Vs. Malik Abdul Khaliq and Others, had been; held as no longer good law in AIR 1962 Plaintiff 478. Mr. Dhal relies on the subsequent Patna decision for the contention that, the onus was wrongly thrown in this case on the Defendant. Taharat Karim and Another Vs. Malik Abdul Khaliq and Others, had been; held as no longer good law in AIR 1962 Plaintiff 478. Mr. Dhal relies on the subsequent Patna decision for the contention that, the onus was wrongly thrown in this case on the Defendant. If the subsequent Patna decision is accepted as laying down the correct law, there is considerable force in his contention. I am however, bound by the previous decisions of this Court. 7. The question of onus in this case is also purely academic. The lower Appellate court has discussed the entire evidence adduced on both sides and has based his finding on appraisal of the entire evidence on record. In the circumstances the question of onus recedes to the background. The first contention has therefore no force. 8. The second contention is based on certain errors of record committed by the lower Appellate court. It stated: "It is clear that this witness (meaning D.W. 1) has Socialist leanings. As such he is an interested witness who cannot be relied upon without independent corroboration." Mr. Mohapatra frankly concedes that the observation of the learned Judge that D.W. 1 has Socialist leanings is not based on any material on record. Mr. Dhal, however, accept the position that the other comments made by the learned Judge on D.W. 1 are not incorrect. D.W. 1 has stated that the occurrence took place on 22nd Margasir at about 8 a.m. though in fact it took place on 22nd of November 1955. According to Mr. Dhal the recording by the trial court that it was 22nd of Margasir must have been a mistake for 22nd of November. If may be so, but that was a matter within the jurisdiction of the lower Appellate court to decide whether there was a wrong recording of evidence so as to be construed differently. If that court did not consider it to be a discrepancy wit reference to the actual date of occurrence given in the complaint petition, it is not open to the second Appellate court to say that the first Appellate court had no jurisdiction to say so. So far as D.W. 2 is concerned, Mr. If that court did not consider it to be a discrepancy wit reference to the actual date of occurrence given in the complaint petition, it is not open to the second Appellate court to say that the first Appellate court had no jurisdiction to say so. So far as D.W. 2 is concerned, Mr. Dhal brings to my notice the comment of the learned Judge to the effect: "D.W. 2 comes out with an another story namely that the occurrence took place on the 7th or 8th day of Margasir." Mr. Dhal says that this is the date which tallies with the date given in the complaint petition and is not an another story as has been commented upon by the learned Judge. Examined from that angle Mr. Dhal is correct. The comment of the learned Judge is in relation to the statement made by D.W. 1 that the date of occurrence was 22nd of Margasir corresponding to 7th December 1955. This cannot be construed as an error of record. It was within the province of the learned Judge to construe it one way or the other. So far as the Defendant's (D.W. 4's) evidence is concerned, the learned Judge observes that his statements in his initial deposition (Ex.3) and in his deposition before the Magistrate (Ex.2) are quite contradictory to the case of the Defendant. He characterized these as wide and sweeping discrepancies regarding actual date and time of occurrence. He also discussed the evidence of the Plaintiff (P.W. 2) and Baidhar Patra. After taking into consideration the entire facts and circumstances, he came to the conclusion that the statement of the Defendant that the Plaintiff was standing on the ridge of the field and instigating the other accused to reap the paddy was not true. As a matter of fact he held the entire occurrence as untrue. This is a pure finding of fact. In ILR 25 Bom. 332, their Lordships of the Privy Council held that the findings with regard to absence of reasonable probable cause and existence of malice are pure findings of fact and it was followed in AIR 1920 Mad. 252. 9. Mr. Dhal's contention that because of the error of record committed as to the evidence of D.W. 1 that he had Socialist leanings, the entire finding is vitiated, is not acceptable. 252. 9. Mr. Dhal's contention that because of the error of record committed as to the evidence of D.W. 1 that he had Socialist leanings, the entire finding is vitiated, is not acceptable. Section 167 of the Indian Evidence Act enacts that the improper admission or rejection of evidence shall not be a ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that independently of the evidence objected to and admitted there were sufficient evidence to justify the decision, or that if the rejected evidence has been received it ought not to have varied the decision. The only error of record is with regard to a statement made in respect of D.W. 1 that he had Socialist leanings. Even if the evidence of D.W. 1 is discarded, the residue of materials as discussed by the learned Judge is sufficient to justify his finding which is binding on the second Appellate Court. The error of record relied upon is too trivial so as to affect the finding. 10. Mr. Dhal contends that the finding regarding existence of malice is based merely on the uncorroborated statement of the Plaintiff that the Defendant wanted him to arbitrate when Balidhar (P.W. 5) laid a claim to the disputed property, and when the Plaintiff refused to side with the Defendant the latter was filled with malice. It is open to a court of fact whether to accept the uncorroborated testimony of a particular witness to sustain a particular finding and this Court cannot interfere, in second appeal with regard to sufficiency or adequacy of such evidence. His contention that there is no satisfactory evidence as to the existence of previous enmity or litigation to establish malice is also not legally tenable. Malice means the presence of some improper or wrongful motive, that is to say, the intent to use the legal process in question for some other than its legally appointed and appropriate purpose. Improper motive can exist without previous enmity or litigation. 11. All the contentious fail. The appeal fails and is dismissed with costs. Final Result : Dismissed