JUDGMENT S.S. Dhavan, J. - This is a defendant's second appeal from the decree of the First Civil Judge of Saharanpur reversing the decree of the Munsif, Havali Saharanpur and awarding the plaintiff-respondent damages against the appellant for malicious prosecution. The facts are these. The defendant-appellant Smt. Devi Atma Nand, who is described as a Sanyasin, filed a criminal complaint under Section 420 of the Indian Penal Code against three persons one of whom was the respondent in this appeal-Shambhoo Lal Master a who has filed this suit for malicious prosecution. Devi Atma Nand alas leged in her plaint that one of the accused-Kamta Prasad sold her a house by a sale deed dated the 14th a of January 1954; that the second accused Ganga Prasad who was a broker dealing with landed property conspired with Kamta Prasad in defrauding the complainant; that the third accused Shambhu Lal Master (the plaintiff in the present suit for malicious prosecution) was the scribe of the sale deed and a party to the fraud: that the accused did not disclose to the complainant that a portion of the house had already been sold to another woman by the name of Vidya Vati, and on, the contrary assured her that there was no charge or encumbrance of any kind on the property and that Kai Prasad had a good title to the entire house; that the complainant subsequently discovered that a part of the house had already been sold by Kamta Prasad to the aforesaid Vidya Vati and thus she had been cheated; that all the three accused had acted in collusion and were S. guilty of the offence of cheating under Section 420, I. P. C. The three accused were tried by a Magistrate of First Class, and two of them, Kamta Prasad and Ganga Prasad were convicted and sentenced to eighteen months' rigorous imprisonment which on appeal was set aside in the case of Ganga Prasad and was reduced in the case of Kamta Prasad to imprisonment till the rising of the court. The appellate court also imposed a fine of Rs. 500 on Ganga Prasad. The third accused, Shambhu Lal, was acquitted by the trial court. The complainant's application before the District Magistrate for the filing of an appeal against his acquittal was dismissed. Thereupon Shambhu Lal Master filed the present suit for malicious prosecution and claimed a sum of Rs. The appellate court also imposed a fine of Rs. 500 on Ganga Prasad. The third accused, Shambhu Lal, was acquitted by the trial court. The complainant's application before the District Magistrate for the filing of an appeal against his acquittal was dismissed. Thereupon Shambhu Lal Master filed the present suit for malicious prosecution and claimed a sum of Rs. 800/- as compensation. The defendant contested the suit and denied that she had filed the criminal complaint without reasonable and probable cause. The trial court held that the appellant had not acted maliciously or without reasonable and probable cause and dismissed the suit. On appeal the learned Civil Judge reversed both these findings and held that the appellant had acted without reasonable or probable cause and with malice, and awarded the plaintiff a decree for Rs. 400/- as compensation. The defendant has now come up in second appeal to this Court. 2. I have heard Mr. Deoki Nandan who holds the brief for Mr. N. D. Pant, for the appellant and Mr. N. D. Pant, for the respondent and perused the judgments of the courts below as well as the pleadings of the parties. Portions of the evidence were also read out before me. I am of the opinion that the decision of the learned appellate Judge is manifestly erroneous. It is elementary that a plaintiff who claims damages for having been made a victim of malicious prosecution must prove that the defendant prosecuted him without reasonable or probable cause and was also actuated by malice. The absence of reasonable cause and malice are two separate ingredients to be proved in every suit for malicious prosecution and a plaintiff will not succeed if he proves absence of reasonable cause but not malice or vice-versa. In the present case the learned Judge came to the conclusion that there was no reasonable cause for appellant (complainant in the criminal proceedings) to file her complaint, and this finding is binding on this Court in second appeal though I think it is very unsatisfactory and I would have reversed it without hesitation if I were hearing his case as a first appeal. But the learned Judge further took the view that malice on the part of the appellant could "be presumed by the fact that she had filed the complaint without reasonable and probable cause". But the learned Judge further took the view that malice on the part of the appellant could "be presumed by the fact that she had filed the complaint without reasonable and probable cause". This was an erroneous approach to the question of proof of malice. The law is exactly the reverse what the learned Jude thought. The absence of reasonable and probable cause does not lead to any presumption that the person in filing the complaint - must have acted maliciously. "No action will lie for the institution of legal proceedings, however destitute of reasonable and probable cause, unless, they are instituted maliciously-that is to say, from some wrongful motive. Malice and absence of reasonable and probable cause must unite in order to produce liability. So long as legal process is honestly used for its proper purpose, mere negligence or want of sound judgment in the use of it creates no liability; and, conversely, if there are reasonable ground for the proceedings (for example, the probable guilt of an accused person) no impropriety of motive on the part of the person instituting these proceedings is in itself any ground of liability. Salmond on Torts 11th Edn. page 745. 3. The distinction between a reasonable cause and malice is explained in Winfield on Torts as follows: "At one time malice was not always kept distinct from lack of reasonable and probable cause, but a cogent reason for separating them is that, however spiteful an accusation may be, the personal feelings of the accused arc really irrelevant to its probable truth. The probability or improbability of having stolen my purse remains the same however much I may dislike X. And it has long been law that malice and lack of reasonable and probable cause must be separately proved. Want of reasonable and probable cause may be evidence of malice in cases where it is such that the jury may come to the conclusion that there was no honest belief in the accusation made. If there was such an honest belief, the plaintiff must establish malice by some independent evidence, for malicious motives may co-exist with a genuine belief in the guilt of the accused." -Winfield on Tort -Sixth Edition by T. Ellis Lewis- page 757. 4. If there was such an honest belief, the plaintiff must establish malice by some independent evidence, for malicious motives may co-exist with a genuine belief in the guilt of the accused." -Winfield on Tort -Sixth Edition by T. Ellis Lewis- page 757. 4. The distinction between the absence of reasonable cause and malice was also pointed out by the Privy Council in Raja Braja Sunder Deb v. Bamdeb Das alias Pattanaik, A.I.R. 1944 P.C. 1 thus:- "In order to succeed in an action for malicious prosecution the plaintiff must in the first instance prove two things : (1) that defendant was malicious and (2) that he acted without reasonable and probable cause. Malice has been said to mean any wrong or indirect motive, but a prosecution is not malicious merely because it is inspired by anger. However, wrong-headed a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence he cannot be the initiator of a malicious prosecution. But malice alone is not enough there must also be shown to be absence of reasonable and probable cause." 5. The view of this Court is similar. In Babu Sumat Prasad v. Ram Sarup Sastry, AIR 1946 Allahabad 204, D.B., Wall Ullah, J. observed "Malice means the presence of some improper and wrongful motive that is to say some motive other than a desire to bring to justice a person whom the prosecutor honestly believe to be guilty". 6. The law may, therefore, be summarised thus. 'Malice and presence of reasonable cause are two distinct elements to be proved by a plaintiff before he can succeed in his suit for compensation for malicious prosecution. It is possible for a suit to be filed maliciously but with reasonable cause or without reasonable cause but not maliciously. A may lay true information of a forgery committed by though his motive is simply to feed an ancient grudge against B. Here A acts maliciously but not without probable cause. No suit for malicious prosecution will lie against him even if is acquitted. On the other hand, A honestly believing himself to be the victim of a conspiracy may make a complaint against B and C but the information which induced him to make it is such that no reasonable or normal minded person could have acted on it. No suit for malicious prosecution will lie against him even if is acquitted. On the other hand, A honestly believing himself to be the victim of a conspiracy may make a complaint against B and C but the information which induced him to make it is such that no reasonable or normal minded person could have acted on it. Here A acted without reasonable and probable cause but not maliciously. In either of the two cases a suit for malicious prosecution against A must fail. 7. By way of analogy I may cite the distinction between fraud which is a tort and innocent misrepresentation which is not A person coin-nits a fraud if he misrepresents facts with an evil intention to deceive which is absent in misrepresentation however negligent. Similarly a person acts maliciously when he prosecutes another with some wrongful or evil motive-as for example, to compel him to sell a house -and not with the object of seeking redress of a wrong, but he acts honestly if he is labouring under a L grievance, however, baseless. The onus of proving malice is on the person who files a suit for malicious prosecution. Of course he may rely on total absence of reasonable cause as part of his evidence that the defendant must have been actuated by wrongful or evil motive in prosecuting him. The court can regard the absence of reasonable cause as evidence of wrongful motive, to be weighed against other evidence on the issue of malice, but evidence is not the same thing as a presumption of law; it has to be considered with other evidence whereas a presumption renders evidence unnecessary. In the present case, the learned Civil Judge thought that malice could be presumed from the fact that the appellant had no cause for filing her complaint. This approach coloured his assessment of the evidence with regard to malice. A finding of fact based on a wrong approach to the burden of proof or a presumption not permitted by law is vitiated and may be set aside in second appeal. 8. Mr. Kazmi argued out that the learned Judge had some evidence before him to prove malice and if he relied upon it he was entitled to do so however weak it may be. 8. Mr. Kazmi argued out that the learned Judge had some evidence before him to prove malice and if he relied upon it he was entitled to do so however weak it may be. This so-called evidence is the admitted fact that the appellant filed an application before the District Magistrate praying for the filing of an appeal against the acquittal of the plaintiff-respondent. I do not think that this fact of itself can be treated as any evidence of malice. On the contrary an appeal against acquittal is prima facie evidence of the appellant being dissatisfied with the decision appealed from. If malice could be presumed from the mere fact of filing an appeal from an order of acquittal, the State Government which files hundreds of appeals from acquittals, must have acted maliciously in all such cases. The fact that an application against the acquittal of the plaintiff was filed by the appellant was not relevant in considering whether she was actuated by malice. A finding based on an irrelevant fact can be reviewed in second appeal. 9. I perused the record and found no evidence of malice. It is true that the plaintiff-respondent was acquitted by the criminal court, but this fact itself does not establish malice on the part of the person who prosecuted him. The plaintiff-respondent had to prove that the appellant was actuated by evil or wrongful motive in prosecuting him, and of this there is no trace of evidence. All that can be said is that the appellant erroneously assumed that the plaintiff-appellant was also a party to the fraud which was perpetrated against her. But an erroneous assumption of another person's guilt is not the same thing as malice. In this case there is sufficient evidence that the appellant acted honestly. The plaintiff-respondent was the scribe of the sale deed in which the property was mis-described and the seller's name wrongly given. The plaintiff-respondent admitted in cross-examination that at the time of writing out the sale-deed, he had knock is the seller Kamala Prasad for several years and was also aware that property was being mis-described in the sale-deed, but did not point out the error to the parties. Thus there was ample evidence that the appellant honestly suspected that the plaintiff-respondent had colluded with the other two accused. Her conclusion might be baseless and unreasonable but it was not dishonest. Thus there was ample evidence that the appellant honestly suspected that the plaintiff-respondent had colluded with the other two accused. Her conclusion might be baseless and unreasonable but it was not dishonest. In my opinion, the trial court took a correct view of the evidence and the questions of law which arise in this case. 10. This appeal must be allowed, and the decree of the lower appellate court reversed and that of tine trial court restored. I dismiss the plaintiff-respondent's suit for malicious prosecution in the circumstances, the parties,are directed to bear their own costs throughout.