JUDGMENT : B.K. Patra, J. - This is an appeal from an appellate judgment of the Subordinate Judge, Aska upholding the decree passed by the Munsif, Aska, in a suit claiming damages for malicious prosecution. The Appellant filed a complaint in the Court of the Magistrate, Aska complaining that both the Respondents cut and damaged a fence belonging to him and that they did not desist from doing so in spite of the protest of the Appellant. The Criminal Court after trial acquitted the Respondents of the charge u/s 427, Indian Penal Code on 19-7-1965. Thereafter, the Respondents instituted a suit in the Court of the Munsif, Aska claiming Rs. 300./- as carnages from the Appellant on the ground that the case instituted by the latter against them was false and malicious and that there was no reasonable and probable cause for filing the same. The learned Munsif relying on Taharat Karim and Another Vs. Malik Abdul Khaliq and Others, held that in view of the fact that the Defendant had come to the Criminal Court with the allegation that he had seen the Respondents cutting the fence and that as the case ended in acquittal, it must be presumed that the Defendant had no reasonable and probable cause to file the complaint and that it was malicious, and in this view, he came to the conclusion that the Plaintiffs were entitled to a decree. He, however, reduced the claim of damages to Rs. 200/-. On appeal, the learned Subordinate Judge upheld the finding of the trial Court that malice on the part of the defend ant has been established and that the case filed by him against the Plaintiffs was false. 2. This second appeal came up at the first instance before G.K. Misra, J (as he then was) and his Lordship directed that in view of the decision reported in Ucho Singh Vs. Nageshwar Prasad Singh and Others, this case should be heard by a Division Bench. This reference was made on 16-11-1967. Meanwhile, on 24-6-1969 Division Bench of this Court A. Misra and Acharya JJ. in Jogendra Garahadu v. Lingraj Patra 35 C.L.T. 835 considered the conflict between Taharat Karim and Another Vs. Malik Abdul Khaliq and Others, and Ucho Singh v. Nageswar Prasad Singh and Ors. AIR 1962 Pat and preferred to follow Taharat Karim and Another Vs. Malik Abdul Khaliq and Others, . 3. in Jogendra Garahadu v. Lingraj Patra 35 C.L.T. 835 considered the conflict between Taharat Karim and Another Vs. Malik Abdul Khaliq and Others, and Ucho Singh v. Nageswar Prasad Singh and Ors. AIR 1962 Pat and preferred to follow Taharat Karim and Another Vs. Malik Abdul Khaliq and Others, . 3. The main difference between these two views of the Patna High Court lies in the fact that while the Bench in the earlier case held that where in a criminal case the accusation against the accused is in respect of an offence which the complainant claims to have seen him commit and the trial ends in acquittal on merit, the presumption would be not only that the Plaintiff was innocent but also that there was no reasonable and probable cause for the accusation, in the latter Bench decision in Ucho Singh v. Nageswar Prasad Singh and Ors. AIR 1962 Pat their Lordships were of the view that the rule that the Plaintiff in an action for malicious prosecution should inter alia prove that the prosecution was instituted against him by the Defendant without any reasonable and probable cause and with a malicious intention and that the burden to prove this entirely lies on the Plaintiff and that the application of this principle regarding burden of proof would not be affected by the mere fact that the Defendant had purported to be eye-witness to the offence alleged to have been committed by the Plaintiff. In the present case, the positive evidence of the Defendant-Appellant is that he has seen the Respondents cutting the fence and the Respondents have been acquitted in the Criminal Court. On the application of the principle enunciated in Taharat Karim and Another Vs. Malik Abdul Khaliq and Others, and confirmed by a Bench of this Court in Jogendra Garahadu v. Lingaraj Patra 35 C.L.T. 835 it must follow that the Plaintiffs are entitled to the benefit of the presumption in their favour and consequently the onus lies on the Defendant-Appellant to establish that he had reasonable and probable cause to institute the case. Apart from the presumption referred to above, the Courts below on a consideration of the evidence in this case have arrived at the finding that the criminal case instituted by the Appellant against the Respondents was false and malicious and that the Appellant had no reasonable and probable cause to file the same. Apart from the presumption referred to above, the Courts below on a consideration of the evidence in this case have arrived at the finding that the criminal case instituted by the Appellant against the Respondents was false and malicious and that the Appellant had no reasonable and probable cause to file the same. The findings of fact are binding on us in second appeal. 4. In the result, the appeal fails and is dismissed, but in the circumstances, without costs. Acharya, J. 5. I agree. Final Result : Dismissed