JUDGMENT : B.K. Patra, J. - This is an appeal by the Plaintiffs against the appellate judgment of the Subordinate Judge, Keonjhar reversing the judgment of the Munsif, Anandapur decreeing in part the Plaintiffs's suit for damages for malicious prosecution. The case of the plain tiffs shortly stated this; Defendant No. 1 encroached upon a piece of Government waste land in mouza Padmapur and when he started cultivation of the land, the Plaintiffs protested and prevented him from cultivating the waste land. As Defendant No. 1 did not still desist from his action, the Plaintiffs reported against him to the local Sarpanch but Defendant No. 1 did not pay any heed to the latter's advice. Defendant No. 1 therefore bore a grudge against the Plaintiffs and filed a criminal case against them under Sections 143, 426 and 447, Indian Penal Code on the false and baseless allegations that the Plaintiffs formed an unlawful assembly, trespassed on the land in posses Hi on of Defendant No. 1 by damaging his fence and damaged the vegetables and Arhar grown by the Defendant No. 1 on the land. It was alleged that the Defendant No. 1 was actuated by malice in filing this criminal complaint. The criminal case was tried on merits and the Plaintiffs were acquitted. Thereafter, they brought the suit claiming Rs. 700/- as damages from all the Defendants alleging therein that Defendant No. 1 filed the false case against them on the advice and instigation of Defendants 2 and 3. The Defendants resisted the suit stating that the criminal case filed by Defendant No. 1 against the Plaintiffs was true and not false and much less malicious. It was stated that Defendant No. 1 was in possession of the land and had grown vegetables and arhar thereon after fencing it. The Plaintiffs asked Defendant No. 1 to give his land to them for excavation of a tank, but as he did not agree to do so, they formed an unlawful assembly, uprooted the fence and damaged the vegetables and plants standing on the land. It was denied that Defendants 2 and 3 instigated Defendant No. 1 to file the case. 2. It was denied that Defendants 2 and 3 instigated Defendant No. 1 to file the case. 2. The learned Munsif who tried the suit held that the Plaintiffs failed to establish that Defendants 2 and 3, who no doubt were witnesses for Defendant No. 1 in the criminal case filed by him, had ever instigated him to file the complaint and would not therefore be liable for any damages. On the evidence recorded in the suit, he came to the conclusion that the criminal case filed by Defendant No. 1 against the Plaintiffs on allegations which Defendant No. 1 claimed to have Been himself were false and that in launching the prosecution, Defendant No. 1 was actuated by malice. On the point of damages, he found that the Plaintiffs could not make out a case for the full amount of damages claimed and therefore passed a decree in their favour for Rs. 200/- to be claimed from Defendant No. 1 alone. On appeal, the learned Subordinate Judge relied on some admissions made by Plaintiff No. 1 in Court which go to show that on the date of occurrence the Plaintiffs protested and prevented Defendant No. 1 from cultivating the land. He therefore, came to the conclusion that there was reasonable and probable cause for Defendant No. 1 to file the case. He also held that the Plaintiffs on whom the onus rested failed to establish malice and want of reasonable and probable cause on the part of Defendant No. 1. In the result, he allowed the appeal and dismissed the suit. 3. The learned Subordinate Judge in arriving at the conclusion that on the date of occurrence as mentioned in the complaint petition the Plaintiffs did some overt act in preventing Defendant No. 1 from possessing the disputed land and that this is evident from some of the admissions made by the Plaintiff in para 3 of the plaint and his deposition in Court, appears to have committed some errors of record. A careful reading of paragraph 3 of the plaint and the deposition of the Plaintiff No. 1 examined as p.w. 1 would show that the Plaintiff was not referring to the disputed land but to a Government waste land and his case is that when Defendant No. 1 encroached upon the Government waste land and wanted to cultivate it, the Plaintiffs protested and prevented him from doing so. In fact, the Plaintiffs' case is that because of this incident, Defendant No. 1 filed a false case against them alleging that the latter formed an unlawful assembly, trespassed on the disputed land which admittedly belongs to Defendant No. 1 and his mother and damaged the fence and the crops. Even assuming for a moment that the conclusion of the learned Subordinate Judge that on the date of concurrence, the Plaintiffs did form an unlawful assembly and prevented Defendant No. 1 from activating the disputed land is correct, still, that conclusion would not establish that Defendant No. 1 had reasonable and probable cause to file the complaint. It may be remembered that the allegation made in the complaint petition is not only that the Plaintiffs formed an unlawful assembly but they also trespassed on the disputed land and that they broke the fence and uprooted the crops that the Defendant had grown on the land and Defendant No. 1's specific case is that he was an eye-witness to the entire occurrence. Hence, even if the allegation that the Plaintiffs formed an unlawful assembly is held to be true and that therefore Defendant No. 1 had reasonable and probable cause to prosecute the Plaintiffs on a charge u/s 143, Indian Penal Code, still the question remains whether the Defendant No. 1 had any reasonable and probable cause to prosecute the Plaintiffs on charges under Sections 447 and 426, Indian Penal Code. Apart from the fact that the criminal Court has acquitted the Plaintiffs of these charges, the learned Subordinate Judge also has not found that the allegations on which the charges are based were true. Although, as a broad proposition of law, it is well settled that in an -action for damages for malicious prosecution, the onus to prove absence of reasonable and probable cause rests on the Plaintiff, this is qualified to this extent that in cases where the accusation against the Plaintiff purports to be in respect or an offence which the Defendant claims to have seen him commit and the trial in the criminal case ends in acquittal on merits, the presumption would be that not only the Plaintiff,was innocent but also that there was no reasonable and probable cause for the accusation. This proposition which was enunciated as early as in 1938 by a Division Bench of the Patna High Court in Taharat Karim and Another Vs. This proposition which was enunciated as early as in 1938 by a Division Bench of the Patna High Court in Taharat Karim and Another Vs. Malik Abdul Khaliq and Others was accepted by this Court in G.C. Mohapatra v. Upendra Padhi and Anr. 25 (1959) C.L.T. 366, and Gangadhar Mohanti v. Priyanath Das 29 (1963) C.L.T. 357, and more recently by a Division Bench of this Court in Jogendra Garabadu and Others Vs. Lingaraj Patra and Others although the correctness of this view was not accepted by a subsequent Division Bench of the Patna High Court in Ucho Singh Vs. Nageshwar Prasad Singh and Others. The two conflicting views were considered at length by the Division Bench in Jogendra Garabadu and Others Vs. Lingaraj Patra and Others which differed from the view expressed in Ucho Singh Vs. Nageshwar Prasad Singh and Others, and preferred to accept the view as enunciated in the earlier decision in Taharat Karim and Another Vs. Malik Abdul Khaliq and Others and consistently followed thereafter by this Court. 4. As in the present case, the Defendant No. 1 has claimed to have seen the entire occurrence himself and the Plaintiffs were acquitted in the criminal case, the presumption is not only that the Plaintiffs are innocent, but also that there was no reasonable and probable cause for the accusation against them. Even if it is accepted for a moment that the finding of the learned Subordinate Judge that this presumption has been rebutted so far as the charge u/s 143, Indian Penal Code is concerned, yet there is no evidence, much less any finding, that this presumption has been rebutted in respect of the other two charges. 5. Mr. B.K. Pal, appearing for the Respondent contends that the charges under Sections 447 and 426, Indian Penal Code laid against the Plaintiffs are incidental to and connected with the charge u/s 143, Indian Penal Code levelled against them and that if it is held that there was reasonable and probable cause to lay the charge u/s 143, Indian Penal Code it must follow that there was also reasonable and probable cause for the other two charges. I am unable to accept this contention. I am unable to accept this contention. The essence of the offence u/s 143, Indian Penal Code is the combination of several persons having a common object to commit an offence which includes the offences of mischief and criminal trespass and this itself constitutes an offence distinct from the criminal offence which these persons agree and intend to commit. The mere assembly of five or more persons would be an unlawful assembly if its common object is to commit any mischief or criminal trespass or any other offence and being a mere member of such assembly having such common object is punishable. To punish them u/s 143, Indian Penal Code it is not necessary that they should have committed any mischief or criminal trespass or any other offence in pursuance of their common object. If, over and above being members of such assembly, the persons concerned commit mischief or criminal, trespass, they are separately punishable for these offences. It would not therefore be correct to say that the actual commission of the offence of mischief or of criminal trespass is so inter connected with the offence u/s 143, Indian Penal Code that mere proof of the commission of an offence u/s 143, Indian Penal Code would also result in conviction of the offence under Sections 447 and 426, Indian Penal Code. When, therefore, it is found that there Wag no reasonable and probable cause for some of the charges preferred by the Defendant in the original proceeding but that there may have been such cause for the other charge, the Court ought to grant a decree to the Plaintiff in respect of the charge for which there was no reasonable and probable cause. I am supported in the view that I take by a decision of the Punjab High Court in the case of Ram Nath Vs. Bashir-ud-Din, . 6. The question as to the amount of damages which Defendant No. 1 would be required to pay for making a false accusation against the Plaintiffs under Sections 447 and 426, Indian Penal Code is not easy to determine. The learned Munsif on the basis that there was no reasonable and probable cause for preferring the complaint on all the charges has awarded Rs. 200/- towards damages as against the claim of Rs. 700/- made by the Plaintiffs. The learned Munsif on the basis that there was no reasonable and probable cause for preferring the complaint on all the charges has awarded Rs. 200/- towards damages as against the claim of Rs. 700/- made by the Plaintiffs. The amount determined was not based on any definite calculation but is based on what the learned Munsif considered to be fair and reasonable and I do not think that any alteration in the amount is called for. 7. In the result, I would allow this appeal, set aside the judgment and decree passed by the learned subordinate Judge and restore that of the Munsif with costs here and in the Court below. Final Result : Allowed