JUDGMENT B.D. Gupta, J. - Seth, J., has referred the following question to a Division Bench for recording its opinion :- "Where a person, who is prosecuted on the allegation that he committed the crime in the presence of the complainant, is acquitted and he files a suit against the complainant, for malicious prosecution, can a presumption be raised that he was prosecuted maliciously and without any reasonable or probable cause; and whether in such circumstances the plaintiff can succeed in establishing, merely by producing a copy of the judgment acquitting him, that his prosecution was without any reasonable or probable cause?" 2. The facts leading to the reference are as follows:- On the 28th March 1956, Chet Ram, arrayed as the first respondent in the appeal before us, lodged a report at police station Kotwali, Bijnor, alleging commission, by the appellants in this appeal, of offences punishable under the Indian penal Code. As some of the offences were cognizable some of the plaintiffs were arrested and kept in police custody for a few days and ultimately, after due investigation, the police submitted it chargesheet against the appellants for offences punishable under Section 147, 323, 354 and 452, I.P.C. The appellants were ultimately acquitted on 29th December, 1956, where after on the 11th October, 1957 the suit giving rise to this appeal was filed. In substance it contained a claim for damages for malicious prosecution in a sum of Rs. 1,000. Besides Chet Ram, Sukhey Singh, arrayed as the second respondent in this appeal, was also impleaded as the second defendant on the assertion that the report which Chet Ram had lodged was in collusion with Sukhey Singh. It may be stated here that the prosecution case as set forward was such that there could be no doubt that Chet Ram should have had personal knowledge of the facts of the case. In defence, whilst the lodging of the report by Chet Ram was admitted, as also the fact that the plaintiff were ultimately acquitted, the claim for damages, as also the assertion that there was collusion between the two defendants, was denied. It was asserted on behalf' of the defendants that lodging of the report was neither malicious nor without reasonable and probable cause and that the judgment of the criminal court dated 29th December, 1956, by which the appellants were acquitted, was based on conjectures and surmises. It was asserted on behalf' of the defendants that lodging of the report was neither malicious nor without reasonable and probable cause and that the judgment of the criminal court dated 29th December, 1956, by which the appellants were acquitted, was based on conjectures and surmises. Only two issues were framed which were as follows :- (1) Whether the plaintiffs were prosecuted by the defendants maliciously and without reasonable and probable cause, (2) To what relief and damages, if any, are the plaintiffs entitled? Evidence was led by both the parties and the trial court after considering the evidence, came to the conclusion that the defendants had in reality prosecuted the plaintiffs maliciously and without reasonable and probable cause. The suit. was decreed in the sum of Rs. 750 in favour of seven of the nine plaintiffs who had instituted the suit. On appeal by the defendants, the appellate Judge came to the conclusion that in the state of evidence as it was the possibility of the incident set forward in the first information report being true could not be excluded. The learned Judge disbelieved the plaintiffs' evidence and recorded the finding that the plaintiffs had failed to prove that the prosecution was false, malicious and without reasonable and probable cause. In the result the appeal was allowed and the suit of the plaintiffs was dismissed. 3. Thereafter the plaintiffs filed the second appeal which came up before Seth, J., who has passed the order of reference quoted at the outset of this judgment. 4. It is unfortunate that no one has appeared before us on behalf of the defendant respondents. However, after hearing Sri N. Chandra, who has appeared on behalf of the appellants, and considering the matter on merits, we have arrived at the conclusion that the answer to both the parts of the question referred to us must be in the negative. 5. The order of reference recorded by Seth, J., makes it clear that it was occasioned by a decision recorded by Dalal, J. in the case of "Mohd. Daud Khan v. Jailal, A.I.R. 1929 Alld. 265, wherein Dalal, J., observed as follows :- "When the plaintiff has been acquitted, there would be a presumption of want of reasonable and probable cause in an occurrence when there was no scope for surmise and the evidence as given by the defendant of what he actually saw........ Daud Khan v. Jailal, A.I.R. 1929 Alld. 265, wherein Dalal, J., observed as follows :- "When the plaintiff has been acquitted, there would be a presumption of want of reasonable and probable cause in an occurrence when there was no scope for surmise and the evidence as given by the defendant of what he actually saw........ Unless the plaintiff is called upon to prove his innocence, the only way he can prove want of reasonable and probable cause would be by pointing out that the defendant alleged that he actually saw the plaintiff committing the offence and yet this was not believed by the Criminal Court". A perusal of the above judgment shows that the views recorded by Dalal, J. followed the opinion recorded by Viscount Dunedin in Balbhadra Singh v. Badri Shah, A.I.R. 1936 P.C. 46. After considering the opinion recorded by the Privy Council and analysing it with care, we have no doubt that whilst some of the propositions laid down by Dalal, J. were in accordance with the opinion of Viscount Dunedin, the observations quoted earlier do not, by anything stated expressly or by implication, flow from the opinion recorded by Viscount Dunedin. After discussing the matter, the position was summarised, in column 1 at p. 51, as follows :- "The question is not; `Did the appellants commit the murder?' or, `Did Badri Shah invent the murder against them? The question is:' "Have the appellant proved that Badri Shah invented and instigated the whole proceedings for the prosecution?" Later, at the bottom of the same column, it was observed that :- "It must be shown that Badri Shah invented the whole story as far as it implicated the appellants and tutored Ram Nath and Teja to say it. The question is:' "Have the appellant proved that Badri Shah invented and instigated the whole proceedings for the prosecution?" Later, at the bottom of the same column, it was observed that :- "It must be shown that Badri Shah invented the whole story as far as it implicated the appellants and tutored Ram Nath and Teja to say it. That is a very heavy onus to prove and unless they sustain it the appellants must fail." Sri N. Chandra has very fairly conceded his inability to point to any observation in the opinion recorded by Viscount Dunedin which might go to the length of supporting the observation of Dalal, J., quoted earlier, that as soon as the plaintiff had proved that he had been acquitted, a presumption of want of reasonable and probable cause would arise and that the mere fact that the case set forward by the defendant had been disbelieved by the criminal court would throw on the defendant the burden of proving reasonable and probable cause for the prosecution of the plaintiff. 6. Another case cited by Sri Chandra is the decision in "Taharat Karim v. Malik Abdul Khaliq, A.I.R. 1938 Patna 529" wherein it was observed that where the accusation against the plaintiff was in respect of an offence which the defendant had seen him commit and the trial ends in acquittal on the merits, the presumption will be not only that the plaintiff was innocent but also that there was no reasonable and probable cause for the accusation. We have no doubt that the result of the acquittal by the criminal court will give rise to a presumption of innocence in favour of the plaintiff. At the same time, with all respect to the learned judges who decided the Patna case (supra) , as also to Dalal, J. we find ourselves unable to agree with the view that the acquittal of the plaintiff gave rise to a further presumption that there was no reasonable and probable cause for the acusation. At the same time, with all respect to the learned judges who decided the Patna case (supra) , as also to Dalal, J. we find ourselves unable to agree with the view that the acquittal of the plaintiff gave rise to a further presumption that there was no reasonable and probable cause for the acusation. One can easily envisage a case where the criminal court, on the evidence before it, records the conclusion that there were good reasons to justify a suspicion that the case set forward by the prosecution was true, and yet record a finding of `not guilty' followed by an order of acquittal on the ground that it was not satisfied, beyond reasonable doubt, that the case set forward, by the prosecution was true. The position will be substantially the same in a case where the case set forward must necessarily be true or untrue to the personal knowledge of the prosecutor. As regards a judgment of acquittal recorded by the criminal court, it is admissible only for the purpose of establishing that the plaintiff was acquitted. Reference in this connection may be made to the provisions contained in Secs. 40 to 44 of the Evidence Act. Secs. 40 and 41 have no relevance to the matter under discussion. Sec. 42 has no relevance for the reason that, in the present case, we are not concerned with any matter of a public nature. We have nothing to do with Section 44 either. The only provision which appears to be relevant to the matter under discussion is Section 43 which provides that judgments, orders and decrees are relevant only to establish their existence as a fact. As has been observed by Curgenven, J. In "Venkatapathi v. Balappa, A.I.R. 1933 Madras 429" the Evidence Act does not justify "an examination of the judgment of the criminal court in order to ascertain the grounds upon which the acquittal proceeded" (Col. 1, at page 430). A little later, the learned judge proceeded to observe that; "Under Section 43, Evidence Act, it appears to me that judgment can be used only to establish the fact that an acquittal has taken place as a fact in issue in the civil suit. 1, at page 430). A little later, the learned judge proceeded to observe that; "Under Section 43, Evidence Act, it appears to me that judgment can be used only to establish the fact that an acquittal has taken place as a fact in issue in the civil suit. I know of no provision of the Act which will justify the civil Court in taking into consideration the grounds upon which that acquittal was based, and upon this point I am in agreement with Gulabchand Gopaldas v. Chunnilal Jagjivandas, 1907 B.L.R. 1134, and Shubrati v. Shamshuddin, I.L.R. 50 Alld. 713, in the view that there in no such provision." 7. The case of "Gulabchand v. Chunilal Jagjivandas, 1907 B.L.R. 1134, cited in the above judgment is a decision of the Bombay High Court whereas the decision in " Shubrati v. Shamsuddin, 1907 B.L.R. 1134, is a decision of a Division Bench of our own Court. The relevant portion, as stated by the Division Bench in the above case, runs as follows :- "The judgments of the criminal courts are admissible for the purpose of showing that the prosecution terminated in favour of the plaintiff." 8. As laid down by Bowen, L.J., in "Abrath v. N. E. Railway Co., 1882 11 Q.B.D. 440 at p. 455" :- "In an action for malicious prosecution the plaintiff has to prove, first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made; secondly, that there was a want of reasonable and probable cause for the prosecution, or, as it may be otherwise stated, that the circumstances of the case were such as to be in the eyes of the Judge inconsistent with the existence of reasonable and probable cause; and, lastly, that the proceedings of which he complains were initiated in a malicious spirit, that is, from an indirect and improper motive, and not in furtherance of justice. All those three propositions the plaintiff has to make out, and if any step is necessary to make out any one of those three propositions the burden of making good that step rests upon the plaintiff." Phipson in his treatise on Evidence (Chapter 37) has recorded an example to illustrate the requirements in a suit for damages for malicious prosecution. All those three propositions the plaintiff has to make out, and if any step is necessary to make out any one of those three propositions the burden of making good that step rests upon the plaintiff." Phipson in his treatise on Evidence (Chapter 37) has recorded an example to illustrate the requirements in a suit for damages for malicious prosecution. At page 501 of "Phipson on Evidence (Tenth Edition) " it is stated as follows :- "Thus where A has been tried and acquitted of a crime against B, and afterwards sues B for malicious prosecution, the record in the criminal trial is conclusive evidence of A's acquittal; but it is, as we shall presently see, no proof whatever that A was innocent, or that B was prosecutor, or was actuated by malice." 9. In "Purcell v. Macnamara, 103 E.R. 533" Lord Ellenborough, C. J., observed as follows :- "The question comes in fact to this, whether proving an acquittal for want of prosecution be prima facie evidence of malice to support an action for a malicious prosecution; the contrary of which has been always held. The want of probable cause may indeed be so strong and plain as to amount to evidence of malice; but that must be shown by the plaintiff." In the same case, Grose, J. observed that it was necessary for the plaintiff to give evidence of malice in the defendant, in order to support the action. Le B lane, J., observed that an action for a malicious prosecution cannot from the very nature of it be maintained without proof of malice, either express or implied, and malice may be implied from the want of probable cause; but that must be shown by the plaintiff. 10. In our opinion, the position in the present case, and cases of a similar nature, is that of the three requirements stated by Bowen, L. J., in Abrath v. N. E. Railway Co., 1882 11 Q.B.D. 440 at p. 455, the first requirement viz., that the plaintiff's innocence was pronounced by a tribunal before which the accusation was made is satisfied by the plaintiff's filing a copy of the judgment of the criminal court whereby the plaintiff's were acquitted. The second and third requirements viz. The second and third requirements viz. that there was want of reasonable and proper cause for the prosecution and that the prosecution had been initiated in a malicious spirit had still to be fulfilled by the plaintiffs by the evidence led by them at the hearing of the suit The result of the discussion is that in our opinion the answer to the question referred to us would be as follows :- Where a person who is prosecuted on the allegation that he committed the crime in the prosecution maliciously or without any reasonable or probable cause by reason simply of the fact that the said person had been acquitted; and in such circumstances merely by producing a copy of the judgment acquitting him, the plaintiff cannot succeed in establishing that his prosecution was with out any reasonable or probable cause." 11. Let the case be now listed before the Bench concerned with the answer recorded by us.