Judgement JUDGMENT:- The facts giving rise to this appeal may be stated briefly. A criminal case was instituted against the plaintiff by the defendant as per his complaint (Ext.A-4). In Ext.A-4, it was alleged that the defendants (in the instant suit) had earlier instituted proceedings under Sections 107 and 145, Cr.P.C. against the plaintiff and thereafter the plaintiff, in order to harass the defendant and also to take over possession of his land, trespassed into a part of his land and forcibly erected some posts thereon, with the object of putting up a fence. In the schedule of the said complaint (Ext.A-4), where the boundaries of the land were given, it was also stated that the plaintiffs had put up a fence within the said land for about 7 cubits. Various dates for hearing were fixed by the learned Magistrate upon receipt of this complaint, but finally vide the learned Magistrates order dated 29-4-68 the following order was passed- "On the other hand the case is being dragged in this way since 1966. So, I do not find any justification to drag this two years old case any further. Hence the accused persons are acquitted under Section 247, Criminal Procedure Code." 2. Hence this suit for damages for malicious prosecution against the defendant (complainant in Ext.A-4). 3. In order that an action for malicious prosecution may succeed, the following elements must be proved by the plaintiff. (1) The proceedings must have been instituted or continued by the defendant; (2) The proceedings must have been unsuccessful - that is to say, must have terminated in favour of the plaintiff now suing; (3) The defendant must have acted without reasonable and probable cause; (4) The defendant must have acted maliciously. 4. There is no dispute, in the instant case, that the proceedings were instituted by the defendant, upon his complaint as per Ext.A-4, nor is there any dispute that the proceedings, so commenced and continued, terminated in favour of the plaintiff-respondent. The questions that fall for adjudication in this second appeal are, therefore, how far the defendant can be held to have acted maliciously and how far he also acted without reasonable and probable cause. 5. Undoubtedly, existence of malice as well as of reasonable and probable cause are questions of fact. The questions that fall for adjudication in this second appeal are, therefore, how far the defendant can be held to have acted maliciously and how far he also acted without reasonable and probable cause. 5. Undoubtedly, existence of malice as well as of reasonable and probable cause are questions of fact. As has been held in Chellu v. Palghat Municipality, AIR 1955 Mad 562 , by Govinda Menon, J.- "It seems to me that if the finding (regarding the absence of reasonable and probable cause and malice) is based upon relevant and admissible evidence then the question is one of fact and I am precluded from going behind the conclusion of fact arrived at by both the courts below." 6. Their Lordships in the Privy Council had also held in Sabhapathi v. Huntley, AIR 1938 PC 91- "The finding of the learned Judge of first instance on the question of malice is a finding in fact. The state of a mans mind, as has been said, is as much a fact as the state of his digestion. Their Lordships see no reason for disturbing the finding of the trial Judge on this question of fact." 7. The question posed in this second appeal, however, is whether the learned Court below overlooked any material evidence in coming to its finding as regards the existence of malice and of reasonable and probable cause and also whether it mis-read and mis-construed any material evidence in doing so. 8. Mr. A.K. Dutta, learned Counsel appearing for the appellant, has drawn my attention to the following observations by the learned Appellate Court below- "In his cross-examination he (D.W.3) further says that he did not see the fencing being put up or any posts being attached at the alleged place of occurrence. He did not even see how many posts were attached and on how much land." 9. Mr. Dutta has drawn my attention to the deposition of this witness, from the record of which I find that all that this witness stated was- "I did not see the fencing being put up; I saw only the posts being erected. I cannot say how many posts were erected or upon how much land such posts were erected." 10. Mr. Dutta has drawn my attention to the deposition of this witness, from the record of which I find that all that this witness stated was- "I did not see the fencing being put up; I saw only the posts being erected. I cannot say how many posts were erected or upon how much land such posts were erected." 10. In other words, although D.W.3 did admit that he had not seen any fence being put up, he clearly stated in his deposition that he did see posts being erected. It may be relevant here to advert to the complaint Ext.A-4, on basis of which the proceedings were instituted. The gravamen of the complaint therein was also that posts were being put up, with the object of putting up a fence. No doubt, in the schedule to the complaint, where the boundaries of the land were stated, it has been mentioned that fencing has been put up for over 7 cubits within the land. The main body of the complaint will, however, disclose that the chief allegation was that of erecting posts, with the object of putting up a fence. In any case, I am constrained to hold that the evidence of D.W.3 was materially mis-read, at least to the extent where he had testified to the erection of the posts, although not of the fencing. 11. The learned Appellate Court below had found, after examining the evidence on record, that the prosecution case instituted by the defendant-appellant against the plaintiff-respondent was false. If the learned Court below had come to its finding of falsity after a proper reading of all the material evidence, it would not have been open in this second appeal to canvass the matter any further. However, as stated earlier, I find that the learned Court below had overlooked and also mis-read a very material part of the deposition of D.W.3. The finding therefore, becomes untenable in law and although one of fact, becomes open to interference in a second appeal. 12. Another observation of the learned Appellate Court below is also of great significance. It has observed- "The onus of proving that there was probable and reasonable cause of bringing the criminal case lies on the defendant and he has hopelessly failed in discharging the onus. 12. Another observation of the learned Appellate Court below is also of great significance. It has observed- "The onus of proving that there was probable and reasonable cause of bringing the criminal case lies on the defendant and he has hopelessly failed in discharging the onus. As said before the plaintiff has the least responsibility in proving the negative matter of want of probable and reasonable cause." 13. The learned Appellate Court below has clearly misdirected itself in holding that the onus of proving the existence of a reasonable and probale cause was on the defendant. It appears as if in coming to its finding on this issue, the Court only looked to what evidence the defendant could adduce, without in the least adverting to the plaintiffs evidence, as regards the want of such cause. It is settled law that although it involves a notoriously difficult task of proving a negative, the burden of proving absence of reasonable and probable cause is, nevertheless, on the plaintiff. Onus may at different stages of the proceeding shift from one party to the other, but a decision on an erroneous assumption as regards burden of proof and basing it on the evidence of the defendant alone, when no duty is cast upon him to adduce any, cannot be allowed to stand. No doubt, where evidence has been led by both the parties, the question of onus of proof loses much of its importance. But, where the learned Court on a mistaken view that the onus rests on the defendant, completely shuts its eyes to the plaintiffs failure to adduce evidence in support of his allegation, albeit negative in the instant case, and decides the matter on the ground that the defendant had hopelessly failed to discharge his onus, such finding must be interfered with. 14. The judgment and order of the learned Court below are set aside. There will be no order as to costs. 15. There is a cross-objection filed by the appellant which, however, is not being pressed. This cross-objection is also dismissed. There will be no order as to costs. Order accordingly.