( 1 ) THIS second appeal by the plaintiffs arises out of a suit brought for damages for malicious prosecution. The events leading to the suit are these: The plaintiffs were charged by defendant-1 with an offence under Sec. 35 (1) of the Bombay Police Act punishable under Sec. 133 of the said Act and that prosecution ended in an acquittal with castigation of the complainant that the prosecution was motivated by reason other than just and legal and the criminal proceedings initiated by him were vexatious and malicious. ( 2 ) SO, the accused therein, brought the suit for. special and general damages. Plaintiff-1 is the father of plaintiffs 3 to 7 and plaintiff-2 is his wife. Plaintiffs 8 to 12 are not related either to plaintiff-1 or to each other. Dtfendant-1 is the uncle of defendarit-2, and defendant-2 is the widow of basappa, deceased brother of plaintiff-1. Basappa was a T. B. patient. He died on 18th August, 1957 in the house of plaintiff-1. It is said that he had ]eit behind a will bequeathing all his properties to plaintiff-1 in connection with which there was some litigation as between plaintiff-1 and defendent-2. On 20th August, 1957, defendant-1 filed a complaint before the police alleging that Basappa was poisoned by the plaintiffs and to eliminate a any such evidence they have cremated the dead body of Basappa contrary to the custom of burial prevalent in their community. The police apparently found no evidence of the offence alleged against the plaintiffs. Therefore, they did not take any action. On 25th November, 1957, defendant-1 filed a private complaint before the judicial Magistrate, First Class, Laxmeshwar complaining that the plaintiffs had cremated the dead body of Basappa in land Sy. 154 which is different from the one reserved in the village for the purpose of burial and cremation, arid thereby they had committed a breach of the Rule filmed under Sec. 35 of the Bombay Police Act, punishable under Sec. 133 of the said Act. The proceedings before the criminal Court continued for more than four years, since the complainant challenged almost, every order of the Magistrate in revision petitions and finally the Magistrate on 28% november, 1961, acquitted all the accused who later instituted the suit for damages on the ground that there was no reasonable and probable cause for the criminal complaint and it was actuated with malice. ( 3 ) THE trial Court accepted the case of the plaintiffs. It awarded damages only against defendant-1; Rs. 400 special damages to the 1st plaintiff, since he alone defended the prosecution, and the appearance of the other accused was dispensed with by the criminal Court. It also awarded general damages, Rs. 100 to each of 'the plaintiffs 1 to 8 and 10 to 12. At the same time, the trial Court directed the plaintiffs to pay exemplary costs to defendant-2 since she was not in any way responsible for the criminal case. In the appeal preferred by defendant-1, the decree of the trial Court has been reversed holding that defendant-1 had instituted the criminal case under the expert advice of three Advocates of Dharwar and although that advice was proved to be wrong the proceedings couid not be said to lave been initiated without reasonable and probable cause. On the question of special damages to plaintiff-1, the appellate Court has also held that there was no evidence adduced by the plaintiffs in proof of any special damages. ( 4 ) HENCE the plaintiffs have appealed to this Court. ( 5 ) BEFORE considering the legality of the findings recorded by the appellate Court, it will be useful to remember the essentials of malicious prosecution. In order that an action shall lie for malicious prosecution or the other forms of abusive process, it must be proved that the proceedings must have been instituted or continued by the defendant; that he must have acted without reasonable and probable cause; that he must have acted maliciously; and that the proceedings must have unsuccessfully terminated in favour of the plaintiff. It is really difficult to prove the second condition, that is want of reasonable and probable cause. The burner of proving the absence of reasonable and probable cause is always on the plaintiff. It is a proof of the negative and a reasonable inference could be drawn by the Court from the proved circumstances. The term "reasonable and probable" are synonyms, both mean a genuine belief based on reasonable ground that the proceedings are justified. In other words, as held by Lord Atkin in Herniman v. Smith, 1938 (1) A11er. p. 1 at p. 10. The term "reasonable and probable" are synonyms, both mean a genuine belief based on reasonable ground that the proceedings are justified. In other words, as held by Lord Atkin in Herniman v. Smith, 1938 (1) A11er. p. 1 at p. 10. that it is not required of any prosecutor that he must have tested every possible relevant fact before he takes action; his duty is not to ascertain whether there is a defence, but to ascertain whether there is reasonable and probable cause for a prosecution. ( 6 ) I may also say a word or two on the question of malice to be proved. It is some sort of wrongful motive, or absence of honestly which is different from carelessness or negligence or want of sound judgment. "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, See almond on the Law of Torts, 7th Edn. p. 418. (2 ). Malice and absence of reasonable and probable cause must unite in order to produce liability". The malice can be proved either by showing that the motive was wrong or by proving the circumstancs that led to the unsuccessful prosecution. ( 7 ) NOW, applying these principles to the present case, was there any evidence of want of reasonable and probable cause in the institution of the criminal case? The plaintiffs have proved that even though there was no rule, framed under Sec. 35 of the Bombay police Act, defendant-1 continued the prosecution, and challenged almost every order of the Magistrate and dragged on the proceedings for over four years. Defendant-1 does not belong to the place where the plaintiffs hail from. He is not concerned with the land where the deceased Basappa was cremated. He was not in any way affected by the cremation of Basappa. Defendant-1 does not belong to the place where the plaintiffs hail from. He is not concerned with the land where the deceased Basappa was cremated. He was not in any way affected by the cremation of Basappa. His case that there was a custom not to cremate, has been reasonably explained by plaintiffs stating that if a person suffers from virulent disease ordinarily the body would be cremated and it is not in dispute that Basappa was suffering from t. B. Apart from that, the grievance, if any, of defendant-1 could be only against plaintiff-1 as the latter was almost the sole person responsible for the cremation of the dead body of Basapppa but defendant-1 took pleasure in roping all his children including the ladies in the criminal case, in these circumstances, it is fairly clear that the motive behind the prosecution, as rightly observed by the trial Court, was nothing but a family feud that followed the alleged will said to have been executed by deceased Basappa and there was no reasonable Or probable cause. ( 8 ) BUTT the appellate Court has held to the contrary only on the ground that defendanit-1 took advice of three Advocates of Dharwar before he presented the complaint and therefore there was reasonable and probable cause for the prosecution. It ia true as observed by the Privy council in Albert Bonnan v. Imperial Tobacca Co. Ltd. , AIR 1929 PC. 222. that where the proceedings are instituted in reliance upon the expert advice, though the event proves that the advice wag wrong it would be impossible rightly to hold that the persons instituting the proceedings in acting upon it had no reasonable or probable cause for the course they took. ( 9 ) BUT in the present case, neither the defendant proved that he had taken a bonafide legal opinion nor there was any other evidence to indicate that he had consulted any Advocate before he instituted the criminal proceedings. It was a private complaint evidently filed not through any advocate. Even at the commencement of the proceedings, it was brought to his notice that there was no rule framed under Sec. 35 of the Bombay police Act. He could have withdrawn the complaint at that stage. That, he did not do and evidently continued the prosecution only to harass the accused. Even at the commencement of the proceedings, it was brought to his notice that there was no rule framed under Sec. 35 of the Bombay police Act. He could have withdrawn the complaint at that stage. That, he did not do and evidently continued the prosecution only to harass the accused. In the circumstances, I cannot but hold that the appellate Court has erred in its conclusion. ( 10 ) THIS takes me on to the question of proper damages to be awarded. The trial Court, as I have earlier observed, has granted Rs. 400 special damages to plaintiff-1. The appellate Court has stated that since he has not adduced any evidence in support of it, he is not entitled for it. It is true that the plaintiffs have not produced the bill of costs spent by them in defending the criminal prosecution. But that does not mean that they have not spent any money. They were dragged on from Court to Court for more than four years. Certainly Rs. 400 awarded towards thait costs, cannot be said to be excessive or in any way unreasonable. On the question of general damages, the trial Court has granted Rs. 100 to each one of the plaintiffs. It is on record that the presence of most of the accused had been dispensed with. Taking into consideration all the facts and circumstances. I think it would meet the ends of justice, if each one of them is awarded Rs. 50. ( 11 ) IN the result and for the reasons stated above, the appeal is allowed, the judgment and decree of the appellate Court are set aside and the decree of the trial Court is modified in the terms as above stated. The decree of the trial Court granting exemplary costs to defendant-2 is, however, kept undisturbed. In the circumstances, I make no order as tc costs in this appeal. --- *** --- .