JUDGMENT Amitav Banerji, J. - This is a second appeal by the defendant against the judgment and decree of the Civil Judge, Mathura, dated 9th Nov., 1970. 2. Yagya Dutt Gautam and others, plaintiffs, filed a suit for recovery of Rs. 3,000/- as damages for malicious prosecution against the defendant, Dal Chand Sharma. The plaintiffs were granted a decree to recover a sum of Rs. 1675/-as damages with costs of the suit. On appeal by the defendant, the lower appellate court partly allowed the appeal and modified the decree of the trial court by reducing the amount of Rs. 1675/- to Rs. 1650/-, with proportionate cost throughout. It is against the above judgment and decree that the defendant has come up in second appeal to this Court. 3. Mr. G. P. Bhargava, learned counsel for the appellant, contended that the courts below erred in law in decreeing the suit of the plaintiffs on erroneous consideration. The findings that there was absence of reasonable and probable cause or that there was malice on the part of the defendant were patently erroneous. The burden lay on the plaintiffs to prove beyond doubt that there was malice and absence of reasonable and probable cause in the criminal prosecution launched at the instance of the defendant. In support of his contention, he relied on two decisions of this Court reported in Allahabad Weekly Reporter, 1936. Pannar v. Khunnu (1936 All WR 296) and Basdeo v. Shyama Charan (1936 All WR 645). He also relied on a decision in the case of Herniman v. Smith (1936 (2) All ER 1377). 4. Mr. S. C. Tripathi appearing for, the plaintiff-respondents supporting the judgment of the courts below cited two decisions: M/s. John Brothers, Agra v. Official Liquidator of the Agra Spinning and Weaving Mills Co. Ltd., (1936 All WR 537) and Balbhaddar Singh v. Badri Sail ( AIR 1926 PC 46 ). A suit for malicious prosecution lies at the instance of a party, who feels that he has been prosecuted maliciously and without rear sonable and probable cause at the. ire stance of another party. The prosecution must be in a criminal court at the instance of a party who is arrayed as a defendant. It is pre-requisite that the criminal prosecution must have ended in the acquittal of the aggrieved party instituting the civil suit for damages. ire stance of another party. The prosecution must be in a criminal court at the instance of a party who is arrayed as a defendant. It is pre-requisite that the criminal prosecution must have ended in the acquittal of the aggrieved party instituting the civil suit for damages. The law on this point has been made clear in numerous cases. In the case of Balbhaddar Singh v. Badri Sail (supra), their Lordship laid down three essential requisites for awarding damage in a suit for malicious prosecution. Firstly, that the plaintiff was prosecuted by the defendant, secondly, that the prosecution was instituted against him without any reasonable and probable cause and, thirdly, that it was due to a malicious intention of the defendant, and not with a mere intention of carrying the law into effect. 5. In the case Braja Sunder Deb v. Ramdeb Dass ( AIR 1944 PC 1 ), it was observed that in order to succeed in an action for malicious prosecution, the plaintiff must, in the first instance, prove two things: (i) that the defendant was malicious, and (ii) that he acted without reasonable and probable cause. It is also well settled by a string of authorities that apart from the two ingredients mentioned in the decision of the Privy Council aforesaid, the plaintiff has also to prove that the criminal prosecution terminated in his favour and that he suffered damages. The right to claim damages for malicious prosecution is meant for the purpose of preventing the abuse of the process of Court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose. 6. In the case of Mohd. Amin v. Jogendra Kumar ( AIR 1947 PC 108 ), their Lordships observed that "the foundation of an action for damages for malicious prosecution lies in abuse of the process of the Court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose." 7. The law is also well settled that the burden of proof regarding the absence of reasonable and probable cause as well as malice lies on the person who institutes the suit. See: B. Sumat Pd. v. Ram Sarup Sastry ( AIR 1946 All 204 ). The law is also well settled that the burden of proof regarding the absence of reasonable and probable cause as well as malice lies on the person who institutes the suit. See: B. Sumat Pd. v. Ram Sarup Sastry ( AIR 1946 All 204 ). In the case of Rasdeo v. Shyama Charan (supra), a single Judge of this Court held that "it is always for the plaintiff to establish affirmatively inter alia that the prosecution was brought without reasonable and probable cause. If the plaintiff fails to establish this the case must be dismissed even if no evidence is called on behalf of the defendants." Where both the parties indulge in falsehood, the Court cannot award any damage to the plaintiff for the burden lies on him to establish that the defendant had prosecuted him maliciously and without reasonable and probable cause. Although the onus of proving that there was no reasonable and probable cause for the prosecution of the plaintiff, lies on the plaintiff, it must be noted that it is negative averment, but, it has still to be established. 8. In the case of Balbhaddar Singh v. Badri Sah (supra) their Lordships ruled out that the case of damages for malicious prosecution could not be determined on the balance of probabilities. They put the matter in the following words : "The question is not; "Did the appellants commit the murder or Did Badri Sah invent the murder against theme the two queries exhausting the possibilities of the situation. The question is, Have the appellants proved that Badri Sah invented and instigated the whole proceeding for prosecution?" The crux of the matter lies where the defendant initiates the proceedings against the plaintiff with malice, i. e. for some improper and wrongful motive other than a desire to bring to justice a person whom he honestly believes to be guilty. Malice has been held to mean any improper or indirect motive then a desire to vindicate the law or for furtherance of justice. In the case of Herniman v. Smith (supra), a timber merchant supplied timber to a builder from time to time. On several occasions, the deliveries were made on fraudulent documents and the builder had to pay more money to the timber merchant than the latter was entitled to. In the case of Herniman v. Smith (supra), a timber merchant supplied timber to a builder from time to time. On several occasions, the deliveries were made on fraudulent documents and the builder had to pay more money to the timber merchant than the latter was entitled to. The builder brought a charge in a criminal court against the timber merchant of cheating and defrauding the builder. In the trial the timber merchant was found guilty and was sentenced to imprisonment. Later on in appeal, the conviction was quashed and he was acquitted. The timber merchant brought an action against the builder for malicious prosecution. The jury found that the builder had commenced and proceeded with the prosecution without any honest belief that the timber merchant was guilty of fraud and that the builder had railed or neglected to take reasonable care to inform himself of the true fact before commencing or proceeding with the prosecution and, lastly, that in commencing with the prosecution the builder was actuated by other motives than a desire to bring to justice one whom he honestly believed to be guilty. The judgment was given for the timber merchant. The builder appealed. The Court of Appeal in England held that on the materials before the builder at the relevant time there was reasonable and probable cause for prosecution and that there was no evidence that could be left to the jury on any of the questions put to them. Relying on this case, learned counsel contended that where there was a reasonable and probable cause for prosecution, no decree for damages could be passed. In my opinion, the fact of this case, as is discernible from the judgment of the Court of Appeal, is entirely different from the one in the present case. The principles laid down in this case cannot be questioned and it is trite that if there be a reasonable and probable cause the suit cannot be decreed. 9. In the present case, the trial court appraised the evidence led by the parties and concluded that the plaintiffs were prosecuted by the defendant without any reasonable and probable cause. The trial court also held that the prosecution was actuated by malice. The findings of the trial court on these points were affirmed by the lower appellate court. The lower appellate court has independently appraised the evidence. The trial court also held that the prosecution was actuated by malice. The findings of the trial court on these points were affirmed by the lower appellate court. The lower appellate court has independently appraised the evidence. These findings are findings on questions of fact, and are not amenable to be interfered with, unless it was shown that these findings were vitiated by manifest error of law. 10. Learned counsel for the appellant contended that the plaintiffs case was mainly based on the evidence of Deo Dutt, plaintiff No. 2, who stated that he was not even present in village Sumera, district Mathura, but was at Soron, district Etah. He further stated that he was A. D. O. Panchayat and had gone to village Kadarwar at 8 a. m. and returned to Soron at 2 p. m. The incident having taken place at about 12 in the day, the court concluded that he could not be 'present at the time of incident in village 'Sumara. Learned counsel contended that the documentary evidence produced by the plaintiffs in regard to the presence of this witness at a different village were subsequent entries made for the purpose of the case. This Court in second appeal cannot go into these questions. It was for the final court of fact to determine whether the entries in the relevant document, .register or paper were genuine, correctly made or in accordance with rule. The Courts below relied on the entries in the documentary evidence and the statements of P. W. 1, Mahabir Prasad and IP. W. 3, Brahmanand. This Court cannot in second appeal sift the evidence in this -regard. Once it is found that Deo Dutt" was not in village Sumara at the time of incident, the case of the prosecutor cannot succeed as against him. His presence in the village becomes doubtful. In the present case, the courts below have believed the version of Deo Dutt. Therefore, the prosecution of Deo Dutt must be held to be without reasonable and probable cause. 11. Gauri Shanker, plaintiff No. 3, stated that he was a constable clerk posted at police station Jaithra on the 24th July, 1966 and was not present in village Sumara. In the present case, the courts below have believed the version of Deo Dutt. Therefore, the prosecution of Deo Dutt must be held to be without reasonable and probable cause. 11. Gauri Shanker, plaintiff No. 3, stated that he was a constable clerk posted at police station Jaithra on the 24th July, 1966 and was not present in village Sumara. This version of his has been believed by the courts below and it is not open in second appeal to go into the question of fact as to whether he was on that day in village Sumara or at police station Taithra. Plaintiff No. 1, Yag Dutt stated that he was Superintendent in the office of the Public Service Commission at Allahabad and admitted his presence in village Sumara on 24th July, 1966, but stated that he reached there at 3 p. m. This version has been believed. If the incident took place at about 12 in the day, he could not be there at the time of incident. Consequently, the prosecution of Deo Dutt, Gauri Shanker and Yagya Dutt in the present case appeared to be false and without reasonable and probable cause. They had also been acquitted in the criminal case. Nothing could be shown that the appraisement of evidence of these witnesses suffered from any error of law. 12. Reference was also made to the defendants oral evidence The courts below extensively dealt with them but were not prepared to rely on them. The finding of the courts below is that the alleged incident did not take place. In this view of the matter, the courts below were justified in coming to the conclusion that the :prosecution of the plaintiffs by the defendant was without reasonable and probable cause, and that the complaint was filed with false allegations. It appears that the criminal prosecution was initiated not with a motive to vindicate the law or for furtherance of justice but was brought with improper or indirect motive. In this view of the matter, the finding on the question of malice is also fully justified. 13. I am not satisfied that any case for interference with the judgment of the court below has been made out. The findings of fact arrived at by the courts below cannot be interfered with in the present case. The appeal has no merits. It must fail and is accordingly dismissed with costs.