JUDGMENT : ( 1. ) THIS is an appeal under section 96 of the Code of Civil, procedure against the judgment and decree dated 3-3-1970, passed by the district Judge, Gwalior in Civil Suit No. 11- A of 1962. ( 2. ) THE facts giving rise to this appeal are that the plaintiff filed a suit for recovery of Rs. 1,80,274. 40 with the allegations that on 2-9-1958, at barabanki, the defendant filed a complaint against the plaintiff under section 420 of the Indian Penal Code and on the basis of the said complaint, got a warrant of arrest issued against the plaintiff. The warrant was served on the plaintiff at Gwalior, but he was released on bail at Gwalior. On 15-1-1959, the plaintiff appeared before the Court of Shri M. M. Mishra, magistrate at Barabanki and again executed a bail bond for appearance before, the Criminal Court at Barabanki till the disposal of the case. On 9-11-1959, the Criminal proceedings terminated successfully in favour of the plaintiff and the plaintiff was discharged by the order of the said Magistrate on 9-11-1959. The defendant brought the aforesaid criminal complaint against the plaintiff, knowing that there was no reasonable and probable cause for the action, but it was out of a malice. To show the malice, certain facts are alleged by the plaintiff in his plaint and they are that on 24-12-1951, the plaintiff entered into a contract with the defendant for the supply of 10 Tons Ice Plant under an agreement dated 24-12-1951. Under the terms of the agreement, the defendant was to pay to the plaintiff, a sum of Rs. 2,000 after completion of the erection of the plant. The dispute arose between the parties about the sum of Rs. 2,000 as it was alleged that the contract was not completed within time stipulated and as such, the plaintiff is not entitled to recover Rs. 2,000. When the defendant refused to pay the said amount, the plaintiff filed a civil suit at Gwalior on 21-12-1954 for the recovery of the amount of Rs. 1,800. The suit was contested by the defendant, but it was decreed for Rs. 1,800 with costs. An appeal was preferred by the defendant against the decree, but it was dismissed on 9-2-1960. ( 3. 1,800. The suit was contested by the defendant, but it was decreed for Rs. 1,800 with costs. An appeal was preferred by the defendant against the decree, but it was dismissed on 9-2-1960. ( 3. ) IN July, 1958, the defendant threatened the plaintiff at Gwalior asking him to withdraw the civil suit at Gwalior, otherwise, the defendant being an influential man and once an honorary Magistrate at Barabanki, would put the plaintiff into trouble by filing against him some sort of false criminal case. ( 4. ) THE goods under the contract were supplied to the defendant in march-April, 1952 and on 2-9-1958, the defendant, as a retaliatory measure to the civil suit, filed by the plaintiff and to harass and put undue pressure on the plaintiff, so that he may withdraw the civil suit, filed a criminal complaint, mentioned above. The criminal complaint was filed under section 420 of the indian Penal Code. To further strengthen the plea of malice, it is alleged by the plaintiff that the objections regarding late completion of the plant or supply of a compressor which was not according to contract, was not raised by the defendant in the written statement he has filed in the civil suit, which was pending against him in the Court at Gwalior. ( 5. ) FURTHER, the plaintiff has stated that the whole object of the defendant was to put the plaintiff to humiliation, insult and to harass and to put undue pressure on him so that the plaintiff may withdraw the suit and stop the plaintiff from recovering the money through the process of law. The plaintiff suffered mental worries and humiliation on account of defendants aforesaid wrongful action and due to its effect, he could not sleep properly for several weeks and also could not attend to his business properly. While the criminal case was pending, the aunt of the plaintiff also suffered in her health and ultimately, because she was not attended properly, she died. The plaintiff could not attend her on last days and hours as he was to be present at Barabanki and this had a great effect on him and thereby, he suffered a mental shock, which cannot be evaluated in terms of money. The plaintiff could not attend her on last days and hours as he was to be present at Barabanki and this had a great effect on him and thereby, he suffered a mental shock, which cannot be evaluated in terms of money. It is further stated by the plaintiff that he is doing the business in refrigeration line for the last forty years and his firm has a very good reputation and the plaintiff himself holds a high position in the society. He is also an income-tax payer and Vice President of the Rotary Club, Gwalior (ex); member of Jiwaji Club, gwalior, Member of Madhya Pradesh Chamber of Commerce and Industry, gwalior, Member of Station Consultative Committee, Central Railway, gwalior, Member of Employment and Resettlement Committee, Employment exchange, Gwalior, etc. and alleging all these facts, he has stated that he has suffered loss of reputation and credit because of wrongful action of the defendant. The plaintiff further goes to state that because he could not attend to his business properly, he had to suffer loss in his business also. Therefore, the plaintiff has stated that he is entitled to get damages from the defendant under the following heads:- The cause of action arose to the plaintiff on 31-12-1958 when the warrant of arrest was served on the plaintiff at Gwalior and as the cause of action has arisen at Gwalior, the Court at Gwalior had jurisdiction to entertain the suit. Alleging all these facts, the total amount claimed by the plaintiff is rs. 1,80,274. 40 with costs. The suit was filed on 29-10-1960. ( 6. ) THE defendant filed his written statement, submitting that he had filed a criminal case against the plaintiff and the plaintiff was discharged but the discharge was based on the ground that the matter is of a civil nature and, therefore, the criminal Court declined to proceed with complaint. As to reasonable and probable cause, the defendant submitted that it is wrong to state that the criminal case was filed without any reasonable or probable cause, but he submitted that before filing the criminal case, the defendant consulted two lawyers practising on criminal side and after consulting them, he filed the criminal complaint. As to the contract alleged by the plaintiff, the defendant admitted that there was a contract between the parties dated 24-12-1951. As to the contract alleged by the plaintiff, the defendant admitted that there was a contract between the parties dated 24-12-1951. The defendant also submitted that the Court at Gwalior had no jurisdiction to entertain the suit. The claim regarding damages is excessive, fantastic and also remote. According to the quotation given by the plaintiff in his letter dated 27-11-1951, the goods to be supplied were mentioned as under :- "7x7" double cylinder enclosed type flat belt driven Frick Ammonia compressor complete with gauzes, gauzes board, foundation belts, set of wrenches and other standard equipment as supplied by Frick Co. " "as supplied by Frick Co. ", appearing in the above portion was the essential part of the said agreement. The plaintiff supplied the defendant with the plant on or about 23-5-1952, but erected it much later. After the erection of the plant, it was detected that it was not giving satisfactory service and a complaint was sent to the plaintiff in July, 1952, but no heed was paid to it by the plaintiff. When the J defendant could not find the real defect in the machinery as to why the machine was not working properly, the defendant consulted one Shri I. J. Singh, B. Sc. B. E. , Lecturer in Government Technical institute, Lucknow. After examining the plant, Shri Singh told the defendant that the defect was with the fly wheel of the compressor which was not suited to it. The defendant, acting on the information of the Expert, Shri i. J. Singh, enquired and contacted Frick Co. Waylesboro Perms, U. S. A. and according to its reply dated 21-6-1958, the defendant was informed that the Compressor fitted in the ice plant of the defendant bearing No. 54569 was shipped from America in 1950 and that this machine was originally furnished for V. Belt drive with Croved Fly Wheel Motor Pulley and V. Belts. The plaintiff was to supply to the defendant with a Compressor with Original fitting of Frick Co. with Flat Belt Fly Wheel as supplied by Frick Co. From the information gathered from Frick Co. , supplied by them vide their letter dated 21-6-1958 (Ex. The plaintiff was to supply to the defendant with a Compressor with Original fitting of Frick Co. with Flat Belt Fly Wheel as supplied by Frick Co. From the information gathered from Frick Co. , supplied by them vide their letter dated 21-6-1958 (Ex. D/3) it became clear to the defendant that the plaintiff, taking undue advantage of the defendants ignorance regarding such machinery, changed the V Belt to Flat Belt, to conform the supply with the order and this violated the clause "as supplied by Frick Co. ", which is the essence of the contract. ( 7. ) THIS action of the plaintiff was dishonest one and because of bis action, the defendant suffered monetary loss. When the defendant suffered monetary loss and came to know of the trick played on him by the plaintiff, he, as an ordinary prudent man, consulted experts practising on criminal side and filed the criminal complaint and there was reasonable and probable cause for filing the said complaint. ( 8. ) AS to malice, the defendant denied that there was any malice against the plaintiff. It is further averred by the defendant that the plaintiff is a moneyed man and in order to harass and injure the defendant he has brought the suit for damages, which are extremely remote and have no connection whatsoever with respect to the criminal case. The defendant further averred that he never stated to the plaintiff that he will file a criminal case unless the civil suit filed by the plaintiff is withdrawn. Therefore, taking into consideration all these facts, the defendant submits that the plaintiffs suit be dismissed. ( 9. ) TAKING into consideration the allegations in the plaint and the denial in the written statement, the learned District Judge framed the following issues: - "1. (a) Whether the defendant prosecuted the plaintiff in Criminal case No. 73 of 1959 of the Court of Shri B. B. Tiwari, Magistrate First class and Judicial Magistrate, Nawabganj, Barabanki without any reasonable and probable cause? (b) Did he prosecute him on account of malice? 2. If so, what is the amount of damages suffered by the plaintiff on account of this prosecution as (a) General damages; and (b) special damages? 3. Is the plaintiff entitled to recover the same from the defendant? 4. (b) Did he prosecute him on account of malice? 2. If so, what is the amount of damages suffered by the plaintiff on account of this prosecution as (a) General damages; and (b) special damages? 3. Is the plaintiff entitled to recover the same from the defendant? 4. Relief and costs?" The learned District Judge, after taking into consideration the documents filed and the evidence recorded by the parties, came to the conclusion that the defendant had reasonable and probable cause to launch the criminal prosecution against the plaintiff and he was not actuated by malice. As to the damages, the learned District Judge, in para 30 of his judgment, has held that if the suit is decreed, the plaintiff will be entitled to Rs. 4,337. 18 as damages. But, as issue Nos. 2 (a), 2 (b) and 3 are held against the plaintiff, the learned District Judge dismissed the suit. Against that, the present appeal is filed. ( 10. ) WHILE this appeal was being heard, an application under Order 13, rule 10 of the Code of Civil Procedure read with Order 41, Rule 27, Civil procedure Code and section 151, Civil Procedure Code was filed before us. As laid down by the judgment of this Court in Khemchand Mulchand v. Government of Madhya Pradesh, Bhopal and another (1972 M P L J 524.), we will decide this application along with the case itself. ( 11. ) IN a case of the present nature, the essentials which should be proved by the plaintiff are enumerated in Halsburys Laws of England-Third edition-Volume 25-on page 353 as under:- "sect. 3. ESSENTIALS OF AN ACTION FOR DAMAGES FOR malicious PROSECUTION. SUB-SECT. (1 ). In General: Necessity for Termination of Proceedings in Plaintiffs Favour. 692. Essentials of the action. To succeed in an action for damages for malicious prosecution a plaintiff must prove (1) the prosecution by the defendant of a criminal charge against the plaintiff before a tribunal into whose proceedings the civil Courts are competent to enquire; (2) that the proceedings complained of terminated in his favour, if from their nature they were capable of so terminating; (3) that the defendant instituted or carried on such proceedings maliciously: (4) that there was an absence of reasonable and probable cause for such proceedings; (5) that the plaintiff has suffered damage. " In the present case, the fact that there was a prosecution by the defendant on a criminal charge is proved. Further, the fact that the proceedings complained of terminated in favour of the plaintiff is also proved. As to damages, we have already mentioned above. The other points that the defendant instituted or carried on such proceedings maliciously and that there was an absence of reasonable or probable cause for such proceedings are seriously contested. We will take ground No. (3) to see whether the plaintiff has proved that the defendant instituted or carried on such proceedings maliciously. To prove malice, the plaintiff has produced, besides himself, two witnesses; namely, krishna Dayal Bhargava (P. W. 8) and V. N. Chadda (P. W. 9 ). The evidence of those witnesses is discussed by the learned trial Court in para 9 of its judgment. The learned trial Court has stated that while the Civil Suit for rs. 1,800 was pending the defendant came down to Gwalior and threatened the plaintiff with dire consequences and also said that he will file a criminal case against the plaintiff unless the civil suit is withdrawn. To corroborate this fact, the plaintiff has examined Krishna Dayal Bhargava (P. W. 8) who says that he was residing in Gwalior for a few years and used to go to the plaintiffs place for playing Badminton. When, in July, 1958, he was at the plaintiffs place, the defendant came down there, took the plaintiff just a few paces away and during the talk, which was a loud one, he could hear that threat given by the defendant to the plaintiff, as mentioned above. Shri v. N. Chadda (P. W. 9) was also examined on the same point. He has stated that on one evening in July, 1958, he went to the house of the defendant for a social call, there he could hear the threat given by the defendant to the plaintiff as alleged by the plaintiff. The versions put forward by the three witnesses differ materially with each other. Therefore, the story put forward for showing malice of the defendant against the plaintiff is, in our opinion, a false one and it is only made up just to fulfil the ground which is essential in a case filed against the defendant for getting damages in a suit of malicious prosecution. ( 12. Therefore, the story put forward for showing malice of the defendant against the plaintiff is, in our opinion, a false one and it is only made up just to fulfil the ground which is essential in a case filed against the defendant for getting damages in a suit of malicious prosecution. ( 12. ) FACED with this difficulty, the learned counsel for the appellant submitted that even assuming for a moment that the story put forward by the plaintiff regarding malice cannot be believed, the proceedings which were started by the defendant against the plaintiff, terminated in his favour and as such, very little evidence will be required to prove the ground of malice. To support this ground further, the learned counsel for the appellant submitted that if the defendant fails to prove reasonable and probable cause for starting the proceedings, then also very little evidence on the side of the plaintiff will suffice to get a decree for damages against the defendant. Therefore, he submitted that it was the duty of the defendant to prove that he had reasonable and probable cause for starting the criminal proceedings at barabanki. ( 13. ) WHAT is the meaning of reasonable and probable cause was considered in Horniman v. Smith ( (1938) 1 All. ER 1) and it was held therein as under:-"a timber-merchant from time to time supplied a builder with timber. On several occasions deliveries of timber were made accompanied by fraudulent documents, which induced the builder to pay to the timber merchant money to which the latter was not entitled. The builder preferred against the timber merchant a charge of having unlawfully and knowingly conspired with one R. to cheat and defraud the builder. At the trial, the timber merchant was found guilty, and sentenced to imprisonment. On appeal to the Court of Criminal Appeal, the conviction was quashed. The timber-merchant thereupon brought an action against the builder for malicious prosecution. At the trial, the timber merchant was found guilty, and sentenced to imprisonment. On appeal to the Court of Criminal Appeal, the conviction was quashed. The timber-merchant thereupon brought an action against the builder for malicious prosecution. A jury found (i) that the builder had commenced and proceeded with the prosecution without any honest belief that the timber merchant was guilty of fraud, (ii) that the builder had failed or neglected to take reasonable care to inform himself of the true facts before commencing or proceeding with the prosecution, and (iii) that in commencing and proceeding with the prosecution the builder was actuated by other motives than desire to bring to justice one whom he honestly believed to be guilty. Judgment was accordingly given for the timber merchant. On appeal, the Court of Appeal reversed this decision, on the ground that 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. Thereupon the timber merchant brought this appeal:-HELD : (i) in the circumstances, there was reasonable and probable cause for a prosecution. (ii) Whether the facts proved amount to reasonable and probable cause for the prosecution is question for the Judge, and not for the jury. Per Lord Atkin : It is not required of any prosecution 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 whether there is reasonable and probable cause for a prosecution. " The same point was further considered in Abbott v. Refuge Assurance Co. Ltd. ( (1961) 3 All E R 1074)and it is held therein as under:- "reasonable and probable cause has been defined by Lord Atkin in his speech in the well known case of Horniman v. Smith. It is to be observed that the other Lords of Appeal agreed with the speech delivered by Lord Atkin. Ltd. ( (1961) 3 All E R 1074)and it is held therein as under:- "reasonable and probable cause has been defined by Lord Atkin in his speech in the well known case of Horniman v. Smith. It is to be observed that the other Lords of Appeal agreed with the speech delivered by Lord Atkin. He adopted part of the definition given by Hawkins j. , in hicks v. Faulkner ( (1981) 8 QBD 576z 167) when he said this: "i know of no better statement of the issue than that in the words of Hawkins J. ," I should define reasonable and probable cause to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed". The learned Judge accepted that test as being the proper one in this case, but he did go on to say this: "in some cases on some facts there may be exceptions to that rule but they do not seem to me to be material in this case. There is however one addition to the rule which to my mind is material in this case and that is this; that in addition to the state of mind adumbrated by Lord atkin it is in my judgment necessary for the person instituting the prosecution to believe that he had evidence which would, if accepted by the jury, establish the guilt of the accused. It would be manifestly wrong and i think no one could say that a prosecuton had reasonable and probable cause to prosecute if he believed that the accused was guilty but nevertheless knew that he had not the evidence to establish his guilt. Meeting v. Grahame White Aviation Co. Ltd. ( (19l9) 122 L T 44 ). Tims v. John Lewis and Co. Ltd. ( (1951) 2 K B at p. 474)per LORD GODDARD, C. J. ". Further, the same judgment considers whether the counsels advice can protect the defendant to show that he had a reasonable and probable cause to start the criminal proceedings. The same point was canvassed in the case in hand. Tims v. John Lewis and Co. Ltd. ( (1951) 2 K B at p. 474)per LORD GODDARD, C. J. ". Further, the same judgment considers whether the counsels advice can protect the defendant to show that he had a reasonable and probable cause to start the criminal proceedings. The same point was canvassed in the case in hand. This point was dealt with in the above mentioned case and it was held as under:- "whether counsels opinion is reasonable and probable cause for founding a prosecution is a matter which has not been recently considered by the Courts, but the case of Ravenga v. Mackintosh ( (1824) 2 B and C 693), decided a very long time ago is authority, if authority be needed, in favour of the view which i have pronounced. " It further states that: "the following propositions are now clearly settled. The reasonable man would take the following steps:- (i) He or his advisers would take reasonable steps to inform himself of the true state of the case Abrath v. North Eastern Ry. Co. ( (1883) 11 QBD 440), (ii) He or his advisers would finally consider the matter on admissible evidence only, Meering v. Grahame White Aviation co. Ltd. (iii) In all but the plainest cases, he would lay the facts fully and fairly before counsel of standing and experience in the relevant branch of the law and receive the advice that a prosecution is justified; This is implicit in the several cases which I shall mention in a moment. In addition of course, the defendant must bona fide accept and act on the advice and though that is part of the subjective test, it cannot be wholly removed from the consideration at this stage. If the plaintiff can prove that the defendants have failed to take any of these steps, then that will be evidence from which the judge may infer absence of reasonable and probable cause. So far I think the law is clear, but there has been much argument before us in reference to step No. (iii), how far the defendants can rely on an opinion of counsel in favour of a prosecution, though the defendants solicitor expressed a contrary opinion which, as the learned judge thought in this case, was plainly right and which he preferred to that of counsel. We were referred to a number of authorities on this point. We were referred to a number of authorities on this point. The case most favourable to the defendants is the authority on which the learned judge relied, Revenga v. Mackintosh, decided as long ago as 1824. In that case BAYLEY, J. delivering the leading judgment, said [ (1824), 2 B and C at p. 697]: "i accede to the proposition, that if a party lays all the facts of his case fairly before counsel, and acts bona fide upon the opinion given by that counsel (however erroneous that opinion may be) he is not liable to an action of this description. " ( 14. ) BEFORE proceeding further, it will be better to see what is the meaning of malice and how much proof the plaintiff should produce before the court to see if the action of the defendant was actuated by malice. malice has been interpreted in law of Defamation and Malicious Prosecution-Civil and Criminal by V. Mitter at page 228 (1960 Second Edition) as under:- "malice, therefore, means the presence of some improper and wrong-ful motive that is to say an intent to use the legal process in question for some other than its legally appointed and appropriate purpose. It means an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or ill-will; it may be due to a desire to obtain a collateral advantage. The malice necessary to be established in a suit for malicious prosecution, is not even malice in law as may be assumed from the intentional doing of a wrongful act, but malice in fact malus animus indicating that the party was actuated either by spite or ill-will towards an individual, or by indirect or improper motive, though these may be wholly unconnected with any uncharitable feeling towards anybody. A prosecution is not malicious merely because it is inspired by anger. However wrong headed a prosecutor may be, if he honestly thinks that accused has been guilty of a criminal offence he cannot be the initiator of a malicious prosecution. A malicious prosecution, says Harper on Torts, page 586, is one that is begun in malice and if there is no malice found to exist in fact, the action must fail". However wrong headed a prosecutor may be, if he honestly thinks that accused has been guilty of a criminal offence he cannot be the initiator of a malicious prosecution. A malicious prosecution, says Harper on Torts, page 586, is one that is begun in malice and if there is no malice found to exist in fact, the action must fail". The same word was considered in Mushtoorappa v. Hanumanthappa (A I R 1947 Mad 236) and it was held therein as under:- "where the motive which prompted the prosecution is not the laudable one of bringing an offender to justice but of retaliating against him because of an attack made by him (viz. , a complaint under section 211, penal Code) the malice behind the prosecution becomes definite and clear beyond any doubt. " As to the nature of proof of malice, it is further said by the learned author shri V. Mitter in his aforesaid book at page 229 as under:- "in an action for malicious prosecution the question of malice does not arise until a stage has been reached subsequent to that in which it has been determined that there was no reasonable and probable cause for the prosecution. In Brown v. Howkes (1981) 2qb 718) Cave J. observed : "now malice in its widest and vaguest sense has been said to mean any wrong or indirect motive; and malice can be proved either by shewing that the motive was and that it was wrong, or by shewing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor. " Apart therefore from the evidence directly pointing to spite or ill-will towards the plaintiff the proof of some improper or indirect motive other than a desire to vindicate the law may be evidence of malice. That the report was made by the defendant in order that prosecution launched by the plaintiff against him or some third person might be abandoned or withdrawn under that pressure and not with a view to vindicate his rights would be evidence of malice. Prorecut-ing another person on a groundless charge for the purpose of establishing false defence in another case is evidence of malice. Prorecut-ing another person on a groundless charge for the purpose of establishing false defence in another case is evidence of malice. " But, we may mention here that the burden of proof has very little say in the matter when both the parties have led the evidence to prove their claims. Only when the evidence of the parties is equally-balanced, then the question on whom the burden of proof lies will tilt the balance. Therefore, as there is sufficient evidence in the present case, the question of burden of proof becomes merely academic. Here, we may mention that the defendant had a reasonable and probable cause for setting the criminal law in motion. The mere fact that he could have pursued a civil remedy cannot render him liable for malicious prosecution, nor it can be held that while prosecuting the criminal remedy, he did it with malice. This, we are mentioning because it was pointed out by the learned counsel for the appellant during the course of argument that the judgment of the criminal Court at Barabanki mentions that the dispute between the parties is of a civil nature and as such, it has discharged Bharat Bhushan Bhargava (the plaintiff before us) and from this fact, it should be held that instead of filing a civil suit, as the defendant had started criminal proceedings, malice should be presumed. This point was considered in Ram Nath v. Bashir-ud-din (A I R 1953 Punj. 213), in which it was held as under:- "if the defendant had a reasonable and probable cause for setting the criminal law in motion the mere fact that he might have pursued a civil remedy cannot render him liable for malicious prosecution. " Relying on the above observations, we cannot accept the submission made by the learned counsel for the appellant regarding the existence of malice and we reject the same. ( 15. " Relying on the above observations, we cannot accept the submission made by the learned counsel for the appellant regarding the existence of malice and we reject the same. ( 15. ) THE other point which was submitted before us was that if the defendant, who himself is a law graduate and a former honorary magistrate, wanted the protection on the basis of legal advice given to him by a lawyer practising at criminal side at Barabanki and to show that he had a reasonable and probable cause to start the criminal proceedings, then it was necessary for him to prove that all the facts and papers were placed before the lawyer and after taking into consideration all the facts, the lawyer advised him to file the criminal prosecution. As this is not done by the defendant, it should be held that he cannot get protection by saying that as he acted on the legal expert advice, he had a reasonable and probable cause to launch the criminal prosecution. This aspect is considered by learned author Shri V. Mitter in his aforesaid book at pages 224 and 225 as under :- "taking by a defendant to a suit for malicious prosecution of competent legal advice, and the acting by him on that advice, are strong circumstances pointing to the existence of a reasonable and probable cause for any prosecution based on that advice subsequently initiated by him. That assumes of course that the facts upon which the legal advice is sought and given, are themselves reasonably conceived and ascertained by the defendant. The lawyer should be fully and fairly placed in possession of all relevant facts within the defendants knowledge; he should not be misled and he should be given the true facts. *** *** *** the advice of counsel establishes probable cause only when it is given by an apparently competent attorney, duly admitted to the practice of law within the state where the proceedings are brought, or, if he is admitted to practice elsewhere, apparently qualified to offer a reliable opinion as to the applicable law. The advice of a layman is not sufficient, even though he holds some official position such as that of Magistrate or Justice of the peace, since whatever dignity accompanies such an office does not carry with it any assurance of competence to advice a client. The advice of a layman is not sufficient, even though he holds some official position such as that of Magistrate or Justice of the peace, since whatever dignity accompanies such an office does not carry with it any assurance of competence to advice a client. " In, the present case, the advice was given by the competent lawyer of a long standing on criminal side and all the papers were placed before him. The only grievance of the learned counsel for the appellant is that document ex. D/1 was not shown to the Advocate. But, even taking into consideration that document, we do not think that the production of that document before the Advocate would have affected his advice in any way. Therefore, the submission of the learned counsel for the appellant that the defendant cannot take shelter under the umbrella of legal experts advice and as such, he cannot say that he had reasonable and probable cause for starting the prosecution to launch the criminal case, cannot be accepted. Further, he submitted that there is distinction between a case where a complaint is lodged on the complainants own information and where a complaint is lodged on the information supplied to the complainant by others. In the first case, the responsibility on the complainant is heavy to show that while acting on his information, he took reasonable care to see that he has a reasonable and probable cause to file the complaint. But, in the latter case, the burden on the prosecutor is not so heavy and if he proves that he has acted on the advice of an expert, as is done by the defendant in the present case, he will have a valid defence. The learned counsel for the appellant has referred to Nagendra Kumar v. Etwari Sahu ( AIR 1958 Pat. 329 .), in which it is held as under:- "if a man acts on his own knowledge, and if he gives information of the commission of an offence committed in his presence and therefore, the accusation against the plaintiff is in respect of an offence which the defendant claims to have seen him committing, and, the trial commenced, on 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. If, therefore, a man acts on his personal knowledge, then the fact that the complaint was a false one will raise a presumption that there was absence of reasonable and probable cause, and, that malice existed, unless it is shown that his memory was defective, and, that there was some valid ground for misapprehension. Where, therefore, the charge is of such a nature as must be true or false to the knowledge of the defendant, then no question of reasonable or probable cause can arise. Falsity of the evidence by the prosecutor himself would go to show want of reasonable and probable cause and further go to show malice on the part of the prosecutor. The question of reasonable and probable cause would arise in these cases, where the truth or falsity of the charge depends upon the information which the prosecutor might have received from other persons. It cannot be laid down as an abstract proposition that an accuser is justified in acting either upon the credited statement of an informant or upon his own memory. The question must always arise according to circumstances where it was reasonable to trust either one or the other. A person therefore, who acts upon the information of another, trusts the veracity, memory and the accuracy of that other, in each of which he may be completely deceived, his informants veracity may be questionable his memory fallacious and his accuracy unreliable; Yet it does not follow that it was unreasonable to believe in his information if he never had cause to doubt him. The question of reasonable and probable cause depends in all cases not upon the actual existence, but upon the reasonable bona fide belief in the existence -of such a state of things as would amount to a justification of the course pursued in making the accusation complained of, no matter whether this belief arises out of the recollection and memory of the accuser, or within information furnished to him by another. This distinction between facts to establish actual guilt, and those required to establish a bona fide belief in guilt, should never be lost sight of. Many facts admissible to prove the latter would be wholly inadmissible to prove the former. The mind of the prosecutor at the time when he initiated the prosecution is an important factor in determining the existence of reasonable and probable cause. Many facts admissible to prove the latter would be wholly inadmissible to prove the former. The mind of the prosecutor at the time when he initiated the prosecution is an important factor in determining the existence of reasonable and probable cause. It is sufficient if he proceeds on such information, as a prudent and cautious man may reasonably be expected in the ordinary affairs of life; and, therefore, it was for the plaintiffs to show that there was want of proper care in testing that information. " Relying on this ruling, the learned counsel for the appellant submitted that the defendant is a law graduate and he was also working as an Honorary magistrate and, therefore, it was expected of him that before filing a criminal complaint, he ought to have considered all the aspects of the case and also he ought to have used his personal information which he had regarding the dispute between the parties. But, the same Judgment (Nagendra Kumars case) further says as to what is reasonable and probable cause, in the following terms:- "reasonable and probable cause is an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed It is well settled that the question of the absence of reasonable and probable cause is for the judge. At the same time it is clear that the question is one of fact and not law. " The dispute between the parties was that the plaintiff was to supply to the defendant with a compressor with original fitting of Frick Co. with Flat Belt fly Wheel as supplied by Frick Co. Frick Co. supplied the machine furnished for V. Belt drive with Groved Fly Wheel Motor Pulley and V. Belts. As mentioned in para 6 of this judgment, in order to conform with the order, the plaintiff changed the V. Belt to Flat Belt and it was sent from Gwalior to barabanki while the compressor was sent from Bombay to Barabanki as was received by the plaintiff. As mentioned in para 6 of this judgment, in order to conform with the order, the plaintiff changed the V. Belt to Flat Belt and it was sent from Gwalior to barabanki while the compressor was sent from Bombay to Barabanki as was received by the plaintiff. The defect came to the knowledge of the defendant in 1958 when he received the information from Frick Co. vide their letter dated 21-6-1958 (Ex. D-3) that the original shipment of the compressor was with V. Belt Fly Wheel, Fly Wheel drive and the plaintiff had changed the drive. This fact is corroborated by the evidence of I. J. Singh and also the letters produced by the defendant. This, we have mentioned because it was argued vehemently by the learned counsel for the appellant that the defendant used the machine as erected by the plaintiff for six years and then he has filed the complaint. Thus, it was argued to show that the complaint filed was without any reasonable and probable cause. But, this submission cannot be accepted for the reasons we have-already mentioned as the defendant came to know of the defect when he got the information from Frick Co. There i no dispute between the parties that the compressor was of Frick Co. Similarly, the Fly Wheel also was of the same company. But, the defendant in his order asked the plaintiff to supply him with a compressor with original fitting of Frick Co. with Flat Belt Fly Wheel as supplied by Frick Co. From the letter by Frick Co. to the defendant, it is clear that the plaintiff did not supply the compressor which was originally supplied by Frick Co. to the plaintiff. Without taking consent of the def endant, the plaintiff changed the v. Belt to Flat Belt and because of this the defendant suffered loss. When the defendant enquired about the cause of this loss and consulted I. J. Singh, he reported that it is due to the change of the components as mentioned above, that the Compressor was not working properly and the output was low. All these facts were put before the legal advisor, who is admitted to be a leading practitioner on criminal side at Barabanki with a long standing. All these facts were put before the legal advisor, who is admitted to be a leading practitioner on criminal side at Barabanki with a long standing. If taking into consideration all these facts and the advice given by the legal practitioner and the opinion of the engineer, the defendant has filed a criminal complaint, which resulted in the discharge of the plaintiff, in our opinion the ground of reasonable and probable cause is completely made out by the defendant. Therefore, the submission made, by the learned counsel for the appellant, on the basis of Nogendra Kumars case (supra), that the defendant failed to prove the reasonable and probable cause, cannot be accepted and we reject the same. ( 16. ) THEREFORE, from the narration of facts as mentioned above, it is abundantly clear that the defendant has successfully proved that he had a probable and reasonable cause to start the criminal prosecution against the plaintiff. Further, we have held that the plaintiff has failed to prove that there was any malice when the action was taken against him by the defendant at Barabanki in the Criminal Court. The evidence to show that the defendant gave threat to the plaintiff at Gwalior, we have held to be false. We have also held that the plaintiff did not supply the compressor as ordered by the defendant. The damages claimed by the plaintiff, except the amount of rs. 4,337. 18, can be termed to be extremely remote and they have no connection whatsoever with respect to the criminal case. Even this amount, the plaintiff is not entitled to get because he has failed to prove the essentials of an action for damages for malicious prosecution and that the defendant had the reasonable and probable cause to start the criminal proceedings. ( 17. ) THE result, therefore, is that we see no ground to interfere in the judgment and decree passed by the learned trial Court. Consequently, the appeal fails and is dismissed with costs. Counsels fee as per schedule or certificate, whichever is less. 18 Before parting with this judgment, we have to deal with the application filed by the plaintiff under Order 13 Rule 10 read with Order 41 rule 27 and section. 151 of the Civil Procedure (I. A. No. 3826 of 1981 ). Counsels fee as per schedule or certificate, whichever is less. 18 Before parting with this judgment, we have to deal with the application filed by the plaintiff under Order 13 Rule 10 read with Order 41 rule 27 and section. 151 of the Civil Procedure (I. A. No. 3826 of 1981 ). This application has been filed by the plaintiff-appellant to show that the defendant was at Gwalior when the alleged threat, in the presence of the witnesses, was given by the defendant. The learned counsel for the appellant wanted to show the presence of the defendant at the time of the alleged threat. But, in our opinion, even if we hold that the defendant was present at the time of the alleged threat, it will not make any difference in our judgment and as such, the application, firstly for being a belated one and secondly as it has no clinching effect on the decision of the case, is hereby rejected. Appeal dismissed.