JUDGMENT 1. - An epitome of the primary facts and circumstances out of which the present second appeal of the defendant has arisen, herein will help resolve the forensic controversy. 2. The appellant (defendant) had lodged a report on 24th October, 1963, against the plaintiff (respondent) and his father (since died) for the offence under Section 325/34, IPC. at the police Station Kotwali (Jaipur) alleging therein that on remonstration by the defendant the act on the part of the plaintiff and his father breaking and damaging the bricks wall built by the defendant for a bathroom in the chowk the plaintiff and his father came up stairs, abused her and Moti Vallabh gave lathi blows on her head resulting grievous injuries the police had challaned both, the plaintiff and his father but they were acquitted ultimately For the prosecution on the aforesaid report, the plaintiff filed the present suit for Rs. 8,998/- out of which the present second appeal has arisen claiming damages for malicious prosecution. 3. The trial Court dismissed the suit holding that the plaintiff and his father actually broke the bricks wall of the bath-room and there was a quarrel in between the parties on the day of incident and the defendant did receive grievous injuries on her head which could not have been explained otherwise by the plaintiff. and that, the report of the appellant was not baseless nor actuated by malice. But, on appeal, the first appellate court upset that finding and awarded a decree for Rs. 1,080/30 only to the plaintiff and against the defendant. Hence this second appeal. 4. While admitting the second appeal, the following substantial questions of law were framed by this Court on 18.10.1979. (a) When the fact that the plaintiff's father beat and caused grievous injuries by a lathi on the head of the appellant defendant and the respondent plaintiff was present alongwith him and brought and gave the lathi to him, is held proved the plaintiff-respondent is also guilty under Section 34 Indian Penal Code of the offence of causing hurt. (b) Whether the defendant had a reasonable and probable cause for making the complaint against the plaintiff and his father when she received grievous injuries from the lathi blows caused by the plaintiff's father by the lathi brought by the plaintiff and handed over to his father ? (b) Whether the defendant had a reasonable and probable cause for making the complaint against the plaintiff and his father when she received grievous injuries from the lathi blows caused by the plaintiff's father by the lathi brought by the plaintiff and handed over to his father ? (c) Whether, the plaintiff, who has failed to prove that he suffered any damage or loss on any account is legally entitled to get any sum by way of general damages ? (d) Whether, the non-production of eye-witnesses to the occurrence by the defendant is a ground for disbelieving the evidence of the defendant herself supported by the medical evidence and other corroborative evidence, specially when the plaintiff's own witnesses admit the quarrel on the spot on that day and grievous injuries are sustained by the defendant which have not at all been explained by the other side ? 5. First and foremost contention on behalf of the appellant is that the defendant had reasonable and probable cause for making complaint against the plaintiff and his father when she had received grievous injuries on her person from a lathi blow caused by the plaintiff's father, the lathi is said to have been handed over by the plaintiff. In this view of the matter, according to the defendant's counsel there was no reason to award any damages to the plaintiff. In this context, learned counsel for the defendant vociferously submitted that the incident is admitted by the appellate court and that the plaintiff has been acquitted in criminal case merely on the ground that it found that the case against the accused has not been proved beyond reasonable doubt and that the injuries were not self inflicted. Hence, according to the learned counsel, the trial court was justified in holding on issue No. 1 that the complaint was not without any basis. 6. Contrarily, the learned counsel for the respondent contended that the finding recorded by the first appellate court that the complaint was not without any basis, is a finding of fact, with which interference in second appeal is not possible. 7. I have considered the points raised by both the learned counsels and gone through the entire record. 6. Contrarily, the learned counsel for the respondent contended that the finding recorded by the first appellate court that the complaint was not without any basis, is a finding of fact, with which interference in second appeal is not possible. 7. I have considered the points raised by both the learned counsels and gone through the entire record. In the present case, if question (b) formulated by this Court is decided in favour of the defendant appellant then certainly the suit of the plaintiff would be liable to be dismissed, requiring no decision on other questions. 8. So, before examining the merits of the abovesaid other contentions, it is incumbent on me to first ascertain as to whether the defendant had reasonable and probable cause for making complaint against the defendant and for this purpose. I may state that to found an action for damages for malicious prosecution based upon criminal proceedings the test is not, whether the criminal proceedings have reached a stage at which they may be correctly described as prosecution, the test is whether such proceedings have reached a stage at which damage to the plaintiff results. The mere presentation of a false complaint which first seeks to set the criminal law in motion will not per se found action for damages for malicious prosecution. If the complaint is dismissed holding it as disclosing no offence, it may well be that there has been nothing but an unsuccessful attempt to set the criminal law in motion, but no damage to the plaintiff results. Thus, if the prosecution is inspired by malicious act and is destitute of any reasonable and probable cause, then damages can be awarded to the plaintiff. la order to succeed in an action for damages for malicious prosecution, the plaintiff must prove : (i) the prosecution by the defendant of a criminal charge against the plaintiff before a tribunal into whose proceedings the Courts are competent to enquire; and, (ii) the proceedings complained of terminated in his favour, if from their nature they were capable of so terminating; and (iii) the defendant instituted or carried on such proceedings maliciously; and (iv) there was an absence of reasonable and probable cause for such proceedings; and (v) the plaintiff has suffered damage. The onus of proving every one of the above conditions of liability is on the plaintiff. 9. The onus of proving every one of the above conditions of liability is on the plaintiff. 9. For the above observations, I find comfort and strength from the decision of this Court in Nandlal v. State of Rajasthan (1970 RLW 201) , wherein it has been observed as under : "However, wrong headed a prosecutor may be, if he honestly thinks that the accused has been guilty of a criminal offence, he cannot be the initiator of a malicious prosecution. It may be point out that malice alone is not enough Absence of reasonable and probable cause must also be shown. If the respondent honestly believed a criminal offence to have been committed and had a reasonable and probable cause for so doing, he is not liable in an action and even though the act may be malicious, he still would not be liable, if he had reasonable and probable cause for believing in the appellant's guilt. A man is not bound before instituting proceedings to see that he has such evidence as would be legally acceptable to secure conviction It is sufficient if he proceeds on such information as a prudent and cautious man may reasonably accept in the ordinary affairs o, life and it is for the plaintiff to show that there was a want of proper care in testing that information." In view of the aforesaid observation of this Court in Nandlal v. State (supra), if a person making a complaint honestly thinks that the accused has been guilty of criminal offence he cannot be the initiator of a malicious prosecution. 10. Similarly, in Brijlal v. Premchand (AIR 1974 Rajasthan 124) , this Court has occasioned to observe as under : "The function of the Court is to see whether the prosecution was lodged without any reasonable and probate cause. That requirement does not require the complainant's conviction as to the guilt or even maintainability of the criminal proceedings. It was enough if he were satisfied that there was a proper case to approach the Court. Hence he cannot be punished for his view of the law coming to be proved as being wrong. That requirement does not require the complainant's conviction as to the guilt or even maintainability of the criminal proceedings. It was enough if he were satisfied that there was a proper case to approach the Court. Hence he cannot be punished for his view of the law coming to be proved as being wrong. The fact that the complaint was dismissed by the Appellate Court did not mean that there was want of reasonable and probable cause for the defendant prosecutor to lodge the complaint, nor en untrue statement of fact in the complaint would render it one without reasonable and probable cause." 11. Let me turn to the facts and circumstances of the present case where the defendant prosecutor had lodged a report at the Police Station, Kotwali averring therein that on October 24, 1963 she (defendant) was sitting on the roof at that time about 4.30 P.M. both the accused, (plaintiff and his father) came in the chowk and started breaking brick wall of her bathroom and when she remonstrated the accused persons hurled abuses and thereafter both (plaintiff and his father) came upon the roof-Mori Ballabh gave lathi blow on her head and that she could be saved by intervention. After receipt of the report, the defendant was medically examine) by the medical jurist who found grievous in- juries on the person of the defendant Thereafter, challan was filed for the offences under Sections 452 and 325, read with section 34, IPC against Moti Vallabh and Anand Ballabb (plaintiff). The Magistrate acquitted the accused (plaintiff respondent) of the offences on the ground that the occurrence took place on the roof which cannot be said to be in exclusive possession of any particular party and further that there is no evidence of preparation to cause hurt. Merely having lathi in hand cannot be said to be preparation and that, in the F.I.R. (Ex.P.3) it had not been alleged that Moti Ballabh asked Anand Ballabh to bring/fetch a lathi from inside the house and then, Anand Ballabh had brought lathi and given the same to Moti Ballabh. Merely having lathi in hand cannot be said to be preparation and that, in the F.I.R. (Ex.P.3) it had not been alleged that Moti Ballabh asked Anand Ballabh to bring/fetch a lathi from inside the house and then, Anand Ballabh had brought lathi and given the same to Moti Ballabh. In these circumstances, the Magistrate was of the view that it was a material part and piece of the circumstance of the occurrence which could have feasibly been given in the F.I.R. and for this reason, the Magistrate had come to the conclusion that the ingredients of Section 452, IPC were not made out. Other questions formulated by the Magistrate was, whether the accused persons had common intention to commit the offence. While discussing on this point, the Criminal Court did not believe part of the improvement made by the defendant in her statement before that Court that Anand Ballabh caught her and Mott Ballabh inflicted her on the head. The Court had further observed that there was no overt act assigned to Anano Ballabb in the F.I.R. more so, there was no mention therein about the accused telling Anand Ballabh to fetch a lathi and then banding over to his father. Moti Ballabh The criminal court also observed that in the F.I.R it was mentioned this Roop Narain was the eye witness but he did not support the whole statement of Goran Devi. It was merely stated that when they went up stairs they saw blood oozing out from the head of Smt. Gorandevi and did not see any other person there. The Criminal Court also took note of the fact that the accused, Moti Ballabh had also sustained injuries and the prosecution had failed to explain these injuries on the person of the accused; inasmuch during the cross-examination, suggestion was made by the defence counsel that Smt. Goran Devi hid beaten Moti Ballabh and this suggestion was denied by Smt. Goran Devi. Therefore, the Magistrate observed that there was no explanation from the prosecution side as to how the accused had received injuries - the burden of which was laid on the prosecution side. Then the Magistrate observed that all the circumstances showed that some occurrence did take place but it is not proved beyond reasonable doubt that it took place as per the prosecution version. So, from the judgment (Ex. Then the Magistrate observed that all the circumstances showed that some occurrence did take place but it is not proved beyond reasonable doubt that it took place as per the prosecution version. So, from the judgment (Ex. 1) delivered by the Additional Munsif Magistrate No. 3. Jaipur City, Jaipur, who had tried the offence the charge of which was framed against the plaintiff, in my view, it is clear that though the occurrence took place but since the case against the plaintiff was not proved beyond reasonable doubt so, the plaintiff was acquitted of the offence charged against him In the judgment, it could not have been found that accusation against the plaintiff was without any reasonable and probable cause. 12. In that F.I.R. the allegation against the plaintiff-respondent was that he was present at the time when defendant sustained injuries. This fact has not been disbelieved by the Magistrate and he has no where found that at the time of occurrence admitted by the Magistrate, the plaintiff was not present at the place of occurrence. In these circumstances, it was not quite unnatural for the defendant in mentioning the name of the plaintiff-respondent in the F.I.R. Thus, it can be said that there were reasons for the defendant-appellant to have named the plaintiff in the F.I.R. 13. The first appellate court, in the present case in its judgment assailed herein, found while deciding issue No. 2 that the occurrence took place on October 24, 1963 and in that occurrence Smt. Goran Devi (defendant) and Moti Ballabh father of the plaintiff sustained injuries. But, it observed that it has not been proved that the injuries sustained on the person of the defendant- appellant were caused by either Anand Ballabh or Moti Ballabh. Then, the first appellate Court considered the application of Section 34, IPC and after making discussions found that the plaintiff cannot be held to be responsible for any offence with the aid of Section 34, IPC. 14. In that judgment, the first appellate Court it has not been found that the plaintiff-respondent was not present at the place of occurrence. Only thing which has been found by the first appellate court is that no offence with the aid of Section 34, IPC has been committed by the plaintiff. 14. In that judgment, the first appellate Court it has not been found that the plaintiff-respondent was not present at the place of occurrence. Only thing which has been found by the first appellate court is that no offence with the aid of Section 34, IPC has been committed by the plaintiff. However, (illegible) that the injuries on the person or the defendant which was said to be grievous in nature, was not self-inflicted or that the injuries could have been caused by accidental fall. 15. What emerges from the afore-discussed findings of the first appellate court is that the criminal court as well as both the civil subordinate courts are in unisonant on the point that Smt. Goran Devi (defendant) sustained grievous injuries on her head and she was the best witness to have mentioned the name of the persons who had assaulted her which she named Mori Ballabh as an author of that assault and had shown Anand Ballabh as abettor; but, these facts in the opinion of the criminal court were not proved beyond reasonable doubt so as to connect the accused persons with the offence charged-therefore it acquitted the accused (plaintiff-Anand Ballabh and his father) of the offence charged. 16. The trial Court while dismissing the suit found that the accusation made by the defendant was not without any reasonable or probable cause and that there was no malice against the plaintiff. The circumstances narrated above show that the defendant launched criminal prosecution against the plaintiff with this belief that there were circumstances to proceed against them. In a case like the present it is sufficient if one proceeded on such information as a prudent and cautious man may be reasonably expected in the ordinary affairs of life; and in these circumstances, it is for the plaintiff to show that there was want of proper care in testing that information. It has come on record that a civil suit was pending in between the parties prior to initiation of criminal proceedings- that by itself is not sufficient to presume that the defendant-appellant lodged the report against the plaintiff with malice. It has come on record that a civil suit was pending in between the parties prior to initiation of criminal proceedings- that by itself is not sufficient to presume that the defendant-appellant lodged the report against the plaintiff with malice. When the occurrence is admitted by one criminal court and two civil courts and it has also been found that the defendant had sustained grievous injuries on her person then there was sufficient and good reason for the defendant-appellant to have lodged a report about assault on her. 17. As pointed out earlier, the plaintiff has been acquitted by the criminal court on the ground that the injuries sustained on the person of Moti Ballabh have not been explained by the prosecution and in cross examination to the defendant, appellant a suggestion was putt at Moti Ballabh was beaten by the complainant party. This fact also shows that definitely the occurrence had taken place. During the course of the criminal proceedings, eye witnesses who were named by the defendant-appellant unfortunately did not support her statement and that was one of the foremost reason that accusation against the plaintiff resulted in his acquittal otherwise a man is not bound before instituting the proceedings to see that he has such evidence as will be legally sufficient to secure a conviction. In these circumstances, it cannot be said that the defendant, Smt. Goran Devi, set the law in motion mala fidely and nor for the purpose of vindicating justice or perversion of the machinery of justice for improper purpose, or that the proceedings were carried on maliciously, or there was absence of any reasonable and probable cause for such proceedings. The main basis for holding that the question as to absence of reasonable and probable cause and malice is a question of law, appears to be that the finding of reasonable and probable cause and the presence of malice are matters of inference to be deduced from basic or proved facts but that is not sufficient to make the question one of law or one of mixed question of law and fact unless there are legal principles to be applied to the basic facts before the ultimate conclusion is drawn. Thus, I am in agreement with the law laid down by this Court, which I have referred to herein before, in Brijlal v. Prem Chand (supra). 18. Thus, I am in agreement with the law laid down by this Court, which I have referred to herein before, in Brijlal v. Prem Chand (supra). 18. In view of the forgoing discussions, I am of the opinion that the defendant appellant was certainly an aggrieved person as she sustained grievous injuries on her head and in those circumstances, she had filed a complaint. It cannot, therefore, be said that there was want of reasonable and probable cause. As I have already observed, in case it is found that the proceedings initiated against the plaintiff by the appellant-defendant were without any malice then the suit of' the plaintiff would be liable to be dismissed, and in that situation, other questions would necessarily not be required to be decided by this Court. However, since I have found that the accusation made by the defendant against the plaintiff was without any malice and was not baseless so, the plaintiff's suit is liable to be dismissed. 19. For the reasons enlighted above, in the result, I allow this appeal and set aside the judgments and decree passed by the first appellate court and restore the judgment of the trial Court. Consequently, the suit of the plaintiff stands dismissed. No order as to costs.Appeal allowed. *******