JUDGMENT : D.P. Mohapatra, J. - The Defendant No. 1 in O. S. No. 7/146 of 1978/75-III of the Court of the Addl. Munsif. Puri has filed this second appeal challenging the judgment of the lower appellate Court decreeing the suit against him reversing the decision of the trial Court. 2. The Respondent No. 1 Narendra Jayasingh, filed the suit against the Appellant and Respondents 2 to 4 claiming a sum of Rs. 460/- towards damages for malicious prosecution and for unauthorisedly removing 2000 bricks from the disputed kiln. The gist of the Plaintiff's case was that he had prepared 45.000 bricks on a piece of Anabadi land lying adjacent to his land, for the purpose of remodelling his house. The Defendant No. 1 alleging that the bricks had been prepared by the Plaintiff and himself in partnership and in the former was trying to appropriate them exclusively for himself filed a petition before the Sadar S. D. M., Puri on the basis of which a proceeding u/s 145, Cr. P.C. (Misc. Case No. 60 of 1974) was initiated against the Plaintiff. Subsequently the proceeding was dropped by the learned Magistrate on 10-1-1975 as not maintainable. - The further case of the Plaintiff was that on 10-1.1975 when he was in Puri to attend the Court, the Defendant No. 1 with the assistance of the other Defendants removed 2000 pieces of bricks from the brick kiln valued at Rs. 160/-. On these allegations the Plaintiff claimed damages from the Defendants for malicious prosecution and for loss caused due to unauthorised removal of bricks Rs. 300/- on the former count and Rs. 160/- on the latter. 3. The Defendants in a joint written statement denied the claim of the Plaintiff. Their stand was that the Plaintiff and Defendant No. 1 had started business in brick~ on -partnership basis and the latter had spent Rs. 1000/- for preparation of the bricks. The Plaintiff without knowledge of the Defendant No. 1 sold some bricks and did not account for the same. This gave rise to dispute between the parties. Apprehending breach of the peace of proceeding u/s 145, Code of Criminal Procedure was started which was ultimately held to be not maintainable. The Defendants denied the allegations in the plaint that they had removed bricks from the kiln during the absence of the Plaintiff from the village. This gave rise to dispute between the parties. Apprehending breach of the peace of proceeding u/s 145, Code of Criminal Procedure was started which was ultimately held to be not maintainable. The Defendants denied the allegations in the plaint that they had removed bricks from the kiln during the absence of the Plaintiff from the village. The Defendants also took the plea that the suit was not maintainable. 4. The trial Court framed several issues, the important issues being whether the bricks were the exclusive property of the Plaintiff and whether the Defendants carried them away? And whether the Defendants are liable for damages for malicious prosecution, for initiating the proceeding u/s 145, Cr.P.C.? On both these issues the findings of the trial Court were against the Plaintiffs, that is, the Plaintiff was not the exclusive owner of the bricks, the Defendants had not removed the bricks as alleged by the Plaintiff and the proceeding u/s 145. Code of Criminal Procedure could not be sa id to have been initiated by the Defendant No. 1 out of malice and without any reasonable and probable cause. 5. On appeal by the Plaintiff the decision was reversed in part and the suit was decreed against Defendant No. I, but dismissed against the other Defendants. The lower appellate Court on consideration of the case of the parties formulated the following points: (i) Whether the brick kiln in question was prepared exclusively by the Plaintiff or was a partnership concern as alleged by the Defendant No. 1, that is, a concern of both of them. (ii) Whether the proceeding started admittedly u/s 145, Code of Criminal Procedure was a proceeding initiated by Defendant No. 1 with malice having no reasonable and probable cause. (iii) Whether the removal of the bricks in question on the alleged date by the Defendants is correct. (iv) Whether the Appellant is to get any damages as claimed and to what extent. On assessment of the materials on record the Court came to hold that the brick kiln in question was prepared exclusively by, the Plaintiff and not jointly by him with Defendant No. 1; that the initiation of the proceeding u/s 145, Code of Criminal Procedure was out of malice having no reasonable and probable cause; that the Plaintiff could establish removal of the bricks by the Defendants that the Plaintiff was entitled to Rs. 300/- towards damage for malicious prosecution and Rs. 160/- towards cost of the bricks from Defendant No. 1 who had initiated the proceeding u/s 145, Code of Criminal Procedure and bad alone benefited by removal of the bricks. On these findings, the suit was decreed against Defendant No. 1. 6. The two grounds raising substantial questions of law for examination of which the appeal was admitted for hearing by this Court were if in law a proceeding u/s 145, Code of Criminal Procedure cannot be equated with criminal prosecution, and as such would not provide a cause of action for the Plaintiff to file a suit for malicious prosecution and even assuming that the proceeding u/s 145. Code of Criminal Procedure was initiated at the instance of the present Appellant if it could be said that he was the prosecutor since the purpose a starting a proceeding u/s 145, Code of Criminal Procedure is to prevent breach of the peace and as such a proceeding is initiated by the Magistrate on being satisfied that there was apprehension of breach of the peace. From the points indicated above, it is clear that both of them relate to the question whether a proceeding u/s 145. Code of Criminal Procedure can at all be the basis for a suit for damages for malicious prosecution. At the hearing of the case, the learned Counsel for the Appellant reiterated the aforesaid points and also tried to dislodge the finding of the lower appellate Court regarding removal of the 2000 bricks by the Appellant. The second point, I am afraid, cannot be entertained since it is concluded by the findings of fact of the lower appellate Court; which, as it appears from the judgment, is based on discussion of the materials on record and on cogent reasons. 7. The point whether a proceeding u/s 145 Code of Criminal Procedure can be equated with "Criminal Prosecution" and can be the basis for a suit for damage for malicious prosecution has engaged the attention of different Courts from time to time. On perusal of some of the decisions to which I shall presently refer, the consensus appears to be that the plea that a proceeding u/s 145. Code of Criminal Procedure can never be the basis for a claim for damage for malicious prosecution is not acceptable. On perusal of some of the decisions to which I shall presently refer, the consensus appears to be that the plea that a proceeding u/s 145. Code of Criminal Procedure can never be the basis for a claim for damage for malicious prosecution is not acceptable. Courts have not favoured the narrow interpretation of the term 'prosecution' and accepting the wider interpretation of the term have held that proceedings under Sections 107, 144 and 145. Code of Criminal Procedure in appropriate cases can also provide cause of action for a suit for malicious prosecution. (See Sukh Nandan Sarup Vs. Fazal Husain Narayan Mudali v. Peria Kalathe AIR 1939 Mad. 783 , A. Akkuliya Naidu Vs. Mattiba Venkataswamy Naidu and Others. T.V. Lakshmojirao Vs. Somavarapu Venkatappaiah, and Adikando Sahu v. Kashiram Rauto ILR 1972 Cutt. 737.) This question need not detain me further since Shri N. C. Patio learned Counsel for the Appellant fairely conceded that a proceeding u/s 145. Code of Criminal Procedure initiated on the petition filed by the Defendant could form the basis for a suit for malicious prosecution. 8. The above finding by itself will not be sufficient to dispose of the controversy altogether, The question for consideration is not so much whether a proceeding u/s 145. Code of Criminal Procedure is 'prosecution' so as to make the Defendant liable for damages for malicious prosecution to the Plaintiff, but whether the other ingredients to be satisfied in a claim for damage for malicious prosecution have been established in the present case. This Court in the case of Kasinath Sahu v. Jagamohan Nandi AIR 1973 Od. 56, observed that in an action for malicious prosecution the Plaintiff has to prove inter alia. (i) that he was prosecuted by the Defendant; (ii) that the proceedings complained of terminated in his favour; (iii) that the prosecution was instituted against him without any reasonable and probable cause; and (iv) that it was due to a malicious intention of the Defendant and not with a mere intention of carrying the law Into effect. The Court referring to the case of Braja Sundar Deb v. Bamdeb Das AIR 1941 P.C.1, observed that the Courts in India have held that the entire burden in the matter of establishment of the aforesaid four ingredients rests on the Plaintiff in order to entitle him to a decree for damages in an action for malicious prosecution. The Court referring to the case of Braja Sundar Deb v. Bamdeb Das AIR 1941 P.C.1, observed that the Courts in India have held that the entire burden in the matter of establishment of the aforesaid four ingredients rests on the Plaintiff in order to entitle him to a decree for damages in an action for malicious prosecution. In the case of Gobind Chandra Sambarsingh Mohapatra Vs. Upendra Padhi and Another. this Court considering the term 'malice' observed that it means the presence of some improper and wrongful motive that is to say an intent to use the legal process in question for some other than its legally appointed and appropriate purposes. Malice can be presumed from the facts as they transpire from the evidence at the trial. A reference was made to the decision reported in Paramananda Mohanty and Ors. v. Bira Behera, which may appear to take a different view but on closer examination is distinguishable. In that case the claim for damages for malicious prosecution was based on the Plaintiff's allegation that he was wrongfully deprived of the use of the disputed property due to the order of attachment passed in the proceeding u/s 145. Code of Criminal Procedure initiated at the instance of the Defendant in which subsequently he (Plaintiff) succeeded. On examination of the facts, the Court found that the order of attachment due to which the Plaintiff was deprived of the use of the property was not referable to any conduct on the part of the Defendant since the said order was passed by the Magistrate u/s 145. Cr. P.C. on being satisfied about existence of emergency and the necessity for passing the order of attachment from the police report and other materials on record. In such circumstances taking the view that action of the Defendant was not directly and proximately responsible for deprivation of use of the property by the Plaintiff the Court took the view that the Defendant cannot beheld to he liable for damages for malicious prosecution. The principles laid down in the decisions in my view are not applicable to the present case. In the case in hand, the Courts below have not given any finding that the basis for the claim for damages by the Plaintiff was wrongful attachment of the disputed property by the learned Magistrate in the proceeding u/s 145. The principles laid down in the decisions in my view are not applicable to the present case. In the case in hand, the Courts below have not given any finding that the basis for the claim for damages by the Plaintiff was wrongful attachment of the disputed property by the learned Magistrate in the proceeding u/s 145. Code of Criminal Procedure and that the-said order was not directly referable to any action of the Defendant No-1; On the other hand, the specific findings of fact given by the lower appellate Court are that the initiation of the proceeding by the Defendant No. 1 was malicious and there was absence of reasonable and probable cause for the said proceeding. In view of these findings it has to be held that the necessary ingredients for successfully establishing a claim for damages for malicious prosecution have been found in the case and therefore the lower appellate Court rightly decreed the suit against Defendant No. 1. 9. In the result, there is no merit in the second appeal which is accordingly dismissed with costs. Hearing fee is assessed at Rs. 300/-. Final Result : Dismissed