JUDGMENT : K.C. Jagadeb Roy, J. - The unsuccessful defendant No. 1 in a Money Suit No. 51 of 1973 in the Court of the Munsif, Bargarh is the appellant in this Court. There were altogether 11 defendants in the suit but the Courts below found no liability against 10 of them and relief claimed by the plaintiff in the suit for malicious prosecution was only allowed against defendant No. 1. In the suit, the plaintiff had claimed general damages of Rs. 1,000/- and a special damage of another Rs. 1,000/- with interest against the defendants for malicious prosecution but a sum of Rs. 250/-was allowed by the Munsif as general damage and Rs. 750/-, as special damage as against defendant No. 1 which was confirmed by the learned Subordinate Judge, Bargarh in Money Appeal No. 5 of 1976. 2. The allegation of the plaintiff in the suit is that there was dispute between the plaintiff and his relations in one hand and the defendants and some of the villagers on the other in respect of a house site. There were some criminal cases between the parties regarding the said house site and a proceeding u/s 145 Cr.PC was also initiated and that enraged the defendants and some of the Villagers who boycotted the plaintiff and some of his relations resulting the defendants ultimately to launch a criminal proceeding against the plaintiff According to the plaintiff, the other defendants instigated defendant No. 1 to launch a false criminal case u/s 436 IPC against the plaintiff before the Sub-Divisional Judicial Magistrate, Bargarh. The plaintiff was committed to the Court of Session to stand the trial being charged; u/s 436 IPC but after the trial, he was acquitted by the Assistant Sessions Judge, Bargarh and thereafter has filed, this case against defendant No. 1 and others for damage for, malicious prosecution and as already stated has succeeded in both the Courts below. 3. As has been held by this Court in Kasinath Sahu Vs. Jagamohan Nandi that in an action for malicious prosecution, the plaintiff is to prove, inter alia- (i) that he was prosecuted by the defendant; (ii) that the proceedings complained of terminated in his favour; (iii) that it was due to a malicious intention of the defendant and not with a mere, intention of carrying the law into effect. Jagamohan Nandi that in an action for malicious prosecution, the plaintiff is to prove, inter alia- (i) that he was prosecuted by the defendant; (ii) that the proceedings complained of terminated in his favour; (iii) that it was due to a malicious intention of the defendant and not with a mere, intention of carrying the law into effect. The Courts in India have held that the entire burden in the matter of establishment of the aforesaid three ingredients rests on the plaintiff in order to entitle him to a decree for damages in an action for malicious prosecution." In another case, reported in 41 (1975) CLT 424 (Ramesh Chandra Singh Mohapatra v. Jagannath Singh Mohapatra), this Court also held thus : "......Malice or malicious intention refers to the state of the mind of the defendant at the time of initiation of the criminal proceeding; The plaintiff has to prove the existence of malice, a state of mind of the prosecution, independently of proof of factum of want of reasonable and probable cause, though in the circumstances of a particular case, which is of rare occurrence, one may be inferred from the other. Malice is not merely the doing of a wrongful act intentionally, but, it must be established that the defendant was actuated by malice and animus, that is to say, by spite or ill-will or by any direct or improper motive. In other words, the plaintiff has to prove that the defendant had not acted in good faith." In the present case, both the Courts below have found that there was no reasonable and probable cause for initiating the criminal proceeding. However an issue was not framed as to whether the defendant acted maliciously in initiating the criminal proceeding. In the absence of any such malice on the part of the defendant No. 1, the orders of the Courts below cannot be sustained in awarding damages for malicious prosecution even in the absence of reasonable and probable cause in initiating the criminal proceeding. I accordingly vacate the judgments and decrees passed by the Courts below and remit the case back to the trial Court for a fresh hearing of the suit with a specific issue to be framed as to the existence of malice on the part of the defendant. 4. I accordingly vacate the judgments and decrees passed by the Courts below and remit the case back to the trial Court for a fresh hearing of the suit with a specific issue to be framed as to the existence of malice on the part of the defendant. 4. The appeal is accordingly allowed but in the circumstances, the parties to bear their own cost of the Second Appeal. Final Result : Allowed