JUDGMENT K. L. Khurana, J.-This Regular Second Appeal by the plaintiffs have been directed against the judgment and decree dated 1-8-1988 of the learned Additional District Judge (I), Shimla, reversing the judgment and decree dated 17-3-1987 of the learned Sub-Judge 1st Class (I), Shimla. 2. Briefly stated the facts of the case giving rise to the present appeal are these. On the basis of the report made by the defendant to the police, the plaintiffs were prosecuted for the offence under sections 147 504 and 447, Indian Penal Code and were acquitted by the learned Chief Judicial Magistrate, Shimla on 5-5-1983. A suit was thereafter filed by the plaintiffs for damages on account of malicious prosecution It was averred that they were prosecuted by the defendant without reasonable and probable cause and that the defendant acted maliciously. Though the plaintiffs alleged that they suffered damages to the extent of Rs. 5,005, they confined their claim only to the extent of Rs. 6,000. 3. The defendant while resisting the suit admitted that the plaintiffs were prosecuted on the basis of his report. It was denied that the report was false or that the plaintiffs were maliciously prosecuted It averred that the plaintiffs were acquitted of the offences since they were able to win over the witnesses. It was also averred that State was a necessary party and that plaintiffs were estopped by their acts and conduct 4. The parties were put to trial on the basis of the following issues arising from their pleadings :- 1. Whether the plaintiffs are entitled to damages as alleged ? If so, to what extent ? O, P. P. 2. Whether the present suit is neither competent nor maintainable ? O P, D. 3. Whether the suit is bad for non-joinder of State of H, P. as alleged ? O. P. D. 4. Whether any notice under section 80, C. P. C. was required to be served on the State of H, P, as alleged ? If so, its effect ? O. P. D 5. Whether the plaintiffs are estopped from filing the present suit by their acts, conduct etc. as alleged ? O, P. D. 6 Relief. 5. The learned trial Court answered Issue No. I in the affirmative and Issue Nos 2 to 5 in the negative. Consequent upon such findings, the suit of the plaintiffs was decreed for Rs. Whether the plaintiffs are estopped from filing the present suit by their acts, conduct etc. as alleged ? O, P. D. 6 Relief. 5. The learned trial Court answered Issue No. I in the affirmative and Issue Nos 2 to 5 in the negative. Consequent upon such findings, the suit of the plaintiffs was decreed for Rs. 6,000 with costs vide judgment and decree dated 17-3-1987. 6. On an appeal having been carried by the defendant before the learned first appellate Court, the judgment and decree dated 17-3-1987 of the learned trial Court were set aside and the suit of the plaintiffs was dismissed. It was held that the defendant was not guilty of malicious prosecution and the plaintiffs were not entitled to damages. 7. Feeling aggrieved the plaintiffs have come up before this court by way of the present second appeal. It is contended that the plaintiffs have been able to prove that they were maliciously prosecuted by the defendant without reasonable and probable cause. The findings of the first appellate Court are based on surmises and conjectures The evidence led by the parties was never considered by the lower appellate Court. 8. I have heard the learned Counsel for the plaintiffs and have also gone through the record of the case. 9. In the case of Balbhaddar Singh v. Badri Shah. AIR 1926 PC 46, it was held that the ingredients to be established for maintaining an action for damages for malicious prosecution are :-— (1) That the plaintiff was prosecuted by the defendant; (2) That the proceedings complained of terminated in favour of the plaintiff; (3) That the prosecution was instituted against him without any reasonable and probable cause; and (4) That it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect. 10. In the present case it is not disputed that the first two ingredients out of the above referred to four ingredients are made out, namely, that the plaintiffs were prosecuted by the defendant and that the proceedings complained of terminated in favour of the plaintiffs. The only controversy between the parties is whether plaintiffs have been able to prove that they were prosecuted without any reasonable and probable cause and whether the action of the defendant in initiating the action was malicious. 11. The only controversy between the parties is whether plaintiffs have been able to prove that they were prosecuted without any reasonable and probable cause and whether the action of the defendant in initiating the action was malicious. 11. Dhawan, J. of the Allahabad High Court in Devi Atma Nand v. Shambhu Lal, 1965 All LJ 317, has observed :— "It is elementary that a plaintiff who claims damages for having been made a victim of malicious prosecution must prove that the defendant prosecuted him without reasonable or probable cause and was also actuated by malice The absence of reasonable cause and malice are two separate ingredients to be proved in every suit for malicious prosecution and a plaintiff will not succeed if he proves absence of reasonable cause but not malice or vice versa. The absence of reasonable and probable cause does not lead to any presumption that the person in filing the complaint must have acted maliciously. Of course he may rely on total absence of reasonable cause as part of his evidence that the defendant must have been actuated by wrongful or evil motive in prosecuting him The Court can regard the absence of reasonable cause as evidence of wrongful motive to be weighed against other evidences on the issue of malice............" 12. The co-existence of malice and want of probable cause is an essential pre-requisite to the success of an action for malicious prosecution. Malice alone, however great, is insufficient Want of probable and reasonable cause cannot be inferred from malice, however great such malice may be, but malice may be implied or inferred as a fact from want of probable cause. The question, therefore, is not what the actual facts were but what the defendant had reason to believe they were. 13. A Division Bench of the Patna High Court in State of Bihar v. Rameshwar Prasad Baidya and another, AIR 1980 Pat 267, has held :— "Malice and absence of reasonable and probable cause must unite in order to produce liability. Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. Malice signifies 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 purpose. Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. Malice signifies 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 purpose. Reasonable and probable cause means a genuine belief, based on reasonable grounds, that the proceedings are justified. The defendant in an action for malicious prosecution is not required to believe that the accused is guilty; it is enough if he believes there is reasonable and probable cause for a prosecution. He need only be satisfied that there is a proper case to lay before the court. It may not always be possible to have direct evidence of these two requirements of a suit for malicious prosecution but the connected relevant circumstances may sometimes furnish a clue to the same..........." 14. In Salmond on Torts (12th Edition) at page 695, the term "malice" has been defined as meaning 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. 15. The Privy Council in Raja Braja Sunder Deb and others v. Bamdeb Das alias Pattanaik aid others, AIR 1944 PC 1, had the occasion to deal with the meaning of the term "malice. It was held that “Malice” means any wrong or indirect motive, but a prosecution is not malicious merely because it is inspired by anger. 16. The apex Court in Smt S, R. Venkataraman v. Union of India and another; AIR 1979 SC 49, has defined "malice" in its legal sense as meaning malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause. 17. In Nitya Nanda Mandhata Painaik v. Binayak Sahu and another; AIR 1955 Orissa 129, it has been held that a mere absence of reasonable and probable cause does not justify, as a matter of law, the conclusion that the prosecution was malicious, though it is quite conceivable that the evidence which is sufficient to prove absence of reasonable and probable cause may also establish malice. 18 In a suit for damages for malicious prosecution, it is therefore, necessary for the plaintiff, inter alia, to prove that the defendant acted without reasonable and probable cause and that the defendant was actuated by malice. Even when the plaintiff succeeds in establishing malice of the defendant, in order to make out a cause of action, however, malice and want of reasonable and probable cause must concur. Either is insufficient without the other. The important question for determination in such a case is whether the dependant acted without reasonable and probable cause when he sent the report to the police leading to the prosecution of the plaintiffs The burden of proving absence of reasonable and probable cause is on the plaintiffs. 19. The High Court of Punjab and Haryana in Major Gian Singh v. S. P. Batra9 AIR 1973 P & H 400, has held :— 11..........In a suit for malicious prosecution, the burden of proving that the proceedings were initiated without any reasonable and probable cause lies on the plaintiff who seeks damages. It is no doubt t rue that the acquittal of the plaintiff in the earlier proceedings may sometimes give rise to a presumption that there was no reasonable and probable cause for his prosecution, but this presumption is rebuttable. The defendant in such a suit has merely to prove that the facts and circumstances did exist which gave rise to a belief in his mind that the other party was guilty. These facts and circumstances do not have to be viewed or weighed as would be done by a Court of law, for otherwise n all those cases in which the prosecution fails the complainant or the prosecutor would become liable for damages 20, The Court went further to observe that in considering the presence or absence of reasonable and probable cause, the court has to consider the totality of the circumstances. Merely because the prosecution had introduced deliberate falsehood here and there cannot be taken to prove that the probable cause was wholly absent. In Balbhaddar Singhs case (supra), the Privy Council observed :— "The question is not, did the plaintiff commit the offence or did defendant invent the offence against plaintiff, the two queries exhausting the possibilities of the situation. The question is: Has plaintiff proved that defendant invented and instigated the whole proceedings for prosecution " 21. In Balbhaddar Singhs case (supra), the Privy Council observed :— "The question is not, did the plaintiff commit the offence or did defendant invent the offence against plaintiff, the two queries exhausting the possibilities of the situation. The question is: Has plaintiff proved that defendant invented and instigated the whole proceedings for prosecution " 21. The learned first appellate Court while setting aside the judgment and decree of the learned trial Court has concluded that the plaintiffs bad miserably failed to discharge the onus to prove absence of reasonable and probable cause. In the present case, save and except the statement of plaintiff Sohan Singh as PW 1, there is no evidence to show that the plaintiffs were prosecuted by the defendant due to malice and that there was no reasonable or probable cause. PW 3 Narain Dutt while stating that the defendant had made a report against the plaintiffs to the police, pleaded his ignorance if the report was correct or false. To the similar effect it has been stated by PW 4 Kansia. 22 The evidence coming on the record shows that the defendant has his house and saw mill abutting the road and path leading to the village and houses of the plaintiffs During the course of construction of a shed, the building material had scattered on such road/path thereby causing hindrance and obstruction to the passersby including the plaintiffs. It has come in the evidence of the defendant that due to this obstruction there was some altercations between the parties and the defendant was even assaulted by the plaintiffs. The evidence produced by the parties shows that the defendant had a reasonable and probable cause in launching prosecution against the plaintiffs. 23. Much reliance was placed on behalf of the plaintiffs on the judgment Ext. PB of the Chief Judicial Magistrate, Shimla, whereby the plaintiffs were acquitted and it was observed that the testimonies of various prosecution witnesses leave little doubt about the hallowness and falsehood of the complainants (defendant) case. 24. It is well settled that in an action for damages on account of malicious prosecution, a judgment of the criminal court is not admissible in evidence except for the purpose of finding out whether or not the decision in the criminal case was in favour of the plaintiffs. 24. It is well settled that in an action for damages on account of malicious prosecution, a judgment of the criminal court is not admissible in evidence except for the purpose of finding out whether or not the decision in the criminal case was in favour of the plaintiffs. In other words, it is not that the judgment of the criminal court has to be ignored altogether. It is not to be relied upon as conclusion for deciding the civil suit for malicious prosecution. The civil court has to go into the matter on the basis of evidence adduced before it in the civil suit independently of the view expressed by the criminal court The sense in which it is said that the criminal court judgment is not admissible in evidence is that apart from the fact of the result of the judgment of the criminal court, namely, termination in favour of the accused persons, the observations of the criminal court or the reasons on which the acquittal is based is not to be accepted as conclusive. 25. Therefore, no reliance can be placed on the judgment Ext. PB in arriving at the conclusion that there was no reasonable and probable cause and that the prosecution of the plaintiffs was due to malice on the part of the defendant. 26 Consequently, as a result of the foregoing discussion, I am of the view that the plaintiffs have failed to prove and establish that the defendant had no reasonable and probable cause for prosecuting them nor has they been able to prove that the defendant in prosecuting them was actuated by malice. The appeal, therefore, fails and the same is accordingly dismissed with no order as to costs. Appeal dismissed.