CAV JUDGEMNT (PER : HONOURABLE MS JUSTICE SONIA GOKANI) 1. The present First Appeal has been preferred under section 96 of the Code of Civil Procedure, 1908, challenging the legality and validity of the judgment and decree dated April 27, 2001 passed by the 3rd Joint Civil Judge (Senior Division) and Judicial Magistrate, First Class, Surendranagar, in Special Civil Suit No.35 of 1997. 2. The brief facts leading to filing of the present appeal are as under : 2.1 As averred in the appeal, the appellant-original plaintiff (hereinafter referred to as 'the plaintiff') is the prince of the erstwhile ruler of Wadhwan City. The State of Wadhwan was ruled by the ancestors of the plaintiff namely his father Shri Surendrasinhji Jhala and grandfather Shri Joravarsinhji Jhala. Cities like Surendranagar and Joravarnagar are named after the said ancestors of the plaintiff. The people in the region have enormous love and respect for the entire princely family. The father of the plaintiff was also an elected legislative member of Wadhwan constituency, who also donated various parcels of his lands for the purpose of promoting educational activities in the area. Even for the development of the business, lands have also been allotted to the GIDC. Thus, it is further averred that the image and reputation of the entire family even after the State of Wadhwan merged into the Union of India, continued to soar high in the minds and hearts of the people. After the demise of his father Shri Surendrasinhji Jhala, the plaintiff continued to enjoy the very reputation on account of his humane approach and for all the good deeds done by him. 2.2 It is also averred that the wife of the plaintiff is also a princess of erstwhile Dharampur State. Considering his family background, educational background, so also the total worth of his property and the respect earned by the family over the period of time, led the plaintiff to institute a suit against the respondent-defendant (hereinafter referred to as 'the defendant') for a complaint lodged by him in the form of an application against the plaintiff in respect of a dispute pertaining to a compound wall in a very peculiar background. 2.3 On the eastern part of the palace of the plaintiff where his family presently resides, land belonging to the plaintiff's family was apportioned into plots and some of these plots have been sold to the third parties. One of these plots was sold to one Shri Lakhubha Kalyansinh in the year 1995 and one of the conditions at the time of sale of such plot was to the effect that on the side of the palace road, no door or window shall be kept by the transferee. Shri Lakhubha Kalyansinh subsequently sold the said plot to one Shri Harendra Chhabildas, from whom mother of the present defendant purchased the said land and constructed the residential house thereon. Mother of the defendant since was desirous to erect a wall on the western side of the said premises, a request was made for additional piece of land from the plaintiff admeasuring 12.27 sq.yds. on the westernside. Pursuant to such a request, a writing was deduced in the form of a Rojkam dated December 05, 1994 signed by mother of the defendant and one employee of the plaintiff. It is the say of the plaintiff that the terms incorporated therein were not adhered to by the mother of the defendant and, therefore, the said writing was not implemented. Without the lawful rights the defendant when made an attempt to encroach upon the land belonging to the plaintiff, the plaintiff pulled down the unauthorised construction with the help of his men and employees. The defendant picked up a quarrel with those persons who were acting at the behest of the plaintiff for removal of encroachment and the plaintiff intervened to resolve the dispute in a peaceful manner. However, the defendant made a written application to lodge a complaint on February 15, 1995 to the Police Inspector, Wadhwan Police Station and a copy of which was forwarded to different dignitaries. It is the say of the plaintiff that there is an outright falsehood in the contents of such application, where he alleged of the plaintiff having threatened his family members and also exercised his powers as an erstwhile ruler of the State, making his entire family extremely apprehensive of their safety. Hence, it is say of the plaintiff that such a complaint made by the defendant, bereft of truth has caused serious injury to the status and reputation of the plaintiff. Hence, it is say of the plaintiff that such a complaint made by the defendant, bereft of truth has caused serious injury to the status and reputation of the plaintiff. The very base is sheer falsehood and as averred further due to the general elections, the plaintiff had already deposited the firearm with the licencing authority, such an act of making a defamatory statement, according to the plaintiff, has given rise to the suit where he has sought for damages of Rs.1 crore from the defendant for malicious prosecution. 2.4 The defendant appeared on service of summons and denied all the charges. It is the say of the defendant that the area of 12.27 sq.yds. did not belong to the plaintiff, but it was on a part of public road. There was no agreement entered into between the plaintiff and the defendant nor through his mother or father. Entire construction was carried out on their own land and yet taking the law into his own hands, the compound wall was demolished by the plaintiff and when there was a threat given to the defendant and his entire family, a complaint was made to the Police Inspector, Wadhwan Police Station which was in selfdefence and there was neither any question of any defamation nor was there any intention to injure the reputation of the plaintiff. 2.5 With such pleadings, the trial Court framed the issues and after permitting both the sides to lead the evidence, decided the suit against the plaintiff holding that no defamation has been proved and thereby, rejected the suit by an elaborate judgment. 3. The present appeal has been preferred on various grounds raised in the memo of the appeal, but essentially on the aspect that the Court has erred in appreciating the document at Exhibit 42, which is an application moved by the defendant before the Police Inspector of Wadhwan Police Station. It is also emphasized that once the defamation having been proved by the very conduct of the defendant, anything stated by way of defence needs to be proved by the defendant himself. The Court has misread and wrongly construed the provisions of the Indian Evidence Act. Such act has since substantially injured the dignity and fame of the plaintiff, this Court in First Appeal needs to interfere. 4. The Court has misread and wrongly construed the provisions of the Indian Evidence Act. Such act has since substantially injured the dignity and fame of the plaintiff, this Court in First Appeal needs to interfere. 4. The learned advocate Mr.Satyen Raval appearing for the appellant-plaintiff has exhaustively made his submissions, where his entire emphasis was that the dignity and reputation of the plaintiff have been seriously and severely jeopardised by preferring false complaint against him by the defendant. His sending such applications to different offices of various dignitories has further damaged the reputation and image of the plaintiff and, more particularly, when the written application is outrightly false, it would give rise to the suit for damages on the ground of defamation. He further urged that the allegation of the kind that three licensed weapons were held by the plaintiff, out of which due to general elections, one weapon was surrendered and no proof is given about the three alleged weapons, and hence, such version is not substantiated. He admitted that an agreement was entered into between the father of the defendant and the plaintiff and a Rojkam to that effect has been drawn. There were certain terms to be observed by the defendant and they were to carry out construction of a compound wall in the area of 12.27 sq.yds. subject to the conditions laid down in the said Rojkam. The said parcel of land was to be sold by the plaintiff subject to fulfillment of these conditions. The breach made by the defendant led to demolition of the wall at the instance of the plaintiff, which gave rise to creation of false documents. He emphasized relying on various authorities on the subject that it is not for the plaintiff to prove that the words are false, if they are defamatory, they are assumed to be false and it is for the defendant, if he seeks to justify to prove that they are substantially true. 5. Per contra, Mr.Champaneri, learned advocate appearing for the respondent-defendant, has urged that not only there is exaggeration in the narration, but it is the result of perspective of the plaintiff. It is emphasized that the act of the defendant can be gathered from exercise of a normal prudence. Permissive use of the land was permitted by the plaintiff and defendant's family was also allotted the possession. It is emphasized that the act of the defendant can be gathered from exercise of a normal prudence. Permissive use of the land was permitted by the plaintiff and defendant's family was also allotted the possession. Construction of wall when was carried out on permission, the plaintiff chose to demolish the wall on the ground that it was not in accordance with the permission granted without resorting to civil action; and in such circumstances, on apprehension of further dire consequences, if the defendant acted as he did in the present case by applying to the Police Department and also made applications to the higher authorities, that surely cannot make out a case for defamation. He further urged that the compound wall has been further reconstructed and no suit has been filed till date for encroachment; nor has any prosecution been initiated for that purpose. He urged that the only intention of the defendant was to ensure that the actions are taken for the alleged unlawful actions of the plaintiff, which was not only contrary to law, but extremely highhanded. Therefore, the trial Court was absolutely correct in holding that the plaintiff failed to prove defamation as a result of the action of the defendant and resultantly, the proof of the damage on account of such defamation. The learned counsel for the parties have relied upon the following decisions : (i) Mitha Rustomji Murzban v. Nusserwanji Nowroji Engineer, reported in AIR 1941 Bombay 278. (ii) KhairudDin v. Tara Singh and another, reported in AIR 1927 LAHORE 20. (iii) Bhagwan Singh v. Ujagir Singh and others, reported in AIR 1940 PATNA 33. (iv) Major Gian Singh v. S.P. Batra, reported in AIR 1973 PUNJAB AND HARYANA 400. (v) Bala Ram v. Sukh Sampat Lal and others, reported in AIR 1975 RAJASTHAN 40. (vi) Purshottam Lal Sayal v. Prem Shanker, reported in AIR 1966 ALL 377 . (vii) Ashok Kumar v. Radha Kishan Vij and others, reported in 1983 CR.LJ 48. (viii) C.H. Crowdy v. L.O'Reilly, reported in 18Ind Cas 737. (ix) Nandlal v. The State of Rajasthan and others, reported in 1970 WLN 90. (x) Ram Lal v. Mahender Singh, reported in AIR 2008 RAJASTHAN 8. (xi) Narayan Govind Gavate and others, etc. v.State of Maharashtra and others, etc.,reported in (1977) 1 SCC 133 . 6. (viii) C.H. Crowdy v. L.O'Reilly, reported in 18Ind Cas 737. (ix) Nandlal v. The State of Rajasthan and others, reported in 1970 WLN 90. (x) Ram Lal v. Mahender Singh, reported in AIR 2008 RAJASTHAN 8. (xi) Narayan Govind Gavate and others, etc. v.State of Maharashtra and others, etc.,reported in (1977) 1 SCC 133 . 6. Upon thus hearing both the sides and on closely examining the factual matrix, at the outset, in the appellate proceedings what is required to be considered is as to whether the trial Court committed any error, giving rise to the substantial question of law requiring interference by this Court. 6.1 The law on defamation aims at protecting the people against false facts causing damage to their reputation. 6.2 The Bombay High Court in Mitha Rustomji Murzban (supra), was dealing with a suit for damages for defamation consisting partly of libel and partly of slander and the words complained of as libel were printed and published by the defendant in a weekly journal. The words complained of as slander, according to the plaintiff, were spoken by the defendant in reference to her at a public meeting Sir Cowasji Jehangir Hall, Bombay. The defendant did not deny the publication of the words complained of as libel, but the defence was that the words were a fair and bona fide comment on a matter of public interest, and also that they were published on a privileged occasion. With regard to the words complained of as slander, the defendant denied that he uttered the words referred to by the plaintiff, and that if he did, they were spoken on a privileged occasion and, therefore, they are not actionable per se. Meaning thereby, they were without proof of special damage. The plaintiff in a case before Bombay High Court was a married woman and gave instructions in physical culture in various institutions in Bombay. She was residing at Gowalia Tank Road and ran 'Udyoga Ashram' for poor Parsi girls over the age of fourteen years and these classes were run with the help of other honorary lady Parsi teachers. The plaintiff and other Parsi ladies started the “Parsi Amateur Dramatic Society” for staging plays, dramas and dramatic entertainments for helping charities, particularly Parsi charities. She was residing at Gowalia Tank Road and ran 'Udyoga Ashram' for poor Parsi girls over the age of fourteen years and these classes were run with the help of other honorary lady Parsi teachers. The plaintiff and other Parsi ladies started the “Parsi Amateur Dramatic Society” for staging plays, dramas and dramatic entertainments for helping charities, particularly Parsi charities. The Bombay High Court referred to Halsbury's Laws of England, Vol.20, Hailsham's edition, paragraph 493, page 406, which reads as under: “A statement which, being published of another in the way of his lawful trade, business, profession, calling, or office, conveys a reflection on him calculated to disparage or injure him therein, is a defamatory statement, even though it be not calculated to hold him up to hatred, contempt or ridicule.” The Court also held that : “.. .. As pointed out by Halsbury in the same volume in para.494 : “.. .. a statement which in form is only a criticism of goods may, nevertheless, involve a reflection on the seller or maker, and thus be the foundation of an action of libel or slander properly so called.” Similarly a statement may appear in the form of a comment upon classes that may nevertheless involve a reflection upon the fitness of the person conducting the classes, and be the foundation of an action for libel. Both these passages suggest that the plaintiff is unfit to carry on her classes for poor Parsi girls, because by attending the classes their future would be ruined. She is therefore unfit to discharge the duties of her profession, or the duties in respected of her calling; and the imputation would have a tendency to prejudice her in the way of her profession or calling. The statements are therefore defamatory of the plaintiff and constitute a libel. No action, however, lies against a defendant if he can prove that the words complained of are a fair and bona fide comment on a matter of public interest. The onus is upon the defendant to show that the subject commented upon is a matter of public interest, that the statements of fact relating thereto are true, and that the comment based upon the facts is a fair and bona fide comment. It is the expression of the criticism that has to be fair. The onus is upon the defendant to show that the subject commented upon is a matter of public interest, that the statements of fact relating thereto are true, and that the comment based upon the facts is a fair and bona fide comment. It is the expression of the criticism that has to be fair. It is not necessary to prove malice on the part of the defendant, though malice may sometimes be proved to show that the comment is not fair. Nor is it a defence to allege that the defendant bona fide believed that his statements were true. There is no exact definition of what a matter of public interest is. Matters of public interest are numerous, and are usually grouped under certain heads; but generally speaking, they are subjects which invite public attention, and are open to public discussion or criticism. There is also no definite standard of what a fair and bona fide comment is. In (1887) 20 Q B D 275 Lord Esher M.R. as far back as 1887 proposed the following test (p.280) : What is the meaning of a 'fair comment'? I think the meaning is this : is the article in the opinion of the jury beyond that which any fair man, however, prejudiced or however strong his opinion may be, would say of the work in question ? Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say whether any fair man would have made such a comment on the work. It is very easy to say what would be clearly beyond that limit if, for instance, the writer attacked the private character of the author. But it is much more difficult to say what is within the limit. That must depend upon the circumstances of the particular case.” The Bombay High Court eventually held the words as grossly defamatory and ordered the defendant to pay Rs.1,000/by way of damages. The Court has also held here that the newspaper have no special right or privilege, and in spite of the latitude allowed to them, they have no special right to make unfair comments, or to make imputations upon the character of a person, or in respect of a person's profession. The Court has also held here that the newspaper have no special right or privilege, and in spite of the latitude allowed to them, they have no special right to make unfair comments, or to make imputations upon the character of a person, or in respect of a person's profession. Any person, a private individual or public journalist, has a right to hold the views on the subject as that may please him so also to express the same. It is immaterial whether the opinion or the comment is correct or not, whether it is just or unjust, or is couched in a language which may not err on the side of moderation. What is material and important is that the comment must not go beyond the limits which the law calls "fair". 6.3 In the case before Lahore High Court in the case of Khairud Din (supra), the newspaper had published a defamatory statement charging a person with conduct which, if true, would render him liable to a criminal prosecution, and subsequently attempted to justify such a charge, the Court held that a libel suit imputing conduct to the plaintiff would render the person liable to criminal proceedings, the benefit of any doubt as to the truth of the allegations complained of must be given, not to the defence but to the plaintiff. It is also held that in order to succeed upon the plea of justification, the defendants have to prove that the whole of the defamatory matter is substantially true. It is not enough under the plea of justification of all the matters set out in a libellous publication to prove that some of them are true. When two persons are alleged to have been savagely beaten, it is not enough to prove that one person was in fact so beaten. 6.4 Patna High Court in the case of Bhagwan Singh (supra) was concerned with an appeal arising out of the suit for libel. On a question of justification for defamation, it held that the burden of proof lies on the defendant. The burden of proof on this point is not shifted nor does the presumption of good conduct cease to be available in favour of the plaintiff in consequence of his having given evidence on his own behalf. On a question of justification for defamation, it held that the burden of proof lies on the defendant. The burden of proof on this point is not shifted nor does the presumption of good conduct cease to be available in favour of the plaintiff in consequence of his having given evidence on his own behalf. 6.5 Punjab and Haryana High Court in the case of Major Gian Singh (supra) was dealing with a case of malicious prosecution and therein it held that the burden of proving that the proceedings were initiated without any reasonable and probable cause lies on the plaintiff who seeks damages. The defendant in such a suit has merely to prove that the fact 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 in all those cases in which the prosecution fails the complainant or the prosecutor would become liable for damages. This authority further says that all four conditions mentioned by John Salmond in ‘The Law of Torts’ must coexist. It would be profitable to reproduce the relevant part of the said decision as under : “10. .. .. In ‘The Law of Torts’ by Salmond, Fourteenth Edition (1965) at page 588, it has been stated as follows :“ In order that an action shall lie for malicious prosecution or the other forms of abusive process which have been referred to, the following conditions must be fulfilled : (1) The proceedings must have been instituted or continued by the defendant; (2) He must have acted without reasonable and probable cause; (3) He must have acted maliciously; (4) In certain classes of cases the proceedings must have been unsuccessful that is to say, must have terminated in favour of the plaintiff now suing.” 11. All these conditions must coexist before a plaintiff can succeed.” The Court also held that : 21. Absence of reasonable and probable cause may sometimes entitle the Court to draw an inference of malice but where the prosecution is found to be based on a reasonable belief no inference whatsoever of malice can be drawn against the prosecutor. All these conditions must coexist before a plaintiff can succeed.” The Court also held that : 21. Absence of reasonable and probable cause may sometimes entitle the Court to draw an inference of malice but where the prosecution is found to be based on a reasonable belief no inference whatsoever of malice can be drawn against the prosecutor. In short, the circumstances of this case show that the respondent was not actuated by any malice when he filed the complaint against the appellant.” 6.6 The decision of Rajasthan High Court in the case of Bala Ram (supra), makes a distinction between what are known as general damages and those characterised as special damages, as also about the mode of pleading special damages. General damages are such that law presumes to be the natural or probable consequences of the defendant's words. They need not, therefore, be proved by evidence. Special damages are not to be inferred from the nature of the words themselves, but they must, therefore, be specially claimed on the pleadings, and evidence of them must be given. The Court has discussed Salmond on the Law of Tort, namely, (i) Nominal or real, (ii) Real damages, (iii) General or special damages: (iv) Compensatory, aggravated and exemplary damages. 6.7 Allahabad High Court in the case of Purshottam Lal Sayal (supra) was dealing with a Second Appeal, the decree passed by the Additional Civil Judge, whereby it had granted a sum of Rs.1000/as damages for slander to the plaintiff-respondent. It was the case of the plaintiff before the trial Court that while cross-examining him, statements were made to the Inquiry Officer in presence of other persons and such remarks were defamatory and lowered his image in the area of others and caused him considerable pain. The Inquiry Officer was requested that the witnesses should be asked as to how much debt he has incurred and whether he pays income-tax and whether he has amassed wealth by sucking the blood of the poor. The witnesses like him are obtainable in abundance for Rs.10 or Rs.20 and he has appeared as a witness on being paid Rs.180, he indulges in black marketing all over the world and now he has come here to suck the blood of a poor bank employee. The defendant resisted the suit and all liability. The witnesses like him are obtainable in abundance for Rs.10 or Rs.20 and he has appeared as a witness on being paid Rs.180, he indulges in black marketing all over the world and now he has come here to suck the blood of a poor bank employee. The defendant resisted the suit and all liability. Alternatively, he pleaded that the remarks were not defamatory and, in any case, the occasion privileged. The trial Court believed that the remarks were attributed to the plaintiff and they were defamatory in nature and accountable per se. The Civil Judge confirmed the fine and held the appellant liable for slander. When this decree was challenged before the Appellate Forum, the Court held that a person representing a bank employee is entitled to ask questions but not to make defamatory remarks to insult a witness, which is an abuse of privilege and they render the person liable for damages. The Court, therefore, held that the appellant’s remarks were not privileged, absolute or qualified. 6.8 The Delhi High Court in the case of Ashok Kumar (supra), of course, was concerned with the true construction to be placed on section 499 of the Indian Penal Code, where the petitioner had filed a complaint against three respondents under section 500 of the Indian Penal Code for launching false criminal proceedings under sections 107 and 151 of the Code of Criminal Procedure, 1973, against him with a view to defame him as a bad character. He states that he has been lowered in the estimation of his relatives, friends and others and that the people shun and avoid him. The trial Magistrate decided the matter on the ground that the imputations against the petitioner, defamatory per se though he held them were absolutely privileged as these were made in the course of judicial proceedings and correctness of such view was in question. The Court answered it in the following manner: “7. The concept of defamation is as old as the hills. The classic definition was given by Mr. Justice Cave in Scott v. Sampson (1882) 8 QBD 491 as "a false statement about a man to his discredit". The Court answered it in the following manner: “7. The concept of defamation is as old as the hills. The classic definition was given by Mr. Justice Cave in Scott v. Sampson (1882) 8 QBD 491 as "a false statement about a man to his discredit". In Sim v. Stretch (1936) 52 TLR 669 (671) Lord Atkin gave this test : "Would the words tend to lower the complainant in the estimation of the right thinking members of the society generally ?" The malicious defamation deprives a man of the benefits of public confidence and social intercourse. 8. In the law of defamation it is a defense that the statement was made on a privileged occasion. In certain circumstances it is excusable to publish matter which is defamatory. Such excuse is termed privilege. Privilege is of two kinds : (i) absolute (ii) qualified. If the occasion is one of absolute privilege, this is a complete bar to an action for defamation, however irresponsible or malicious the statement may be. A person defamed on an occasion of absolute privilege has no legal redress, however outrageous the untrue statement which has been made about him and however malicious the motive of the maker of it. If, on the other hand, the occasion is one of qualified privilege, the privilege may be defeated by proof of malice. If the maker of the statement is actuated by malice he forfeits this protection of the shield of qualified privilege. The right of free speech is allowed wholly to prevail over the right of reputation in cases of absolute privilege. The right of freedom of speech prevails over the right of reputation, but only to limited extent in cases of qualified privilege. 9. Defamation is, and has always been, regarded as both a civil injury and a criminal offence. The person defamed may pursue his remedy for damages or file a criminal prosecution. Or he may concurrently both sue for damages and prosecute, as the petitioner has done. The petitioner brought, a civil suit for recovery of damages. He also filed this criminal complaint under Section 500 IPC. Both in civil law and crime the person defamed can vindicate his honour. Harm to the reputation is the common ground. In civil action the defendant pays compensation for vilification of the plaintiff. In criminal prosecution the law punishes him for the offence of defamation. He also filed this criminal complaint under Section 500 IPC. Both in civil law and crime the person defamed can vindicate his honour. Harm to the reputation is the common ground. In civil action the defendant pays compensation for vilification of the plaintiff. In criminal prosecution the law punishes him for the offence of defamation. Many people think that the civil law is simply inadequate to deal effectively with some of the most obnoxious types of defamation. In particular, poisonpen campaigns by cranks, and "Characterassassination" purposeful attempts to harm people by spreading deliberate lies about them to the police, their superiors, their family or their acquaintances (Reshaping the Criminal Law ed., by P. R. Glazebrook (1978) Stevens p. 285). 10. Anomalous as it may seem, the law of tort of defamation is different from the criminal law of defamation in this country. In the law of tort we follow the English law. The civil liability for defamation to pay damages is not governed by any statute law but is determined with reference to the principles of justice, equity and goods conscience which have been imported into this country from the English law (see Bira Gareri v. Dulhin Somaria). In civil actions for damages there is what has been called "judicial privilege". Neither party, witness, counsel, nor Judge can be sued civilly for words spoken or written in the course of any proceeding before any court or tribunal recognised by law, and this though the words written or spoken were written or spoken maliciously without any jurisdiction or excuse, and from personal illwill and anger against the person defamed. This absolute privilege has been conceded on the grounds of public policy to ensure freedom of speech should exist. The freedom of communication is of such paramount importance that civil suits for defamation cannot be entertained at all. 11. As long ago as 1872 this principle was recognised by the Privy Council in Baboo Ganesh Dutt Singh v. Mugneeram Chowdhry (1872) 17 Suth WR 283 (284). The Board said : "This action, has been called a suit to recover damages for defamation of character. Their Lordships are of opinion with the High Court that, if it had been, strictly speaking, such an action, it cannot be sued in a Civil Court for damages in respect of evidence given by them upon oath in a judicial proceeding. The Board said : "This action, has been called a suit to recover damages for defamation of character. Their Lordships are of opinion with the High Court that, if it had been, strictly speaking, such an action, it cannot be sued in a Civil Court for damages in respect of evidence given by them upon oath in a judicial proceeding. Their Lordships hold this maxim, which certainly has been recognised by all the Courts of this country to be one based upon principles of public policy. The grounds of it is this that it concerns the public and the administration of justice that witnesses giving their evidence on oath in a Court of justice should not have before their eyes the fear of being harassed by suits for damages, but that the only penalty which they should incur if they give evidence falsely should be indictment for perjury." 12. Since 1872 Baboo Ganesh Dutt Singh (187217 Suth WR 284) (PC) (supra) has been followed in India whenever a suit for damages has been brought, whether for defamation or for malicious prosecution. (See Madhab Chandra v. Nirod Chandra, AIR 1939 Cal 477 and Lachhman v. Pyarchand). 13. With criminal liability it is different. The criminal liability for defamation is codified in India. It is enacted in S. 499 of the Penal Code and differs from the law of England. S. 499 confers only qualified privilege on certain occasions. It is common to speak of the statement as having privilege, but the better view is that it is an occasion and not the statement which is privileged. (See Minter v. Priest (1930) AC 558, 57172). A complete list of those occasions of qualified privilege is furnished by nine exceptions enacted in S. 499. The Indian Penal Code exhaustively codifies the law relating to offences with which it deals and the rules of the common law cannot be resorted to for investing exemption which are not expressly enacted. 14. As early as 1953 the Supreme Court rules that in criminal proceedings of defamation the witnesses can claim only qualified privilege and not absolute privilege.. ... xxx xxx xxx 21. Qualified privilege is a conditional defense. It affords immunity to those alone who use the privileged occasion for the purpose which the law deems of sufficient social importance to defeat the countervailing claim to protection of reputation. ... xxx xxx xxx 21. Qualified privilege is a conditional defense. It affords immunity to those alone who use the privileged occasion for the purpose which the law deems of sufficient social importance to defeat the countervailing claim to protection of reputation. In other words the immunity is forfeited by the abuse of the occasion.” 6.9 The Calcutta High Court in the case of C.H. Crowdy (supra) was considering the appeal preferred by the original plaintiff against the dismissal of a suit for recovery of damages for malicious prosecution and, of course, the question of dismissal of the suit without trial on merit on the ground that the same was not maintainable. It was the case of the plaintiff that the defendant presented a petition in the Court of Joint Magistrate of Begusarai, wherein he made a number of false and malicious allegations against the plaintiff. The defendant had stated that the plaintiff and his servants, prevented him from sowing on his land, and they intimated his servants and were prepared to assault him, whereupon his servants for fear of danger to their lives left the place. On the following day of this incident, the plaintiff came up armed with a gun and rushed towards the defendant with shouts of beating him and in order to avoid breach of the peace, proceedings under section 145 of the Cr.P.C. were initiated and security and recognizance bond taken from the plaintiff under section 107 of the Cr.P.C. The Magistrate also directed a notice to be issued upon the plaintiff and his servants enjoining them not to go upon the land under section 144 of the Cr.P.C. The plaintiff filed a written statement, wherein he traversed the allegations of the defendant and thereupon the Magistrate recorded an order to the effect that the allegations of the defendant clearly showed that a breach of the peace was likely and imminent and that proceedings under section 145 of the Cr.P.C. must be instituted and he also directed that in the meantime, the land be attached and accordingly, the proceedings were subsequently transferred to the Court of the Joint Magistrate of Monghyr. The plaintiff filed written statement and to enable the defendant, the Court had adjourned the matter. However, he directed the attachment to continue. The plaintiff filed written statement and to enable the defendant, the Court had adjourned the matter. However, he directed the attachment to continue. Hence, the defendant filed a petition to the effect that there was no longer any likelihood of a breach of the peace and prayed that the proceedings might be cancelled. The plaintiff took exception to the insinuation that he had ever been out of possession of the land till the order of attachment had been made and the Magistrate held that there was no danger of a breach of the peace, he had no jurisdiction to continue the inquiry. The proceedings were cancelled and directed release of land from attachment. In such background, the plaintiff commenced the present action for damages alleging that the proceedings before the Magistrate had been falsely and maliciously instituted and he and his servants had been needlessly harassed, and that his reputation had been injured by the wholly untrue allegation that he went, armed with a rifle and accompanied by armed retainers with a view to cause a breach of the peace. Therefore, he claimed Rs.11,000/as damages. The defendant had contested the claim on merits and the suit was not maintainable. He also had stated that the statements in the petition before the Magistrate were privileged and could not form the foundation of a claim for damages for libel. The Appellate Court, of course, has held that the order of dismissal as untenable, however, some of the observations made therein as to what amounts to malicious prosecution would be relevant for the purpose of deciding the present appeal. The Court has held as to when a suit will lie for damages (i) for malicious prosecution and (ii) for defamation. It also observed that the term ‘prosecution’ ought not to be interpreted in the restricted sense in which it is used in the Code of Criminal Procedure. From Volume XIX of the Laws of England, edited by Lord Halsbury, at page 670, it has quoted the definition of ‘prosecution’. The Court, therefore, held that : "A prosecution exists where a criminal charge is made before a judicial officer or tribunal, and any person who makes, or is actively instrumental in the making or prosecuting of such a charge is deemed to prosecute it. The Court, therefore, held that : "A prosecution exists where a criminal charge is made before a judicial officer or tribunal, and any person who makes, or is actively instrumental in the making or prosecuting of such a charge is deemed to prosecute it. xxx xxx xxx “This would seem to suggest that there may be said to have been a prosecution even when no action at all has been taken against the plaintiff. For the purpose of the present appeal, it is unnecessary to say whether I am prepared to go to this length, for in fact action, detrimental to the plaintiff, was taken by the Magistrate, though that action did not take the form of a criminal trial.” It would be profitable to reproduce the relevant paragraphs of the said decision as under : “7. The petition presented by the defendant on the 16th June was unquestionably a complaint within the meaning of Section (4)(h) of the Criminal Procedure Code. On that complaint, the Magistrate might have put the plaintiff on his trial for the offences of being a member of an unlawful assembly and of criminal intimidation. It is true the defendant asked only for action under the preventive sections of the Code. That, however, does not affect the question. If a person sets the criminal law in motion, it is no defence for him to say that the law took a direction which he did not anticipate and did not desire. The responsibility of the person begins with the presenting of the complaint, but it does not end with it and is not limited to the prayer contained in it. 8. The discussion whether the facts alleged amount to a prosecution is perhaps of a somewhat academical nature, for it is quite obvious that a suit will lie on those facts, and it is immaterial whether it is described as a suit for malicious prosecution or one for malicious abuse of the process of the Court.” 6.10 The malicious prosecution is, thus, abuse of process of the Court in action. It is necessary for the plaintiff to prove that without any justifiable cause the prosecution has been initiated and the same was with malice. He has also to prove the damages if incurred and the burden would lie upon the plaintiff to prove existence of the malice. It is necessary for the plaintiff to prove that without any justifiable cause the prosecution has been initiated and the same was with malice. He has also to prove the damages if incurred and the burden would lie upon the plaintiff to prove existence of the malice. In the case of defamation also, any statement which is per se defamatory, one need not prove the untrue content therein. 6.11 The Rajasthan High Court in the case of Nandlal (supra)was considering the case of an appellant who had urged for general damages and special damages for malicious prosecution, against the State of Rajasthan and their Ex-Chief Ministers. The plaintiff was appointed as an officer to the former State of Rajasthan, who had a plan for advancement of agriculture as the same was approved by the then Government. It was his allegation that due to jealousy, his services were terminated. He joined his duties, but owing to the intervention of the State Ministry, Government of India, New Delhi, he had been alleged of not giving accounts amounting to criminal breach of trust, the complaint was filed despite his having replied to various notices. The humiliation suffered by him and the treatment meted out to him while arresting and detaining him in jail, was alleged of being motivated by malice, on account of which he suffered great mental agony and disrepute. The papers he was to submit to Indian Science Congress, from which he was expected to win the Nobel Prize, remained incomplete and in such background, it was averred that without any reasonable and probable cause for his prosecution, the defendants had acted and, therefore, the suit was preferred for general and special damages in the aforesaid background. The Court after due adjudication held as under : “20. In the light of the above facts and circumstances, it is to be seen whether there existed malice and want of reasonable and probable cause for the prosecution of the plaintiff. The word 'malice', as used in connection with malicious prosecution has a technical meaning. It means 'malus animus' or indirect or improper motive and not the vindication of law. In Chatra Serampore Cooperative Credit Society Ltd. Serampare and ors. v. Bacharam Sarkar AIR 1938 Cal. The word 'malice', as used in connection with malicious prosecution has a technical meaning. It means 'malus animus' or indirect or improper motive and not the vindication of law. In Chatra Serampore Cooperative Credit Society Ltd. Serampare and ors. v. Bacharam Sarkar AIR 1938 Cal. 829 it is laid down at page 835 that a prosecution is malicious only if it is commenced or continued for a purpose for which it is not intended. In Tehrat Karim v. Abdul Khaliq AIR 1938 Pat. 529 it is given that malice which is essential in an action for malicious prosecution does not necessarily connote personal spite or illwill, but only means an indirect or improper motive. In Braja Sunder Deb v. Bamdeb Das AIR 1944 P.C. 1 the Privy Council observed that malice means only indirect or improper motive, though of course it has been made clear that a prosecution is not malicious merely because it is inspired by anger. 21. In order to succeed in an action for malicious prosecution, the plaintiff must prove: (a) that there was his prosecution by the defendant in respect of criminal charge; (b) that the proceedings complained of terminated in his favour; (c) that the defendant instituted or carried on such proceedings maliciously; (d) that he suffered damages. 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 pointed out that malice alone in 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. 22. In an action for malicious prosecution the burden of proof, in the first instance, lies on the plaintiff. He must show not only that he was prosecuted by the defendant and that the prosecution terminated in his favour, but also that he suffered damages and that the defendant acted maliciously and without reasonable and probable cause. 22. In an action for malicious prosecution the burden of proof, in the first instance, lies on the plaintiff. He must show not only that he was prosecuted by the defendant and that the prosecution terminated in his favour, but also that he suffered damages and that the defendant acted maliciously and without reasonable and probable cause. In support of this proposition reliance is put on a classical judgment of Lord Justice Bowen in Abrath v. North Eastern Railway Company (1883) 11 Q.B.D. 440 where the distinguished and noble Lord observed: Whenever litigation exists, somebody must go on with it; the plaintiff is the first to begin; if he does nothing, he fails. 23. There is also the judgment of Lord Tenterden Chief Justice, in Cotton v. James (1830) 109 E.R. 735 in which the learned Chief Justice remarked: In general the plaintiff must give some evidence showing the absence of probable cause. When the plaintiff has given such an evidence, which, if not answered, will entitle him to a decree, the burden of proof is shifted to the defendant. A mere scanty evidence would not warrant the court to give verdict for the plaintiff. There must be so much evidence that a reasonable man may accept it as establishing the issue. Reasonable and probable cause is an honest belief in the guilt of the accused based upon a full conviction and founded on reasonable grounds of the existence of a state of circumstances, which, assuming to be true, would reasonably lead any prudent and cautious man, placed in the position of an accuser, to the conclusion that the person charged was probably guilty of the crime imputed. That means that the plaintiff must prove that the facts and the circumstances of the case at the time of the offence were such as to be in the eyes of the Judge inconsistent with the existence of reasonable and probable cause. Reasonable and probable cause depends upon the reasonable and bonafide belief in the existence of such a state of things as would amount to a justification of the court's pursuit in making the accusation complained of. A man is not bound before instituting proceedings to see that he has such evidence as would be legally acceptable to secure a conviction. Reasonable and probable cause depends upon the reasonable and bonafide belief in the existence of such a state of things as would amount to a justification of the court's pursuit in making the accusation complained of. A man is not bound before instituting proceedings to see that he has such evidence as would be legally acceptable to secure a conviction. It is sufficient if he proceeds on such information as a prudent and cautious man may reasonably accept in the ordinary affairs of life and it is for the plaintiff to show that there was a want of proper care in testing that information: vide Nagendra Kumar v. Itwari Sahu Here it will also be instructive to cite some English cases. In Glinkki v. Melver (1962) 1 All.E.R. 696 p. 710 it was observed: Whereas in truth he (prosecutor) has only to be satisfied that there is proper case to lay before the court, or in the words of Lord Mansfield that there is probable cause "to bring the accused to a fair and impartial trial: (See Johnstone v. Sutton) (1786) 1 Term Rep. p.547. He cannot know that defence the accused may set up. Guilt or innocence is for the tribunal and not for him. In Abbott v. Refuge Assurance Co. Ltd. (1961) 3 All.E.R.1074p. 1091CA, it was held: Every man is entitled to recover property which has been wrongfully taken from him by another by suit and it cannot possibly be said that he is acting maliciously in doing so. It is, however, the policy of law that of the property was taken feloniously, then the defendant is under a public duty to prosecute the offender before he can recover the property at law. Having done so, he is free to bring his action. In instituting a prosecution he is not acting maliciously, he is not acting from an indirect or improper motive. Having done so, he is free to bring his action. In instituting a prosecution he is not acting maliciously, he is not acting from an indirect or improper motive. Again in Tempest v. Snowden (1952) 1 All E.R. 1 p. 3 it is given: If he (prosecutor) is very fair minded man he may well say to himself: The case is so black against the man that I feel I must prosecute, but I am not going to believe him to be guilty unless the Court finds him to be so "Such a man would, I should have thought have reasonable and probable cause for instituting prosecution even though he did not affirmatively believe the man to be guilty. xxx xxx xxx 31. In this connection a reference may also usefully to be made Pt. Gaya Parshad Tewari v. Sardar Bhagat Singh 35 I.A. 189. In that case the Judicial Committee of the P.C. observed that if a complaint does not go beyond giving what he believed to be correct information to the police and the police without further interference on the part of the complainant thought fit to prosecute, it would be improper to make the complainant responsible for damages for the failure of the prosecution If, of course, the charge was false to the knowledge of the complainant, and the complainant misled the police by bringing suborned witnesses to support it and if the complainant influenced the police in sending an innocent man for trial, it would be improper to allow the complainant to escape liability. Here the Chief Secretary placed all the cards on the table before the police and the police was further directed to first assure itself whether a case was actually made out against the plaintiff or not. The defendant, therefore, simply set the law in motion and for this it cannot be said that it became liable in an action for malicious prosecution A person who only makes a candid statement of facts before the police or to the Magistrate cannot be said to be responsible for the consequences of any step, which the police or the Magistrate in the exercise of its or his discretion thought fit to take. Here, the police acted in its own discretion and not at the instigation of the defendant. The defendant, therefore, cannot be allowed to be a real prosecutor. Here, the police acted in its own discretion and not at the instigation of the defendant. The defendant, therefore, cannot be allowed to be a real prosecutor. Mere giving an information of true facts does not make the defendant liable for damages for malicious prosecution, in the absence of any oblique motive. 32. It may also be stated here inter alia that the question of reasonable and probable cause would arise where the truth or veracity 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 statement of an information or upon his own memory. The question in such circumstances has to be determined according to the facts of each case. A person who acts upon the information of another and tests the veracity, memory and the accuracy of the other person, the presumption would be that the prosecutor had bonafide belief in the guilt of the accused. In this case the Chief Secretary proceeded on the information supplied to him by the Accountant General and the letter was apprised of the situation by the Audit Inspector and based his report not only on the inquiry made by him but also upon the information supplied to him by Narendra Singh and Tej Singh As prudent and a cautious man it was expected of the Chief Secretary to have informed the Inspector General of Police in the ordinary course of his duty It was for the plaintiff to show that the Chief Secretary was based against him and that there was want of proper care in testing the information supplied to him by the office of the Accountant General. There is no convincing or positive evidence adduced by the plaintiff on this point. He, on the other hand, ha? conceded that the Government officers, viz., the Agriculture Secretary, Inspector General of Police or the Chief Secretary had no personal malice against him. The Chief Secretary acted not upon his own personal knowledge, but on the information of others and tested their veracity. It does not follow that it was unreasonable on his part to believe in the information supplied to him. The Chief Secretary acted not upon his own personal knowledge, but on the information of others and tested their veracity. It does not follow that it was unreasonable on his part to believe in the information supplied to him. This fact also establishes beyond any shadow of doubt that the defendant had reasonable and probable cause for the prosecution of the plaintiff and that it acted in a manner in which any prudent, discreet or reasonable person would have done so. If the Chief Secretary would have not referred the case to the police, he would have probably been guilty of dereliction of duty.” Later on this decision was followed in yet another decision rendered in the case of Ram Lal (supra), where the defendant had lodged an FIR after recovery of dead body of his son and he pursued the case as the plaintiff through his advocate before the Court. The defendant along with other persons got evicted from the shop in question belonging to Girraj Prasad on December 26, 1972 and thereupon, the defendant Ram Lal threatened them with dire consequences. The death of son of defendant Ram Lal on January 14, 1973 after about 20 days of the handing over of the possession of the shop upon a mutual agreement between the parties, led the defendant to cause a doubt on the plaintiff and his father as the death of his son was caused in very suspicious circumstances. However, the Court held that the defendant since was prosecuted the plaintiff with a reasonable and probable cause, mere acquittal or discharge of the plaintiff by the criminal court or the failure of the prosecution to prove beyond reasonable doubt, would not mean that such acquittal or discharge would necessarily boomerang upon the defendant for a case of malicious prosecution. The Court also held that the burden of proof squarely lied upon the plaintiffs to prove that the prosecution was malicious, mala fide and done with an intention to harass and defame the plaintiffs. The Court reiterated the decisions rendered in the case of Nandlal (supra) and Brijlal and another v. Premchand, reported in AIR 1974 Rajasthan 124, as under : “10. The Court reiterated the decisions rendered in the case of Nandlal (supra) and Brijlal and another v. Premchand, reported in AIR 1974 Rajasthan 124, as under : “10. The legal position was summarized by the Division Bench of this Court in Nandlal v. State of Rajasthan (supra) as under: In a suit for the recovery of damages for malicious prosecution mere production of the judgment of a criminal court is not sufficient for the plaintiff to discharge the burden of proving malice and want of reasonable and probable cause. Criminal court may either acquit or discharge a person. There may not be sufficient ground for proceeding with a criminal case, for the evidence adduced by the prosecution might not have been relied upon for some reason or the other and yet the defendant might have good grounds for launching prosecution against the plaintiff. The fact that the prosecution ended in the discharge or acquittal of the accused does not necessarily warrant that the accusation made was baseless to the knowledge of the prosecutor : vide Rishab Kumar v. K.C. Sharma (l). In a suit for malicious prosecution it is no part of duty of the civil court to take into consideration all the documents submitted before the criminal court to offer comments on the dictum of the criminal court. Its function is to consider the evidence produced before it and then decide whether or not the plaintiff has succeeded in making out a case against the opposite party. 11. In Brijlal and Anr. v. Premchand (supra) this Court held as under: In these civil proceedings for the recovery of the damages the function of the Court is to see whether the prosecution was lodged without any reasonable and probable cause. The prosecutor need not be convinced as to the guilt or maintainability of the criminal proceedings before he files the complaint. He may only be satisfied that there is a proper case to approach the Court.” 6.12 With this discussion, what amounts to 'burden of proof' and how that needs to be discharged has been dealt with by the Hon'ble Supreme Court while dealing with the case of Narayan Govind Gavate (supra) as under : “16. He may only be satisfied that there is a proper case to approach the Court.” 6.12 With this discussion, what amounts to 'burden of proof' and how that needs to be discharged has been dealt with by the Hon'ble Supreme Court while dealing with the case of Narayan Govind Gavate (supra) as under : “16. In Phipson on Evidence (11th Edn.) (at page 40, paragraph 92), we find the principles stated in a manner which sheds considerable light on the meanings of the relevant provisions of our Evidence Act: "As applied to judicial proceedings the phrase 'burden of proof' has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of adducing evidence." It is then explained: "The burden of proof, in this sense, rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. 'It is an ancient' rule rounded on considerations of good sense, and it should not be departed from without strong reasons'. It is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never 'shifting in any circumstances whatever. If, when all the evidence, by whomsoever introduced, is in, the party who has this burden not discharged it, the decision must be against him". 17. The application of rules relating to burden of proof in various types of cases is thus elaborated and illustrated in Phipson by reference to decided cases (see p. 40, para 93): "In deciding which party asserts the affirmative, regard must of course be had to the substance of the issue and not merely to its grammatical form, which latter the pleader can frequently vary at will, moreover a negative allegation must not be confounded with the mere traverse of an affirmative one. The true meaning of the rule is that where a given allegation, whether affirmative or negative, forms an essential part of a party's case, the proof of such allegation rests on him; e.g. in an action against a tenant for not repairing according to covenant, or against a horse-dealer that a horse sold with a warranty is unsound, proof of these allegations is on the plaintiff, so in actions of malicious prosecution, it is upon him to show not only that the defendant prosecuted him unsuccessfully, but also the absence of reasonable and probable cause: while in actions or false imprisonment, proof of the existence of reasonable cause is upon the defendant, since arrest unlike prosecution, in prima facie a tort and demands justification. In bailment cases, the bailee must prove that the goods were lost without his fault. Under the Courts (Emergency Powers) Act 1939, the burden of proving that the defendant was unable immediately to satisfy the judgment and that inability arose from circumstances attributable to the war rested on the defendant. But it would seem that in an election petition alleging breaches of rules made under the Representation of the People Act, 1949, the Court will look at the evidence as a whole, and that even if breaches are proved by the petitioner, the burden of showing that the election was conducted substantially in accordance with the. law does not rest upon the respondent. Where a corporation does an act under statutory powers which do not prescribe the method, and that act invades the rights of others, the burden is on the corporation to show that there was no other practical way of carrying out the power which would have that effect". 18. Turning now to the provisions of our own Evidence Act, we find the general or stable burden of proving a case stated in section 101 as follows: "101. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person". Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person". The principle is stated in section 102 from the point of view of what has been sometimes called the burden of leading or introducing evidence which is placed on the party initiating a proceeding. It says: "102. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side". In practice, this lesser burden is discharged by merely showing that there is evidence in the case which supports the case set up by the party which comes to Court first, irrespective of the side which has led that evidence. An outright dismissal in limine of a suit or proceeding for want of evidence is thus often avoided. But, the burden of establishing or general burden of proof is heavier. Sometimes, evidence coming from the side of the respondents, in the form of either their admissions or conduct or failure to controvert, may strengthen or tend to support a petitioner's or plaintiff's case so much that the heavier burden of proving or establishing a case, as distinguished from the mere duty of introducing or showing the existence of some evidence on record stated in section 102, is itself discharged. Sufficiency of evidence to discharge the onus probandi is not, apart from instances of blatant perversity in assessing evidence, examined by this Court as a rule in appeals by special leave granted under Article 136 of the Constitution. It has been held that the question whether an onus probandi has been discharged is one of fact (see: AIR 1930 P.C. p. 90). It is generally so. 19. "Proof", which is the effect of evidence led, is defined by the provisions of section 3 of the Evidence Act. The effect of evidence has to be distinguished from the duty Or burden of showing to the Court conclusions it should reach. It is generally so. 19. "Proof", which is the effect of evidence led, is defined by the provisions of section 3 of the Evidence Act. The effect of evidence has to be distinguished from the duty Or burden of showing to the Court conclusions it should reach. This duty is called the "onus probandi", which is placed upon one of the parties, in accordance with appropriate provisions of law applicable to various situations, but, the effect of the evidence led is a matter of inference or a conclusion to be arrived at by the Court. 20. The total effect of evidence is determined at the end of a proceeding not merely by considering the general duties imposed by sections 101 and 102 of the Evidence Act but also the special or particular ones imposed by other provisions such as sections 103 and 106 of the Evidence Act. Section 103 enacts: "103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person". And, section 106 lays down: "106. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him". 21. In judging whether a general or a particular or special onus has been discharged, the Court will not only consider the direct effect of the oral and documentary evidence led but also what may be indirectly inferred because. certain facts have been proved or not proved though easily capable of proof if they existed at all which raise either a presumption of law or of fact. Section 114 of the Evidence Act covers a wide range of presumptions of fact which can be used by Courts in the course of. administration of justice to remove lacunae in the chain of direct evidence before it. It is, therefore, said that the function of a presumption often is to "fill a gap" in evidence. 22. True presumptions, whether of law or of fact, are always rebuttable. In other words, the party against which a presumption may operate can and must lead evidence to show why the presumption should not be given effect to. If, for example, the. 22. True presumptions, whether of law or of fact, are always rebuttable. In other words, the party against which a presumption may operate can and must lead evidence to show why the presumption should not be given effect to. If, for example, the. party which initiates a proceeding or comes with a case to Court offers no evidence to support it, the presumption is that such evidence does not exist. And, if some evidence is shown to exist on a question in issue, but the party which has it within its power to produce it, does not, despite notice to it to do so, produce it, the natural presumption is that it would, if produced, have gone against it. Similarly, a presumption arises from failure to discharge a special or particular onus. 23. The result of a trial or proceeding is determined by a weighing of the totality of facts and circumstances and presumptions operating in favour of one party as against those which may tilt the, balance in favour of another. Such weighment always takes place at the end of a trial or proceeding which cannot, for purposes of this final weighment, be split up into disjointed and disconnected parts simply because the requirements of procedural regularity and logic, embodied in procedural law, prescribe a sequence, a stage, and a mode of proof for each party tendering its evidence. What is weighed at the end is one totality against another and not selected bits or scraps of evidence against each other.” 7. Thus, what could be summarized is that the plaintiff requires to fulfill all the four requirements in a case of malicious prosecution, viz. (i) The proceedings must have been instituted and continued by the defendant; (ii) the defendant must have acted without reasonable and probable cause; (iii) the defendant must have acted maliciously and (iv) the defendant must have been unsuccessful, in other words, the same must have resulted in favour of the plaintiff. 8. The proceedings are malicious if commenced or continued for the purpose for which it is not intended. If there is indirect or improper motive and not the vindication of law, it can be said to be malice. However, if inspired by fit of anger, the same cannot be termed as malicious. The prosecution if is found to be based on reasonable belief, no inference of malice can be drawn against the prosecutor. If there is indirect or improper motive and not the vindication of law, it can be said to be malice. However, if inspired by fit of anger, the same cannot be termed as malicious. The prosecution if is found to be based on reasonable belief, no inference of malice can be drawn against the prosecutor. In a case for suit for damages for malicious prosecution, it is for the plaintiff who seeks the damages to prove that the proceedings initiated were without any reasonable or probable cause. Thus, the initial burden lies on the plaintiff and once that burden shifts on having been discharged, it is for the defendant to prove that the facts and circumstances exist giving rise to belief that the other person was guilty and thus, for justification of defamation, the burden of proof then would lie on the defendant. However, the plaintiff at the time of discharging the initial burden of proof must adduce some evidence showing the absence of probable cause and it would be such proof which a reasonable man accepts as having established the issue. The plaintiff must prove that the facts and circumstances of the case at the time of offence were such as to be in the eyes of the Presiding Officer (Judge) is inconsistent with the reasonable and probable cause. The person before instituting the proceedings is not required to see that he would have such evidence which would surely result into securing conviction. If the person has proceeded on such information as a prudent man in ordinary affairs of life would have, it is for the plaintiff to show that there was absence of any proper care in testing the information. 9. In a suit for malicious prosecution, the plaintiff would fail if no evidence at all is given by him. The plaintiff as noted above needed to prove that there was prosecution which got terminated in his favour and such prosecution was instituted maliciously and that he suffered the damages. 10. Adverting to the facts, firstly the plaintiff needs to bring on record the proof of the defendant having maliciously prosecuted the plaintiff. From perusal of the pleadings and the evidence on record, the trial Court concluded absence of any malice on the part of the defendant. 10. Adverting to the facts, firstly the plaintiff needs to bring on record the proof of the defendant having maliciously prosecuted the plaintiff. From perusal of the pleadings and the evidence on record, the trial Court concluded absence of any malice on the part of the defendant. In the first place, it appears that the plaintiff has not been able to discharge the initial burden of proving malice and want of reasonable and probable cause. Assuming that such burden was discharged by the plaintiff, then also there is sufficient material on record to indicate that the prosecution was not malicious or mala fide nor was it had been to harass and defame the plaintiff. We say so from close examination of the entire record for the following reasons : 10.1 As is apparent from the oral evidence adduced by the complainant, he belongs to erstwhile princely State of Wadhwan and his forefathers were well respected in the society for all the good deeds done at their end. After independence also, they were elected as the Member of Parliament as well as Member of Legislative Assembly and the family continued to be associated with various charitable and educational activities. The plaintiff has a petrol pump and a private agency and various other businesses at different places. We cannot be oblivious of the fact that the suit against the respondent/defendant is for damages for malicious prosecution and the cause had arisen on account of sale made to one Shri Lakhubha Kalyansinh from a parcel of land owned by the plaintiff. Lakhubha, as mentioned hereinabove, sold the same to Shri Harendra Chhabildas, who in turn sold it to mother of the defendant. The additional land for the purpose of constructing compound wall was made available on December 05, 1994 by way of a 'Rojkam'. The socalled 'Rojkam' dated December 05, 1994 (Exh.41 of original record) bears the signature of one Shri Hariprasad only and that of the father of the defendant. According to the plaintiff, the 'Rojkam' was in the nature of understanding between the parties, whereby the parents of the defendant who required to construct a compound walls mentioned in the said 'Rojkam' dated December 05, 1994, we permitted under certain conditions. On the eastern side, the height of the compound wall was to be restricted as was done by Shri Dodiya Manubhai Lakshmanbhai. On the eastern side, the height of the compound wall was to be restricted as was done by Shri Dodiya Manubhai Lakshmanbhai. Neither window nor the door was to be placed on the eastern part as the palace of the plaintiff is situated on that part. The land was decided to be sold to the defendants abiding by such terms of construction and in the event of the same not being adhered to, by the defendants, the wall was to be demolished within a day. However, the parcel of land already purchased by the defendant, no objection was to be raised by the plaintiff for construction. It further says that if construction is carried out of the compound wall and if any dispute is raised by the heirs of the defendants, expenses that may be incurred in the litigation would be borne by the defendant. A final document as per the said understanding termed as 'Rojkam' was to be carried out within two to three months. 10.2 It is an admitted fact that the construction of wall was already carried out by the parents of the defendant. According to the plaintiff, the same was in contravention to the said understanding (Exhibit 41). The defendant's parents did carry out in February, 1995 a wall having height of two to three feet. It is agreed to by the plaintiff that when the negotiations with the defendant took place, he had asked him to do whatever he desired and, therefore, the plaintiff got the wall demolished through his men. It is stated on oath that only with a view to cause damage to the prestige of the plaintiff, such a malicious prosecution was initiated. 10.3 In the cross-examination, he agreed that nothing has changed after the said incident as far as his business as well as social position is concerned. The flow of visitors has continued as it was prior to the said incident. The plaintiff had not been able to state as to who constructed the wall which was demolished by the plaintiff. He never moved for any civil litigation for resolving the dispute of breach of understanding in relation to the disputed wall. According to him, this being a wall contrary to the understanding entered into by and between the parties, the same was demolished. He never moved for any civil litigation for resolving the dispute of breach of understanding in relation to the disputed wall. According to him, this being a wall contrary to the understanding entered into by and between the parties, the same was demolished. He agreed that Criminal Case No.149 of 1995 was preferred against the defendant in the Court of Wadhwan and such complaint was dismissed by the Court on July 10, 1996. 10.4 The entire chain of events is clearly indicative of the fact that there was a dispute with regard to construction of compound wall. The parents of the defendant had needed compound wall to be constructed on the eastern part of their residence where the palace of the plaintiff is situated. It is not the case of the plaintiff of defendant having constructed illegally compound wall, on encroaching upon the land of his ownership, but it is a case of the defendant of having constructed the compound wall in contravention to the terms agreed to by and between the parties. It is the version of the plaintiff that the wall was illegally constructed for not being in accordance with the terms of agreed to by the parents of the defendant. Admittedly, he never bothered to give any legal notice and chose to get the same demolished through his men. It is ex facie apparent from the record that one of the parties, who has lis with the other persons, in connection with the construction of wall on the parcel of the land owned by him, when was not satisfied with the conduct of the other party, instead of resorting to the legal recourse available under the law, chose to take law in his own hands and demolished the construction. Assuming that the construction was permitted, subject to fulfillment of certain conditions and yet when there is a civil dispute arose on account of the actions of the parties, no one is permitted to take law into his own hands and decide unilaterally. Assuming that the construction was permitted, subject to fulfillment of certain conditions and yet when there is a civil dispute arose on account of the actions of the parties, no one is permitted to take law into his own hands and decide unilaterally. The plaintiff when does not dispute of demolition of wall by his men at his behest, the defendant being apprehensive of further action after having noticed demolition as a result of feudal approach adopted by the plaintiff, if chose to lodge the complaint before the concerned Police Station for protection of his property and the family, the very first burden the plaintiff has failed to prove that the prosecution was without any reasonable or just cause and was in fact mala fide or malicious. What all the defendant has done is to make an application to the Police Sub-Inspector, Wadhwan Police Station and sent copies of the same to different dignitaries, presumably on account of social status and position of the plaintiff apprehending that no action would be taken by the Police Inspector of Wadhwan Police Station. Wadhwan Police acted at the behest of the District Superintendent of Police, Surendranagar District and eventually had filed such application on due inquiry. 10.5 As is well-settled in various decisions that in a suit for recovery of damages for malicious prosecution, it is not sufficient for the plaintiff to discharge the burden of proving institution and continuation of prosecution but also want of reasonable and probable cause. By production of judgment of the Criminal Court, the evidence of discharge may not be conclusive as proving malice is also essential. Merely because the prosecution ends in discharge or acquittal would not necessarily result in concluding that the accusations are made without any basis. The defendant is not expected to ensure that the information must result in conviction. Burden would shift after the proof for the defendant to show that he took proper care and had a reasonable cause and belief to so initiate such prosecution. 10.6 The application (Exhibit 42) given to Police Inspector, Wadhwan Police Station indicates that the residence of the defendant is situated at Rajmahal Road. Burden would shift after the proof for the defendant to show that he took proper care and had a reasonable cause and belief to so initiate such prosecution. 10.6 The application (Exhibit 42) given to Police Inspector, Wadhwan Police Station indicates that the residence of the defendant is situated at Rajmahal Road. The compound wall constructed by the defendant had been demolished by the plaintiff with the help of his men and when such demolition was initiated, the family members of the defendant resisted the same and it is averred therein that they were threatened of being killed or of using fire arms against them. It is also stated that despite 50 years having passed, the rule of King continues. It has become difficult for them to stay at their residence. The family is extremely scared and feel threatened of their lives. In such circumstances, he urged to take stringent action against such persons and also to provide police protection to him and his family members. He also further stated that community of 'Darbar' is used to get the work done as desired by it and, therefore, imminently the inquiry is needed. Copies of this application were sent to the Chief Minister, Home Minister, Chief Election Commissioner, Collector of Surendranagar District, Mamlatdar and Election Officer. The report of the police dated February 28, 1995 is pursuant to the direction given by the District Superintendent of Police, Surendranagar. It is to be noted here that the original application addressed to the Police Inspector, Wadhwan Police Station is dated February 15, 1995. It is only after the District Superintendent of Police, Surendranagar, had directed an inquiry to be made vide his communication dated February 21, 1995, that such an inquiry was made and the report (Exhibit 43) has been prepared. 10.7 It will be profitable to make a mention briefly the content of such report. It narrates that on the eastern part of the palace in Wadhwan, the residential premises of Rajput Vajesang Banesang is situated. The palace road is owned by the plaintiff, who is known as “Thakor Saheb” and no one has right to walk on that road. The land appurtenant to residence of the defendant belongs to the plaintiff. After constructing the compound wall, the defendant had bought land from the plaintiff, however, no registered sale deed was effected and the details were available only on papers. The land appurtenant to residence of the defendant belongs to the plaintiff. After constructing the compound wall, the defendant had bought land from the plaintiff, however, no registered sale deed was effected and the details were available only on papers. Since the said wall was not constructed within the stipulated time and some other conditions were contravened, on February 15, 1995, at around 10:30 a.m. the plaintiff had demolished some portion of the constructed wall and as the family of Vajesang made hue and cry, they could not carry out the complete demolition of such wall. The defendant Vajesang in the meantime had reached the place and had threatened the plaintiff of beating him and, therefore, the plaintiff had left the place. A neutral witness, according to police, was Banesang Narsang, who had stated that the plaintiff did not carry gun with him nor had he threatened to kill the defendant or his family members and Vajesang (the defendant) had not given true facts. They also inquired that the application was not correct and he is not inclined to do anything further and, therefore, the same was filed. The defendant in his deposition before the Court had agreed that the compound wall was having height of 4½ feet. The plaintiff's men had succeeded in demolishing the same, which was constructed on the land owned by the plaintiff. However, no notice was issued nor was any action initiated for the alleged illegal construction. Whatever portion was demolished had been once again constructed. He was not aware as to what had happened to the application which was sent by him to District Superintendent of Police, Surendranagar and the reply he received from Mamlatdar, was that since it pertained to the land, they needed to take recourse of the Court, which led to the filing of the suit. He emphasized that he had no animosity with anyone. He served at the market yard. He had no clue about the businesses of the plaintiff. The entire emphasize was that as the construction of wall was in accordance with law as there was no right of the plaintiff to demolish the same and hence, the complaint was made. He emphasized that he had no animosity with anyone. He served at the market yard. He had no clue about the businesses of the plaintiff. The entire emphasize was that as the construction of wall was in accordance with law as there was no right of the plaintiff to demolish the same and hence, the complaint was made. 10.8 It is to be noted that against the defendant and his mother a criminal case being Criminal Case No.139 of 1995 was filed by the power of attorney of the plaintiff, which has been dismissed by the Criminal Court. The trial Court on cumulative examination of the material on record has rightly arrived at the conclusion that this is surely not a case of malicious prosecution on the part of the defendant. Admittedly, the plaintiff is socially wellplaced and has a very well acclaimed ancestral background. It is also not in dispute that the parties had a dispute pertaining to the compound wall constructed by the defendant on the eastern part of which the palace of the plaintiff is situated. Without delving into the details as to whether the construction of compound wall by the defendant's parents was in their own parcel of land or it was as a result of encroachment as alleged by the plaintiff, since it is not the subject matter of the suit. Suffice it to note that inspite of the lis existing between the parties, the plaintiff chose to direct his men to demolish the compound wall. There is a serious doubt with regard to the written understanding termed as 'Rojkam' dated December 05, 1994, whether at all it can be called an agreement between the parties. Assuming that there was an agreement between the parties, then also, no one can be permitted to be a judge of his own case by giving complete go by to the settled legal norms. When the plaintiff took law into his own hands and made an attempt to demolish the compound wall and out of apprehension if, the defendant chose to approach the police for protecting his property and family, such action of the defendant surely was arising from just and reasonable cause. Therefore, the plaintiff completely failed to discharge initial burden of proving that the prosecution was malicious or mala fide or that it was initiated without any just and reasonable cause. Therefore, the plaintiff completely failed to discharge initial burden of proving that the prosecution was malicious or mala fide or that it was initiated without any just and reasonable cause. 10.9 With the foregoing discussion, it is not difficult to conclude that the plaintiff though proved that there was a prosecution which terminated in his favour, neither he had been able to establish that the instituted proceedings were malicious in nature as the malice would require absence of any justifiable cause. The prosecution when is found to be based on a reasonable belief no inference of malice could be drawn against the defendant. Lastly with regard to suffering of the damages on account of malicious prosecution also, it is completely lacking from the evidence on record. Resultantly, we see no reason to interfere with the judgment and decree passed by the trial Court against the plaintiff and in favour of the defendant. 11. For the foregoing reasons, the present appeal fails and is, accordingly, dismissed. There shall, however, be no order as to costs.