JUDGMENT & ORDER : Heard Mr. B. Majumder, learned counsel appearing for the appellant as well as Mr. S.M. Chakraborty, learned senior counsel assisted by Mr. S. Bhattacharji, learned counsel appearing for the respondents. 2. This is an appeal under Section 100 of the CPC against the concurrent finding with a little variation without touching the substantive finding, returned by the judgment dated 25.03.2013 delivered in Title Appeal No.15 of 2011 by the District Judge, South Tripura, Udaipur, as he then was. The following substantial question of law was formulated by this court by the order dated 25.09.2013 for hearing the appeal: “Whether the finding of the first appellate Court that there was no probable and reasonable cause is based on evidence or whether the first appellate Court was within the ambit of Order XLI, Rule 33 of the CPC while returning the said finding?” At the outset the error occurred in the substantial question of law is required to be corrected. The substantial question of law should read as follows: “Whether the finding of the first appellate Court that the plaintiff failed to prove absence of probable cause is based on evidence or whether the first appellate court was within the ambit of Order XLI, Rule 33 of the CPC while reversing the finding of the trial court in this regard?” 3. The fact that is essential for appreciation of the substantial question of law is that the appellant instituted the suit for damages for the malicious prosecution by which he was persecuted. In the said suit being Title Suit 14 of 2010, the appellant prayed for a sum of Rs.1,05,000/- as damage as according to the appellant. There was no probable and reasonable cause to lodge the ejahar by the defendant No.1. On 15.09.2006, levelling the allegation against the plaintiff that he had stolen some wooden files from the premises of the defendant No.1 the said ejahar was filed. It has been admitted by the plaintiff that based on the said ejahar, the police investigated the case and they filed the charge-sheet. The trial commenced against the appellant vide GR case No. 439 of 2006. Finally by the judgment and order dated 31.08.2009, the appellant was acquitted from the charge of theft. It has been admitted by the plaintiff that based on the said ejahar, the police investigated the case and they filed the charge-sheet. The trial commenced against the appellant vide GR case No. 439 of 2006. Finally by the judgment and order dated 31.08.2009, the appellant was acquitted from the charge of theft. In the plaint, the appellant has stated that though the alleged occurrence of theft had taken place on 15.09.2005, but the ejahar was lodged on 18.09.2006 without any explanation. It is the plaintiff's case that after filing the charge-sheet, the Chief Judicial Magistrate, South Tripura, Udaipur on taking cognizance framed the charge against him for committing criminal house trespass and theft punishable under Sections 457/380 of the IPC on 24.09.2007 and finally by the said judgment dated 31.08.2009 on culmination of the trial he was acquitted from the charge. Within the prescribed period of time, the suit for damages of malicious prosecution was instituted. 4. The defendants contested the suit by filing a written statement and they averred that the ejahar was lodged as the defendant No.1 was seen to have stolen the wooden files from the house premises of the defendant No.1 and thereafter on such allegation the police investigated the case and on finding prima facie case they filed the charge-sheet. The Chief Judicial Magistrate, South Tripura, Udaipur took cognizance on due consideration and framed the charge for trial on finding materials to proceed with the trial. The trial court i.e. the Civil Judge, Senior Division, Udaipur dismissed the suit. But Mr. Majumder, learned counsel appearing for the appellant has brought to the notice of this court the finding of the trial court where it has been observed that: “Hence from the above discussions made I am of the opinion that the plaintiff side has failed to prove malice against the plaintiff of this case without any reasonable and probable cause.” 5. Mr. Majumder, learned counsel appearing for the appellant has contended that if the trial court returned the said finding how the suit could be dismissed. The said judgment dated 01.07.2011 by the trial court had been questioned in an appeal filed by the appellant herein under Section 96 of the CPC being Title Appeal No.15 of 2011 in the court of the District Judge, South Tripura, Udaipur. In the said context, Mr. The said judgment dated 01.07.2011 by the trial court had been questioned in an appeal filed by the appellant herein under Section 96 of the CPC being Title Appeal No.15 of 2011 in the court of the District Judge, South Tripura, Udaipur. In the said context, Mr. Majumder, learned counsel has pointed out that even though the defendants did not preferred an appeal, the first appellate court has observed as under: “In the instant suit, the plaintiff-appellant failed to prove that without any reasonable and probable cause the defendant-respondent filed the FIR. State of mind of the defendant-respondent at the time of filing the FIR not proved by any convincing evidence. The FIR was filed on the basis of reasonable belief, not with the malice. So, failure to prove the case of acquittal of the accused cannot give rise to a presumption of his malicious prosecution is a suit for damages on that account. Therefore, learned court below has rightly dismissed the suit filed by the plaintiff-appellant for malicious prosecution and also not entitled to get any other relief.” Fundamentally, the appeal is directed against this finding. 6. Mr. Majumder, learned counsel appearing for the appellant has further submitted that filing of the ejahar was driven by malice as both the plaintiff and the defendants were engaged in a suit for partition. As the defendants could not succeed in the suit for partition in their own way, they instituted the suit criminal prosecution in absence of any probable and reasonable cause and that is apparent from the records. For purpose of challenging that finding Mr. Majumder, learned counsel has raised two grounds of objection viz. (i) that without appreciating the evidence at all the first appellate court has returned that finding on absence of probable and reasonable cause for launching the prosecution and (ii) by reversing that finding of the trial court the first appellate court even acceded its authority as provided under Order XLI Rule 33 of the CPC. To bolster his submission on the aspects of probative extent of the evidence as to the probable and reasonable cause, he has relied on a decision of the apex court in S.R. Venkataraman vs. Union of India and another reported in AIR 1979 SC 49 . To bolster his submission on the aspects of probative extent of the evidence as to the probable and reasonable cause, he has relied on a decision of the apex court in S.R. Venkataraman vs. Union of India and another reported in AIR 1979 SC 49 . In that decision, the apex court has approved the decision of Shearer vs. Shields reported in (1914) AC 808 where, while dealing with the aspect of malicious intention, it has been observed as under: “A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently.” Having based on the said observation in Shearer vs. Shields (supra), the apex court has culled out the principle of law as under: “Thus malice in its legal sense means 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.” 7. In Chairman and M.D., B.P.L. Ltd. vs. S.P. Gururaja and others reported in AIR 2003 SC 4536 as relied by Mr. Majumder, learned counsel, the apex court has quite elaborately considered the aspect of malice in the common law. It has been observed that malice in common law or acceptance means ill-will against a person, but in legal sense it means a wrongful act done intentionally without just cause or excuse. 8. Mr. Majumder, learned counsel to nourish his argument further has relied on a decision of the apex court in West Bengal State Electricity Board vs. Dilip Kumar Ray reported in AIR 2007 SC 976 where a suit for malicious prosecution was in the backdrop of the controversy. The apex court made an elaborate study and after considering the meaning qua the entomological interpretation and on noticing the precedents has observed that ordinarily absence of probable and reasonable cause in instituting a proceeding which terminates in favour of the plaintiff would give rise to the inference of the malice. The apex court made an elaborate study and after considering the meaning qua the entomological interpretation and on noticing the precedents has observed that ordinarily absence of probable and reasonable cause in instituting a proceeding which terminates in favour of the plaintiff would give rise to the inference of the malice. In S.R. Venkataraman vs. Union of India [supra] while expositing the law in respect of the interplay of the malice in fact and actual malice, the apex court held that it relates to the actual state or condition of the mind of the person who did the act. Malice in fact is the malice not established by legal presumption, but by the hard evidence in the case. From the above, it transpires very clearly that a malicious act is an act characterized by a pre-existing or an accompanying malicious state of mind. 9. To lay further emphasis on this aspect Mr. Majumder, learned counsel has also referred a decision in Jagdish Rathore vs. Nathuram reported in AIR 2007 MP 8 where the MP High Court has observed as under: “17. In order to appreciate and to answer the abovesaid substantial questions of law Nos.1 and 2, it would be appropriate to discuss that in a suit of malicious prosecution what the plaintiff is required to prove. In an action for malicious prosecution, plaintiff must prove, (i) that he was prosecuted by the defendant; (ii) that the proceedings complained of terminated in favour of plaintiff if from their nature they were kept of so terminating; (iii) that the prosecution was instituted against him without any reasonable or probable cause; (iv) that the prosecution was instituted with a malice intention, i.e. not that mere intention or carrying the law into effect, but that an intention which was wrongful in point of fact; (v) that he has suffered damage to his reputation or to the safety of person or to the security of his property. On the basis of about said elucidated principles of law in regard to malicious prosecution, the present case is to be tested on the anvil and touchstone of the facts and circumstances.” It has also been pointed out by Mr. On the basis of about said elucidated principles of law in regard to malicious prosecution, the present case is to be tested on the anvil and touchstone of the facts and circumstances.” It has also been pointed out by Mr. Majumder, learned counsel that in the said report MP High Court has enunciated as under: “It would not be enough to say that because the prosecution was launched by the police the prosecutor is the State or the police. Indeed the prosecutor is only the defendant because generally all prosecutions are conducted in the name and on behalf of the State which is launched by the police. It has already been held hereinabove that the written report of defendant accusing the plaintiff was a document knowing fully that whatever the information and the incident has been mentioned in it is false and the defendant in support of his false report adduced his false evidence before the police and also before the Court and therefore he is held to be a prosecutor is a suit for malicious prosecution.” 10. While referring to the relevant fact Mr. Majumder, learned counsel has submitted that the plaintiff has proved that he was prosecuted by the defendant No.1 and the proceeding has been terminated in his favour and further that the prosecution was without any reasonable or probable cause and the prosecution was entirely driven by the malicious intention. Mr. Majumder, learned counsel did not accept that the plaintiff could not prove that the prosecution was instituted against him without any reasonable or probable cause. In the context of the case, the trial court has observed that the plaintiff has failed to prove that the prosecution was launched with malicious intention. 11. Mr. Majumder, learned counsel appearing for the appellant while dilating on the aspects of the first appellate courts competence to go contrary to or beyond what has been returned by the trial court in respect of that finding that the defendant No.1 had no probable and reasonable cause, was beyond the scope of Order XLI Rule 33 of the CPC. Mr. Majumder, learned counsel appearing for the appellant while dilating on the aspects of the first appellate courts competence to go contrary to or beyond what has been returned by the trial court in respect of that finding that the defendant No.1 had no probable and reasonable cause, was beyond the scope of Order XLI Rule 33 of the CPC. In this regard, he has relied on a decision of the apex court in Nirmala Bala Ghose and another vs. Balai Chand Ghose and others reported in AIR 1965 SC 1874 , where the apex court had occasion to hold as under: “The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by O. 41 R. 33 may properly be invoked. The rule however does not confer an unrestricted right to reopen decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from.” [Emphasis supplied] Mr. Majumder, learned counsel has finally submitted that the reversal to that extent was wholly unwarranted. 12. Mr. S.M. Chakraborty, learned senior counsel appearing for the respondents has submitted that there is no infirmity in the impugned judgment dated 25.03.2013 as it is not in contrast to the finding of the trial court and as such the judgment challenged under this appeal is a judgment of pure affirmation. While appreciating the submissions launched by the learned counsel, this court has reread the judgment returned by the trial court and it appears therefrom the trial court has observed that: “The PW.1 stated in his examination-in-chief that the defendant filed criminal case GR 439/06 against him due to malice as the defendant side did not succeed in TS (P) 30/93 inspite of filing second appeal before Hon'ble High Court. He also stated that no incident of theft took place in the house of defendant in this night of 16.09.06. He also stated that the defendants only to lower his dignity, good reputation in the society filed this criminal case falsely. PW.2 & PW.3 deposed in the same tune as PW.1 so far as examination-in-chief is concerned. Except denial nothing, relevant came in this cross-examination. PW.4 stated in his examination-in-chief that parties to this suit are at dispute with respect to partition of their joint properties. Except denial nothing relevant came in his cross-examination. PW.5 did not state anything relevant on this point. DW.1 denied the fact in his examination-in-chief that he lodged criminal case against the plaintiff maliciously, to defame the plaintiff. Except denial noting relevant came in his cross-examination. I have also carefully gone through the Ext. 5 which is the judgment passed by Ld. CJM, South Tripura in GR 439/06. On perusal of the said judgment I did not find that Ld. Court opined that case was lodged by the complainant against the accused maliciously. The CJM, South Tripura, Udaipur only stated in his judgment that prosecution case against the accused has not been proved beyond reasonable doubt.” 13. On appreciating the evidence as a whole the trial court has further and definitely observed as under: “Hence from the above discussions made I am of the opinion that the plaintiff side has failed to prove malice against the defendants in lodging of the criminal case against him.” 14. Having observed thus, this court does not find any reversal of finding by the first appellate court. As such, there is no question of appreciating whether the first appellate court has exceeded the jurisdiction as conferred under Order XLI Rule 33 of the CPC or not. Moreover, the finding as returned by the trial court has been affirmed by the first appellate court. The trial court after appreciating the judgment passed in GR 439 of 2006 has come to a definite conclusion that the plaintiff-appellant was acquitted on the basis of doubt. As such this court does not have any hesitation to hold that the judgment of affirmation as returned by the first appellate court does not call for any interference and this appeal, being bereft of merit, it is dismissed. Draw the decree accordingly. Send down the LCRs thereafter.