1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 146 OF 2010 Sudhakar /so Damodhar Nikam & others .. APPELLANTS VERSUS Machhindra s/o Tukaram Nikam .. RESPONDENT Mr. R.V. Gore, Advocate for the appellants. Mr. S.S. Deshmukh, Advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 25th FEBRUARY, 2010 PER COURT : 1 This is an appeal by original plaintiffs raising exception to the judgment and decree passed in Regular Civil Appeal no. 157/2006 by District Judge - 2, Aurangabad on 9-2-2009 whereby the judgment and decree passed by the trial court on 14-4-2006 in Regular Civil Suit no. 203/2004 came to be quashed and set aside. 2 Appellants / original plaintiffs instituted suit claiming damages to the tune of Rs.1,00,000/- on account of malicious prosecution initiated by the 2 defendant. It is contended that defendant presented complaint to the court which was registered as Criminal Case no. 66/1994 in respect of offence punishable under sections 323, 504 and 506 r/w section 34 of the Indian Penal Code. The prosecution ended in acquittal after full length trial. According to the plaintiffs, initiation of prosecution by defendant was with malicious intention. Defendant controverted the contentions raised by the plaintiffs by filing written statement. Trial court after recording evidence led by the parties came to the conclusion that plaintiffs have established their case and as such, while granting decree in favour of the plaintiffs, directed the defendant to pay damages to the tune of Rs.7,500/-. Judgment and decree passed by the trial court was subjected to challenge by the defendant in Regular Civil Appeal no. 157/2006 which came to be disposed of by District Judge - 2, Aurangabad who was pleased to allow the same. 3 I have perused the judgments recorded by both the courts below and heard arguments advanced by respective counsel appearing for the parties. It is not controverted that plaintiffs and defendant were having their residence, at the relevant time, adjoining to each other or in a shared premises. Dispute arose on account of putting lock to the entrance of the staircase. It is also not controverted that after full length trial the criminal 3 prosecution ended in acquittal. Defence of the defendant is that the complaint lodged in the court was not at all false and much less was not actuated by malice. The first appellate court found that the plaintiffs have failed to establish existence of malice by leading independent evidence. First appellate court also found that the evidence of plaintiffs is also not sufficient to derive conclusion that launching of prosecution by the defendant can be said to be actuated by malice. Thus, the first appellate court on appreciation of evidence led by the parties recorded finding that launching of prosecution by defendant was not actuated by malice. Finding of fact recorded by the first appellate court appears to be reasonable and proper. No interference is called for in exercise of jurisdiction under section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 4 In view of dismissal of appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa146.10.odt