1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 318 OF 2010 Sanjeevanibai W/o Laxman Sugandhe, & others .. APPELLANTS (Ori. Palintiff) VERSUS Laxman S/o Gomaji Sugandhe .. RESPONDENT (Ori. Defendant) ... Shri P.N. Sonpethkar, Advocate for appellants CORAM : S.V. GANGAPURWALA, J. DATE : 15h SEPTEMBER, 2010. PER COURT : The defendant had filed a complaint bearing SCC No. 3058 of 2000 for an offence punishable U/Sec. 323,353,504 r/w 34 of Indian Penal Code. 2. The complaint was filed by the defendant with the Police Station. The Officer investigated the crime and filed charge sheet in the Court. The learned Chief Judicial Magistrate, 2 acquitted the accused persons i.e. present appellants for the above offenses holding that the evidence of PW-3 and PW-6 cannot be said to be sufficient to prove the guilt of the accused beyond reasonable doubt. 3. After acquittal in the Criminal case, the present appellants filed suit for damages on account of malicious prosecution. Both the Courts below have dismissed the suit of the appellants. 4. Shri Sonpethkar, learned Counsel for the appellants, strenuously contended that facts of the case and the relation between the parties itself suggest that false and frivolous complaint was filed by the defendant. The defendant is husband of plaintiff No. 1. Plaintiff No. 1 has filed a maintenance proceeding against the defendant and just to pressurize plaintiff No. 1, the defendant had filed the false case. The deposition of the defendant in the Criminal case is such that it can be inferred that the defendant had filed the complaint without any just reasonable and probable cause. According to 3 the learned Counsel, the Courts below have failed to consider the ingredients necessary for claiming damages on account of malicious prosecution have been proved, and the Courts below have failed to consider the same. Shri Sonpethkar, learned Counsel for the appellants relies on the Judgment of the learned Single Judge of Andhra Pradesh High Court, in a case of “ Pendekanti Subbarayudu V/s. Bysani Venkatanarasayya & others, reported in AIR 1968, AP 61.” Relying on the said Judgment Shri Sonpethkar, learned Counsel for the appellants contended that if the acquittal is on merits, presumption will be not only that the plaintiff was innocent but also that there was no reasonable and probable cause for the accusation. 5. For proving the case on account of malicious prosecution, following ingredients are required to be proved: 1] Complaint was lodged by the defendant 2] It resulted in the acquittal of the plaintiff. 3] Complaint was filed without any just 4 reasonable and probable cause. 4] The said complaint was actuated with malice. 6. As far as the first two ingredients are concerned, they stand satisfied. Regarding the prosecution launched without just reasonable and probable cause and the same being actuated with malice, would depend upon the dictum of the Court deciding the prosecution, so also attending circumstances. Malice is not tangible thing. The same has to be gathered from the attending circumstances and the evidence. 7. The Chief Judicial Magistrate, Parbhani, in the Criminal case has opined as under : “ I hold that evidence of PW-3 and PW-6 cannot be said to be sufficient to prove the guilt of the accused beyond reasonable doubt, hence, I answer these points in the negative.” In the light of such finding, the 5 plaintiffs were acquitted. The Chief Judicial Magistrate, Parbhani has not held that complaint was totally on non existent ground, but has held that the evidence was not sufficient to prove the guilt, and had acquitted the accused persons. 8. In a case of Pendekanti Subbarayudu V/s. Bysani Venkatanarasayya & others, referred supra, the Court had dismissed the appeal on the count that both the Courts below had come to categorical conclusion that the defendant prosecuted the plaintiff in that case without any reasonable and probable cause. Where as, in the present case both the Courts have come to the conclusion that the plaintiffs could not prove that defendant prosecuted them without any just and reasonable cause. The proposition as led by the said Judgment may not call for further debate. But the same shall be considered with regard to the fact that the Court therein was dealing with the concurrent findings of facts, wherein both the Courts held that it was proved that defendant had prosecuted the plaintiffs without any reasonable and probable cause. 6 9. In the light of concurrent findings of facts, wherein both the Courts below on appreciation of evidence, have observed that acquittal of accused in the prosecution case was on the basis of benefit of doubt and that no evidence exists to conclude that the Criminal case filed by the defendant against the plaintiff was without any just, reasonable and probable cause or that it was actuated with malice, no substantial question of law is involved in the Second Appeal. As such, Second Appeal is dismissed. However, there shall be no order as to costs. [S.V. GANGAPURWALA,J] SDM*318.10SA