1. This appeal which is at the instance of a defendant arises out of a suit for malicious prosecution. The facts shortly stated are as follows. One Nagendrabala instituted a suit against Sailajakanta, brother of the Appellant Surendra, on a mortgage in which the defence taken was that the bond had been paid off and a receipt granted. The receipt was found to be a forgery, but at the Appellate stage it was discovered that a document on which the Plaintiff herself had relied had also been fabricated. This was a certified copy of a judgment in another suit in which two lines of typewriting had been introduced by way of addition to what the original judgment had contained. These additional lines were found to have been forged. Sailajakanta, the Defendant in the mortgage suit, moved the Appellate Court to make a criminal complaint against Nagendra Bala and one Bidhu Fanja who subsequently became the Plain-tiff in the suit for malicious prosecution, and who is Respondent in the present appeal. That application was refused. Then the present Appellant Surendra, the Defendant in the suit for malicious prosecution, filed a formal complaint in a Magistrate's Court, charging several persons, including Respondent Bidhu Panja, with offences arising out of the act of falsifying the copy of the judgment which had been produced in Nagendrabala's suit. The persons accused were summoned but discharged. Against that order, Surendra moved the District Magistrate who caused Bidhu Panja to be committed for trial to the Sessions Court. Bidhu was tried on a charge of forgery under sec. 466 of the Indian Penal Code but was acquitted by a jury whose verdict was unanimous. Bidhu Panja then filed the present suit and obtained a decree which was affirmed on appeal.

2. The case for the Defendant Appellant in the Courts below was that he had been informed by two persons, Kirtibash and Manmatha, that the forgery had been perpetrated by Bidhu Panja. Kirtibash was the brother and Manmatha the nephew of one Chuni who had acted as tadbirkar for Nagendrabala and who, it appears, actually filed the forged document in Court. The Courts below have correctly stated the questions which arose for determinatior as being:—

(1) Whether criminal proceedings terminated in the Plaintiff's favour.

(2) Whether the Defendant acted on reasonable and probable cause, and

(3) Whether he acted maliciously.

3. Both the Courts have decided these questions in the Plaintiff's favour.

4. Mr. Sen on behalf of the Appellant has taken two points. Firstly, he has contended that the Courts below have erred in virtually placing upon the Defendant the onus of showing reasonable and probable cause. Mr. Sen urges that it was for the Plaintiff to show absence of reasonable and probable cause and that he has failed to discharge this burden.” In the second place, Mr. Sen has argued that the lower Appellate Court erred inasmuch as it decided the case against the Defendant on the finding that he had acted maliciously, whereas it should first have considered whether he acted without reasonable and probable cause.

5. It would be convenient to take the second point first. It cannot be disputed that in an action for malicious prosecution, the question of malice does not arise until a stage has been reached subsequent to that in which it has been determined that there was no reasonable and probable cause for the prosecution. As regards this point, it is sufficient to say that a reading of the judgment of the Appellate Court as a whole shows that all the three questions were found against the Defendant. The Appellate Court did, in fact, make a passing reference to the question of malice before entering upon a discussion of reasonable and probable cause, but it was only after it had decided the latter question that the Court really took up the question of malice, and this question has been gone into very thoroughly only in the concluding portion of the judgment of the Appellate Court.

6. As regards the first point urged by Mr. Sen, his contention really was that the Courts below have approached the question of reasonable and probable cause from a wrong angle, because they have discussed at length the failure of the Defendant to establish reasonable and probable cause without first considering whether the Plaintiff had succeeded in showing that there was no reasonable and probable cause for the Defendant to launch the prosecution. In support of this argument, Mr. Sen has drawn attention to the fact that the Lower Appellate Court has attached great importance to the failure of the defence to examine Kirtibash and Manmatha, the persons who, according to the Defendant, informed him that Bidhu Panja had committed the forgery. These two persons were examined as witnesses for the prosecution in the criminal trial. They, along with the Appellant, were Defendants in the suit for malicious prosecution, but as against them the case was eventually withdrawn. Mr. Sen has relied upon a number of decisions which arose out of actions for malicious prosecution, and these may be briefly noted.

7. In Abrath v. North Eastern Railway Co.(1) it was laid down that the onus rests upon, the Plaintiff of proving the existence of such facts as tend to establish the want of reasonable and probable cause on the part of the Defendant. The case of Mas v. Gas Light and Coke Company(2) was one in which certain interrogatories which the Plaintiff sought to administer to the Defendants were disallowed, and as certain other principles were involved in the decision, I am not sure that it is of direct importance here. Herniman v. Smith(3) was cited for the purpose of drawing attention to the rule enunciated by Lord Atkin, that it is not required of a prosecutor that he must have tested every possible relevant fact before he takes action, and that his duty is not to ascertain whether there is a defence, but whether there is reasonable and probable cause for a prosecution. This case again has no direct bearing on the question of onus. In Sowrendra Mohan Sinha v. Soshi Bhusan Koer(4), a Division Bench of this Court held that in order to succeed the Plaintiff must establish that the Defendant had instituted the criminal proceedings without reasonable and probable cause and maliciously. Balbhaddar Singh v. Badri Sah(5) was a decision of the Privy Council in which Lord Dunedin, after entering into the facts of the case, stated the position regarding onus in these words which appear at page 530 of the report:

“The Appellants must, therefore, go the whole way. There is no halfway point of rest. They must show that Badri Sah invented the whole Story as far as it implicated the Appellants and tutored Raghunath and Teja to say it. That is a very heavy onus of proof, and unless they sustain it, the Appellants must fail.”

8. The case of Chatra Serampore Co-operative Credit Society, Ltd. v. Becharam Sarkar(6) was cited apparently as an instance of the application of the rule laid down in Hicks v. Faulknar(7) and in Herniman v. Smith which latter case has already been referred to.

9. The proposition that in actions for malicious prosecution, the onus of establishing absence of reasonable and probable cause to justify the Defendant in launching the prosecution lies, in the first instance, on the Plaintiff is well settled. The onus is not, however, a stationary burden. When the Plaintiff has given such evidence as, if not answered, would entitle him to succeed, the burden of proof is shifted to the Defendant. This has been laid down in Abrath v. North Eastern Railway Co. already noted above. A passage in the judgment of Bowen, L.J, at page 456 of the report states the rule in these words:

“The test, therefore, as to the burden of proof or onus of proof, whichever term is used, is simply this; to ask oneself which party will be successful if no evidence is given, or if no more evidence is given than has been given at a particular point of the case, for it is obvious that as the controversy involved in the litigation travels on, the parties from moment to moment may reach points at which the onus of proof shifts, and at which the tribunal will have to say that if the case stops there, it must (be decided in 6, particular manner. The test being such as I have stated, it is not a burden that goes on for ever resting on the shoulders of the person upon whom it is first cast. As soon as he brings evidence which, until it is answered, rebuts the evidence against which he is contending, then the balance descends on the other side, and the burden rolls over until again there is evidence which once more turns the scale. That being so, the question of onus of proof is only a rule for deciding on whom the obligation of going further, if he wishes to win, rests.”

10. In this connection the following cases may also be seen: Williams v. Taylor(8) and Cotton v. James(9).

11. In the present case, the Courts below have not prefaced their discussion of the evidence with any expression of their intention to determine in the first instance, whether the Plaintiff had made out a prima facie case of absence of reasonable and probable cause on the part of the Defendant. But Mr. Mukherji, on behalf of the Respondent, has taken me through the judgments of the Courts below. I am bound to say that both show a correct appreciation of the evidence, and each Court has come to the conclusion upon the facts established, as well as upon the probabilities, that the Defendant had no reasonable or probable cause for launching criminal proceedings.

12. It is true that the Appellate Court has adverted to the failure of the Defendant to call evidence to show that he was justified in prosecuting the Plaintiff, but a reading of the judgment as a whole makes it quite clear that the Appellate Court was not regarding the initial burden as an onus which rested upon the Defendant. In the trial Court's judgment, it was clearly shown that the story of Kirtibash and Manmatha giving to the Defendant the information that Bidhu Panja had committed the forgery was in the highest degree improbable, because they were men of Bidhu's camp. From the judgments of both Courts, it is further clear that these persons were disbelieved by the jury in the criminal trial. There are other indications in the trial Court's judgment that the Appellant had, on the facts, established no reasonable and probable cause for believing that the Respondent had committed forgery, and the indications given by the trial Court were not rejected by the lower Appellate Court. It is clear that the Appellate Court in its judgment of affirmance accepted all the conclusions of the trial Court. These conclusions which were based, as already stated, on the probabilities as well as on the established facts, did undoubtedly show absence of reasonable and probable cause, and the Defendant called no evidence to support his plea to the contrary.

13. This appeal must, therefore, fail, and It is dismissed with costs to the Plaintiff Respondent.

14. Leave to appeal under clause 15 of the Letters Patent is refused.

P.C