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4. Whether the suit of the plaintiff is bad for non joinder of necessary parties? OPD
5. Relief."

8. The onus of the main issue, namely, as to whether the plaintiff is entitled to recover ` 5,00,000/- on account of his malicious prosecution is on the plaintiff.

9. As to whether mere acquittal of an accused in a criminal case is sufficient to presume that he has been maliciously prosecuted, hence entitled to compensation on account thereof, has been gone into by a Division Bench of this Court in Major Gian Singh's case (supra), wherein it was opined that acquittal of the plaintiff in earlier proceedings may some times give rise to a presumption that there was no reasonable and probable cause for his prosecution but still presumption is rebuttable. In a suit claiming damages for malicious prosecution, the burden to prove that proceedings were initiated without any reasonable or probable cause lies on the plaintiff. The relevant paras from the judgment are extracted below:-

12. Madras High Court in Muthuswamy's case (supra), opined that in a case for damages for malicious prosecution, the civil court is to undertake independent enquiry and not merely to take into consideration the grounds of acquittal in a criminal case.

13. Rajasthan High Court in Sugan Kanwar's case (supra), opined that in a suit for malicious prosecution, the plaintiff is to prove that criminal proceedings were launched maliciously. The relevant para thereof is extracted below:-

"26......... In a suit for malicious prosecution, it is required to be proved by a person, who is filing a suit for malicious prosecution, that the criminal proceedings were maliciously launched in absence of reasonable and probable cause and there was no occasion for lodging such frivolous complaint. In the instant case, on the basis of judgment of acquittal delivered by the criminal court, it could not be presumed that prima facie there was no cause for lodging FIR by the mother of the defendant in the police. The learned Additional District & Sessions Judge, who has decreed the suit, in fact has not properly appreciated the evidence adduced before it and decreed the suit in a mechanical manner. It appears that the suit has been decreed on the basis of judgment of acquittal recorded in favour of the plaintiff on the basisof conclusions arrived at in the criminal case by the learned Magistrate without there being any material while decreeing the suit to draw a conclusion that defendant in collusion with her mother and brother to save themselves from being prosecuted in another criminal case in which the plaintiff had lodged the FIR, lodged this false case.

17. From the enunciation of law and the perusal of the issues framed by the learned court below, it can safely be concluded that the burden to prove as to whether the respondent-plaintiff is entitled to recover ` 5,00,000/- from the petitioner-defendant on account of his malicious prosecution, is on the plaintiff. He had to discharge it. Mere acquittal of an accused in a criminal case does not give rise to a presumption of his malicious prosecution in a suit for damages on that account. The issue has to be proved before the civil court independently. Whatever evidence the respondent-plaintiff wanted to lead to discharge the burden to prove issue no. 1 was to be produced at the very first instance. The case of the plaintiff- respondent from the very beginning is that it was a case of malicious prosecution. Once the burden on the issue, in discharge of which evidence in rebuttal is sought to be led was on the plaintiff, his prayer to lead evidence in rebuttal could not be accepted. The learned court below has gone wrong in passing the impugned order and permitting the respondent- plaintiff to examine the hand-writing expert.