An action for malicious prosecution lies upon the actual termination of the criminal prosecution in any manner in favor of the plaintiff.

CHAUDHARY SIA SARAN SINHA, J.

1. This is an appeal by one of the defendants against the judgement of affirmance in a money suit instituted by respondent No. 1 against the appellant and respondent No. 2 claiming damages for his malicious prosecution.

2. In view of the limited contentions raised an behalf of the appellant, none having appeared before this Court on behalf of either of the two respondents, the relevant facts are these : Rameshwar Prasad Baidya, plaintiff-respondent No. 1, was the Mukhiya of a Gram Panchayat under Amarpur police station of the district of Bhagalpur. He entered into a written agreement with the State of Bihar (the present appellant) through the Sub-Divisional Officer, Banks, for repair of two Bandhs connected with Relief Scheme No. 3 of 1957-58, estimated cost whereof was Rs. 1,735/-. The stipulated time for completion of the work was 30th June, 1957, Final measurement in connection with this work was taken on 21-8-1957 by the then Block Development Officer, Amargur, Shri Arun Prasad, and it was, undisputedly, found that the total earth work done by the Mukhia was worth Rs. 2547/12/-. After adjusting the amount of Rs. 1950.00 advanced to the Mukhiya towards this claim and the excess amount of Rs. 151/14/- lying in excess with him in connection with another Scheme No. 11 of 1957-58, the Block Development Officer, Shri Arun Prasad, recommended to the Sub-Divisional Officer, Amarpur, for payment of the amount of Rs. 745/14/- to the plaintiff. On 20th October, 1957, the Sub-Division Officer, Banks, after observing that Scheme No. 3 of 1957-58 had been sanctioned by the District Magistrate at the estimated cost of Rs. 1,735/- only And no petition was filed by the Mukhiya for any revised estimate before undertaking the extra work, disallowed the claim of the headman i.e. the Mukhiya for extra work and accepted his claim only to the extent of Rs. 1,735/-, the original estimate, agreed upon. Rs. 1,650.00 having been already advanced to the Mukhiya, the surplus amount of Rs. 85/- payable to him in respect of Scheme No. 3 of 1957-58 was ordered to be adjusted towards the excess amount of Rs. 151/14/made to this Mukhiya and the balance of Rs. 66.87 was ordered to be realised from him. He also called for an explanation from the Block Development Officer, Amarpur, for his recommending payment in excess of the estimated amount approved by the District Magistrate. Notice was accordingly issued to the Mukhiya to deposit the extra account lying with him and, on his failure to do so, a certificate case was instituted against him shortly thereafter. The amount, however, remained unrealised and, respondent No. 2 I.C. Pandey, who joined as successor of Shri Arun Prasad, by his order dated 31-1-1961 asked the Mukhiya through notice to deposit the amount for which the certificate was issued. The plaintiff alleged that even before receipt of the service of notice for this deposit, Shri I.C. Pandey, who bore ill-will and grudge against the plaintiff, passed an order on 17-3-1961 which ran as follows : "In order to avoid delay file complaint under Sec. 406/420 I.P.C." The complaint alleged an offence under Sec. 406/420 I.P.C. It stated, inter alia, that the Mukhiya undertook the construction of the work in question assuring completion thereof by 30-6-1957 and also obtained an advance of Rs. 1,650.00 on 23-5-1957. But having obtained the aforesaid advance by giving the assurance he did not complete the scheme in spite of repeated Takids with the result that he committed breach of trust in respect of public fund and put Government to wrongful loss and obtained wrongful gain for himself deliberately by obtaining the advance dishonestly in deceitful manner on wrong assurance to complete the scheme and thereby committed offence under Sec. 406/420 I.P.C. for which he should stand his trial in the Court. The Sub-Divisional Magistrate, Banks, by his order dated 15th March, 1962, took cognizance against the Mukhiya under Sec.