Judgment 1. Heard counsel for the parties. 2. Prayer of the petitioners in all these applications are same, as such, they have been heard together and being disposed of by a common order. 3. Initially these applications were filed for quashing the first information report of Laheri P.S. Case No. 88 of 2006 (Special Case No. 30 of 2006) and also the investigation in connection with the instant first information report. During the pendency of these applications, on completion of investigation, charge-sheet was submitted and cognizance taken under Sections 406, 409, 420, 120B of the Indian Penal Code and 13(2) read with 13(1)(d) of the Prevention of Corruption Act against all the petitioners vide order, dated 10.7.2007, by the Special Judge, Vigilance, Patna. Interlocutory applications were filed by the petitioners for amending the prayer and for additional relief for quashing the charge-sheet and order, taking cognizance, dated 10.7.2007. Interlocutory applications were allowed and the amended prayer is for quashing the charge sheet and order taking cognizance, dated 10.7.2007, by the Special Judge, Vigilance, Patna, in Special Case No. 30 of 2006. Petitioners in Cr. Misc. No. 30150 of 2006, Cr. Misc. No. 3908 of 2007 and Cr. Misc. No. 13205 of 2007 are Executive Engineer, Assistant Engineers and Junior Engineer involved in widening, strengthening and construction of Biharsharif Ekangarsarai Telhara Road under Road Division, Biharsharif. Petitioner in Cr. Misc. No. 35189 of 2006 is the contractor, who was allotted the work for strengthening and widening of Biharsharif Ekangarsarai Telhara Road. 4. For construction of Biharsharif Ekangarsarai Telhara Road estimate of Rs. 471.23 lacs was administratively sanctioned by the Road Construction Department. Technical sanction was accorded by the Chief Engineer, Central Design and Education for estimated cost of Rs. 546.545 lacs. On completion of formalities, like administrative and technical sanction, tender was invited for construction of Biharsharif Ekangarsarai Road. Initially tender was invited for the widening and strengthening of the road. The petitioner, Ramakant Singh, was allotted the work and an agreement was executed in his favour. When the construction started the competent authority realized the need of additional work for which another estimate was prepared for additional work, not covered under the original agreement. Fresh tenders were invited for additional work vide advertisement, dated 11.2.1998, Ramakant Singh also submitted his tender which was found most responsive and the work was allotted by the Chief Engineers letter, dated 18.8.1998. Fresh tenders were invited for additional work vide advertisement, dated 11.2.1998, Ramakant Singh also submitted his tender which was found most responsive and the work was allotted by the Chief Engineers letter, dated 18.8.1998. As per the terms of agreement no. 111 Fe/1998-1999 the total construction was for Rs. 4,28,78,955.00. In terms of the agreement the liability to maintain the constructed road was for six months. It was also specified that in case of inferior quality of construction, the contractor will have to repair the same at his own cost, i.e., within the aforesaid six months of the accountability period. As per the agreement, the date of start of work was 15.11.1998 and the date of completion was on 30.4.1999, but, later on the Chief Engineer, South Bihar, Road Construction Department, extended the time for completion of work till 30.6.2001. Again, the Engineer-in-Chief vide his letter no. 1523 extended the time. As per the estimate 1624.28 metric tonne bitumen was to be provided to the contractor by the Road Construction Department. Case of the contactor is that out of total supplied bitumen 28.884 metric tonne was transferred to construction site at Fatuha Hilsa Ekangarsarai Road and, thus, he was provided only 1595.396 metric tonne bitumen. Out of total supplied bitumen 713.019 metric tonne was consumed and the remaining bitumen was to be handed over to the Department prior to finalization of the bill. The cost for excess supplied bitumen was adjusted from the pending bill of the contractor at penal rate for surplus bitumen. The penal cost for surplus bitumen was to be recoverable from the contractor on account of the special condition of contract under Clause 12 of the agreement. 5. Case of all the petitioners is that the first information report of Laheri P.S. Case No. 88 of 2006 was instituted on 24.6.2006. After filing of C.W.J.C. No. 6773 of 2006 filed by the contractor, Ramakant Singh, against the illegal and arbitrary demand of the Executive Engineer for payment of penal rate of bitumen on the basis of special condition, Clause 12 in the agreement. The writ petition was heard on 14.6.2006 and State was directed to file counter affidavit in the matter. After filing of C.W.J.C. No. 6773 of 2006 filed by the contractor, Ramakant Singh, against the illegal and arbitrary demand of the Executive Engineer for payment of penal rate of bitumen on the basis of special condition, Clause 12 in the agreement. The writ petition was heard on 14.6.2006 and State was directed to file counter affidavit in the matter. The authorities of the Road Construction Department in order to use pressure tactics to realize the cost of excess supplied bitumen at penal rate as provided under Clause 12 of the agreement instituted criminal case against the petitioners. This is also case of all the petitioners that the only reason for institution of criminal case was non-recovery of the cost of unconsumed bitumen kept with the contractor and non-realisation of sales tax, royalty from the contractor. So far the petitioners, who are Executive Engineer, Assistant Engineers and Junior Engineer, their case is against them there is no specific allegation in the first information report or charge-sheet. No prima facie case is made out against them and the entire criminal proceeding as well as order taking cognizance is fit to be quashed. The case of the contractor, Ramakant Singh, is that entire amount which is alleged to have been not paid has already been deposited. A bank draft of rupees ten lacs was deposited on 3.4.2006. He filed a representation for submitting details of dues. The Executive Engineer intimated the petitioner for payment of cost of surplus bitumen amounting to Rs. 48,92,355.00. This was an arbitrary demand, as such, he filed C.W.J.C. No. 6773 of 2006. During the pendency of the writ application he, again, deposited Rs. 4,49,526.00 as the cost of 77 metric tonne bitumen. The writ application was heard and finally decided by order, dated 27.4.2007. The demand made by the Executive Engineer vide letter no. 460, dated 10.4.2006, amounting to Rs. 48,92,355.00 at penal rate of surplus supplied bitumen was quashed. The Executive Engineer was directed to issue fresh demand letter in terms of Clause 12 of the Special Agreement. Thereafter, the Executive Engineer issued fresh demand letter for Rs. 1,19,678.00 which has already been deposited by the petitioner. The same has been accepted, as such, there is no basis for instituting any criminal case against the petitioner. 6. From the perusal of the first information report, I find that the District Magistrate, Nalanda, vide his letter no. Thereafter, the Executive Engineer issued fresh demand letter for Rs. 1,19,678.00 which has already been deposited by the petitioner. The same has been accepted, as such, there is no basis for instituting any criminal case against the petitioner. 6. From the perusal of the first information report, I find that the District Magistrate, Nalanda, vide his letter no. 3222 (confidential), dated 6.7.2001, requested the Cabinet Vigilance Department to enquire into the works executed under the scheme of widening and strengthening of Biharsharif Ekangarsarai Telhara Road under Road Division, Biharsharif. The Cabinet Vigilance Department got the matter enquired through Technical Examination Cell and after getting the enquiry report forwarded it to the Road Construction Department with recommendation to lodge the criminal case and also to initiate a departmental proceeding against the Executive Engineer, Assistant Engineer and Junior Engineer and others associated with the project. The enquiry report of the Cabinet Vigilance Department indicated financial and other irregularities. Irregularities were as follows: (i) for widening and strengthening of the Biharsharif Ekangarsarai Telhara Road the estimated approved cost of project was for Rs. 462.41 lacs for which administrative sanction was accorded. For the same stretch of road, second and third estimate amounting to Rs. 33.733 lacs and Rs. 50.390 lacs were prepared and sanctioned, by the officials in connivance of the contractor, for the purpose of embezzlement. (ii) According to the bill of quantity for the work 149.21 metric tonne of bitumen was required but 1624.28 metric tpnne bitumen was released to the contractor. After the execution of the work the remaining bitumen was not deducted/recovered. It was left with the contractor to embezzle the State Government money for wrongful gain. (iii) The amount of Rs. 1,60,839.00 against sales tax, Rs. 9,06,941.00 against royalty were not deducted from the contractors bills by the officials. In relation to these irregularities, on the direction of the Deputy Secre-tary-cum-Chief Vigilance Officer, Road Construction Department, the informant, Executive Engineer, filed a written report before the Officer-in-Charge, Laheri Police Station, for instituting first information report against the officials as well as the contractor under Ss. 406, 409, 420, 120B of the Indian Penal Code as well as u/s. 13(2) read with 13(1)(d) of the Prevention of Corruption Act for preparation of entries and non-recovery of unconsumed bitumen kept with the contractor and sales tax, royalty from contractor. 406, 409, 420, 120B of the Indian Penal Code as well as u/s. 13(2) read with 13(1)(d) of the Prevention of Corruption Act for preparation of entries and non-recovery of unconsumed bitumen kept with the contractor and sales tax, royalty from contractor. Laheri P.S. Case No. 88 of 2006 was, thus, instituted against all the accused persons named in the first information report. 7. The institution of the police case, submission of the charge-sheet and the order taking cognizance have been challenged by the petitioners on following grounds: (i) Petitioners, who are Executive Engineer, Assistant Engineer or Junior Engineers connected with the work of strengthening and widening of the road have absolutely played no role either in the matter of the sanction, payment, estimate and the official measurement of the work. They have just executed the work as per the guidelines and directions from superior authority like, Chief Engineer, Superintending Engineer, as such, the allegation regarding sanctioning of excess amount for same work has no concern with the petitioners. (ii) For the same charge a departmental proceeding was also initiated against some of the petitioners and they have been exonerated in the departmental proceeding. In the given circumstances, continuation of criminal proceeding for same charges will be an abuse of the process of the Court. (iii) The admitted documents on the record which are part of investigation clarifies that the petitioners have absolutely no role in the matter of sanction of estimate, and payment, as such, they cannot be prosecuted for this charge. (iii) Letter No. 651, dated 13.6.2006, of the Executive Engineer (informant) in response to letter no. 5265, dated 22.5.2006, issued by the Chief Vigilance Officer, Road Construction Department, directing to institute first information report had clearly explained that recovery of the cost of unconsumed bitumen kept with the contractor, sales tax royalty from contractors have already been made, shows that foundation of the instant case is interlinked to non-recovery of cost of bitumen, sales taxes and royalty from the official bill of the contractors. There was no reason for initiating any criminal case. So far the engineers are concerned, they were not even remotely connected with either realization of penal rate of the bitumen, taxation or royalties on account of their superannuation, cannot be held liable or be prosecuted for such charge. There was no reason for initiating any criminal case. So far the engineers are concerned, they were not even remotely connected with either realization of penal rate of the bitumen, taxation or royalties on account of their superannuation, cannot be held liable or be prosecuted for such charge. (iv) The allegation of inferior quality of material used in road is wholly baseless since technical examination cell of Cabinet Vigilance Department categorically speaks that the quality of bitumen arfd quality of metals used in construction were found as per specification. (v) Allegation do not prima facie make out offence under alleged offences. 8. In order to appreciate the grounds, which have been taken by the petitioners, brief facts of each case is necessary to be discussed. C.W.J.C. No. 30150 of 2006 9. Petitioner, Ramdeep Singh, joined as Assistant Engineer/S.D.O., Road Construction Department at Biharsharif, in 1997 and continued there up to 30.6.2000, i.e., the date when he retired on attaining the age of superannuation. His case is that he was made incharge for construction of Biharsharif Ekangarsarai Telhara Road from kilometers 1 to. 16 out of which the road up to kilometers 1 -8 was constructed during his tenure, as he retired in the midst of the construction work. Being the S.D.O. he had a limited role to play in the matter of construction and absolutely no role to play in the matter of either sanctioning of the estimate or the final measurement work and payment. His role was like a post office to transmit information, guidelines, directions, received from superiors to downward Junior Engineers and to make aware the superior authorities regarding problem and complains of junior officer for necessary guidelines. There was absolutely no complaint from any corner about the quality of construction and upkeep of the said road up to 1-8 kilometers which was constructed during the petitioners tenure. So far the construction of the entire road is concerned, he cannot be held responsible. Even in the enquiry report conducted by the Vigilance Cell, construction and upkeep of road from 1-8 kilometers was found satisfactory and the material used were found up to the mark. After his superannuation he has been granted pension and post retiral benefits considering his service thoroughly satisfactory. After six years of his superannuation he cannot be prosecuted for those acts and omissions which were done thereafter. After his superannuation he has been granted pension and post retiral benefits considering his service thoroughly satisfactory. After six years of his superannuation he cannot be prosecuted for those acts and omissions which were done thereafter. Further, it has been stated that the documents which are part of investigation, as such, admitted document also indicate that prima facie no case is made out against him for making out any offence alleged and for which cognizance has been taken. It is a case which can be categorized as case of no evidence, as such, continuation of criminal proceeding will amount to an abuse of the process of the Court. Cr. Misc. No. 13205 of 2007 10. There are seven petitioners in this application. Petitioner No. 1, Vashishth Narain, was posted as Executive Engineer for the period 7.1.1999 to 5.7.1999. Petitioner No. 2, Ram Lakhan Kumar Sinha, was posted as Assistant Engineer for the period 1.2.2001 to 31.3.2002, i.e., the date when he retired from his service. Petitioner No. 3, Nand Kishore Prasad, was posted as Assistant Engineer for the period 31.1.1999 to 26.4.1999. Petitioner No. 4, Udai Narain Yadav, was posted as Assistant Engineer for the period 27.1.1999 to 31.1.2001. Petitioner No. 5, Vinod Kumar, was posted as Assistant Engineer from 1.7.2000 to 7.7.2005. Petitioners No. 6 and 7, namely, Md. Israfil and Vimaleshwar @ Vimalesh Kumar Sinha, were posted as Junior Engineers. Departmental enquiry was initiated against petitioner No. 1, Vashishth Narain, petitioner no, 3, Nand Kishore Prasad, petitioner no. 5, Vinod Kumar, and petitioner no. 7, Vimleshwar @ Vimalesh Kumar Sinha. They were exonerated from all charges. Petitioners case is that from the enquiry report it is evident that petitioners had no concern with the preparation of estimates. The estimates were sanctioned by the Technical Chief Engineer, Central Design Organization. The excess of bitumen supplied to the contractor even at penal rate was already recovered from the final bill of the contractor, therefore, the allegation of non-recovery at penal rate against unused bitumen is contrary to the materials on record and misconceived. The allegation regarding non-checking of entry has also been found false in the departmental proceeding. So far allegation of sub-standard is concerned, if is non-existent, considering the report of Technical Examiners Cell report. The period of extension for completing the work was done by the Engineer-in-Chief and the petitioners had no concern with it. The allegation regarding non-checking of entry has also been found false in the departmental proceeding. So far allegation of sub-standard is concerned, if is non-existent, considering the report of Technical Examiners Cell report. The period of extension for completing the work was done by the Engineer-in-Chief and the petitioners had no concern with it. So far the final 14th bill is concerned, it was sanctioned by the informant, Executive Engineer, himself after being satisfied with the work done, but he has not been made accused in this case. The royalty sales tax etc. were recovered from contractors bills, which is evident from informants own letter, dated 13.6.2006, contained in letter no. 651. In the given circumstance, the entire prosecution case itself is baseless contrary to records and its continuation will amount an abuse of process of the Court. Cr. Misc. No. 3908 of 2007 11. Petitioner, Dhirendra Prasad Srivastava, was posted as Executive Engineer, Road Division, Bihar, from 6.7.1999 to 30.6.2007. During his tenure as Executive Engineer, 8th to 13th account bills of the Biharsharif Ekangarsarai Laheri Road were passed and that time work was in full swing. Petitioners case is that the accounts bills are disposed of only on recommendation of the Divisional Accounts Officer. So far the adjustment of finance to be recovered from the contractors are concerned, it could have been done only after submission of final bill, i.e., the 14th bill. The 14th bill was passed by the informant, who was the then Executive Engineer and had joined after the transfer of the petitioner. Since the final was not submitted during the tenure of the petitioner, as such, for non-realization of the cost of surplus bitumen, at penal rate or realization of sales tax, royalty or any other dues the then Executive Engineer is answerable. The petitioner was relieved on 30.6.2001 leaving the work in progress and the responsibility to complete the work was of his successor Executive Engineer, who passed the final bill. Cr. Misc. No. 35189 of 2006 12. Petitioner, Rama Kant Singh, in the present application is contractor. He submitted his tender in response to the tender notice published for the construction of work vide advertisement, dated 11.2.1998. His tender was found to be most responsive and the work was allotted to him vide work order, dated 18.8.1999, issued by the Chief Engineer. No. 35189 of 2006 12. Petitioner, Rama Kant Singh, in the present application is contractor. He submitted his tender in response to the tender notice published for the construction of work vide advertisement, dated 11.2.1998. His tender was found to be most responsive and the work was allotted to him vide work order, dated 18.8.1999, issued by the Chief Engineer. He entered into an agreement for construction of work in terms of agreement no. 111FE/98-99. The total cost of construction work was Rs. 4,28,78,945.00. Since, the work was to be done in the naxal infected area, as such, the construction work faced serious law and order problem due to naxal activities. The work could not be completed within schedule time due to law and order problem as well as financial constraint. In terms of agreement the liability of the contractor to maintain the constructed road was only for six months. The petitioner, as per the estimate was provided with 1624.28 metric tonne bitumen out of which 28.884 metric tonne bitumen was transferred to the construction site at Fatuha Hilsa Ekangarsarai Road. Thus, total 1595.396 metric tonne bitumen was only handed over to the petitioner by the respondents. The construction work was to be completed in the year 1999 itself, but, due to intervening circumstances the period was extended on two occasions and finally it was completed on 1.6.2001. So far quality and standard of construction is concerned, there is no allegation against the petitioner, only allegation relates to supply of surplus bitumen and non-payment of cost of the surplus bitumen at penal rate recoverable from the contractor in terms of special condition in agreement. Clause 12 of the agreement provided that in case of excess supply the contractor would be liable to pay double the cost of unused excess bitumen at penal rate. 13. Further, case of the petitioner is that he filed C.W.J.C. No. 6773 of 2006 against the illegal and arbitrary demand of the Executive Engineer for payment of cost at penal rate for surplus bitumen on the basis of special condition of Clause 12. He challenged the demand on the ground that condition is not attracted in the case as the bitumen supplied to the petitioner by the Department was within the estimate and not excess. He challenged the demand on the ground that condition is not attracted in the case as the bitumen supplied to the petitioner by the Department was within the estimate and not excess. The writ application has been allowed vide order, dated 27.4.2007, and the letter issued by the respondent, Executive Engineer, for realization of penal cost of the excess bitumen in terms of Clause 12 of the agreement has been quashed. The respondents were directed to issue fresh demand letter in terms of Clause. 12 of the special agreement. In the light of the order passed in the writ application the respondents issued fresh demand letter and the same has already been paid by the petitioner. In the given circumstance, the charge for which the petitioner is being prosecuted in the criminal case has become non-existent, as such, the proceeding is liable to be quashed. 14. Counter affidavits have been filed in all cases stating that for construction excess bitumen, than the required for execution of the work was released in favour of the contractor. Remaining bitumen was not deducted/recovered at the penal rate. Thus, the officials in connivance with the contractor tried to embezzle the State Governments money for wrongful gain. The amount of sales tax and royalty was not deducted from the contractors bill. Thus, considering the financial irregularities criminal case was instituted against erring officers. Anyone who were connected with the construction had liability to discharge their duty but they have failed, as such, case has been instituted against them. It has also been stated in the counter affidavit that during investigation it was found that the accused persons were fully responsible for execution of the work and matter related to it. The investigating officer has submitted a detailed charge-sheet against all the accused persons. At this stage, there is no reason for quashing the first information report or the order taking cognizance. 15. Mr. Shashi Anugrah Narain, counsel appearing for the petitioner, Ramdeep Singh, has submitted that the cognizance has been taken against the petitioner without considering these documents which are of admitted nature and part of investigation. The documents indicated that prima facie no case is made out against the petitioner. 15. Mr. Shashi Anugrah Narain, counsel appearing for the petitioner, Ramdeep Singh, has submitted that the cognizance has been taken against the petitioner without considering these documents which are of admitted nature and part of investigation. The documents indicated that prima facie no case is made out against the petitioner. In support of this contention it has been stated that the present case has been instituted at the instance of the District Magistrate, Nalanda, who requested the Cabinet Vigilance Department to enquire into the work and submit the report. The Vigilance Cell, Road Construction Department, inspected the road in the year 2002, i.e., after more than two years of petitioners retirement. A stale spot inspection report was submitted. Even this Vigilance report, admits that there was no compromise so far the quality of the metals and quantity of the bitumen is concerned. They were found as per specification. Vigilance report did not disclose any financial irregularity. The vigilance report being the basis for institution of first information report, which did not disclose any irregularity. There was no reason for initiating criminal case. Allegation relating to financial irregularity in payment of realization of cost for surplus bitumen has no concern with him. Informant himself cleared and approved final bill, as such, responsible for same. This blame cannot be fixed against any other person. So far the allegation regarding issuance of excess bitumen is concerned, petitioner superannuated in the midst of the construction work, liability cannot be fixed against him. 16. Counsel for the petitioners submits that he is very much conscious to this fact that defence of an accused cannot be analyzed by the Magistrate at the stage of cognizance. The settled law is that even at this stage admitted documents which are part of investigation need to consideration by the Magistrate. This is essential for finding out whether prima facie case is made out. The admitted documents, which are part of investigation have been mentioned at paragraphs 39 and 213 of the case diary. At paragraph 39 representation of the petitioner, dated 22.5.2006, addressed to the Commissioner-cum-Sec-retary, Road Construction Department, prior to institution of the case ha been mentioned. Similarly, letter no. 651, dated 13.6.2006, written by the Executive Engineer to the Chief Vigilance Officer, Road Construction Department, is also part of the case diary. At paragraph 39 representation of the petitioner, dated 22.5.2006, addressed to the Commissioner-cum-Sec-retary, Road Construction Department, prior to institution of the case ha been mentioned. Similarly, letter no. 651, dated 13.6.2006, written by the Executive Engineer to the Chief Vigilance Officer, Road Construction Department, is also part of the case diary. This letter shows that the recovery of the cost of bitumen, sales tax royalty have already been made from the contractor and there was no need for institution of the first information report. In this letter there is reference of petitioners representation, dated 22.5.2006. The order of cognizance must indicate that a prima facie case is made out for the alleged offences. So far the first information report of the present case is concerned, it related to non-existent fact, as such, the continuation of criminal proceeding needs to be quashed. The order of cognizance also shows that the admitted evidence already on record of the case were not taken into consideration. Though prima facie case was not made out, in a mechanical manner cognizance has been taken, which amounts to an abuse of the process of the Court. The counsel for the petitioners has placed reliance on a decision Brahmdeo Thakur V/s. The State of Bihar & Ors., 2008 1 PLJR 82 . In this decision it has been held "every High Court has inherent power to act ex debito justitiae today to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the Court. Inherent power can be exercised:(i) to give effect to an order under the Code, (ii) to prevent abuse of the process of the Court, and (iii) to otherwise secure ends of justice". 17. The counsel appearing for the Central Bureau of Investigation submits that the inherent power should not be exercised to stifle legitimate prosecution. High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy. 17. The counsel appearing for the Central Bureau of Investigation submits that the inherent power should not be exercised to stifle legitimate prosecution. High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy. Moreso, when the evidences are yet to be collected and produced before the Court for reaching a final conclusion relating to the innocence of the accused, a case like the present one where the issues involved are of such magnitude that they cannot be seen in true perspective without all evidences are adduced before the Court, in such cases, the High Court should refrain from exercising extraordinary jurisdiction for quashing the entire criminal proceeding. 18. Considering the submissions of the parties, material in the case diary and the admitted documents which are part of the investigation, I find that the foundation of the first information report is non-realization of cost at penal rate for surplus unused bitumen, in terms of Clause 12 of Agreement 111F2. The Chief Vigilance Officer, Road Construction Department, vide letter no. 5265, dated 22.5.2006, directed the Executive Engineer for instituting a criminal case against the Executive Engineer, Assistant Engineer, Junior Engineer and the contractor. In response to this the present informant, who is an Executive Engineer, vide his letter no. 651, dated 13.6.2006, replied that there are no allegations so far the recovery of the cost of unconsumed excess bitumen kept with contractor and payment of sales tax royalty are concerned, payments, realization have already been made. In sum and substance the Executive Engineer tried to impress that there was no existing reason for institution of a criminal case. In spite of that on 24.6.2006 Laheri P.S. Case No. 88 of 2006 was instituted. Petitioners submission is that the case was instituted simply because the respondents were directed to file counter affidavit in C.W.J.C. No. 6773 of 2006. That writ application has also been decided in favour of Ramakant Singh, the contractor, an accused in the present case. The demand raised by the Executive Engineer for excess supplied unconsumed bitumen was quashed and the Executive Engineer was directed to raise fresh demand in terms of Clause 12 of Agreement 111F2. A fresh demand, thereafter, has been raised that all payments made by the contractor. In the given circumstance, the basis for institution of criminal case itself has become non-existent. A fresh demand, thereafter, has been raised that all payments made by the contractor. In the given circumstance, the basis for institution of criminal case itself has become non-existent. In the report of the Vigilance Celt there is no allegation relating to the quality of metals supplied and used, quantity of bitumen used and excess payment to the contractor. First information report itself has been instituted for non-existent facts. It has already been pointed out by the petitioners that the continuation of criminal proceeding will be an abuse of the process of the Court and harassment of the petitioner in a case which is based on non-existent facts. 19. I also find that the documents pointed out by the petitioners in support of their submission are part of the case diary. These documents should have been considered by the Magistrate in order to reach to the conclusion that a prima facie case is made out against the petitioners for the alleged offences. 20. The counsel for the Central Bureau of Investigation has vehemently opposed the submission of the counsel for the petitioners relating to the consideration of admitted documents by the Magistrate. He has submitted that the order passed by the High Court in C.W.J.C. No. 6773 of 2006 brought on record by way of an affidavit needs no consideration for quashing of the order taking cognizance. The counsel for the Central Bureau of Investigation in support of his submission has placed reliance on decisions Smt. Ramayani Devi V/s. The State of Bihar, 2006 2 PLJR 357 , Babi Sinha V/s. The State of Bihar & Anr., 2006 1 PLJR 629 , State of Bihar V/s. Shri P.P. Sharma, I.A.S. & Anr., 1991 2 PLJR 11 and R. Gopalkrishnan V/s. Union of India, 2004 3 PLJR 434 . All these decisions have no application in the present case considering that prayer of petitioners in all these cases were for quashing the first information report and not after completion of investigation. In the present case investigation is complete, charge-sheet submitted and order of cognizance has been passed. 21. Another ground which has been taken by the petitioners for quashing of the entire criminal proceeding as well as order taking cognizance is that for identical charges departmental proceeding was initiated against the petitioners, who are still in service. In the present case investigation is complete, charge-sheet submitted and order of cognizance has been passed. 21. Another ground which has been taken by the petitioners for quashing of the entire criminal proceeding as well as order taking cognizance is that for identical charges departmental proceeding was initiated against the petitioners, who are still in service. The enquiry officer considering all evidences, which were produced by the department as well as the show cause submitted by the delinquent officials, submitted enquiry report. The enquiry report indicated that there was no compromise in quality of the work, no financial irregularity was committed, the enquiry officer exonerated the petitioners from all charges framed against them. The petitioners submission is that in order to prove guilt in a criminal case far more higher proof than required to establish the guilt in the departmental proceeding is required. In the instant case the department, who is also a prosecutor in the criminal case failed to prove charges in departmental proceeding. The charges being identical, the question arises whether in a criminal proceeding similar charges can be proved. In support of this submission reliance has been placed on decisions P.S. Rajya V/s. The State of Bihar, 1996 9 SCC 1 and Om Prakash Gupta V/s. The State of Bihar, 2002 2 PLJR 238. In these two decisions the case of State of Haryana V/s. Bhajan Lal, 1992 Supp1 SCC 335 has been considered. It has been held "the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceeding. In the instant case the charge in the departmental proceedings and in the criminal case is one and the same. If the charge which is identical could not be established in a departmental proceeding and in lieu of the admitted discrepancy in the reports submitted by the valuers one wonders what is there further to proceed against appellant in criminal proceeding". 22. I find that the case of the petitioner is fully covered by the decisions relied by them. It is also a case which can be brought under more than one heads of guidelines laid down in Bhajan Lals case. The order taking cognizance as well as criminal proceeding is fit to be quashed. 23. 22. I find that the case of the petitioner is fully covered by the decisions relied by them. It is also a case which can be brought under more than one heads of guidelines laid down in Bhajan Lals case. The order taking cognizance as well as criminal proceeding is fit to be quashed. 23. Counsel for the petitioner, Ramakant Singh, has submitted that the foundation for institution of the present case was non-recovery of the cost of surplus unconsumed bitumen as well as non-realization of sales tax royalty from the petitioner, who is contractor. The letter no. 651, dated 13.6.2006, of the Executive Engineer is self-explanatory to this effect that cost of bitumen sales tax and royalty were realized prior to institution of the case. The foundation of first information report was false as on completion of the work the bills were prepared measurement were taken. So far the standard of quality of the work is concerned, there was no allegation, which is evident from the finalization of the official bill by the Executive Engineer. The sales tax and royalty were adjusted from the official bill of the petitioner in spite of that for realization of penal rate for the alleged excess bitumen the petitioner was intimated through a demand letter. He filed C.W.J.C. No. 6773 of 2006. In this writ application when the respondents were directed to file their counter affidavit, as a counter blast first information report was instituted. The writ application was allowed, excess demand made by the Executive Engineer for realization of penal rate for the alleged excess bitumen was quashed. Respondents were directed to issue fresh demand in accordance with law. Fresh demand was issued and entire payment has been made. Now nothing remains to be paid for which allegation of embezzlement can be made. Otherwise also lodging of criminal case for realization at penal rate of bitumen was ex facie an abuse of criminal case. It was a civil dispute for which several provisions were there in the agreement itself, without exhausting that forum criminal case was instituted. I find much substance in the submission and good ground for quashing of the order taking cognizance. In the given facts and circumstances, continuation of the criminal proceeding will be an abuse of the process of the Court. 24. I find much substance in the submission and good ground for quashing of the order taking cognizance. In the given facts and circumstances, continuation of the criminal proceeding will be an abuse of the process of the Court. 24. The counsel for the petitioners has also submitted that the cognizance has been taken for offences under Sections 406, 409 and 420 of the Indian Penal Code. The allegations made in the first information report do not make out a case of cheating. There is no allegation that right from very inception there was intention on the part of the petitioners to cheat. So far the sanctioning of the cost of the project, extension of time for complying the work and approval of the final bill for payment are concerned, petitioners are not responsible. There can be no presumption that they had any intention right from beginning for cheating or embezzlement for the offences which have been alleged. The case has been instituted merely on suspicion and such proceeding cannot continue for harassment of the petitioners. 25. In the light of the discussions, made above, and the findings, recorded in the decisions, relied upon by the parties as well as the material on record of the case, I am of the view that the present case comes in those categories in which continuation of the criminal proceeding will amount to an abuse of process of the Court. 26. Accordingly, the order taking cognizance as well as the entire criminal proceeding is quashed. 27. These applications are allowed.