JUDGMENT : 1. This Revision has been filed by the applicant-State of Madhya Pradesh through Special Police Establishment, Lokayukt Office Ujjain, against the impugned order of discharge of non-applicants, passed by learned Special Judge (under Prevention of Corruption Act), Mandsaur in Special Criminal Case No. 2/2007. Order dated 25-9-2007, from the charges under section 13(1)(d), 13(2) and 15 of Prevention of Corruption Act, 1988 (for short hereinafter referred to as "Act") read with section 120-B of the Indian Penal Code (for short "the IPC") 2. The necessary facts for deciding this Revision are as follows :- (i) On 29-12-2006 applicant filed a charge-sheet before the Special Judge, Mandsaur against non-applicants for commission of offences under section 13(1)(d), 13(2) and 15 of the Act read with section 120-B of "the IPC", 1860. According to charge-sheet filed under section 173 of the Criminal Procedure Code, prosecution case is that the State of M. P. had granted contract to non-applicants No. 2 and 3 herein for construction of Ratlam-Nasirabad by-pass road, in total 14 k.m., going from outside Mandsaur town under Built, Operate and Transfer scheme (for brevity "BOT"). Estimated cost for construction was Rs. Five Crore and this cost was to be borne by contractor. An agreement was executed for this purpose between the parties and according to this agreement, apart-from construction of road contractor was to construct one bridge, 2 medium bridges and 10 small culverts. Contractor was also required to construct the road, construction of toll tax booth, barriers, affixing of boards, plantation, wire fencing, truck parking etc. Work Order was given to contractor on 6-10-1997 and he started construction of road. The time of completion of work was 24 months, minus period of rainy season from the date of receiving Work Order. It was agreed between the parties that after completion of construction in two years, the contractor will collect toll tax from the vehicles which would go from the said road. It was also agreed that if contractor would complete the work before stipulated period, then for remaining period also he will collect the toll tax. Contractor, non-applicants No. 2 and 3, shown completion of work in the month of June, 1998; only in eight months but it was incomplete, inferior work and not as per specification as per terms of contract. Contractor, non-applicants No. 2 and 3, shown completion of work in the month of June, 1998; only in eight months but it was incomplete, inferior work and not as per specification as per terms of contract. He with the help of officials of Public Works Department, Mandsaur (for short "PWD"), started preparation of getting work completion certificate. At that juncture, an anonymous complaint was received by applicant regarding corruption in construction of road on the basis of which on 26-6-1998 Preliminary Enquiry No. 17 of 1998 was registered and the then team of officers of applicant reached on the spot and on the basis of preliminary enquiry; they came to the conclusion that prima facie case was made out for registration of the crime and registered the Crime No. 128 of 1998 for the above-mentioned offences, and started investigation with the help of two specialist Civil Engineers of Govt. Engineering College, Ujjain. They took six samples from different-different places after inspection of constructed road and also seized all relevant documents from the office of Executive Engineer, PWD Mandsaur regarding measurement book, work completion report etc. The samples were taken by specialist of Govt. Engineering College, Ujjain for analysis and according to analyst's report, construction of road was not done as per terms and conditions and specification, as mentioned in the contract, and construction was much below standard. Investigation agency collected time schedule chart of the contractor and gave the same to the specialist. The then Sub Engineer Shri Agrawal sent a letter to the then Executive Engineer Shri A. K. Shah dated 16-2-1998 informing about use of below standard material. Contractor, non-applicant No. 2 Punit Agrawal, was apprised of this fact, despite of that contractors were using below standard material for construction. On 8-1-1998 contractor had submitted an application before Executive - Engineer Shri Shah regarding grant of permission to change specification for construction of road. This application was sent to the then S.D.O. Shri P. N. Vajpayee for submitting his opinion alter inspection, and Shri Vajpayee submitted his report, wherein opined that no reasonable cause existed for change of specification. On 8-1-1998 contractor had submitted an application before Executive - Engineer Shri Shah regarding grant of permission to change specification for construction of road. This application was sent to the then S.D.O. Shri P. N. Vajpayee for submitting his opinion alter inspection, and Shri Vajpayee submitted his report, wherein opined that no reasonable cause existed for change of specification. (ii) It was also found that the then engineers of PWD department Shri A. K. Shah, Shri P. N. Vajpayee, Shri T. R. Kolhekar and Shri M. P. Bohra had not discharged their duties and responsibilities for construction of road by the contractor, as per terms and conditions of the agreement and road was also not got constructed as per specification and contractor had shown completion of work only in eight months, which was in fact not the complete work and after hatching conspiracy with aforesaid engineers as well as non-applicant No. 1 Shri Rokde, started procedure for preparing work completion report so that contractor may be given authority to collect toll tax for 1551 days and remaining 16 months as per terms and conditions of the contract, and would get financial gain. In the charge-sheet several technical non-compliances were shown, which were necessary for construction of road as per specification and terms and conditions of the contract. The below standard material was also used and in fact road was also not fully and properly completed. For all these purposes video recording and photographs were also taken and filed along with the charge-sheet. (iii) It is also alleged that non-applicant No. 1, the then engineer Shri D. K. Rokde, took charge on 14-9-1998 at Mandsaur and issued notice to contractor for completion of work according to specification but immediately on the next day i.e. on 15-9-1998 he issued work completion certificate to the contractor and sent recommendation to Government for grant of permission to the contractor for collecting toll tax. All this was done after hatching conspiracy for collecting more toll tax from public by using incomplete and below standard road for extra 16 (sixteen) months, thereby committed aforementioned offences. The charge- sheet was filed only against non-applicants because sanction was not granted by the State Govt. All this was done after hatching conspiracy for collecting more toll tax from public by using incomplete and below standard road for extra 16 (sixteen) months, thereby committed aforementioned offences. The charge- sheet was filed only against non-applicants because sanction was not granted by the State Govt. for prosecution of engineers Shri A. K. Shah, Shri P. N. Vajpayee, Shri T. R. Kolhekar and Shri M. P. Bohra, and there was no need of sanction to prosecute non-applicant No. 1, the then Executive Engineer Shri D. K. Rokde because he retired on 31-8-2000 and non-applicants No. 2 and 3 are not the public servant. On 18-9-2007 an application was filed by the non-applicants under section 227 of the Criminal Procedure Code for their discharge, on the ground that no prima facie case was made out against them. The application was orally opposed by the counsel for the applicant. (iv) The learned trial Court allowed the application and passed the impugned order of discharge of non-applicants, against which applicant has filed this Revision. 3. We have heard the learned counsel for the parties at length and also perused the record. 4. Learned counsel for the applicant has submitted that learned trial Court has failed to consider scope for interference at the stage of framing of charge and transgressed the limit by detailed appreciation of material available in the charge-sheet, as if it was passing the final judgment and that learned trial Court has also taken into consideration several documents filed by accused persons/non-applicants herein, whereas same could have not been looked into, because at the stage of charge the defence documents cannot be taken into consideration. In support of his contention, learned counsel has cited authorities of Supreme Court passed in cases of :- (i) State of Orissa vs. Debendra Nath Padhi, AIR 2005 SC 359 (ii) State of Himachal Pradesh vs. Krishan Lal Pardhan and others, AIR 1987 SC 773 (iii) Hem Chand vs. State of Jharkhand, AIR 2008 SC 1903 (iv) Central Bureau of Investigation vs. V. K. Bhutiani, 2009 (10) SCC 674 (v) P. Vijayan vs. State of Kerala and another, JT 2010 (I) SC 459. 5. 5. To combat with, learned counsel for the non-applicants has submitted that documents filed on behalf of the non-applicants before the trial Court, where the certified copy of High Court order passed by learned Single Judge dated 24-11-1998 in W. P. No. 1615/1998; against this Order applicant submitted Letters Patent Appeal (for short "LPA") No. 9/1999 and same was decided on 11-4-2000 between same parties regarding subject-matter of construction of same road by learned Division Bench, by which the learned Division Bench had decided the issue involved between the parties. Learned counsel for the non-applicants has also filed the copy of the departmental enquiry report, whereby non-applicant No. 1 was discharged. Learned counsel has also pointed out that in similar matter there was departmental enquiry against the non-applicant No. 1, wherein non-applicant No. 1 has been exonerated from the charges, therefore, no case is made out for framing of charge and allowing the continuation of the trial. Learned counsel for the non-applicants has placed reliance on the following judgments :- (i) P. S. Rajya vs. State of Bihar, 1996 SCC (Cri) 897 (ii) Pankaj Kumar vs. State of Maharashtra and ors., 2008 Cri.L.J. 3944 (iii) Union of India vs. Prafulla Kumar Samal and another, 1979 (3) SCC 4 (iv) State of Madhya Pradesh vs. Sheetla Sahai and others, 2009(8) SCC 617 6. On due consideration, we do not find any force in the argument of learned counsel for the applicant that learned trial Court has placed reliance on additional documents than the documents filed by investigating agency along with the charge-sheet. The list of documents, at serial No. 10, in the charge-sheet is clearly pointing out that the certified copies of the W.P., L.P.A. and orders of the High Court were filed by the investigating agency, vide page No. 1 to 99. Learned trial Court has also mentioned this fact specifically in paragraph 11 and 12 of the impugned order of discharge that copies of the writ petitions, reply, rejoinder, orders of the High Court and copy of the L.P.A. filed by State Government and orders passed therein by Division Bench of the High Court, were filed along with the charge-sheet. Learned trial Court has also mentioned this fact specifically in paragraph 11 and 12 of the impugned order of discharge that copies of the writ petitions, reply, rejoinder, orders of the High Court and copy of the L.P.A. filed by State Government and orders passed therein by Division Bench of the High Court, were filed along with the charge-sheet. Therefore, learned trial Court has not committed any error in taking into consideration the material available in these documents for the purposes of deciding the application under section 227 of the Criminal Procedure Code filed by the non-applicants, because all these are the parts of the charge-sheet. 7. Non-applicants had filed only departmental enquiry report exonerating the non-applicant No. 1 Executive Engineer Shri D. K. Rokde from the alleged charges. This document is not part of the charge-sheet. 8. The core question for this Court to decide is whether on the basis of orders passed by High Court in W. P. No. 1615/1998 dated 24-11-1998 which was challenged in LPA No. 9/1999 and Departmental Enquiry report can be made basis for discharge of the non-applicants? 9. For proper and effective appreciation of factual legal position, it would be apt to reproduce sections 13(1)(d), (2) and 15 of the Act as well as section 120-A and 120-B of "the IPC". Prevention of Corruption Act, 1988, section 13. - Criminal misconduct by a public servant. - (l) A public servant is said to commit the offence of criminal misconduct.- (a) ******************** (b) ******************** (c) ******************** (d) if he, - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or Prevention of Corruption Act, 1988 section 13(2) - Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. Prevention of Corruption Act, 1988 section 15. Prevention of Corruption Act, 1988 section 15. - Punishment for attempt.-Whoever attempts to commit an offence referred to in clause (c) or clause (d) of sub-section (1) of section 13 shall be punishable with imprisonment for a term which may extend to three years and with fine. Definition of criminal conspiracy. Section 120A, Indian Penal Code. - When two or more persons agree to do, or cause to be done, - (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy : Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Punishment of criminal conspiracy. Section 120B, Indian Penal Code.- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with dealt, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. 10. According to the charge-sheet, an anonymous complaint (document No. 1; page 1 to 3) was received in Lokayukt office, Bhopal, on the basis of which on 26-6-1998 Preliminary Enquiry No. 17 of 1998 was registered and team of Special Police Establishment, Ujjain reached at the place of construction of by-pass road Mandsaur. On the basis of Preliminary Enquiry FIR Cr. No. 128 of 1998 for the above mentioned offences were registered and after completion of investigation, the charge-sheet was as mentioned hereinabove, against the non-applicants. 11. During the pendency of investigation, in the name of firm M/s Prakash Asphaltings, W. P. No. 1497/1998 was filed by non-applicants No. 2 and 3 seeking direction by High Court to State of M. P. to give permission to collect toll tax on the basis of completion certificate dated 15-9-1998 issued by non-applicant No. 1, the then Executive Engineer Shri D. K. Rokde. The learned Single Judge passed the following order on 15-10-1998 at motion stage, which is as under :- "Shri K. G. Maheshwari with Shri Umesh Maheshwari, learned counsel for the petitioner. They are heard and perused the annexures. From the submissions advanced by Shri Maheshwari there is scope to believe that the concerned authority should have been taking steps for rendering the relief to the petitioner which has been prayed for by this writ petition. The petitioner is hereby directed to move an application again to the same authority with a request to expedite the decision in the context of construction of the said bye-pass. This Court hopes that a speedy action would be taken by the said agency in respect of the permission to operate the toll cost. 12. It appears that State had not taken any action in pursuance of the aforementioned order. The non-applicants No. 2 and 3 again filed W. P. No. 1615/1998 and after hearing both the parties order was passed on 24-11-1998, which reads as under :- Shri K. G. Maheshwari with Shri M. M. Asudani, for the petitioner. Shri Sekhar Bhargava, learned Addl. Advocate General with Shri S. H. Sen, Govt. Advocate for the respondents. Dr. M. Dalal for the proposed intervener, Naresh Tiwari. With consent arguments heard on merits. ORDER In this petition filed under Art. 226 of the Constitution of India, petitioner has prayed for a direction to be issued to respondent No. 1 to publish a Notification for collection of toll tax by the petitioner pursuant to the Completion Certificate dated 15-9-1998, issued by Executive Engineer, P.W.D. Mandsaur Division. For deciding the said petition the facts, material for consideration, are mentioned herein-below: Respondents had published a detailed notice inviting sealed tenders (NIT) on 21-12-1995 from registered Contractors belonging to A-5 category upto 9-2-1995, for construction of Mandsaur by-pass starting from Km. 78/10 to Ratlam Nasirabad Road and rejoin it at Km. 92/2, having an approximate length of 14 kms on State Highway No. 31. This also included construction of bridges falling between the area of 14 kms. The petitioner submitted its tender. The construction was to be carried on under the Scheme known as "build, operate and transfer". Petitioner's tender being lowest, was accepted by the State Government. Petitioner started the work for completion of the road in right earnest. This also included construction of bridges falling between the area of 14 kms. The petitioner submitted its tender. The construction was to be carried on under the Scheme known as "build, operate and transfer". Petitioner's tender being lowest, was accepted by the State Government. Petitioner started the work for completion of the road in right earnest. It is the allegation of the petitioner that it completed the construction work much before the stipulated time. On completion of the work, with an intention to start collection of toll, petitioner made a request to respondent No. 3 for grant of necessary Completion Certificate. However, there appears to be some dispute with regard to the Completion Certificate issued to the petitioner, but the fact remains that the newly appointed Executive Engineer, Mr. D. K. Rokde has issued a Completion Certificate to the petitioner on 15-9-1998 (Annexure P-16). This was followed by another letter issued by the same Authority on 17-9-1998 giving details of his inspection and verification of the road constructed by the petitioner. Since even after issuance of Completion Certificate by the said Authority petitioner was not granted permission to collect toll tax as per the agreement entered into between the parties, the petitioner was constrained to approach this Court by filing W. P. No. 1497 of 1998. The said petition came up for consideration before the Court on 5-10-1998. On the said date the petition itself was disposed of by giving the following direction : "From the submissions advanced by Shri Maheshwari there is scope to believe that the concerned authority should have been taking steps for rendering the relief to the petitioner which has been prayed for by this writ petition. The petitioner is hereby directed to move an application again to the same authority with a request to expedite the decision in the context of construction of the said bye-pass. This Court hopes that a speedy action would be taken by the said agency in respect of the permission to operate the toll cost." Since even after expiry of considerable time, no action appeared to have been taken by the respondents, petitioner has once again approached this Court praying for the relief as mentioned in the petition. Show cause notice against admission was issued to the respondents. Respondents have submitted their reply opposing the prayer made by the petitioner. Show cause notice against admission was issued to the respondents. Respondents have submitted their reply opposing the prayer made by the petitioner. They have also raised preliminary objection regarding maintainability of the petition on the grounds that disputed questions of facts are involved in the petition which cannot be gone into in a petition under Art. 226 of the Constitution of India; that the petitioner has not exhausted the alternative remedy available to it by invoking Clause 17.1, whereby petitioner could have approached the Chief Engineer raising all these disputes, who was bound to have considered the same within a stipulated period. It has further been contended that looking to the nature of the contract and the amount involved, the petitioner can approach the Arbitration Tribunal under the provisions of M. P. Madhyastham Adhikaran Adhiniyam, 1983. Apart from this, they have also submitted that Shri Rokde could not have given a Completion Certificate as he had recently joined. Reference has also been made with regard to an investigation being done by Lokayukt and registration of a criminal case against the officers of the State and the petitioner by invoking section 120-B of the Indian Penal Code. Peripheral objection is with regard to the right of the petitioner to approach this Court, it being an assignee of the original Contractor. After the said reply was filed by the said respondents, petitioner has submitted its rejoinder, to which respondents have again submitted their reply. Before the petition could be heard and disposed of, there are two proposed interveners-Mr. Chhotelal and Mr. Naresh Tiwari, who claim some interest in this litigation. However, looking to the fact that this petition is being disposed of by giving further direction to the respondents, it is really not necessary to consider the application filed by the proposed interveners. After the matter being heard on the dates fixed for hearing, the Court felt that it would be in the fitness of things that the petitioner should be granted permission to collect the toll tax for the road constructed by it, but it should be under the supervision of Collector or his nominee. After the matter being heard on the dates fixed for hearing, the Court felt that it would be in the fitness of things that the petitioner should be granted permission to collect the toll tax for the road constructed by it, but it should be under the supervision of Collector or his nominee. With that intention in view, an order was passed by this Court on 19-11-1998 whereby the learned Additional Advocate General Shri Sekhar Bhargava was called upon to contact the Collector and to apprise him of the order passed by this Court on the said date and seek if he has any objection in the manner of collection of tax. Shri Bhargava has shown a letter written by the under Secretary dated 23-11-1998 praying for grant of further time of 15 days on the ground that the Collector or his nominee cannot be directed to collect the toll tax in absence of any relevant Rule available under the M.P. Toll Tax Act and the Rules framed thereunder. It is also mentioned that this being a policy matter can be decided only by The Hon'ble Minister. On account of the ensuing elections, no such decision can be taken. In the backdrop of this letter learned Addl. Advocate General Prayed for grant of time of 15 days. However, as the petition itself is being disposed of, keeping the interest of all concerned, including that of the respondents, therefore, the prayer for grant of further time of 15 days was rejected. A statement at Bar has been made by learned counsel appearing for petitioner that the petitioner has no objection, whatsoever, to cure the defects which have been pointed out by the Department provided the petitioner is allowed to collect the toll tax. Thus, this petition is disposed of with the following directions. The amount of Collection of Toll Tax on the aforesaid road and bridges thereon would be started immediately. The same would be done under the supervision of the Collector, Mandsaur or his nominee to be appointed by him. The petitioner itself would be keep the money so collected but shall continue to deposit the same with Dena Bank at Mandsaur, which shall be adjusted towards the loan obtained by the petitioner from Dena Bank, Jail Road Branch, Indore. The same would be done under the supervision of the Collector, Mandsaur or his nominee to be appointed by him. The petitioner itself would be keep the money so collected but shall continue to deposit the same with Dena Bank at Mandsaur, which shall be adjusted towards the loan obtained by the petitioner from Dena Bank, Jail Road Branch, Indore. In case the petitioner is required to employ any servants on its behalf so as to render possible help to the Collector or his nominee in collection of toll tax, then the expenses of those servants would be borne by the petitioner itself. The necessary amount required for rectification/ completion of the road would also be borne by the petitioner, meaning thereby, that no amount of toll collected would be adjusted by the petitioner or Collector or his nominee towards the aforesaid heads. Needless to say, that all the employees employed by the petitioner for rendering help to the Collector or his nominee would work under his supervision. Since 5-10-1998 the respondents have taken no steps for publication of the Notification. They may now do so after completion of all other formalities but it is clarified that for want of publication of Notification this process shall not be stopped. The Collector shall either start supervising the collection of tax forthwith or would appoint any of his nominee but not an Officer below the rank of Dy. Collector who would supervise collection of toll tax and comply with the Hon'ble Lokayukt would be free to complete the enquiry and investigation as it may deem fit in the facts and circumstances of the case. This order should not be treated as creating any impediment in completion of the investigation/enquiry by the Hon'ble Lokayukt. It is not in dispute that as per Clause 17.1 of the Agreement, the petitioner has a remedy of approaching Chief Engineer but in this case on such disputes being raised respondents agree that the same shall be placed before any other Chief Engineer, who has not dealt with the petitioner's matter, so that he may deal with the petitioner's matter, without prejudice. On a decision of the said Chief Engineer, the petitioner shall be at liberty to resort to the remedy that may be available to it, under the aforesaid clause. On a decision of the said Chief Engineer, the petitioner shall be at liberty to resort to the remedy that may be available to it, under the aforesaid clause. It is not in dispute, that in any case, respondents, at present, are not entitled to receive the amount of toll collected by the petitioner or by the Collector or his nominee. This is as per the terms and conditions of the agreement, entered into between the parties. Thus, in the considered opinion of this Court, by giving the aforesaid director) the respondent-State is not going to be put to any loss. Thus, looking to the facts and circumstances of the case and keeping in view the enquiry of both the parties, this order was thought fit to be passed. It cannot be disputed that the Court sitting to hear the petition under Art. 226 of the Constitution of India can mould the relief, to work out the equity. Only keeping this principle in mind I have heard and disposed of this petition. With the aforesaid observations as mentioned above, this petition stands finally disposed of. Parties to bear their own costs. CC to both on payment of necessary charges. 13. Against the above order, State had filed LPA No. 9/1999. It is made clear that during this period investigation by team of Lokayukt police was continue. On 13-4-1999 the learned Division Bench had passed the interim order, which is extracted herein-below :- Tenders were invited under 'B.O.T.' scheme from registered contractors belonging to A-5 category for construction of Mandsaur bye-pass starting from 78/10 KM to Ratlam-Nasirabad road rejoining at KM 92/2 for an approximate road length of 14 KM on State Highway No. 31. The contract also included construction of culverts, etc. 2. It appears that tender of respondent was found lowest and he was allotted the work vide order dated 6-10-1997. It is claimed by appellant that site was immediately handed over to him on the same day and he was to complete the contract work within 2 years from the date of commencement and in lieu thereof was entitled to collect toll tax for 1551 days from the date of scheduled completion and alternatively a date on which the work was completed before schedule in addition to 1551 days as per agreement. It further transpires that respondent obtained a completion certificate from the Executive Engineer In Charge on 15-9-1998 certifying that the work was completed by him from back date on 10-7-1998. It is this certificate which constitutes the basis of the dispute. According to appellant this Executive Engineer In Charge was transferred to the area only on 11-9-1998 and within three days he had issued back dated certificate for which he was facing departmental action and also a case was registered against him with Lokayukt. On the basis of this certificate, respondent filed W.P. No. 1615/98 before this court praying for a direction to appellant State for issuing a notification to allow him to collect toll tax on the constructed road as per his entitlement under the agreement. His case was that he had invested roughly round 9 crores and so on laying the road and completing other works but appellant was dilly dally in permitting him to collect the toll tax to recover the investment made by him which had caused loss and prejudice to him. On consideration of the matter writ Court taking in regard the interest of revenue involved an agreement requiring Collector Mandsaur to take steps for collection of toll tax on the road in question and to deposit the same in the respondent's loan account in Dena Bank. 3. Appellant State felt aggrieved of this arrangement and has filed this appeal questioning the writ court order on the ground that it had allowed respondent contractor a leaveway to collect toll tax without completing the work according to the prescribed specifications under the agreement. When this appeal was taken up for consideration, Shri Chitale, GA sought time to obtain instruction but looking to the casual approach adopted by the functionaries concerned, Engineer-in-Chief Shri Saxena was ordered to be summoned by court order dated 11-3-1999 to explore the possibility of mutual settlement. He has appeared today along with Shri D. D. Vyas, AAG and explained the position before the court. He insisted that respondent had left the work incomplete and also not adhered to the specifications and other requirements under the agreement and it would be too much to allow him to gain at the cost of the public road. 4. He has appeared today along with Shri D. D. Vyas, AAG and explained the position before the court. He insisted that respondent had left the work incomplete and also not adhered to the specifications and other requirements under the agreement and it would be too much to allow him to gain at the cost of the public road. 4. Given regard to the conflicting claims and assertions of the two sides and also the unhappy circumstances surrounding the completion certificate issued by the then Executive Engineer In Charge, we deem it appropriate to pass following interim directions with the consent of the parties present in the court : 1. A three member expert committee shall be convened by the Engineer In Chief who will be its convenor comprising of a retired Chief Engineers M/s G. S. Palnitkar, Surjitsingh and M.D. Arora. The committee will forthwith conduct the inspection of the disputed site in presence of the parties and after hearing them formulate the report regarding the completion of the work in accordance with the terms of agreement executed between the parties. This report shall be submitted to the court within 3 months from today. 2. Arrangements made by the writ court for collection of toll tax through Collector, Mandsaur shall continue till next date before the Court. List on 24-8-1999. Registry to furnish copies of the orders to AAG/Engineer In Chief for the members of committee also caused to be served on them by the Engineer In Chief. 14. On 11-4-2000 abovementioned LPA was finally decided and Division Bench of this High Court passed the following order, which reads as under :- This Letters Patent Appeal is directed against the judgment of Single Judge dated 24-11-1998 in Writ Petition No. 1615/98. Shortly stated, the matter arises in the following circumstances. 2. Tenders were invited under BOT scheme from registered contractors falling to A-5 Category for construction of Mandsaur by-pass starting from 78/10 Km. to Ratlam Nasirabad Road and rejoin it at Km.92/2 having an appropriate length of 14 Kms. on State Highways No. 31. The contract also included construction of culverts etc. Tenders of respondents' being lowest therefore, work was allotted to him vide order dated 6-10-1997. Site was handed over to the respondents immediately and he was to complete the work within 2 years from the date of commencement. on State Highways No. 31. The contract also included construction of culverts etc. Tenders of respondents' being lowest therefore, work was allotted to him vide order dated 6-10-1997. Site was handed over to the respondents immediately and he was to complete the work within 2 years from the date of commencement. In lieu of work so done he was entitled to collect toll tax for 1551 days from the date of schedule completion and alternatively a date on which the work was completed before schedule in addition to 1551 days as per agreement. Further stipulations are recorded in the contract which need not be referred here. Thereafter, it transpires the contractor gave completion report supported by certificate of Engineer on 15-9-1998. The appellant examined the matter and found that the work had not been completed as per the contract with the result that the contract could not start collection of toll tax as per the stipulation in the contract. 3. Respondents moved this court through WP No. 1615/98. This writ petition stands disposed of by impugned order. Aggrieved by the same the present appeal has been filed by the State of Madhya Pradesh. 4. During the pendency of this Letters Patent Appeal in this court a committee of 3 experts was appointed by order dated 13-4-1999. The Court gave the following directions :- 1. A three member expert committee shall be convened by the Engineer In Chief who will be its convenor comprising of a retired Chief Engineers M/s G. S. Palnitkar, Surjitsingh and M. D. Arora. The committee will forthwith conduct the inspection of the disputed site in presence of the parties and after hearing them formulate the report regarding the completion of the work in accordance with the terms of agreement executed between the parties. This report shall be submitted to the court within 3 months from today. 2. Arrangements made by the writ court for collection of toll tax through Collector Mandsaur shall continue till next date before the court. Again, by order dated 24-8-1999 this court passed the following order. 24-8-1998 Mr. D. D. Vyas, AAG for Appellant-State. Mr. M. M. Asudani with Mr. U. C. Maheshwari for respondents. Expert committee has submitted the report Copies of this report were furnished to both sides. They pray for some time to examine the report and to make submissions. Again, by order dated 24-8-1999 this court passed the following order. 24-8-1998 Mr. D. D. Vyas, AAG for Appellant-State. Mr. M. M. Asudani with Mr. U. C. Maheshwari for respondents. Expert committee has submitted the report Copies of this report were furnished to both sides. They pray for some time to examine the report and to make submissions. Perusal of the report shows that Expert Committee had stopped short of quantifying the alleged omitted works. It could also do this in association with the rival parties and after hearing them. Convenor of the committee to take steps to obtain the report of the committee on the alleged omitted work. At this stage it was prayed that committee members be paid the balance fee amount. Accordingly Rs. 6,000/- each more shall be paid to them out of the toll tax collected by the contractor. Arrangements made by writ court for collection of Toll Tax shall continue till next date before the court. List on 12th October, 1999. Sequel to the above directions of this court the committee filed the reports on 16-8-1999 and 14-11-1999. These reports are taken on record. 3. Learned counsel for the parties were heard. Record perused. This Court directed engineer-in-chief to appear in person in this case. Pursuant to this court order Engineer-in-chief is present and his assistance is sought to appreciate the controversy between the parties. It was suggested to the engineer-in-chief that he should work out settlement between the parties after seeking assistance from learned Addl. Advocate General Shri D. D. Vyas, Advocate General Shri Tankha, Shri S. C. Bagadiya, learned counsel for respondent and Shri A. M. Ashudani counsel for the respondent Contractor. We have taken their views and we are of the opinion that the matter should be settled in the following terms. 1. The contractor will collect toll tax for 1551 days as per the agreement. 2. The contractor will rectify the defects as pointed out by the Committee constituted by the Hon'ble Court within a period of six months and shall deposit Rs. 8.5 lacs as additional security within one month from today to be refunded in the event of satisfactory completion. 3. For the additional period, the contractor will submit his claim to the Chief Engineer as per Clause 17.1 of the agreement. The Chief Engineer shall decide the period in terms of the agreement. 4. 8.5 lacs as additional security within one month from today to be refunded in the event of satisfactory completion. 3. For the additional period, the contractor will submit his claim to the Chief Engineer as per Clause 17.1 of the agreement. The Chief Engineer shall decide the period in terms of the agreement. 4. In case, the Contractor feels aggrieved with the decision of the Chief Engineer, he may take recourse whatever is available to him. 5. The order passed by the writ court is modified to the extent indicated above. 6. The L.P.A. is disposed of accordingly. However, the remuneration to be paid to the expert committee members Rs. 1,02,000/- shall be paid by the respondent out of toll collection. No other points are raised for consideration and determination at this stage between the parties and appeal stands disposed off in the terms recorded above. No order as to cost. 15. It is clear from the above-mentioned orders passed by learned Single Judge dated 24-11-1998 and Division Bench orders in LPA that the department had opposed the prayer of the contractor for grant of permission to collect toll tax on the basis of work completion certificate dated 15-9-1998 issued by non-applicant No. 1 Shri D. K. Rokde, on the ground that Shri Rokde joined on 14-9-1998 and gave certificate of completion of work on 15-9-1998 without inspecting the road construction work. It was also pleaded that work was not completed in accordance with the terms and conditions of the contract and specifications, for which expert committee was appointed by the learned Division Bench and on the basis of the report in time to time defects, as pointed out, were directed to rectify. The stand taken by the department in reply of writ petition and LPA was altogether contradictory and different than the basis on which respondent No. 1 Shri Rokde was exonerated in departmental enquiry report dated 10-7-2003. Therefore, in the opinion of this Court departmental enquiry report cannot be made basis for discharge of non-applicant No. 1 Shri D. K. Rokde and other non-applicants/contractors. 16. The learned counsel for the non-applicants has placed reliance on Supreme Court judgment passed in case of P. S. Rajya (supra), wherein accused was discharged on the basis of departmental enquiry report. The facts of this case are quite different than the facts of the case at hand. 16. The learned counsel for the non-applicants has placed reliance on Supreme Court judgment passed in case of P. S. Rajya (supra), wherein accused was discharged on the basis of departmental enquiry report. The facts of this case are quite different than the facts of the case at hand. In case of P. S. Rajya (supra), petition was filed for quashing the FIR which was registered by police regarding acquisition of assets disproportionate to income of Shri P. S. Rajya. In departmental enquiry Shri Rajya was exonerated in departmental proceeding, on the basis of the valuation report of the house given by one and the same engineers, who fixed the value of the house in CBI case Rs. 7,69,300/- and for income tax department Rs. 4,67,000/-. There was allegation of overwriting and alteration in subsequent report submitted by CBI for which Shri Rajya filed a complaint under section 340 of the Criminal Procedure Code for taking cognizance against officers concerned. In this fact background, the FIR was quashed by the Hon'ble Supreme Court. 17. In the case at hand on 14-9-1998 non-applicant No. l Shri Rokde took charge and on the same day he issued notice to contractor for completion of work according to specifications, meaning thereby up to that time work was not completed as per specifications then how and on what basis Shri Rokde had given work completion report on the very next day i.e. on 15-9-1998. This fact speaks volume and allegation levelled by the prosecution appears prima facie correct that Shri Rokde and other engineers and officers of the department, against whom department has not given sanction to prosecute them, hatched conspiracy with contractor non-applicants No. 2 and 3 for giving false and incorrect work completion report to collect toll tax. If road was not completed as per specifications, how it could be permitted to be used by the public and as to how toll tax could be recovered from the public. Toll tax could have been recovered from the users of the vehicles on the said road when road was completed as per specifications. 18. If road was not completed as per specifications, how it could be permitted to be used by the public and as to how toll tax could be recovered from the public. Toll tax could have been recovered from the users of the vehicles on the said road when road was completed as per specifications. 18. It is trite law that "merely because remedy by way of civil suit is available, is not a impediment in maintaining a criminal complaint provided the complaint discloses the ingredients of the offence alleged." When somebody suffers injury to his person, property or reputation; he may have remedies both under civil and criminal law and the same is legal position when act is committed against the State. In case of Indian Oil Corpn. vs. NEPC India Ltd., 2006(6) SCC 736 Supreme Court has elaborately considered the above mentioned principle and observed as under :- "The respondents thereupon filed petitions under section 482, Criminal Procedure Code for quashing the said two complaints on the following grounds: (i) The complaints related to purely contractual disputes of a civil nature in respect of which IOC had already sought injunctive reliefs and money decrees. (ii) Even if all the allegations in the complaints were taken as true, they did not constitute any criminal offence as defined under sections 378, 403, 405, 415 or 425, Indian Penal Code. The High Court by a common judgment allowed both the petitions and quashed the two complaints. It accepted the second ground urged by the respondents herein, but rejected the first ground. The said order of the High Court is under challenge in these appeals. On the 'rival contentions urged, the following points arose for consideration: (i) Whether existence or availment of civil remedy in respect of disputes arising from breach of contract, bars remedy under criminal law? (ii) Whether the allegations in the complaint, if accepted on face value, constitute any offence under sections 378, 403, 405, 415 or 425, Indian Penal Code? Held : A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. Held : A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed of, is not by itself a ground to quash the criminal proceedings. The best is whether the allegations in the complaint disclose a criminal offence or not. (Para 12) In this case, it is no doubt true that IOC has initiated several civil proceedings to safeguard its interest and recover the amounts due. These acts show that civil remedies were and are available in law and IOC has taken recourse to such remedies. But it does not follow therefrom that criminal law remedy is barred or IOC is estopped from seeking such remedy. (Para 15) The respondents, no doubt, have stated that they had no intention to cheat or dishonestly divert or misappropriate the hypothecated aircraft or any parts thereof. But these are defences that will have to be put forth and considered during the trial. Defences that may be available, or facts/aspects when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At this stage, the only question relevant is whether the averments in the complaint spell out the ingredients of a criminal offence or not. (Para 16) The High Court was, therefore, justified in rejecting the contention of the respondents that the criminal proceedings should be quashed in view of the pendency of several civil proceedings. (Para 17) [Also see: Sh. Vishnu Dutt Sharma vs. Smt. Daya Sapra, JT 2009 (13) SC 44]. 19. (Para 16) The High Court was, therefore, justified in rejecting the contention of the respondents that the criminal proceedings should be quashed in view of the pendency of several civil proceedings. (Para 17) [Also see: Sh. Vishnu Dutt Sharma vs. Smt. Daya Sapra, JT 2009 (13) SC 44]. 19. In the light of aforesaid legal preposition, in the instant case at the most it can be said that Division Bench of High Court has decided the contractual/civil dispute between the party, which does not mean that respondents have been exonerated by the High Court if prima facie criminal case for the above mentioned offences, on the basis of material available in the charge-sheet, is made out for prosecution. This position is also clear on the basis of observation made by learned Single Judge in W.P. No.1615/1998 in internal page No.9 :- "It is further clarified that the Hon'ble Lokayukt would be free to complete the enquiry and investigation as it may deem fit in the facts and circumstances of the case. This order should not be treated as creating any impediment in completion of the investigation/enquiry by the Hon'ble Lokayukt." 20. The material available in the charge-sheet that in a very short period the construction of by-pass road was shown to be completed, which was not possible and inferior quality of material was used which is clear from the several analysis reports of experts. Work was not done according to specifications, several kind of breaches were committed by the contractor, and concerned officers engineers of the department were keeping their eyes closed. If anonymous complaint would have not been received by Lokayukt office, the preliminary enquiry would have not been done. After doing enquiry when Lokayukt police found substance, registered the crime and detailed investigation was done but charge-sheet could not be filed against non-applicant No.1 Shri Rokde and other non-applicants because sanction was not granted by the department for the reason best known to the department. It is clear in the instant case that at one place department levelled allegations against Shri Rokde and same is also prima facie applicable against other engineers and officers, who were in-charge in time to time of by-pass road and did not take care and effective steps. Lokayukt police waited for filing charge-sheet, and the moment non-applicant No. 1 Shri Rokde retired, charge-sheet was filed against the non-applicants for the above mentioned offences. Lokayukt police waited for filing charge-sheet, and the moment non-applicant No. 1 Shri Rokde retired, charge-sheet was filed against the non-applicants for the above mentioned offences. Therefore, investigating agency cannot be held responsible for delay in investigation. Apart from this, delay simplicitor would not be sufficient to quash the criminal proceeding, specially in the factual position involved in the instant case, wherein to collect evidence several steps had been taken i.e. samples of material were taken and same were sent to laboratory for examination. For all these purposes a detailed report has been submitted in the charge-sheet by the investigating agency. In this view of the matter, the decision rendered by Supreme Court relied upon by learned counsel for the non-applicants in case of Pankaj Kumar (supra), has no application in the instant case. There is no dispute regarding scope and ambit of section 227 of the Criminal Procedure Code, as discussed in case of Prafulla Kumar (supra). The factual matrix of case of Sheetla Sahai (supra) is altogether different than the case at hand. In the case at hand, non-applicant No. 1 Shri Rokde joined on 14-9-1998 and issued notice on the same day to the contractor to complete the work as per terms and conditions of the contract and specifications, and on very next day i.e. 15-9-1998 issued the work completion report giving entitlement to non-applicants No. 2 and 3 to collect toll tax. 21. Learned trial Court while discharging the non-applicants, has not at all considered the abovementioned legal and factual position and acceded the argument of learned counsel for the non-applicants herein that no toll tax was collected and if collected, same was collected on the basis of order/orders passed by High Court, therefore, offence, as alleged, would not be made out against the non-applicants. Learned trial Court has not, at all, discussed about offence punishable under section 15 of the Act, punishment for attempt to commit an offence referred to in Clause 'c' or Clause 'd' of sub-section (1) of section 13 of the Act. 22. Learned trial Court has not, at all, discussed about offence punishable under section 15 of the Act, punishment for attempt to commit an offence referred to in Clause 'c' or Clause 'd' of sub-section (1) of section 13 of the Act. 22. It is pertinent to mention here that probably if an anonymous complaint would have not been received by the Lokayukt police, the respondents No. 2 and 3 would have started collection of toll tax on the basis of work completion certificate given by respondent No. 1 Shri D. K. Rokde, and respondents No. 2 and 3 would have not filed writ petition in the High Court. 23. On the basis of above mentioned legal and factual analysis, in the considered opinion of this Court impugned order of discharge of non-applicants herein is not sustainable, therefore, same is hereby set aside. Non-applicants are directed to appear before the trial Court on 28-9-2010, and trial Court is directed to proceed further in trial in accordance with provisions of law.