JUDGMENT : M.A. Siddiqui, J. - Since both the above mentioned criminal revision Cri. Rev. No. 2116/2010 & Cri. Rev. No. 122/11 petitions arise out of common order hence they are decided by this common order. These Criminal Revisions mentioned above u/s 397 read with Section 401 Code of Crimi­nal Procedure, 1973 (hereinafter referred to for short, "Cr.P.C".) preferred by the ap­plicants, being aggrieved from the order dated 30.11.2010, framing of charge u/s 13(1)(d)(ii) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for brevity hereinafter referred to 'the P.C. Act) and also u/s 120-B of the Indian Penal Code (for short 'the IPC') by Special Judge, (con­stituted under the Provisions of the P.C. Act, 1988) Khandwa, in Special Case No. 3/2010 (State of M.P. vs. Shivnath Prasad and two Others). 2. It is an admitted fact that in criminal revision No. 2116/2010 applicant No. 1 S.N. Prasad was the then Chief Engineer in Public Works Department (for short "PWD"), Indore and applicant No. 2 A.K. Shrotiya was the then Executive Engineer, (PWD), Khandwa, at the relevant time, and now both have been retired from service. In criminal revision No. 122/2011 applicant R.P. Tiwari (Private Contractor) is owner and proprietor of M/s Kalka Furniture In­dustries, Khandwa whose tender was ac­cepted for work. It is also undisputed fact that the applicant No. 2 in direction and supervision of the applicant No. 1 being executive engineer, Khandwa called ten­ders for supply of petty bazaar supply ar­ticles, wooden and boards, lime hard-wares and water supply sanitary fittings etc. The total work was to be completed within twelve months. First tender was issued in daily news paper and was published on 28.6.2002 and tenders were opened on 25.7.2002. Three persons have submitted tenders in which complainant Sirajuddin Sheikh a resident of Khandwa quoted the rate 15% below the Schedule of rates (for short "SOR"). M/s Shakti Industries, Khandwa quoted rate 18% below the Scheduled rate (SOR). M/s Kalka Furni­ture Industries, Khandwa quoted 23% above the scheduled rate (SOR). 3. It is also undisputed fact that M/s Shakti Industries, Khandwa quoted rate 18% below (SOR) so his tender was accepted being the lowest and letter dated 7.8.2002 and 9.8.2002 was issued to him for entering into an agreement to perform the work. M/s Kalka Furni­ture Industries, Khandwa quoted 23% above the scheduled rate (SOR). 3. It is also undisputed fact that M/s Shakti Industries, Khandwa quoted rate 18% below (SOR) so his tender was accepted being the lowest and letter dated 7.8.2002 and 9.8.2002 was issued to him for entering into an agreement to perform the work. But it refused to work by saying that by mistake in quotation form instead of above, word below has marked hence he refused to work and his earnest money was forfeited. 4. It is also undisputed fact that though the complainant was not legally invited to 'work as second lowest bidder but he gave in writing vide letter dated 14.8.2002 that he also by mistake marked the below rate tender instead of above and next tender may be recalled so he has given in writing that he may not be called as second lowest bid­der as there is no provision for calling sec­ond lowest below marked. 5. Undisputedly, fresh tender was called on 28.8.2002 in which two bidder namely M/s Rahisuddin Sheikh a resident of Khandwa offered tender 25% above (SOR). Rate and M/s Kalka Furniture Industries, Khandwa offered 22.75 above (SOR) Rate. Work was given to M/s Kalka Furniture In­dustries, Khandwa as complainant Sirajuddin Sheikh and M/s Shakti Indus­tries, Khandwa were black listed and their earnest money was forfeited at the initial stage. But afterward earnest money of com­plainant Sirajuddin Sheikh was returned by intervention of High Court. 6. The prosecution case is that the com­plainant Sirajuddin Sheikh sent a written complaint against the applicants to the Chief Minister and ultimately it reached to the Lok Ayukta establishment Bhopal and matter was investigated. 7. The allegation in complaint was that the applicants were calling tender at initial for lowest rate and afterward by canceling it, they were leaving it on higher sides as such they were causing wrongful gain to them and other contractors and were caus­ing wrongful loss to Government. 8. The allegation was made that M/s Kalka Furniture Industries, Khandwa quoted 23% above CSR in the first tender was given work on 22.75% above CSR. Ultimately the complaint was debarred by taking part of second option as found on prescribed form were to be issued by Ex­ecutive Engineer Khandwa who refused to issue second tender form by black list­ing bidder. The allegation was made that M/s Kalka Furniture Industries, Khandwa quoted 23% above CSR in the first tender was given work on 22.75% above CSR. Ultimately the complaint was debarred by taking part of second option as found on prescribed form were to be issued by Ex­ecutive Engineer Khandwa who refused to issue second tender form by black list­ing bidder. Ultimately he was not allowed to take part in the bid and he was also shown black listed and his earnest money was also forfeited so he had to approach High Court and his earnest money was retured. 9. The matter was investigated and after due investigation the charge sheet filed be­fore the Trial Court i.e. Special Court Khandwa where the applicants by written \submission objected that no prima facie case is made out against them and they be discharged. Their objection was not heard and charges as aforesaid were framed on 30.11.2010 by learned Special Judge, Khandwa against the applicants and against co-accused R. P. Tiwari (owner of M/s Kalka Furniture Industries, Khandwa) on the allegation that applicant No. 2 A.K. Shrotiya being Executive Engineer and ap­plicant No. 1 S.N. Prasad being Chief En­gineer Indore by misusing their position without cancelling the first tender had is­sued the second tender and in second ten­der the complainant was intentionally de­barred to take part and M/s Kalka Furni­ture Industries, Khandwa whose proprietor R.P. Tiwari was benefited on the above mentioned rates 23% accepted and as there was a difference of 40.75% in first and sec­ond bid so loss of Rs. 5.7 Lakhs was caused to Government by applicants by misusing their official capacity and thereby they have committed offence punishable u/s 13(1)(d)(ii) read with Section 13(2) of the P.C. Act and also u/s 120-B of the IPC for entering into conspiracy with R.P. Tiwari by accepting second tender and giving him the work illegally. They have acted malafidely in accepting the tender at higher rate whereas much below in the area of Khargone much below SOR rates were prevalent were accepted. Hence this Crimi­nal revision has been filed on the follow­ing grounds: A. That the order passed by the learned Special Judge, Khandwa framing charge against the accused-applicants under Sec­tion 13(1)(d)(ii) read with Section 13(2) of the P.C. Act, 1988 and u/s 120-B of IPC is bad, illegal, incorrect and improper. Hence this Crimi­nal revision has been filed on the follow­ing grounds: A. That the order passed by the learned Special Judge, Khandwa framing charge against the accused-applicants under Sec­tion 13(1)(d)(ii) read with Section 13(2) of the P.C. Act, 1988 and u/s 120-B of IPC is bad, illegal, incorrect and improper. A-(1) That as regards the first lowest ten­der earnest money, the same was forfeited. Second lowest tender earnest money was refunded on 10.8.2002. The complainant Sirajuddin is the 2nd lowest tenderer who had received the amount of earnest money as on 10.8.2002. After the tenderer received the earnest money, then he was free to give the fresh tender which he did not do. A-(2) That, the complainant Sirajuddin also submitted tender in the year 2001 -2002 over the same price list which was at 28% above on the basis of the same pricelist ap­plicable at the relevant time in the year 2002-2003. A-(3) That, the complainant had also given tender at Baddwani Division at 15% above the same scheduled rates. A-(4) That, the petitioner No. 2 Ashok Kumar Shrotri had also given explanation during the course of investigation. The said explanation is available in file Nos. 20 and 40. B- That the learned Trial Judge bar erro­neously recorded the finding against the applicants and misinterpreted the provi­sions of law framing charge against the applicants. C- That, there is no iota of evidence on record from which it can be inferred or pointed out that the applicants in any man­ner have committed the offence so alleged. D- That, the order of framing charge traverse beyond the provisions of 197 CrPC which is basic requisite for launching pros­ecution against a government servant. E- That, the proceeding ab initio at the initial stage can be quashed if there is a le­gal bar engrafted in any of the provisions of the Act and the legal bar engrafted un­der the P.C. Act is grant of sanction by the removing authority and in the present case no sanction has been obtained. F- That, in the instant case the applicants have acted in discharge of their official duty and nothing is beyond that. Entire proceed­ings against them are vitiated and deserves to be lanceted by this Court. G- That, it is clear that no prosecution is maintenable against the applicant and they deserves to be discharged. F- That, in the instant case the applicants have acted in discharge of their official duty and nothing is beyond that. Entire proceed­ings against them are vitiated and deserves to be lanceted by this Court. G- That, it is clear that no prosecution is maintenable against the applicant and they deserves to be discharged. H- That, the ingredients to constitute the offence u/s 13(1)(d)(ii) read with Section 13(2) of the P.C. Act, 1988 and u/s 120-B of IPC, against the applicants are com­pletely missing and hence, the impugned order passed by the Court below has no legs to stand and deserves to be quashed by this Court. I- That, at the time of framing charge it is the bounded duty of a Court to ascribe whether necessary ingredients to constitute the alleged offence are satisfied or not. J- That, in view of the totality of circum­stances, the findings arrived at by learned Special Judge framing charge against the applicants/accused are improper and incor­rect and deserves to be quashed by this Court by exercising powers u/s 397 read with Section 401 of Cr.P.C. K- That, at the time of framing of charge the Court is required to evaluate the mate­rial and documents on record with a view to finding out if the facts emerging there­from taken on their face value disclose the existence of all the ingredients constitut­ing the alleged offence. L- That, in view of what have been stated hereinabove the impugned order is contrary to the provisions of law and deserves to be quashed and set aside by this Hon'ble Court discharging the applicants. 10. Additional grounds have been taken by the petitioner/applicant R.P. Tiwari in Criminal Revision No. 122/2011 that no conspiracy was hatched by him with other applicants. He being private contractor had given rate 23% above the SOR and he ap­plied for second tender and offered rate 22.75% above the SOR even the rates were less than previous years rates. 11. Per contra, the submission from respondent's side is that applicant Nos. 1 and 2 were in habit to firstly call lowest tender and then by calling another tender on higher rate with convenience of the con­tractor by cancelling first tender used to call another tender and used to give tender to the concerned contractor. 11. Per contra, the submission from respondent's side is that applicant Nos. 1 and 2 were in habit to firstly call lowest tender and then by calling another tender on higher rate with convenience of the con­tractor by cancelling first tender used to call another tender and used to give tender to the concerned contractor. The complainant was forced to withdraw his offer in the first tender and he was debarred to take part in second tender, as it was necessary to ob­tain the prescribed form from PWD and since no prescribed form was given to him by the department so he could not take part in the second tender and contract was given to M/s Kala Furniture Industries Khandwa on higher rates than prevalent at the relevant time so petitioners/applicants have acted in conspiracy amongst themselves and caused loss of more than Rs.5.7 lakhs to the Government and thereby they com­mitted offence as mentioned above and rightly charges were framed against them by the Trial Court. 12. We have heard both the sides and perused the record. 13. Learned counsel for the applicants in their argument has taken us through vari­ous portions of the charges/challan papers/documents which form a bulky record hav­ing about 2950 pages in which all the rel­evant documents in support of the prosecu­tion as well as defence have been collected. 14. The main contention of the learned counsel for the applicant is that there is no mala fide and there is no conspiracy be­tween them. Since in the first tender low­est one (hereinafter referred for short to (L-1) M/s Shakti Industries, Khandwa who was the lowest bidder and his rates are be­low 18% was offered on 7.8.2002 and on 9.8.2002 he withdrew in writing by saying that by mistake below rates are quoted. He was declared black listed and his earnest money was forfeited. Complainant was not offered but he himself on 14.8.2002 given in writing that he too wrongly quoted 15% below SOR. Since L-2 can not be offered as he himself withdrawn. 15. Learned counsel for the respondent submits that on 14.8.2002 complainant was forced to give in writing to withdraw. He acted because he had to work in the depart­ment so he had given in writing the letter dated 14.8.2002 to withdraw. 16. Since L-2 can not be offered as he himself withdrawn. 15. Learned counsel for the respondent submits that on 14.8.2002 complainant was forced to give in writing to withdraw. He acted because he had to work in the depart­ment so he had given in writing the letter dated 14.8.2002 to withdraw. 16. Learned counsel for the applicants referred to Central Vigilance Commissions (CVC) guidance dated 24 August 2000, of Government of India (Annexure P/23). The relevant portion is as under: "2. The Commission has been getting a number of queries on how to handle the matter if the quantity to be ordered is more than L-1 can supply or about placement of orders on Public Sector Undertakings. It is requested that such matters may be dealt with in accordance with clarifications is­sued by the commission vide its letter of even number dated 15.3.99. 3. Some of the organizations have sought clarification as to whether they can consider the L-2 offer or negotiate with the firm if L-1 withdraws his offer before the work order is placed or before the supply or ex­ecution of work order takes place. In this regard, it is clarified that such a situation may be avoided if a two bid system is fol­lowed (Techno-commercial) so that proper assessment of the offer is made before the award of work order. Therefore, if L-1 partly backs out there should be re-tender­ing in a transparent and fair manner. The authority may in such a situation call for limited or short notice tender if so justified in the interest of work and take a decision on the basis of lowest tender." So as per guidance of CVC above, by the refusal of L-1 M/s Shakti Industries on 9.8.2002 the tender automatically came to end who was second lowest bidder so he could not be offered. 17. Learned counsel for the respondent submitted that second tender was called without cancelling the first tender. On the other hand, learned counsel for the appli­cant submits that since by prevalent rules first tender had come to end so it was no need to cancel first tender formally as it was only a formality. It was cancelled in the month of September 2002. 18. Learned counsel for the applicants submits that as soon as L-1 withdrew from tender and first tender came to end, calling second tender inevitable. 19. It was cancelled in the month of September 2002. 18. Learned counsel for the applicants submits that as soon as L-1 withdrew from tender and first tender came to end, calling second tender inevitable. 19. Learned counsel for the respondent submits that much lower rates were pre­vailing in Khargone area of the same ar­ticles which shows that above SOR 22.75% was allowed to applicant R.P. Tiwari Pro­prietor/Owner M/s Kalka Industries. 20. Learned counsel for the applicants submits that rates of the articles can not be compared with Khargone area as there are too many variance as transportation, dis­tance Local Conditions etc. and so many factors are to play role in fixing the cost of articles as such rates of Khandwa can not be compared with area of Khargone. It has also been contended that in previous years bids up to 49% above SOR were given and accepted to the various contractors includ­ing complainant. Approved rates of the year 1999-2000 were 47 to 49% above SOR. Rate of Schedule increased by 25% above SOR in the year 2001-2002 and rates ap­proved by another Chief Engineer in this area in the year 2001 -2002 were 21 % above SOR so rates approved for M/s Kalika In­dustries for the year 2002-2003 by 23% above SOR. Rates was reasonable and in­creased in the rates only 01.75% above SOR in a year. 21. On the perusal of records the rates were 21% above SOR so it has been en­hanced 01.75% and not 40% above SOR. 22. Learned counsel for the applicants for the allegation for not providing tender form, to the complainant submits that on 7.9.2002 complainant requested in writing for giv­ing him the tender which was given to him on 10.9.2002 and 10 tender forms were re­ceived by him which bear his signatures. He was not debarred in second tender. It is pertinent to note that son of complainant viz. Rahisuddin Shekh took part in second tender and quoted 25% above SOR which was higher and bid of M/s Kalika Indus­tries, the lowest rate 22.75% accepted. 23. Learned counsel for the applicants further submits that Accountant General of Madhya Pradesh after audit has given clean chit in inquiry and found that no financial irregularity has been committed. Rahisuddin Shekh took part in second tender and quoted 25% above SOR which was higher and bid of M/s Kalika Indus­tries, the lowest rate 22.75% accepted. 23. Learned counsel for the applicants further submits that Accountant General of Madhya Pradesh after audit has given clean chit in inquiry and found that no financial irregularity has been committed. He further submits that statement of complainant was recorded in the year 2009 in which he made false allegation and he said that he was ready to work, which was not possible, as work was stopped and he had given in writ­ing on 14.8.2002 to withdraw as by mis­take he quoted word 'below' SOR. 24. Learned counsel for the applicants further submits that since complainant was black listed and his earnest money was for­feited so he lodged false report and there was no malice or loss to Government ex­chequer. Applicants No. 1 and 2 have left no option to invite new tenders and in sec­ond tender even son of complainant Rahisuddin Shekh had taken part and of­fered 25% and M/s Kalika Furniture offered 22.75% above which was accepted. 25. Learned counsel for the applicants further submits that sanction was refused by the Government after due inquiry as no prima facie case was made out, but challan has been filed after retirement of the appli­cants No. 1 and 2 as sanction is not neces­sary as per decision of the Apex Court. Reliance is placed on the decision of R.P. Khare vs. State of M.P. and Others, 2006(4) MPLJ 436. 26. Learned counsel for the applicants placed reliance on the decision of State of Madhya Pradesh vs. Sheetla Sahai and Others (2009)8 SCC 617 wherein it has been held that "Contractors providing stones from alternate quarry reserved for them by Department, and claiming payment of additional leads involved in ferrying stones from changed quarry located 22 km away from site (original sanctioned quarry was 12 km from site) apprehending that contractors may put an end to contract and that calling new tenders could increase cost jeopardizing the completion of project un­dertaken with World Bank's assistance, re­spondent authorities sanctioning payment of additional leads. Whether completion of project within a time frame or sticking to terms of the contract with possibility of abandonment of work by contractors would be in public interest, was to be decided. Whether completion of project within a time frame or sticking to terms of the contract with possibility of abandonment of work by contractors would be in public interest, was to be decided. Decision was taken collectively by various authorities which were ad idem in their view in the decision-making process. De­cision could be an error of judgment but there was nothing to suggest that authori­ties abused their position or took decision to cause any wrongful gain to themselves or to a third party or for causing wrongful loss to State or to provide pecuniary ad­vantage to contractors without any public interest. No criminal misconduct was there and therefore, no offence has been commit­ted." 27. Learned counsel for the applicants submits that case of the applicants/petition­ers is very much covered by the above cited decision Sheetla Sahai (supra). Here in this case retendering was inevitable and in sec­ond tender prevalent rates were accepted so there was no malafide and no offence has been committed and the applicants have been falsely implicated to take revenge this false complaint was filed. 28. On the other hand, learned counsel for the respondent submits that charge can be framed in case of even strong suspicion and in revision no minute scrutiny can be done and evidence can not be appreciated at the stage of charge. 29. Learned counsel for the applicants further places reliance on the decision of Dilawar Babu Kurane vs. State of Maharashtra 2002 AIR SCW 146 wherein it has been held that u/s 227 Cr.P.C., at the time of framing of charge, Judge can not act merely as a post office but has to con­sider total effect of evidence and documents produced before Court. Where no prima facie case was made against the applicant and there was only a remote chance of charges ultimately culminating into convic­tion, the criminal proceedings were liable to be quashed. 30. Learned counsel for the applicants by placing reliance on the decision of Sheetla Sahai (supra) and R.P. Khare (Supra) have vehemently argued that sanction for offence u/s 120-B of IPC, prior sanction against public servants u/s 197 Cr.P.C. is necessary and without it no cognizance can be taken against them. 31. 30. Learned counsel for the applicants by placing reliance on the decision of Sheetla Sahai (supra) and R.P. Khare (Supra) have vehemently argued that sanction for offence u/s 120-B of IPC, prior sanction against public servants u/s 197 Cr.P.C. is necessary and without it no cognizance can be taken against them. 31. Though very voluminous record with the charge sheet has been produced by the prosecution in this case on which charges u/s 13(1)(d)(ii) read with Section 13(2) of the Prevention of Corruption Act, 1988) and also u/s 120-B of the Indian Penal Code were framed against the applicants vide order dated 30.11.2010 by Special Judge, Khandwa in Special Case No. 3/10, yet from perusal of the record comprised in charge-sheet, considering various aspects of the case and in the light of above discus­sion, we are of the considered opinion that the learned Special Judge failed to consider various aspects of the case in proper per­spective. From perusal of charge-sheet and looking to the prosecution version, in our opinion, prima facie no malafide intention or mens rea on the part of applicants can be inferred in accepting the tender and bid of applicant R.P. Tiwari. 32. It does not prima facie appears that applicants No. 1 and 2 in any manner abused their position as public servants for obtaining any pecuniary advantage for themselves or contractor R.P. Tiwari en­tered into conspiracy to provide undue or illegal advantage to him. As such, since essential ingredients constituting the of­fences under Section 13(1)(d)/13(2) of PC. Act and Section 120-B IPC are found missing without adding or subtracting anything from the prosecution evidence, no prima facie case for framing the charge against applicants is made out. Trial Court com­mitted illegality in framing the charges against them. 33. Accordingly these two criminal revi­sions (Criminal Rev. No. 2116/10 and Cri. Rev. No. 122/11) are allowed. Impugned order dated 30.11.2020 passed by the Trial Court framing the charges against the ap­plicants is set aside and charges u/s 13(1)(d)(ii) read with Section 13(2) of the Prevention of Corruption Act, 1988 and also u/s 120-B of the Indian Penal Code framed against the applicants are hereby quashed. Consequently aforesaid three ap­plicants (S.N. Prasad, A.K. Shrotiya in Cri. Rev. No. 2116/2010 and R.P. Tiwari in Criminal Revision No. 122/11) are dis­charged.