ORDER : 1. The revision petitioner herein is the third accused in C.C. No. 4 of 2008 of the Enquiry Commissioner & Special Judge (Vigilance), Thrissur. 2. A contract between the Kerala State Electricity Board (KSEB) and a company by name, "Tata Projects Limited" (TPL) represented by the revision petitioner herein, for the erection of mechanical and electrical instruments of the Brahmapuram Diesel Power Plant (BDPP), a project of the KSEB, is the subject matter of the present prosecution. As part of the usual tender procedure, the KSEB invited tenders from qualified companies and bodies, and accordingly, two companies submitted tenders along with the required deposit, and also the materials showing their qualification in separate covers. The tender procedure provided that the cover containing the amount proposed would be opened and examined only if the companies or bodies, who submitted tenders, are pre-qualified. The companies that submitted tenders accordingly are the Tata Projects Limited (TPL) represented by the revision petitioner herein and M/s. Bharat Heavy Electrical Limited (BHEL), which is a Central Government concern. The bid amount proposed by the revision petitioner's company was Rs. 10,82,24,108/- and the bid amount offered by the BHEL was Rs. 9,44,02,302/-. The difference is Rs. 1,38,21,806/-. Before opening the tenders, the officials of the KSEB proceeded for pre-qualification process. It was done in consultation with the office bearers of the two companies, and the process was undertaken by the second accused (deceased), who was then a member of the Electricity Board. The first accused was the Chairman of the KSEB at that time. In the pre-qualification process, made in the presence of the representatives of the two companies, the Tata Projects Ltd., represented by the revision petitioner herein, was found qualified and M/s. BHEL was disqualified. As there was no other competitive tender, or other qualified tenderer, the tender proposal of the revision petitioner's company was opened, and being the sole tender, it was accepted. Much later, a complaint came that the tender submitted by the revision petitioner's company was illegally and wrongly accepted by the office bearers of the Electricity Board by misusing their official position, and thereby, they caused wrongful gain to the revision petitioner's company. The reasoning stated in the complaint is that the KSEB would have made a gain of 1,38,21,806/-, had the BHEL been qualified, or, had the tender submitted by the BHEL been accepted. The reasoning stated in the complaint is that the KSEB would have made a gain of 1,38,21,806/-, had the BHEL been qualified, or, had the tender submitted by the BHEL been accepted. Investigation proceeded mainly against the accused Nos. 1 and 2 as the persons who allegedly violated the tender procedure. On the finding that the accused Nos. 1 and 2 wrongly accepted the tender of TPL as a result of some conspiracy hatched by the third accused and the office bearers of the KSEB, the revision petitioner was also arraigned as the third accused, with the aid of Section 120B of the Indian Penal Code. After investigation, the Special Cell, Ernakulam of the VACB submitted final report against the three accused. The second accused died pending the proceedings, and thus the charge against him abated. He is said to be the person who actually perpetrated the contract. The prosecution records reveal that the VACB would allege that the alleged vicious deal, by which the contract was given to the petitioner's company, was perpetrated and managed wrongly and illegally by the deceased second accused, and as the Chairman, the first accused also had role in it. Anyway, the allegation as against the third accused is that he and the others hatched a conspiracy for getting the contract awarded, and the KSEB sustained some loss because the tender proposal of the revision petitioner for a higher amount was wrongly and illegally accepted. 3. Pending the trial, the revision petitioner herein filed an application for discharge under Section 239 Cr.P.C. as C.M.P. No. 141 of 2009. After hearing both sides, the learned Trial Judge dismissed the application by order dated 27.2.2013. The said order is under challenge in this revision. 4. The short question for consideration is whether the prosecution has produced necessary materials to make out a case to proceed against the petitioner as the person who conspired with the other accused, for obtaining the alleged contract. Admittedly, the tender procedure provided that the tenders submitted by the different companies would be opened, and the amount offered by different companies would be known only after deciding who among the different companies are qualified. This means that till the tenders submitted by the TPL and BHEL were opened, the actual amount offered by the two companies was not known to the office bearers of the KSEB. This means that till the tenders submitted by the TPL and BHEL were opened, the actual amount offered by the two companies was not known to the office bearers of the KSEB. The prosecution allegation is really strange that, had the KSEB accepted the tender submitted by the BHEL, the KSEB could have avoided a loss of Rs. 1,38,21,806/-. This is said to be the amount gained by the revision petitioner's company. There is no question of the TPL making any gain in this case because, the amount of contract is what the company proposed, and it is nothing in excess of what the company proposed. The company submitted a proposal for a particular amount and this was accepted as part of the tender procedure, after the other company was disqualified. As regards the reason for disqualification, things are not clear or certain, and the VACB has no case as to how or why the BHEL should have been qualified. Practically, the only allegation is that ignoring the recommendation of the Chief Engineer to qualify both the companies, the deceased second accused convened a meeting of the office bearers of the two companies, including the revision petitioner herein, and in the said meeting, the accused Nos. 1 and 2 took a decision to pre-qualify TPL and to disqualify BHEL. The main allegation is that such a procedure or meeting was quite unknown to the accepted procedure in tendering process, and that the recommendation of the Chief Engineer was wrongly rejected by the Chairman and the member of the KSEB. Whether the tender was illegally accepted, or whether BHEL was illegally disqualified is not the issue here, so far as the third accused is concerned. Even if it is true that things were done illegally or wrongly by the others, or that they misused or abused their official position, or did their official function illegally, and a particular company or a third party made a gain, the short question, so far as the third accused is concerned, is whether the third accused was in any manner party to it by conspiracy or otherwise. The question of conspiracy in this case arises only if the other accused had knowledge of the amount proposed by the third accused and the other company. The VACB has no case that the tenders submitted by the two companies were opened and examined before the pre-qualification procedure. The question of conspiracy in this case arises only if the other accused had knowledge of the amount proposed by the third accused and the other company. The VACB has no case that the tenders submitted by the two companies were opened and examined before the pre-qualification procedure. The VACB has no case that the accused Nos. 1 and 2 had knowledge of the amounts from any source. This means that the tender submitted by TPL was accepted by the KSEB without knowing what exactly is the amount offered by the two companies. 5. It is alleged that the other company was disqualified, and the revision petitioner's company was found qualified in a meeting convened by the deceased second accused, and attended by the office bearers of the two companies, including the revision petitioner herein. If such a decision was taken by the other accused, in such a meeting, wherein, all concerned had discussions, it is not known how the prosecution would allege conspiracy in the said process. Conspiracy must involve a secret meeting of minds for an illegal act. Here, there was no such situation of any secret meeting of minds. It was in an open meeting attended by the office bearers of the two companies, the KSEB took a decision to disqualify BHEL and to qualify TPL. When, admittedly, the decision to disqualify or to qualify was taken in a meeting wherein, there was meeting of minds of all the persons concerned, there is no question of one alone and the office bearers of the KSEB making a conspiracy or hatching a conspiracy for some unlawful benefit. 6. As already observed, the legality of the procedure is not being looked into in this proceedings because the court' concern is only as regards the allegation of conspiracy against the revision petitioner. The fact that the office bearers of both the companies had participated in the said process, wherein, one was qualified and the other was disqualified, would by itself eliminate the possibility of any sort of conspiracy or secret meeting of minds. 7. Just because, the company represented by the revision petitioner happened to make some gain, the revision petitioner cannot be prosecuted on the allegation of conspiracy, unless there are some definite materials prima facie probabilising the possibility of such a conspiracy. 7. Just because, the company represented by the revision petitioner happened to make some gain, the revision petitioner cannot be prosecuted on the allegation of conspiracy, unless there are some definite materials prima facie probabilising the possibility of such a conspiracy. When matters and circumstances exclude any such possibility, a prosecution on the allegation of conspiracy cannot be permitted. The amount offered by the other company was not known to the KSEB from any source, because, the pre-qualification process was made before the tenders were opened. The tender submitted by the BHEL was not accepted because, the said company was disqualified at the initial stage. 8. Even assuming that the case of the VACB can be accepted prima facie, the question is whether there was the definite possibility of the tender submitted by the BHEL being accepted by the KSEB. Just because, the amount offered by the company is lesser than the amount offered by the revision petitioner's company, it cannot be concluded that the KSEB would have accepted the said tender. Acceptance of tender depends upon various factors and materials as specified in the tender notice. The amount of tender is not the sole consideration in such matters. If there is any material against the BHEL, no doubt, their tender would be rejected in the final process. So, there was no guarantee that the lowest tender alone would be accepted by the KSEB after the thorough process of examination of all the materials for acceptance of tenders. So, it was not quite definite or certain that the tender submitted by the BHEL alone would have been accepted, if both the companies were qualified. Anyway those aspects need not be now looked into because, this is not a revision submitted by the first accused. The second accused is no more. I find that even admitted facts would eliminate the possibility of any conspiracy, and so, the prosecution against the petitioner herein with the aid of 120-B of IPC cannot be sustained. I find that he is entitled to be discharged. Whether the revision petitioner's company had made any gain by the illegal acts of the others will have to be examined in the prosecution as against the first accused. In the result, this revision petition is allowed. I find that he is entitled to be discharged. Whether the revision petitioner's company had made any gain by the illegal acts of the others will have to be examined in the prosecution as against the first accused. In the result, this revision petition is allowed. The order of the trial court dated 27.02.2013 in C.M.P. No. 141 of 2009 will stand set aside and the request to discharge will stand allowed in revision. Accordingly, the revision petitioner is discharged of the allegations as against him in C.C. No. 4 of 2008 of the court below.