ORDER : A. Badharudeen, J. Crl.R.P.No.726 of 2023 is at the instance of the 1 st accused in C.C.No.4/2021 on the files of the Special Judge, Thrissur. Crl.R.P.No.745 of 2023 has been filed by the 2 nd accused in the above case. In both the matters dismissal of discharge petitions, viz. Crl.M.P.Nos.777/2022 and 1265/2022 as per separate orders dated 28.02.2023 and 31.05.2023 is under challenge. 2. Heard the learned counsel for the revision petitioners and the learned Public Prosecutor in detail. Perused the prosecution records and the decisions placed by the learned counsel for the revision petitioners. 3. Here the prosecution alleged commission of offences punishable under Sections 13 (1)(c) and 13 (1)(d) r/w 13(2) of Prevention of Corruption Act, 1988 (`PC Act’ for short hereafter) as well as Sections 409 , 420 and 120B of the Indian Penal Code (` IPC ’ for short), by the accused. 4. The 1 st accused in this crime was the legal officer of M/s.Malabar Cements Limited Company (`MCL Co.’ for short) and the 2 nd accused was the Managing Director of M/s.ARK Wood and Materials Pvt. Ltd (`ARK Co.’ for short). Accused Nos.3 and 4 were the Managing Director and the Director of ARK Co. 5. The 1 st accused filed Crl.M.C.No.4038/2021 before this Court to quash the entire proceedings against him and as per Annexure-A1 order dated 22.12.2021, this Court considered the said plea at length and finally this Court quashed the offences under Section 13(1)(c) of the P.C Act as well as under Sections 409 and 420 of IPC , against the 1 st accused. Thereafter this Court given liberty to the trial court to proceed against the 1 st accused for the offences under Section 13(1)(d) of the PC Act and under Section 120B of IPC . Liberty also was given to the 1 st accused to file discharge petition under Section 239 of the Code of Criminal Procedure in respect of the said offences. Pursuant to disposal of the Crl.M.C as per Annexure-A7 order, the 1 st accused filed Crl.M.P.No.777/2022 and on evaluation of the prosecution materials in detail, the learned Special Judge dismissed the application holding that the available materials in this case would suffice to show, prima facie, case against the 1 st accused. 6. The 2 nd accused, who was the Managing Director of the MCL Co. 6. The 2 nd accused, who was the Managing Director of the MCL Co. during the relevant period also filed Crl.M.P.1265/22 seeking discharge and the same also was dismissed by the Special Judge holding that there are sufficient grounds and materials to see, prima facie, commission of the offences alleged by the prosecution against the 2 nd accused. 7. It is argued by the learned counsel for the 2 nd accused that there are no valid materials to prosecute the 2 nd accused. It is pointed out by the learned counsel for the 2 nd accused that the petitioner was appointed as the Managing Director of the MCL Co., on 29.01.2010 and a true copy of his appointment order is Annexure-A2. Thereafter, his service was terminated from the post as on 01.10.2011 as per Annexure- A3. According to the learned counsel for the 2 nd accused, when O.S.No.555/2008, filed before the Munsiff Court, Palakkad, was returned for presentation before the proper court on the finding that the said Court had no jurisdiction, the petitioner filed C.M.A.No.7/2009 before the District Court, Palakkad, but the same was dismissed on 31.10.2011. While so, the petitioner demitted the office as on 01.10.2011, as evident from Annexure-A3. Thus the petitioner has no involvement in this crime and, therefore, the finding of the trial court that there are materials against him to proceed with trial is unsustainable and the discharge plea at the instance of the petitioner is liable to succeed. 8. Multi-fold contentions are raised by the learned counsel for the 1 st accused and an argument note in writing also has been placed along with decisions, viz., (i) [ 2013 KHC 672 : 2014 Cri.L.J 2322], Thomas A.V v. State of Kerala & Others ; (ii) [ 2024 (2) KHC 313 : 2024 (2) KLT 546], Vazhuthacaud R.Narendran v. State of Kerala and (iii) [2012 KHC 4527], CBI, Hyderabad v. K.Narayana Rao 9. According to the 1 st accused, the specific allegations against him were considered by this Court in Crl.M.C.No.4038/2021 while passing Annexure A7 order. According to the 1 st accused, the specific allegations against him were considered by this Court in Crl.M.C.No.4038/2021 while passing Annexure A7 order. In paragraph 61 of the order dated 22.12.2021, this Court categorically found that the allegations raised against the 1 st accused are baseless and thereafter the trial court was directed to sift the materials and analyse as to whether the omission on the part of the petitioner/1 st accused to take steps to file suit for recovery of the amount covered by the bank guarantee from the ARK Co. within the period of limitation was deliberate or intentional and pursuant to any criminal conspiracy. But the trial court failed to do the said exercise while dismissing the discharge petition moved by the 1 st accused. The learned counsel for the petitioner argued much, based on Annexure-A7 order and the observations therein. According to him, those observations also were not considered by the trial court. 10. The main grievance of the 1 st accused is that the trial court failed to consider prosecution document (B)(page 240) which would show that the petitioner was removed from the charge of handling the cases of MCL Co. with ARK Co. on 14.03.2012. According to the learned counsel for the 1 st accused, the said document would clearly show that the allegation of deliberate omission to file the suit for recovery of money is baseless and wrong. Further the court below failed to consider the prosecution document (B) (page Nos.84 to 87) which would clearly show that the then Managing Director of MCL Co. had reported to the Government that the suit as well as appeal were filed at the court in Palakkad upon legal opinion of the legal officer of MCL Co., and the said decision was of the management. Further O.S.No.409/2010 was filed by ARK Co. on the basis of agreement dated 18.11.2004 before the Sub Court, Palakkad and wherein MCL Co. filed I.A.No.3742/2013 opposing lack of jurisdiction. It is also pointed out that as per Ext.H3, O.S.26/2016 filed by the MCL Co. before the District Court, Tuticorin against ARK Co. on 04.04.2016 for recovery of money is still pending. 11. on the basis of agreement dated 18.11.2004 before the Sub Court, Palakkad and wherein MCL Co. filed I.A.No.3742/2013 opposing lack of jurisdiction. It is also pointed out that as per Ext.H3, O.S.26/2016 filed by the MCL Co. before the District Court, Tuticorin against ARK Co. on 04.04.2016 for recovery of money is still pending. 11. The sum and substance of the argument at the instance of the 1 st accused is that the 1 st accused, who was the legal advisor, had done his duties as per law and if at all the legal advice is found to be wrong the same by itself is not an offence. 12. The learned Public Prosecutor vehemently opposed quashment of this serious crime and submitted that the 1 st and 2 nd accused have involvement in this crime. Unilateral invocation of the bank guarantee for an amount of Rs.50 lakh by MCL Co., is facilitated by the 1 st accused by delaying filing of suit in time to restrain ARK company from invoking bank guarantee. Moreover, if the contract is not legally terminated in accordance with the provisions of contract act and terms of agreement, the ARK company could not invoke bank guarantee. Therefore, invocation of bank guarantee was by a unilateral decision of ARK company facilitated by the 1 st accused by drafting the agreement itself in favour of the ARK Co. and as against the interest of MCL Co. It is pointed out that as per the agreement between the MCL and ARK company, the jurisdiction to settle the dispute between parties was jointly opted by both parties conferring the same to Court in Tuticorin. Why Tuticorin was opted by both parties invites dubious circumstances, which would reflect much domination given either to V.M. Radhakrishnan or to ARK company while preparing the contract by the 1 st accused. Thus it is argued that the creation of the contract itself is the outcome of conspiracy in between the 1 st accused and ARK Co. The legal officer of the company, the 1 st accused, must know the place opted by both parties for their litigation, particularly when he filed I.A.No.3742/2013 opposing lack of jurisdiction in O.S.No.409 of 2010 filed by ARK Co. against MCL Co. The legal officer of the company, the 1 st accused, must know the place opted by both parties for their litigation, particularly when he filed I.A.No.3742/2013 opposing lack of jurisdiction in O.S.No.409 of 2010 filed by ARK Co. against MCL Co. Knowing the Court opted for their adjudication in Tuticorin, the 1 st accused wrongly filed the suit before the Munsiff Court, Palakkad and failed to obtain an interim order restraining invocation of bank guarantee by the ARK Co. in continuance of the conspiracy in between the 1 st accused and ARK Co. 13. As regards the role of the 1 st accused, the learned Public Prosecutor argued further as under: “9. It is humbly submitted that the investigation reveals that the petitioner had committed grave criminal misconduct for initiating legal steps for recovery of bank guarantee amount which was illegally revoked by M/s. ARK, by decisively delaying in filing a civil suit at Tuticorin Court and he had wasted three years of time and thus the money suit became time barred. There is no doubt that because of willful negligence of the petitioner, MCL had sustained a huge loss and corresponding gain to M/S. ARK. Being a public servant, it is nothing but a criminal misconduct on the part of the petitioner Sri. Prakash Joseph in this case since sec 13(1)(d)(ii) "clearly states that by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage" and sec 13 (1)(d)(iii) also clearly states that "While holding office as a public servant obtains for any person any valuable thing or pecuniary advantage without any public interest". 10. It is submitted that the Hon'ble High Court of Kerala has quashed the charge sheet against Al in part for the offences U/s 13(1)(c) r/w 13(2) of PC Act and Sec. 409, 420 IPC through the order dated 22-12-2021 passed for the Crl.M.C. No.4038/2021 preferred by the petitioner, and also directed the trail court to sift the materials produced by the prosecution and to decide the facts emerging from such materials for offences U/s 13(1)(d) r/w 13(2) of PC Act and Sec. 120B IPC . Accordingly, the petitioner preferred a Crl.M.P. No.777/2022 before the the Hon'ble Court of Enquiry Commissioner and Special Judge (Vigilance), Thrissur to discharge him from the alleged charges under section 13(1)(d) r/w 13 (2) of Prevention of Corruption Act 1988 and Sec 120B IPC prescribed in the final report against him in C. C. No.4/2021. 11. It is submitted that in para 57 of the order passed by the Hon'ble Court in Crl. M. C. No.4038/2021 preferred by the petitioner, it is clearly said that "There are materials produced by the prosecution before the trail Court to establish that the petitioner was very well aware of the fact that institution of a suit for recovery of money from the ARK company would become barred by limitation by the date 22-09-2011. The second accused, the Managing Director of the MCL company, had sent a letter dated 05- 03-2010 to the Government. It is mentioned in this letter that there was time till 22-09-2011 to institute a suit for recovery of money from the ARK company. The petitioner had put initials in this letter. It indicates that he was very well aware of the fact that a suit for recovery of money which was lost by the invocation of the bank guarantee would become barred by limitation by the date 22-09- 2011. There are no materials to show that he had taken legal steps, within the prescribed period of limitation, for institution of a suit against the ARK company for recovery of the amount of the bank guarantee from that company.” 12. It is submitted that in para 59 of the order passed by the Hon'ble Court in Crl.M.C. No.4038/2021, it is categorically specified that ‘it is for the trail Court to sift the materials produced by the prosecution and to decide whether the facts emerging from such materials are sufficient to indicate any deliberate or intentional omission on the part of the petitioner to take steps, within the prescribed period of limitation, for institute suit for recovery of the amount of the bank guarantee from the ARK company, pursuant to any criminal conspiracy between him and the third and fourth accused.” 14. Coming to the crux of the matter, MCL Co., a public sector undertaking, had entered into a long time contract for a period of 9 years with ARK Co. on 18.11.2004 for supply of fly ash without inviting competent tender. Coming to the crux of the matter, MCL Co., a public sector undertaking, had entered into a long time contract for a period of 9 years with ARK Co. on 18.11.2004 for supply of fly ash without inviting competent tender. The supply continued from 06.12.2004 to 30.08.2008. As per clause 20 of the agreement, it has been stated that, it is hereby agreed that the first party shall have the liberty to terminate this contract entered into by giving three months’ notice in writing to terminate the contract prematurely and in that event the second party is entitled for compensation to the extent of Rs.50 lakhs (Rupees fifty lakhs only) and in order to ensure this, the first party shall furnish a Bank Guarantee for the equal amount to the second party in a format mutually acceptable to both parties, with provisions for extending the bank guarantee after expiry of the original period automatically, in phases to cover the entire period of nine years with normal claim period, at the time of execution of this agreement. On reading clause 20, the same seems to be advantageous to ARK Co. and by operation of this clause, ARK Co. could release bank guarantee of Rs.50 lakh on termination of the contract by three months’ notice in writing, for which MCL Co. to provide bank guarantee. But no reciprocal clause, advantageous to the MCL Co. in similar terms was incorporated in the contract. Thus, starting from the time of preparation of the contract and its execution, failure on the part of the 1 st accused to protect the interest of the MCL Co. and to incorporate clause in favour of the ARK Co. could be gathered, prima facie. Therefore, his subsequent acts including non filing of a proper suit before the proper court and filing of a suit before a court having no jurisdiction also to be read as intentional in continuance of the conspiracy. 15. As already discussed, clause 20 of the contract is absolutely one in favour of ARK Co. and against the interest of the MCL Co. and the same was drafted and approved by the 1 st accused. Thereafter as on 23.09.2008, ARK Co. unilaterally invoked the bank guarantee for an amount of Rs.50 lakh against the conditions of the agreement that ARK Co. could invoke the bank guarantee only when MCL Co. and against the interest of the MCL Co. and the same was drafted and approved by the 1 st accused. Thereafter as on 23.09.2008, ARK Co. unilaterally invoked the bank guarantee for an amount of Rs.50 lakh against the conditions of the agreement that ARK Co. could invoke the bank guarantee only when MCL Co. terminates the contract prematurely by giving 3 months notice in advance. In the instant case, the contract was not terminated, despite that the bank guarantee of Rs.50 lakh was released by ARK Co. since there was reluctance on the part of the legal advisor to file suit before the proper court and to obtain a prohibitory order restraining the same. This action of the 1 st accused could not be held as a mere wrong advice or inaction and the legal advice he obtained also would not save him from the responsibility assigned to him. It is interesting to note that being the legal advisor, the 1 st accused filed O.S.No.555/2008 along with interim application No.3498/2008 before the Additional Munsiff Court, Palakkad, against invocation of bank guarantee by ARK Co. and the said suit was rejected by the learned Munsiff for want of jurisdiction. Thereafter, C.M.Appl.7/2009 was filed before the District Court, Palakkad. Further, even though it is contended by the 1 st accused that thereafter for realisation of Rs.50 lakh from ARK Co. O.S.26/2014 was filed before the District Court, Tuticorin, the same is barred by limitation as per the prosecution records. This would fortify the fact that no suit in time also was filed to recover the amount which was admittedly invoked by the ARK Co. on 23.09.2008. 16. In this matter, the crux of the allegations against the 1 st accused, the legal advisor, is that he failed to institute a proper suit to avoid invocation of bank guarantee by ARK Co. though he was well aware of the fact that as per the contract entered into between MCL Co. and ARK Co., the jurisdiction was conferred to Tuticorin court. The further allegation is that he wrongly filed suit before the Munsiff Court, Palakkad, after the period of limitation with the knowledge that the said court has no jurisdiction to deal with the case. It is relevant to note further that even though the demand was made by ARK Co. and ARK Co., the jurisdiction was conferred to Tuticorin court. The further allegation is that he wrongly filed suit before the Munsiff Court, Palakkad, after the period of limitation with the knowledge that the said court has no jurisdiction to deal with the case. It is relevant to note further that even though the demand was made by ARK Co. to invoke the bank guarantee for a period of 3 years, the legal advisor did not take any action and he filed a suit before a wrong court on 22.09.2008, and did not obtain any interim order restraining invocation of bank guarantee by ARK Co., thereby ARK Co. invoked the bank guarantee of Rs.50 lakh released by Canara Bank in favour of ARK Co., on the next day 23.09.2008 and thereby the said amount was lost to the MCL Co. Thus the allegation of the prosecution is that the 1 st accused, joining hands with the other accused, facilitated invocation of bank guarantee by ARK Co. illegally and thereby caused corresponding loss to the MCL Co., a public sector undertaking after hatching conspiracy between them, as could be found from the prosecution records, prima facie. It is true that wrong legal advice may not by itself would make an offence. But when there are circumstances to find out conspiracy in between the legal officer and the other accused, particularly, when there was filing of suit before the wrong court and challenging the order of the said court finding no jurisdiction before the appellate court, and filing I.A.3742/2013 in the suit filed by the ARK Co., challenging the jurisdiction along with incorporation of clause 20 in the contract, which is totally in favour of ARK Co., would show the prosecution allegations as against the 1 st accused, prima facie. This is the reason why this Court while seeking quashment disallowed the same in so far as offences under Section 13(1)(d) of the PC Act and Section 120B of IPC . On perusal of the order impugned, the trial court evaluated materials and found that there are, prima facie, materials against the 1 st accused to go for trial. 17. This is the reason why this Court while seeking quashment disallowed the same in so far as offences under Section 13(1)(d) of the PC Act and Section 120B of IPC . On perusal of the order impugned, the trial court evaluated materials and found that there are, prima facie, materials against the 1 st accused to go for trial. 17. Coming to the case against the 2 nd accused, the allegation against him is that he had committed grave criminal misconduct in the matter of initiating legal steps for recovery of bank guarantee amount which was illegally revoked by ARK Co., by decisively delaying filing of a civil suit in Tuticorin Court and he had wasted three years of time and thus the money suit became time barred. There is no doubt that because of willful negligence of the 2 nd accused, MCL Co. had sustained a huge loss and corresponding gain to ARK Co. Being a public servant, it is nothing but a criminal misconduct on the part of the 1 st accused Sri. Prakash Joseph, since sec 13(1)(d)(ii) “clearly states that by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage” and sec 13 (1)(d)(iii) also clearly states that “while holding office as a public servant obtains for any person any valuable thing or pecuniary advantage without any public interest.” 18. Regarding the allegation against the 2 nd accused there are materials produced by the prosecution before the trial Court to establish that the petitioner was very well aware of the fact that institution of a suit for recovery of money from the ARK company would become barred by limitation by the date 22-09-2011. The second accused, the Managing Director of the MCL company, had sent a letter dated 05-03- 2010 to the Government. It was mentioned in the letter that there was time till 22-09-2011 to institute a suit for recovery of money from the ARK company. The petitioner had put initials in this letter. It indicates that he was very well aware of the fact that a suit for recovery of money which was lost by the invocation of the bank guarantee would become barred by limitation by the date 22-09-2011. The petitioner had put initials in this letter. It indicates that he was very well aware of the fact that a suit for recovery of money which was lost by the invocation of the bank guarantee would become barred by limitation by the date 22-09-2011. There are no materials to show that he had taken legal steps, within the prescribed period of limitation, for institution of a suit against the ARK company for recovery of the amount of the bank guarantee from that company. 19. In para.17 of the order passed by the Enquiry Commissioner and Special Judge (Vigilance), Thrissur in Crl. M. P. No.777/2021, it was observed that 'In fact, MCL lost Rs.50 lakhs in the contract between itself and the ARK company. It was not properly prosecuted by the petitioner to get it back. No decision was taken on merits before adjudication regards the controversy. But ARK company got the advantage of some technicalities occurred due to the abstains of timely action from the part of the petitioner.' 20. On an overall evaluation of the prosecution records and orders impugned, it could be seen that the Special Court analysed the prosecution materials within the ambit of Section 239 of Cr.P.C and finally found that there are materials pointing the guilt of the 1 st and 2 nd accused, prima facie, warranting trial. The said finding doesn't require any interference. Therefore, both these petitions fail and are accordingly dismissed. 21. The interim stay in operation shall stand vacated with direction to the Special Court to proceed with the trial, and finalise the same within three months from the date of receipt of a copy of this order. 22. It is specifically made clear that the observations in this order are for the purpose of deciding the plea of discharge alone and the same have no binding effect during trial and the special court shall decide the case on merits based on the evidence adduced during trial untramelled by the observations in this order. Registry is directed to forward a copy of this order to the jurisdictional court for compliance and further steps.