ORDER : 1. The 3 rd accused in C.C. No.2 of 2017 on the Court of the Enquiry Commissioner and Special Judge, Muvattupuzha has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 , seeking quashment of the entire proceedings as against him in the said case, arising out of Crime No.7/2013/EKM of Vigilance and Anti-Corruption Bureau, Ernakulam. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor, in detail. Perused the relevant materials available. 3. In this case, the prosecution alleges commission of offences punishable under Sections 13 (1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred as ‘P.C. Act’ for short] and under Section 120 (B) of the Indian Penal Code , by accused Nos.1 to 4, who are the UD Clerk, Superintendent, Town Planning Officer and one Raghuvaran, who was given tender during the year 2011 to erect advertisement boards on 1702 lamp posts owned by the Municipal Corporation of Cochin. 4. The allegations of the prosecution are to the effect that, the accused 1 to 3 being public servants abused their official position, entered into criminal conspiracy with each other and also with the 4 th accused Sri.Raghuvaran, who participated in the tender invited by the Cochin Corporation during 2011 for fixing advertising boards on 1702 lamp post and helped the 4 th accused to make pecuniary advantage and a financial loss of Rs.65,04,865/- to the Corporation. According to the prosecution, the 4 th respondent is conducting an advertising agency and he responded to the tender floated by the Cochin Corporation and his tender was accepted. Instead of collecting the license fee for the whole period for which the amount was negotiated to Rs.74,34,132/-, one month's remittance to the tune of Rs.9,29,267/- was collected from him and permitted him to erect advertising boards. This was without executing an agreement with the Corporation and without showing the files to the Secretary of the Cochin Corporation and without seeking any orders from him. So according to the prosecution the 1 st and 2 nd accused, the concerned UD Clerk as well as the superintendent along with the petitioner, 3 rd accused have helped the 4 th accused to have pecuniary advantage to him and thereby financial loss to the Corporation. So according to the prosecution the 1 st and 2 nd accused, the concerned UD Clerk as well as the superintendent along with the petitioner, 3 rd accused have helped the 4 th accused to have pecuniary advantage to him and thereby financial loss to the Corporation. It was also alleged that timely action for the recovery of the said amount was also not taken by accused Nos.1 to 3. On this premise, the prosecution alleges commission of the above said offences by the accused. 5. According to the learned counsel for the petitioner, the petitioner entered in the municipal common service on 14.11.1990 and retired as Executive Engineer on 30.11.2015. He worked as Town Planning Officer at the Corporation of Kochi for a period from 14.06.2010 to 01.11.2012. During his tenure as Town Planning Officer, a tender was published as on 04.05.2011 inviting tenders for awarding the work to erect advertisement boards in 2100 + 700 posts in the electric lamp posts of the Corporation as per Annexure-2 and the highest bidder when retracted from the tender, the same was assigned to the 4 th accused, one Raghuvaran. According to the learned counsel for the petitioner, as per Annexure-4 letter dated 27.08.2011 submitted by the 4 th accused to the petitioner/3 rd accused, he sought permission to remit the tender amount + service tax at the rate of 10.3% for a period of one month and the petitioner permitted the 4 th accused to remit the said amount. Thereafter, the Municipal Secretary, who is empowered to issue license never issued any license to make advertisement in continuation of the tender and it is the duty of the Secretary to deal with replacement of illegal tenders, without license and the petitioner has no role with regard to the tender and issuance of license. In this connection, the learned counsel for the petitioner relied on Section 492 (1) and (15) of the Kerala Municipality Act, 1994 [hereinafter referred as ‘the Act’ for short] along with Sections 272 and 275 of the Act. 6. According to the learned counsel for the petitioner, as per Annexure-4, the petitioner permitted the 4 th accused to remit the amount and the petitioner never intended that the amount so permitted to be remitted is the amount for a period of one month and the petitioner intended remittance of the whole amount. 6. According to the learned counsel for the petitioner, as per Annexure-4, the petitioner permitted the 4 th accused to remit the amount and the petitioner never intended that the amount so permitted to be remitted is the amount for a period of one month and the petitioner intended remittance of the whole amount. According to the learned counsel for the petitioner, as per Annexure-3(14), when this matter was brought to the notice of the Secretary, he recommended the petitioner to issue demand notice for full payment of the committed amount and further resort to revenue recovery proceedings as per the order dated 10.09.2012 and the petitioner was directed to call for explanation of concerned Superintendent and Clerk as to why the first installment was received without agreement and why the issue of non compliance of payment was not brought to the notice of the HOD and Secretary. Accordingly, it is submitted that the petitioner is innocent and his plea for quashment is liable to succeed. 7. Dispelling the contentions raised by the learned counsel for the petitioner, the learned Public Prosecutor would submit that, as per Annexure-2 tender itself, it has been stated that, those who bid the tender would pay the tender amount + service tax at the rate of 10.3% within seven days. Therefore, when it was informed to the 4 th accused that tender was assigned to him, he should have remitted the said amount within a period of seven days. But, the 4 th accused did not remit the amount within seven days, instead he filed Annexure-4 letter before the 3rd accused/petitioner herein and sought permission to remit Rs.9,29,267.00 alone instead of Rs.65,04,865/- towards the entire fee for fixing advertisement boards in 1702 lamp posts and the petitioner permitted to remit Rs.9,29,267.00. The learned Public Prosecutor also placed statement given by the then Secretary, Sri.Patil Ajit Bhagavat Rao, with reference to the following statements: Tender procedures were initiated from Town Planning Department in File No.MOP-4/8720/2011. On behalf of the Secretary, Add. Secretary published the tender notice. I saw the file on 04.06.2011 when it was placed before me for discussion prior to filing the agenda for the Finance Committee. I perused the agenda in the file and gave direction to redraft the agenda for bringing more clarity to the different rates quoted by various tenderers. On behalf of the Secretary, Add. Secretary published the tender notice. I saw the file on 04.06.2011 when it was placed before me for discussion prior to filing the agenda for the Finance Committee. I perused the agenda in the file and gave direction to redraft the agenda for bringing more clarity to the different rates quoted by various tenderers. In the present case, their responsibilities were to be executed by the Town Planning Department headed by the Town Planning Officer. In case there is failure on the part of the concerned party to come forward to sign the agreement, it is the duty of the concerned officials (in this case the officer of the Town Planning Department) to bring it to the notice of the Secretary and seek directions as further course of action. The non-signing of the agreement and non payment of the full amount was came to my notice during the 1 st week of September, 2012 and I called for the file. This issue was brought to my notice by the Counselor Sri.Shakeer. While perusing the file, I noticed that the tenderer Sri.Raghuvaran, requested the TPO through letter to permit the tenderer to remit the first installment and that the TPO permitted him to remit the amount on 27.08.2011. Also it is noticed that no agreement was executed by the party before remitting the payment. In the tender, it is specifically directed the party to remit the amount within 7 days of the finalization of the tender. Here the TPO permitted the part payment in violation of procedures. Furthermore, it is noticed that the party put the advertisement boards without signing the agreement. I have given specific orders in page No.14 of the note file for the full realization of the amount through demand notice and further resort to RR proceedings to effect revenue recovery, if necessary. 8. It is submitted by the learned Public Prosecutor further that, even though Annexure-5 demand notice was issued to the 4 th accused, no amount paid and the matter was challenged before this Court and stay was obtained. So far, no amount realized. 9. In view of the rival submissions, the question arises for consideration is, whether the petitioner committed offences punishable under Sections 13 (1)(d) read with 13(2) of the P.C. Act and under Section 120 (B) of the IPC ? 10. So far, no amount realized. 9. In view of the rival submissions, the question arises for consideration is, whether the petitioner committed offences punishable under Sections 13 (1)(d) read with 13(2) of the P.C. Act and under Section 120 (B) of the IPC ? 10. It could be gathered that, as per Annexure-2 tender invited for fixing advertisement boards in 2100+700 posts owned by the Corporation for a period till 31.03.2012, since earlier tender for the same was expired. The 4 th accused is the person, who was given the tender, since the highest bidder retracted from the tender. The request made by the 4 th accused as per Annexure-4, is extracted hereunder: As per the above reference I have received the tender of for advertising on the lamp post in cochin corporation limits. As per the tender I have quoted Rs.495/- (Rupees four Hundred and ninety five only) per lamp post per month. As per the corporation schedule, there are 1702 (One thousand seven hundred and two) lamp post. So the total comes to 1702 x 495 = Rs 842490.00. The servive tax for the amount @ 10.3% comes to Rs 86777.00. The total amount for one month including service tax come to Rs 929267.00 (Rupees Nine Lakhs twenty nine thousand two hundred and sixty seven only). I hereby seeks permission from you to remit the above said amount to the corporation. I also request you to identify the 1702 locations of the Lamp posts as per the Schedule. 11. Acting on the letter dated 27.08.2011, the petitioner/3 rd accused, who is the Town Planning O per the endorsement dated 28.05.2012 permitted to ‘remit the amount’. Later, notice was given to the 4 th accused to remit the entire amount, but he remitted the amount for one month only and sought extension of time to pay the full amount as per Annexure-4 and ascertained the posts which were suitable to fix the advertisement boards. Thus, it is evident that the amount remitted by the 4 th accused is only for a period of one month, that would come to Rs.9,29,267.00 instead of Rs.65,04,865/-. 12. Thus, it is evident that the amount remitted by the 4 th accused is only for a period of one month, that would come to Rs.9,29,267.00 instead of Rs.65,04,865/-. 12. In this connection, apart from the statement of the Municipal Secretary, the learned Public Prosecutor produced copy of Ext.B2 document accompanying the Final Report, with reference to page Nos.162 and 164, to contend that the 4 th accused erected boards as on 26.11.2011 onwards and requested the 3 rd accused/petitioner herein to treat that the agreement started on 26.11.2011 and permit payment of the said amount. This document has been given much emphasis by the learned Public Prosecutor, mainly urging that this would show that, because of permission granted by the 3 rd accused acting of Annexure-4 letter to remit the amount for one month, the 4 th accused erected advertisement boards, after paying only Rs.9,29,267.00. According to the learned Public Prosecutor, Rs.65,04,865/- lost to the Corporation and the steps taken by the Corporation for getting the same realized also not succeeded. 13. Before, concluding the finding as to whether the petitioner succeeded or not in this petition, it is necessary to refer Section 492 (1) and (15) as well as Sections 272 and 275 of the Act. The same read as under: 492. General provisions regarding licences and permissions - (1) Every licence and permission granted under this Act or any rule or bye-law made thereunder shall specify the period, if any, for which, and the restrictions, limitations and conditions, subject to which, the same is granted and shall be signed by the Secretary. The same read as under: 492. General provisions regarding licences and permissions - (1) Every licence and permission granted under this Act or any rule or bye-law made thereunder shall specify the period, if any, for which, and the restrictions, limitations and conditions, subject to which, the same is granted and shall be signed by the Secretary. xxx xxx xxx (15) The acceptance by the Municipality of the prepayment of the fee for a licence or permission or for registration shall not entitle the person making such prepayment to the licence or permission or to registration, as the case may be, but only to refund of the fee in case of refusal of the licence or permission or of registration, but an applicant for the renewal of a licence or permission or registration shall until communication of orders on his application be entitled to act as if the licence or permission or registration had been renewed, and save as otherwise specially provided in this Act, if orders on an application for licence or permission or for registration are not communicated to the applicant within thirty days after the receipt of the application by the Secretary, the application shall be deemed to have been allowed for the year or for such less period as is mentioned in the application, and subject to the law, rules, bye-laws, regulations and all conditions ordinarily imposed. 272. Prohibition of advertisement without written permission of the Secretary. - (1) No advertisement shall, after the levy of the tax under section 271 has been determined upon by the Council, be erected, exhibited, fixed or retained upon or over any land, building, wall, hoarding or structure within the municipal area or shall be displayed in any manner whatsoever in any place in that area without the written permission of the Secretary. (2) The Secretary shall not grant such permission if- (i) the advertisement contravenes any bye-law made by the Council under clause (32) of section 567; ?? (ii) the tax, if any, due in respect of the advertisement has not been paid. (2) The Secretary shall not grant such permission if- (i) the advertisement contravenes any bye-law made by the Council under clause (32) of section 567; ?? (ii) the tax, if any, due in respect of the advertisement has not been paid. (3) Subject to the provisions of sub-section (2), in the case of an advertisement liable to advertisement tax the Secretary shall grant permission for the period to which the payment of tax relates and no fee shall be charged in respect of such permission: Provided that the provisions of this section shall not apply to any advertisement erected, exhibited, fixed or retained on the premises of a railway administration relating to the business of a railway administration. 275. Removal of unauthorised advertisement - (1) Where any advertisement is erected, fixed or retained contrary to the provisions of sections 271 or section 272 or after the written permission for the erection, exhibition, fixation or retention thereof for any period shall have expired or becomes void, the Secretary may, by notice in writing require the owner or occupier of the land, building, wall, hoarding or structure upon or over which the same is erected, exhibited, fixed or retained to take down or remove such advertisement or may enter any building, land or property and have the advertisement removed. (2) any person exhibiting or responsible for exhibiting any advertisement otherwise than in accordance with the provisions of this Act shall be liable, in addition to the penalty prescribed in the Fourth Schedule and the Fifth Schedule to pay the Municipality the charges of the removal of the unauthorised advertisement. 14. No doubt, if the petitioner’s reluctance along with accused Nos.1 and 2 is the reason for non remittance of Rs.65,04,865/- by the 4 th accused, as part of conspiracy hatched between accused Nos.1 to 4, prima facie, the offences alleged by the prosecution said to be made out, otherwise the prosecution is unwarranted as against the petitioner/3 rd accused, which may lead to quashment of the proceedings. 15. As per Section 272 of the Act, no advertisement shall be erected without the written permission of the Secretary. That apart, as per Section 492 of the Act, general provisions regarding licenses and permissions, license shall be signed by the Secretary and without acceptance of the payment of the fee for license or for permission, no license would be deemed to be issued. That apart, as per Section 492 of the Act, general provisions regarding licenses and permissions, license shall be signed by the Secretary and without acceptance of the payment of the fee for license or for permission, no license would be deemed to be issued. Though on refusal to issue license, refund of the fee for the license or permission or for registration is permissible. 16. In the instant case, going by the prosecution records, it is discernible that the petitioner/3 rd accused, who was the Town Planning Officer during the relevant period, was empowered to deal with applications for licenses and acceptance of license fee etc. In exercise of the said power, when Annexure-4 letter was addressed to the petitioner, he permitted the 4 th accused to remit the amount of license fee as requested in Annexure-4. 17. Even though, it is argued by the learned counsel for the petitioner/3 rd accused that, the remittance ordered by the petitioner/3 rd accused was the total amount to the tune of Rs.74,34,132/-, on a close scrutiny of Annexure-4, the phraseology therein is insufficient to appreciate this contention and the permission given by the petitioner/3 rd accused was for depositing one month’s license fee to the tune of Rs.9,29,267.00, including service tax at the rate of 10.3%. Because of the permission given by the petitioner/3 rd accused as the Town Planning Officer, the said Rs.9,29,267/- was accepted. 18. It is evident from Annexure-4 that, the 4 th accused sought permission to remit the amount of license fee for a period of one month and also sought extension of time to pay the full amount. As per Ext.B2 document, the 4 th accused admitted that he erected advertisement boards as on 26.11.2011, after paying one month’s fee and sought time to remit the balance amount. Thus, it could be noticed that, after remitting one month’s license fee and even without obtaining license, the 4 th accused erected advertisement boards and put up the application to the petitioner/3 rd accused on 26.11.2011 to consider that the license deemed to have been came into existence from the said date, with offer to remit the balance amount. 19. As submitted by both sides, it could be gathered that the Corporation had taken steps to realize the amount due from the 4 th accused. 19. As submitted by both sides, it could be gathered that the Corporation had taken steps to realize the amount due from the 4 th accused. But, the 4 th accused had petition before this Court and as of now, no amount recovered or realized. 20. It is not in dispute that, if the petitioner/3 rd accused rejected the application for payment of one month’s license fee alone by the 4 th accused, the Corporation could very well give the tender to another person, so as to derive fee out of the same. In the instant case, after paying one month’s license fee, the 4 th accused enjoyed the been deemed licensee and erected advertisement boards and obtained pecuniary advantage on the said basis and he failed to remit the balance amount of Rs.65,04,865/- to the Corporation and thereby the said amount was lost to the Government. It is pertinent to note that, as argued by the learned counsel for the petitioner, if issuance of license is within the domain of the Secretary and the petitioner has no role with regard to the tender and issuance of license, why the petitioner acted upon a letter addressed to him to remit the amount as per Annexure-9. Naturally, if the petitioner has no role, he should have rejected Annexure-4 application with direction to present the same before the Secretary. Once the petitioner, who was the Town Planning Officer given permission to remit the amount as per Annexure-9, the same would suggest that some delegation to deal with issuance of license to the Town Planner. It is in this context, the argument advanced by the learned Public Prosecutor that the prosecution records would reveal that the proceedings for issuance of license and acceptance of fee for the same are at the helm of the Town Planner, assumes significance. Any how, indubitably these aspects are matters of evidence and the same could not be addressed at the pre-trial stage i.e. at the stage of quashment or discharge. 21. In such a case, it could not be addressed at the pre-trial stage that the petitioner/3 rd accused is absolutely innocent of the allegations and he has no knowledge regarding the transaction, where the prosecution records would suggest a strong suspicion regarding his involvement in this crime as the outcome of conspiracy hatched between the accused. 21. In such a case, it could not be addressed at the pre-trial stage that the petitioner/3 rd accused is absolutely innocent of the allegations and he has no knowledge regarding the transaction, where the prosecution records would suggest a strong suspicion regarding his involvement in this crime as the outcome of conspiracy hatched between the accused. Therefore, the contentions, if any, advanced by the petitioner are matters of evidence during trial and this Court could not conduct a mini trial to address the contentions of the petitioner. Therefore, the trial is highly necessary, in this matter. For the above reasons, quashment sought for by the petitioner/3 rd accused is liable to be dismissed with direction to the Special Court to proceed with trial and finish the same, at the earliest. 22. Accordingly this Crl.M.C stands dismissed with liberty to the petitioner/3 rd accused to raise his contentions before the trial court, during trial. 23. Interim stay in this matter stands vacated. 24. It is specially ordered that, the observations in this order have no binding effect during trial and the learned Special Judge shall decide the case on the basis of the evidence collected during trial.