ORDER : 1. Crl.R.P.No.3 of 2025 has been filed by accused Nos.5 and 6 in C.C.No.22 of 2011 pending before the Enquiry Commissioner and Special Judge, Thrissur, under Prevention of Corruption Act, 1988 (`PC Act’ for short hereafter), arising out of Crime No.7 of 2008 of VACB, Palakkad, and they impugn the order in Crl.M.P.No.244/2024 dated 12.12.2024, whereby the learned Special Judge dismissed the plea of discharge at their instance. Petitioners in Crl.R.P.No.3/2025, officiated as the Chief Secretary of the Kerala State and Director of Mining and Geology respectively, retired from service on 31.10.2006. They subsequently held positions such as Chairman of Public Sector Restructuring Committee, internal audit member and member of Board of Directors of Malabar Cements. 2. The prosecution case is that pursuant to a criminal conspiracy entered into by accused Nos.1 to 4 on 18.11.2004, accused No.1 as the Managing Director of Malabar Cements Limited had executed a long term agreement with accused No.3, the proprietor of M/s. SRV Transports for the transportation of Dry Fly Ash from TTPS, (Tuticorin Thermal Power Station) under the Tamil Nadu Electricity Board to Malabar Cements Limited, at Walayar and CGU Cherthala Plants, without inviting competitive tenders and at an exorbitant rate, with the intention of obtaining undue pecuniary advantage to accused No.3 and thereby obtained pecuniary advantage to accused No.3 to the tune of Rs.16,10,88,434.08 by corrupt and illegal means. Based upon the above contract, accused No.3 falsely claimed an amount of Rs.6,28,029.17 by showing that the fly ash was transported from Tuticorin, but it was transported from Mettur thermal power station, thereby cheated the authorities of Malabar Cements Limited (`MCL' for short). 3. Thereby Malabar Cements sustained a loss of Rs.16,17,16,372/- and accused No.3 had achieved a corresponding pecuniary gain. The Ex-officio Directors were included as accused on the allegation that they had participated in the 149 th meeting of the Board of Directors held on 28.01.2005 during which the long-term agreement executed by accused No.1 with accused No.3 on 18.11.2004 was placed and got ratified. The further allegation is that in the 147 th meeting of the Board of Directors convened on 06.08.2004, the Ex-officio Directors (accused Nos.5 to 7 and another Ex. Office Director Mr. The further allegation is that in the 147 th meeting of the Board of Directors convened on 06.08.2004, the Ex-officio Directors (accused Nos.5 to 7 and another Ex. Office Director Mr. Joseph Mathew) had suggested the Managing Director to further negotiate with M/s. ARK Woods and Metal (P) Ltd. (`ARK Ltd.' for short) regarding the rates and other conditions and got it scrutinized by the Company's legal counsel. In compliance with that suggestion, all the relevant documents, minutes of the Board meeting etc. were forwarded to the Legal Counsel Sri. B.S. Krishnan designated Senior Lawyer of M/s. B.S Krishnan Associates by accused No.2, on 10.11.2004 for his scrutiny and after such scrutiny, the draft agreement was prepared by the said legal counsel and the same was executed on 18.11.2004. On the above basis, it is alleged that the accused have committed offences punishable under Section 13 (1)(c) &) (d) r/w 13 (2) of Prevention of Corruption, Act 1988, and Section 409 , 420, 468, 471 and 120 (B) of Indian Penal Code (`IPC' for short). This allegations led to cognizance of the matter by registering C.C.No.02/2011. 4. In Crl.R.P.No.1463/2024 filed by accused Nos.5 and 6 in C.C.No.02/2011, a connected case in C.C.No.22/2011, they are challenging order dated 12.12.2024 in Crl.M.P.No.244/2024 as per which the Special Judge dismissed the discharge plea of the petitioners. The allegation herein is that pursuant to the contract entered on 18.11.2004, as the outcome of conspiracy hatched between accused Nos.1 to 4, the Managing Director of Malabar Cements and the other officials of the Malabar Cements, the 1st accused execluded, a long term agreement with the 3rd accused quoting high rate for supply of dry fly ash for a period of 9 years and thereafter supplied dry fly ash for a period of 9 years and thereafter supplied dry fly ash from November, 2004 to March, 2008 and by giving high rate, Malabar Cements sustained a loss of Rs.2,18,01,305/-. In this case the prosecution alleges commission of offences punishable under Sections 409 , 468, 420, 471 and 120B of the IPC as well as Section 13 (1)(d) r/w Section 13 (2) of the PC Act. 5. The contentions raised by the petitioners before the trial court as well as reiterated as grounds in the Revision Petitions are multi- fold. In this case the prosecution alleges commission of offences punishable under Sections 409 , 468, 420, 471 and 120B of the IPC as well as Section 13 (1)(d) r/w Section 13 (2) of the PC Act. 5. The contentions raised by the petitioners before the trial court as well as reiterated as grounds in the Revision Petitions are multi- fold. According to the petitioners, the orders of the trial court are unjust, incorrect and improper and the same are flooded with illegalities and errors apparent on the face record. It is also contended that no sufficient materials are available to prosecute the petitioners and the trial Judge was prejudiced while considering their discharge petitions. Referring to the decisions reported in Sajjan Kumar v. CBI, 2010 (9) SCC 368 , State of Bihar v. Ramesh Singh, 1977 (4) SCC 39 and Union of India v. Prafulla Kumar Samal and another , 1979 (3) SCC 4 it is contended that at the stage of consideration of an application for discharge, the trial court should consider whether there are sufficient grounds to proceed against the accused and a mere suspicion alone is insufficient to frame charge. It is argued further that if two views are equally possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial judge would be empowered to discharge the accused. The other main grounds could be gathered from grounds `L’ to `U’, as extracted here under: “L. To attract Section 13 (1)(d), there must be an allegation that the public servants, by corrupt or illegal means or by abusing his official position as a public servant or without any public interest, obtained for himself or for any other person any valuable thing or pecuniary advantage. The gist of the allegation against the petitioners in the final report is that they, being public servants, by abusing their said position criminally conspired other accused because of such conspiracy, illegally caused loss to the Malabar Cements Walayar wholly owned public sector undertaking. M. The allegation does not speak about any illegal gratification, nor does it say that petitioners obtained any pecuniary advantage or valuable thing either for them or for any other person by abusing their official position. The dishonest intention is a prerequisite to attract the offence of criminal misconduct. M. The allegation does not speak about any illegal gratification, nor does it say that petitioners obtained any pecuniary advantage or valuable thing either for them or for any other person by abusing their official position. The dishonest intention is a prerequisite to attract the offence of criminal misconduct. Thus, there is absolutely nothing to attract Section 13 (1) (d) of the PC Act, 1988 against the petitioners. N. To bring home the charge of conspiracy within the ambit of Section 120B of I.P.C., it is necessary to establish that there was an agreement between the parties to do an unlawful act. Every act of commission and omission would not result in hatching criminal conspiracy unless the acts have been done deliberately and there is meeting of minds of all concerned as was held in Zakia Ahsan Jafri v. State of Gujarat, AIR 2022 SC 3050 . Even if it is true that the offence of conspiracy can be established by direct or circumstantial evidence, there must be reasonable ground to believe that two or more people have conspired to commit an offence or an actionable wrong. There is no prima facie material to suggest that the petitioners herein were parties to any such conspiracy. O. To constitute an offence under Section 420 of IPC, there should not only be cheating but, because of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy the whole or any part of a valuable security or anything signed or sealed and which is capable of being converted into a valuable security. No action on the part of the petitioners has been alleged that discloses the intention to induce the delivery of any property to any person, or to make, alter or destroy the whole or any part of a valuable security or anything signed or sealed, and which is capable of being converted into a valuable security. P. Even if the entire allegations in final report together with the materials collected during investigation which form part of the final report are believed in its entirety, no offence under Section 13 (1)(d) of the PC Act or 120B, 468,471,409 and 420 of IPC is made out against the petitioners. P. Even if the entire allegations in final report together with the materials collected during investigation which form part of the final report are believed in its entirety, no offence under Section 13 (1)(d) of the PC Act or 120B, 468,471,409 and 420 of IPC is made out against the petitioners. Q. It is trite that where the allegations in the FIR or complaint and the evidence collected in support of the same during investigation does not disclose the commission of any offence or make out a case against the petitioners, there is no purpose in directing them to stand for the trial. R. There was no deception or concealment of any facts nor did the petitioners have any mens rea to cheat or deceive anyone including the public exchequer. S. To attract the offence under section 420, there are no elements of deception no concealment of facts, no harm caused to any one nor there any dishonest intention from the inception on the part of petitioners. There was no withholding of any vital facts or information on the part of the petitioners or any other accused. T. The fact being so it is abundantly clear that even if the entire records produced by the prosecution under Section 173 of the Code of Criminal Procedure is accepted in toto, there is total absence of any evidence or even circumstances sufficient to create even a strong suspicion for proceeding against the petitioners for any of the offences alleged against the petitioners in the above case. Thus, the charge levelled against the petitioners in the final report before the trial Court in C.C. No. 22 of 2011 is groundless in toto. U. The view taken by the Court below for rejecting the prayer for discharge that the contention taken by the petitioners solely on the basis of the records produced by the investigating agency as provided under Section 173 Cr.P.C has to be proved during the trial or has to be corroborated during for the trial is legally unsustainable and against the intent and purpose of Section 239 Cr.P.C ." 6. Tracing the reason for dismissal of discharge plea raised by the petitioners herein, the trial court found that at present there are sufficient materials to proceed against the petitioners. Tracing the reason for dismissal of discharge plea raised by the petitioners herein, the trial court found that at present there are sufficient materials to proceed against the petitioners. In paragraphs 15 to 18 of the impugned order in Crl.R.P.No.3/2025, the trial court addressed the argument of the revision petitioner while rejecting the same. The same are extracted as under: “15. As per the defence of the accused, the contract agreement was prepared after the legal opinion as per submitting the relevant document, minutes and other things to the legal counsel. It was forwarded with the decision of Director Board in the 147th meeting. That means, a meeting of mined was among all the Board Members to enter into a contract with A3 to make available dry flyash and its transportation of the same at the company. Thereafter, the contract agreement was entered and it was ratified by all the Board Members at 149th Director Board meeting. Thereafter, supply of dryflyash begun from the part of A3. 16. In effect, terms in the contract agreement is adverse and causing loss to the public exchequer, none of the accused could wash out their soiled hand taking advantage of the authority to enter in the contract with A1, Managing Director alone. Therefore, the elements of criminal conspiracy sprouted from the 147 th meeting, 149 th meeting and thereafter until the conspiracy is terminated or accomplished. Any conspiracy in this contract could not be simply opined by the Court without adjudicating the fact in issue on basis of evidence from both sides. In fact, there is a circumstances opening a strong probability of conspiracy revealing the involvement of A5 and A6 in this offence. So adjudication requires necessary to enter into findings. 17. Not mentioning the name of the accused in the F.I.R. would not be an embargo incorporating and making them the accused at the time of filing final report. F.I.R. sets investigation only in motion. However, final report fix their liability on the basis of material unearthened and traced out through the investigation. Therefore, there is no strangeness in making 5 th and 6 th accused in this case in spite of not mentioning the name in the F.I.R. Therefore, it would not make an imbroglio arise a strange thing. However, final report fix their liability on the basis of material unearthened and traced out through the investigation. Therefore, there is no strangeness in making 5 th and 6 th accused in this case in spite of not mentioning the name in the F.I.R. Therefore, it would not make an imbroglio arise a strange thing. Investigation reveals their involvement either in conspiracy or to facilitate the commission of the offence knowing it having been resulted or having joined in furtherance of common intention to commit the same would also make the accused liable for the offence. The direct involvement is not necessary. It is contemplated u/s. 120-B, 34, 118 and 120 of I.P.C. 18. Whereas the offence u/s. 409, 406, the accused/petitioner having been domination over the properties of Malabar Cements Company and did not discharge their official obligation to avert the wrongful loss caused to MCL and wrongful gain to A3 even though knowing and with the authority to topple the same. Therefore, they are liable for the commission of offence u/s.409 of I.P.C." 7. Similarly, in Crl.R.P.No.1463/2024, the trial court appraised the contentions raised by the petitioners seeking discharge and dismissed the same with reference to paragraphs 20 to 25 and the same are extracted as hereunder: “20. Dry flyash is an essential compound in the production of cement. Thereby, nine years contract was fixed to be entered between MCL company and the contractor. The contract extends to several crores of rupees. Therefore, they ought to have asked the 1st and 2nd respondent or Geologist in the department about the impact of the agreement. Silently and mechanically subscribing their signature on minutes book without raising any dissent is a mechanical process. Therefore, there is no hesitation in saying that they did not discharge their official duty smartly and properly. Thereby, the company sustained crores of rupees loss. Therefore, their impassiveness and lethargic attitudes and ignoring or shutting to avoid loss caused to the company would draw the circumstances of dishonest and fraudulent intention upon them in order to provide undue monitory advantage to A3, the contractor. Therefore, minutes book would prima-facie prove the aforesaid offence against the accused. This circumstances would be got over though adducing evidence from the side of the accused u/s.103 of Evidence Act as envisaged in the decision of Dr. G.L. Goswamy vs. State of Madhya Pradesh and others during adjudication. 21. Therefore, minutes book would prima-facie prove the aforesaid offence against the accused. This circumstances would be got over though adducing evidence from the side of the accused u/s.103 of Evidence Act as envisaged in the decision of Dr. G.L. Goswamy vs. State of Madhya Pradesh and others during adjudication. 21. This evidence depends upon the evidentiary value of the documents which could not be spoken or properly expressed by the Court without adjudication. Therefore, before adjudication, the accused are not entitled for any discharge. Three years time taken for completing the investigation after registering a F.I.R. is not a good ground. Investigation requires time depending on the complexity of the case. Sometimes, it may be taken as ground, but the impact of delay can be shown during adjudication. 22. Terms of contract was drafted by legal counsel is not a matter this case. Legal counsel can prepare draft about legal terms of the transaction. But price of the dry flyash and terms of contract condition would be fixed by the officers of the company taking their skill, knowledge in the field, through other enquiries and information. Therefore, legal counsel is not at all responsible for the breach committed by the accused. No circumstance to is available to examine legal counsel overriding Sec. 126 of Evidence Act. Price of the commodity never comes to the domain of legal counsel. The legal counsel was unnecessary dragged in the controversy to wriggle out of the prosecution. Decision taken and 147 th meeting and subsequent meetings would make accused liable for the aftereffects of the resolution which would open its dishonest and fraudulent intention in providing undue pecuniary advantage to A3. 23. Report of the AG is only a statement and it has no authority value to overcome the offence. In the audit, there were chances to omit so many things from AG. If it was traced out by the investigation team, the accused would not get any advantage on relying AG's report. Therefore, AG's report does not have any evidentiary value unless and until it was conducted. This can be done only during the adjudication. All India Tenders were alleged to have been conducted in this case and none turned out. But, what was the price of dry flyash available at other companies would not be spoken by the petitioner. Therefore, AG's report does not have any evidentiary value unless and until it was conducted. This can be done only during the adjudication. All India Tenders were alleged to have been conducted in this case and none turned out. But, what was the price of dry flyash available at other companies would not be spoken by the petitioner. This is also a matter to be looked into the alleged corruption in this case. 24. In this case, Malabar Cements Company sustained a loss, all the Board of Directors and A3 were responsible for the same. In this case, A3 got wrongful gain corresponding loss to public exchequer. Therefore, circumstances would draw that there was a previous meeting of mind between the accused and is out of conspiracy. Thus, they hatched the conspiracy. Therefore, adjudication requires to make any opinion about the same. The ruling referred by the counsel for the accused in AIR 2022 SC 3050 is not at all applicable in the circumstances. 25. On going through the entire materials placed in this case, it would suffice to prove a prima-facie case against the petitioner/accused. None of the circumstances ever gives any innocence to the accused. Moreover, excluded two Director Board Members by the investigation team would not mitigate the liability of the accused and they shall not be absolved.” 8. The main argument advanced by the learned counsel for the revision petitioners is that dry fly ash is a rare community and when the same was not available, tender notification was given to get quotation for the same. But nobody responded to the tender notification in 2003. By the time ARK Ltd. approached MCL at the time when MCL was in dire need of dry fly ash to the tune of 500 MTS to 600 MTS per day. Since ARK Ltd. did not have the allotted silo, the most necessary shortage system for dry fly ash, their offer was not accepted by MCL. Thereafter nobody turned up to provide dry fly ash for a period of one year. In the meantime, ARK Ltd. again approached MCL on 21.07.2004 and MCL taken up this matter with Tamil Nadu through Government of Kerala for getting at least one silo allotted to MCL to obtain dry fly ash. But the said attempt also was failed. Thereafter nobody turned up to provide dry fly ash for a period of one year. In the meantime, ARK Ltd. again approached MCL on 21.07.2004 and MCL taken up this matter with Tamil Nadu through Government of Kerala for getting at least one silo allotted to MCL to obtain dry fly ash. But the said attempt also was failed. Later, ARK Ltd. again approached MCL on getting one silo allotted to them in Tamil Nadu (Tuticorin) and offered uninterrupted supply of dry fly ash for 9 years. At this juncture, because of the acute scarcity of dry fly ash, MLC negotiated with ARK Ltd. and fixed the deal on 18.11.2004. The Board was informed all these facts as per the agenda note in the 147 th meeting. The further case of the ARK Ltd. is that it was also informed in the 147 th meeting that the landed cost of dry fly ash being procured on adhoc allotment basis from TTPS by the Company was Rs.892.97 per MT for which ARK Ltd. offered only Rs.890 per MT. The contention of the learned counsel for the revision petitioner is that therefore by the agreement in between MCL and ARK Ltd., Rs.2.97 per MT was saved. These aspects were suppressed by the vigilance. Further the vigilance also failed to take note of the fact that the revision petitioner ceased to be part of the Board of Directors of MCL and after a new Board was constituted and a new MD was appointed, MCL was getting uninterrupted supply of dry fly ash from ARK Ltd. until the management started creating difficulties and obstacles in the matter of the supply of dry fly ash by ARK Ltd. 9. The allegation that the 5 th and 6 th accused had violated the directions and straightaway executed the agreement with ARK Ltd. on 18.11.2004 is against facts. According to the revision petitioners, the Board of Directors had only agreed to the proposals of the MD of MCL, who was fully competent and authorised to take decisions in the subject involved on his own. 10. According to the revision petitioners, the Board of Directors had only agreed to the proposals of the MD of MCL, who was fully competent and authorised to take decisions in the subject involved on his own. 10. That apart, the learned counsel for the revision petitioners submitted that the charges and allegations in this case are covered in the draft audit paras in the Inspection Report of the Principal Accountant General (A.G) of Kerala, in the audit reports of 2004-2006 period, which had been answered by the MCL in detail to the satisfaction of the AG and the AG had accepted the explanations of MCL and had dropped all the initial draft audit inspection paras mentioned in their audit reports for 2004-2006 period relating to the transactions involved in this case. The main contention was that the records of the MCL would show that landed cost of dry fly ash being procured on adhoc allotment basis from TTPS by the Company was Rs.892.97 per M.T; whereas the offer of ARK Ltd. was only Rs.890 per MT under a long term agreement. 11. Whereas the Deputy Superintendent of Police, VACB, Northern Range, Kozhikode, placed a calculation statement showing the excess charges paid on the transport of dry fly ash by MCL to various companies including that of M/s.SRV Transports, to substantiate that a loss of Rs.16,10,88,343.08 had been incurred by MCL. To address this contention, it is necessary to extract the loss calculation statement as under: “1 . ASSOCIATED CEMENT COMPANIES LTD., (ACC LTD.) MADUKKARAI CEMENT WORKS, COIMBATORE. ACC Ltd is a Tata Group concern having various Cement manufacturing units in different parts of the country. At their Madukkarai works which is 15 KM away from Malabar Cements Ltd., Walayar their main source of supply of dry fly ash is Mettur Thermal Power Station where a SILO has been allotted to them.During the year 2004-05 to 2008-'09, the rate paid by ACC Ltd., for transportation of Dry Fly Ash from MTPS to their Madukkaral Works is Rs.225/- Per Metric Tonnes for one way distance of 160 KMs. During the year 2008-'09, the rate has been raised to Rs.320/- PMT (Exbt. M and Statement of W-17 of Factual report of VC 8/08/PKD proves). ACC Ltd., had awarded the transport contract by inviting competitive bids. During the year 2008-'09, the rate has been raised to Rs.320/- PMT (Exbt. M and Statement of W-17 of Factual report of VC 8/08/PKD proves). ACC Ltd., had awarded the transport contract by inviting competitive bids. If ACC Ltd., pays Rs.225/- PMT for a distance of 160 KMs, the rate per metric tone for one KM will works out to 225/160 Rs.1.40 Per KM. Similarly during the year 2008-'09 the rate per metric tonne for one KM will works out to 320/160 Rs.2/- Per MT for one KM. 2. ?/s. ?AIRALI CEMENT COMPANY, NIDA, (WISE PARK) KANJICODE, PALAKKAD. The above company is engaged in the manufacture of Pozzalano Portland Cement (PPC) in the New Industrial Area (Wise Park) at Kanjicode near Walayar at Palakkad. They are obtaining dry fly ash from Mettur Thermal Power Station through private agencies and direct allotment. The transportation rate they paid is Rs.200/- PMT during the period 2006-07 and Rs.300/- PMT during the period 2007-08 and 2008-09. The distance from Mettur to Kanjicode Wise Park is 190 KMs. (Exbt. M1 and statement of Witness -19 of Factual report of VC 8/08/PKD proves). M/s. Kairali cement company had fixed this rates by way of negotiations after obtaining competitive offers from different transporters. If M/s. Kairali Cement Company had paid Rs.200/- per metric Tones during 2007- 08 and 2008-07 then the rate per metric tone for one KM will works out to: During 2006-07 - 200/190= Rs.1.05 Per MT for one KM. During 2007-08 2008-09 - 300/190=Rs.1.57 Per MT for one KM. 3. M/s. NISHA CEMENTS, DHONI, PALAKKAD. The above Company is engaged in the manufacture of Pozzalano Portland Cement at Dhoni, 15 KMs North of Palakkad town. They are obtaining Fly Ash from Mettur Thermal Power Station, Mettur through private agencies. The Transportation rates they paid is Rs.360/- PMT during 2008-2009. The distance from Mettur to Dhoni is 215 KMS (Exbt. M2 and statement of W-21 of Factual report of VC 8/08/PKD). M/s. Nisha Cement had fixed the rate by way of negotiation after obtaining competitive offers from different transporters. The rate per MT for one KM incurred by Nisha Cements works out to:- During 2008-09 - Rs.360/215=Rs.1.67 Per MT for one KM. 4. M/s. CRESENT CEMENTS, POOLAMPARA, WALAYAR DAM PO, PALAKKAD. The above company is engaged in the manufacture of Pozzalano Portland Cement in the private sector about 5 KMs south west of Walayar. The rate per MT for one KM incurred by Nisha Cements works out to:- During 2008-09 - Rs.360/215=Rs.1.67 Per MT for one KM. 4. M/s. CRESENT CEMENTS, POOLAMPARA, WALAYAR DAM PO, PALAKKAD. The above company is engaged in the manufacture of Pozzalano Portland Cement in the private sector about 5 KMs south west of Walayar. They are obtaining dry fly ash from Mettur Thermal Power Station through private agencies. The transportation rate they paid is Rs.300/- PMT during the period 2007-08 and 2008-09. The distance from Mettur to Cresent Cements works at Poolampara is 180 KMS (Exbt.M3 and statement of W-18 of Factual report of VC 8/08/PKD proves). M/s. Cresent Cements had fixed this rate by way of negotiations after obtaining competitive offers from different transporters. The rate per metric tones for one Kilometer incurred by M/s. Cresent cements works out to :- During 2007-'08 and 2008-'09 - Rs.300/180 KM= Rs.1.66 Per MT for one KM. The transportation rate paid by the above 4 cement companies is tabulated as follows yearwise from 2004 to 2008. A transporter of fly ash owning 7 to 8 Boucher tankers based at Namakkal, Tamil Nadu Sri. P.Kittu, Partner M/s. Goldline Transports, Namakkal (W-16) was contacted during the investigation. He stated that the per KM rate for transportation of 1 MT dry fly ash during the period 2004-05 to 2006-07 was around Rs.1.40. During the period 2007-08 to 2008- 09 the rate was increased to Rs.1.60 per KM. From the above table the average transportation rate per KM for 1 MT of dry fly ash prevalling in around Walayar, Palakkad for every year is arrived. During the 2004-05, 2005-06 and 2006-07, the rate of ACC Ltd., has remained steady at Rs.1.40 Per MT for one KM. During 2006-07 Kairali Cement company Kanjicode has managed to transport at the rate of Rs.1.05 Per KM. As this rate is very low and the quantity of transport being less it is not taken into account. ACC Ltd., is a very large Cement Company having a production capacity of nearly 2700 MTs daily which is substantially higher than that of Malabar Cements Ltd.,. The company is run very profitably and they have a good control over the procurement of inventories, payment of rates to contractors as it is done by inviting competitive tenders in a most transparent manner. The company is run very profitably and they have a good control over the procurement of inventories, payment of rates to contractors as it is done by inviting competitive tenders in a most transparent manner. Hence the transport rate of Rs.1.40 per KM for one MTs can be fixed for the year 2004-05, 2005-06 and 2006-07. For the year 2007-08, 2008-09, the average rate paid by the Cement companies respectively are taken, which works out to: Therefore the competitive transport rate prevalling during the years 2004 to 2009 for transport of fly ash is in and around Palakkad is arrived as follows:- S. No. Year Rate 1. 2004-05 1.40 2. 2005-06 1.40 3. 2006-07 1.40 4. 2007-08 1.54 5. 2008-09 1.72 The rate paid by Malabar Cements Ltd., to M/s. SRV Transport as per the agreement signed by them is Rs.760/ per MT from TTPS to Walayar for a distance of 385 KMs and Rs.860 per MT from-PTTPS to Cherthala CGU Plant for a distance of 400 KMs. The above rate is based on the HSD rate of Rs. 25.06 per Litre prevalling at Coimbatore, Tamilnadu. Proportionate Increase/decrease in freight charge is given if Oil companies announce any hike/decrease in the diesel rate. In addition, 10% increase every two years in the basic rate. (Page 7 to 8 of Exbt. E and Sheet 113 to 116 of Exbt.D of Factual report of VC 8/08/PKD) The per KM rate for 1 MT of fly ash paid by MCL to SRV Transports at the basic rate will works out to:- The per KM rate paid by Malabar Cements Ltd., to SRV Transport is found to be exorbitant when compared to the rate paid by other Cement Companies In Palakkad and surrounding areas for transport of fly ash. This is because Malabar Cement Ltd., did not invite competitive tender and straight away awarded the transport contract to M/s. SRV Transports, a sister concern of ARK Wood & Metal (P) Ltd., Coimbatore. MCL has sustained a huge loss by way of payment of transportation charges to SRV Transport due to non invitation of Competitive Tender. If MCL had invited competitive tender they need have to pay competitive rates which is equal or less than which other Cement companies based at Palakkad and near by areas had paid. MCL has sustained a huge loss by way of payment of transportation charges to SRV Transport due to non invitation of Competitive Tender. If MCL had invited competitive tender they need have to pay competitive rates which is equal or less than which other Cement companies based at Palakkad and near by areas had paid. The competitive rate which MCL may have to pay for transport of fly ash based on the other cement companies rate paid during the year 2004 to 2008 will be as follows:- S. No. Year TTPS to Walayar (distance 385 KMs) TTPS to CGU Cherthala (distance 400 KMS) 1. 2004-05 385 x 1.40=Rs.539.00 400x1.40= Rs.560.00 2. 2005-06 385 x1.40= Rs.539.00 400x1.40= Rs.560.00 3. 2006-07 385 x1.40= Rs.539.00 400x1.40= Rs.560.00 4. 2007-08 385x1.54 = Rs.593.00 400x1.54= Rs.616.00 5. 2008-09 385x1.72 = Rs.662.00 400x1.72= Rs.688.00 Then the amount which MCL need have to spend for transport of fly ash at the above arrived at competitive rate will be :- WALAYAR PLANT (Table – I) Hence the total amount (freight charges) which would have been paid if competitive tenders were invited will be: Rs.21,07,17,891.00+Rs.6,67,63,254.00 =Rs.27,74,81,145.00 Corresponding to this the actual freight charge paid to M/s. SRV Transport for the transport of Fly ash from TTPS to Walayar and Cherthala CGU Plants is as follows: (Sheet No. 2 to 7 of Exbt. F and F1 to F10) In addition to the above M/s SRV Tran Transports had claimed Diesel Price Hike for an amount of Rs.2,60,68,434.94 (Walayar) and 85,34,927.38 (CGU Cherthala) from 12/2004 to 31/07/2008 totalling to (Rs. 2,60,68,434.94 + 85,34,927.38) Rs. 3,46,03,362.42. (Exbt. F, F1 to F10) The total amount paid to M/s. SRV Transports on account of Transportation charges for the dry fly ash transported to both the two plants of MCL during 12/2004 to 31.07.2008 is calculated as Rs. 40,39,66,125.76 + Rs. 3,46,03,362.32 = Rs. 43,85,69,488. Hence the pecuniary loss which Malabar Cements Ltd., Walayar had incurred by payment of Freight charges to M/s. SRV transports (Owned by Srl. V.M. Radhakrishnan, A-3 +A4) without inviting competitive tender = Rs.43,85,69,488.08-Rs.27,74,81,145.00 = Rs. 16,10,88,343.08 (Rupees Sixteen Crore Ten Lakh Eighty eight thousand three hundred fourty three and paise eight). 12. 40,39,66,125.76 + Rs. 3,46,03,362.32 = Rs. 43,85,69,488. Hence the pecuniary loss which Malabar Cements Ltd., Walayar had incurred by payment of Freight charges to M/s. SRV transports (Owned by Srl. V.M. Radhakrishnan, A-3 +A4) without inviting competitive tender = Rs.43,85,69,488.08-Rs.27,74,81,145.00 = Rs. 16,10,88,343.08 (Rupees Sixteen Crore Ten Lakh Eighty eight thousand three hundred fourty three and paise eight). 12. On perusal of the records at one hand, the revision petitioners would contend that by executing the agreement with ARK Ltd. on 18.11.2004, the supply of dry fly ash was ensured for Rs.890 per MT as against the supply being procured prior to that at Rs.892.97 and as per the agreement, Rs.2.97/- per MT was saved to MCL. But the calculation as extracted hereinabove in detail would show that the said contention could not be justified from the calculation statement. It is true that as argued by the learned counsel for the revision petitioners, on analysis of the materials available from the prosecution records, the court can grant discharge when the prosecution materials do not suggest, prima facie, case against the petitioners. It is the settled law further that even when the prosecution materials would cast a strong suspicion as to the involvement of the accused persons, then also, discharge could not be considered. Similarly, when the prosecution materials are weighed, if only a mere suspicion as regards to the involvement of the accused without there being a strong suspicion and two ways are possible one in favour of the accused shall be opted. In the instant case, as I have already discussed, whether the loss of Rs.16,10,88,343.08 sustained by the MCL or no loss sustained or savings obtained, could not be addressed by this Court at the pre-trial stage as the said course of action is possible only after adducing evidence. The learned Special Judge while dismissing the respective discharge petitions categorically analysed these points and also addressed the AG’s report pointed out. Thus the reasons stated by the learned Special Judge while dismissing the discharge petitions by separate orders under challenge is only to be justified. In view of the matter, these Revision Petitions fail and are accordingly dismissed. 13. Interim stay granted stands vacated. 14. Thus the reasons stated by the learned Special Judge while dismissing the discharge petitions by separate orders under challenge is only to be justified. In view of the matter, these Revision Petitions fail and are accordingly dismissed. 13. Interim stay granted stands vacated. 14. Considering the fact that the case is of the year 2001, the learned Special Judge is directed to dispose of the matter expeditiously, at any rate, within a period of four months from the date of receipt of a copy of this order. It is specifically ordered that the observations in this order are meant for deciding the discharge prayer alone and the same have no binding effect during trial of the case and the Special Court shall decide the case on merits, independently on the basis of evidence tendered during trial. Registry is directed to forward a copy of this order to the Special Court for compliance and further steps.