ORDER : (P.G. AJITHKUMAR, J.) Accused Nos. 3 and 6 in C.C.No.1 of 2011 before the Special Court for SPE/CBI cases, Thiruvananthapuram filed, respectively, Crl.M.C.No.5555 of 2022 and Crl.R.P.No.529 of 2022. The 3 rd accused seeks to quash the final report. The 6 th accused seeks to set aside the charge framed by the Special Court against him. 2. Heard the learned counsel appearing for the petitioner in Crl.M.C.No.5555 of 2022, the learned Senior Counsel, appeared for instructions, for the petitioner in Crl.R.P.No.529 of 2022 and the learned Standing Counsel for the CBI. 3. C.C.No.1 of 2011 arose on crime No.RC10/A/2008 of the CBI ACB, Thiruvananthapuram. The offences alleged are punishable under Section 120B read with Section 420 of Crl.R.P.No.529 of 2022 the Indian Penal Code, 1860 ( IPC ) and Section 13 (1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (PC Act). The allegations are concerning installation of LED Display Boards at various railway stations under the Thiruvananthapuram Division of the Indian Railways. 4. The 1 st accused was the Senior Divisional Signals and Telecommunications Engineer, Thiruvananthapuram Railway Division. The 2 nd accused was the Divisional Signals and Telecommunications Engineer, Thiruvananthapuram Railway Division. A tender was floated inviting competitive bids for supply and installation of LED Display Boards at various railway stations. The tender process was completed and the work was executed. Subsequently, on getting information that witness No.1 Sri.R.Radhakrishnan had supplied the LED Display Boards to the contractors, who are accused Nos.3 to 6, at a very low cost, a crime was registered and an investigation was held. The allegations in the final report are that accused Nos.1 and 2 entered into a criminal conspiracy with the other accused and in furtherance Crl.R.P.No.529 of 2022 in that conspiracy, the works in question were executed at a very high cost resulting in a loss of Rs.53,00,585/- to the Railways and corresponding pecuniary advantage to accused Nos.3 to 6. 5. The gist of the allegations as in the final report is extracted below: “That in pursuance of the said criminal conspiracy, knowing well that M/s Apt Micro Solutions was capable of supplying and installing LED Display Boards at low rates, A-1 & A-2 recommended and approved inflated estimate rates for various types of LED display boards, by obtaining budgetary quotations from M/s Konarak Industria Pvt.Ltd., Bangalore. In pursuance of the said criminal conspiracy, when tenders were called for awarding five contracts, Shri. Krishna Pillai (A-2) recommended acceptance of the lowest rates quoted by Shri. Shivananda N. Kalburgi (A-3), Shri. M.R. Srinivas (A-4) of M/s Ess Vee Communications, Shri. Vinayak Sharma (A-5) of M/s LMG Infotec and Shri. P.K.V. Sagar (A-6) of M/s G.S. Teletech, knowing well that the rates quoted by the said firms were very high. Shri. P.K. Sanalkumar (A-1) who knew that the rates quoted by the private persons were exorbitant, approved the awarding of the contracts to Shri. Shivananda N. Kalburgi (A-3), M/s Ess Vee Communications, M/s LMG Infotec and M/s G.S. Teletech. In pursuance of the criminal conspiracy, Shri. Shivananda N. Kalburgi (A-3), Shri. M.R. Srinivas (A-4), Shri. Vinayak Sharma (A-5) and Shri. P.K.V. Crl.R.P.No.529 of 2022 Sagar (A-6) quoted inflated rates closer to the inflated estimated rates approved by Shri. P.K. Sanalkumar (A-1) and were aware in pursuance of the conspiracy that the said display boards were available with M/s Apt Micro Solutions at very low rates, as informed by A-1. In pursuance of the said criminal conspiracy, A-3 to A-6 thereafter, purchased the display boards at lower rates from M/s Apt Micro Solutions as guided by Shri. Sanalkumar (A-1) and installed the same at the various Railway Stations at higher rates quoted by them and all accused persons obtained undue pecuniary advantage. Shri. Radhakrishnan of M/s Apt Micro Solutions gave the rates at which they would have quoted to the Railways directly in the five contracts.” 6. The learned Senior Counsel appearing for the petitioner in Crl.R.P.No.529 of 2022 would submit that when the work was allotted to various contractors who quoted the lowest rate, which was below the estimate, no criminal prosecution is possible. It is pointed out that what witness No.1 offered is the cost of materials, and the labour charge component was not countenanced while offences are attributed. The prosecution was launched after a long delay; even after elapsing the defect curing period of the work. It is also submitted that the materials produced by the prosecution do not contain anything to show that the petitioner and the Crl.R.P.No.529 of 2022 other accused hatched a conspiracy or that they had any dishonest intention to obtain any pecuniary advantage. Similar contentions are raised by the learned counsel for the petitioner in Crl.M.C.No.5555 of 2022. 7. It is also submitted that the materials produced by the prosecution do not contain anything to show that the petitioner and the Crl.R.P.No.529 of 2022 other accused hatched a conspiracy or that they had any dishonest intention to obtain any pecuniary advantage. Similar contentions are raised by the learned counsel for the petitioner in Crl.M.C.No.5555 of 2022. 7. The submission of the learned Standing Counsel of the CBI is that there is ample evidence to show that after gathering necessary information from witness No.1 about the real cost of LED display boards, the estimate at an inflated rate purporting to be based on the quotations obtained from M/s Konarak Industria Pvt. Ltd., Bangalore was evolved. When there is evidence to show that accused No.1 had collected such information through the witness Sri.Raju and induced the contractors to procure the LED display boards from witness No.1 himself, the dishonest intention on the part of accused Nos.1 and 2 is apparent. It is accordingly submitted that there is enough material to frame charges against all the accused and to ask them to stand trial. 8. The invoice issued by witness No.1 Radhakrishnan was part of the prosecution record. From the said document Crl.R.P.No.529 of 2022 and the comparative chart submitted in the final report, which reflects the cost of the LED display boards purchased by accused Nos.3 to 6, it is evident that they quoted an inflated rate in the tender. The materials produced by the prosecution would further show that LED display boards were purchased from M/s Apt Micro Solutions, Thiruvananthapuram, of which witness No.1 Sri.Radhakrishnan is the Executive Director. It is therefore prima facie appeared that there was an attempt to extract an exorbitant rate from the Railways for the works in question. 9. The prosecution has an allegation that in fixing norms for pre-qualification of the contractors, the instructions by the Railway Board were not followed. There is no evidence to substantiate that aspect. Indisputably, licensed contractors alone could participate in the tender process. Witness No.1 did not have a license. Annexure-1 produced in the Crl.M.C. is the tender notification. As the said tender notice, licensed contractors alone could submit tenders. Several persons submitted bids. The lowest were accepted. Accused Nos.3 to 6 were the lowest tenderers. Crl.R.P.No.529 of 2022 10. Indisputably, licensed contractors alone could participate in the tender process. Witness No.1 did not have a license. Annexure-1 produced in the Crl.M.C. is the tender notification. As the said tender notice, licensed contractors alone could submit tenders. Several persons submitted bids. The lowest were accepted. Accused Nos.3 to 6 were the lowest tenderers. Crl.R.P.No.529 of 2022 10. It is alleged that the estimate amount was escalated with a view to inure undue advantage from the contractors. Needless to say, a successful bidder alone could be the contractor. Conspicuously, the prosecution does not allege that accused Nos.1 and 2 did any manipulation in the tender process. If so, how could they know that accused Nos.3 to 6 would be the lowest tenderers. It is not upto reason or logic that accused Nos.1 and 2 could have had a conspiracy at the stage of preparing the estimate itself with accused Nos.3 to 6. When these contractors boarded through an open tender, attributing such an act of conspiracy is beyond reason. 11. In the above context, the tax invoice issued by accused No.1 in the name of M/s Apt Micro Solutions Ltd. has to be looked into. Only based on the cost of LED display boards, the price difference of the work was calculated in the final report. On that basis, the loss has also been calculated. The cost of the peripherals required to undertake the work of installing LED display boards and the labour charges were not Crl.R.P.No.529 of 2022 reckoned with in the final report. In the tax invoice itself, labour charges for installation were specifically added. 12. The contractors ought to execute the work to the satisfaction of the employer, making use of the materials purchased for the purpose. Even if the cost of LED display boards was much less than the amount of work quoted by the petitioners, that by itself would not amount to an offence of cheating and the criminal misconduct coming within the purview of Section 13(1)(d) of the PC Act. 13. The Apex Court in Vesa Holdings Private Limited v. State of Kerala and others [(2015) 8 SCC 293] it was held that for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. 13. The Apex Court in Vesa Holdings Private Limited v. State of Kerala and others [(2015) 8 SCC 293] it was held that for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. It is further observed and held that even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section Crl.R.P.No.529 of 2022 420 of the IPC can be said to have been made out. In order to amount an offence under Section 13(1)(d) of the PC Act, obtainment of pecuniary advantage has to be proved [See: Neeraj Dutta v. State (Govt. of NCT of Delhi) [(2023) 4 SCC 731 – CB] 14. In this case, the allegations are with respect to civil works executed pursuant to a tender process as per the tender notice dated 20.04.2006. This crime was registered in the year 2008. From the facts mentioned above, it is quite evident that after going through the necessary formalities, the contractors were selected and the work awarded. As is seen from Annexure-3 in Crl.M.C., a technical committee considered the matter before awarding the contract. Of course, the materials produced by the prosecution would probabilise that the contracts were awarded for an inflated amount. The Railways would have sustained a loss on account of that also. However, the materials produced by the prosecution are insufficient to establish that there was conspiracy for cheating the Railway or attempt by accused Crl.R.P.No.529 of 2022 Nos.1 and 2 to obtain pecuniary advantage out of the transaction. As held by the Apex Court in M/s Michigan Rubber (India) Ltd. v. State of Karnataka and others [ (2012) 8 SCC 216 ] and Municipal Corporation, Ujjain and another v. BVG India Limited and others [(2018) 5 SCC 462] , the court should be slow in inferring with the process of civil contract unless public interest is patently affected. Also, it was held that the decision to award a contract should be arbitrary and irrational for the court to interfere with that decision. That is the restraint imposed by the Apex Court even while civil consequences of a contract are under consideration. Also, it was held that the decision to award a contract should be arbitrary and irrational for the court to interfere with that decision. That is the restraint imposed by the Apex Court even while civil consequences of a contract are under consideration. 15. On an anxious consideration of the materials produced by the prosecution, it is not able to conclude that the petitioners are presumed to have committed the alleged offences. Therefore, their prosecution based on the final report and materials appended to it in C.C.No.1 of 2011 is unsustainable. The final report in respect of the 3 rd accused is quashed and the charges framed against the 6 th accused is set Crl.R.P.No.529 of 2022 aside. These petitions are allowed accordingly.