Dishonest intention is essential for the offence under Section 13(1)(d) of the Prevention of Corruption Act, and mere violation of rules does not constitute criminal misconduct.

ORDER :

The petitioners, accused Nos.1 and 2, respectively, in C.C No.12/2021 on the file of the Court of the Enquiry Commissioner and Special Judge, Thalassery, seek to quash the FIR, the Final Report and all further proceedings against them in V.C No.1/2015 registered by the Vigilance and Anti-Corruption Bureau, Kasaragod. Facts leading to the registration of the Crime

2. Petitioner No.1 was a Port Conservator at Kasaragod. Petitioner No.2 was the Deputy Director of Ports. As per order No.C3-6009-09-DP dated 17.08.2013 of the Director of Ports, the Port Officer, Kozhikode, announced the tender of Manual dredging and sale of port sand for the years 2013 and 2014 of various port zones within Kasaragod district fixing the tender date as 03.09.2013. The Director of Ports constituted a tender assessment team headed by the petitioners and other officials. The Government had issued revised guidelines for manual dredging and sale of port sand for 2014 vide GO(MS) No.54/2013/F&PD. The tender process was carried out in an open tender manner in the presence of the representatives of the Co-operative Societies. Various Cooperative Societies submitted the tender.

2.1. After technical evaluation, twelve societies were shortlisted. The bids submitted by six societies were rejected as they failed to enclose the required documents and file proper tender forms. Out of the twelve qualified societies, four societies namely Kasaragod Taluk Poozhithozhilali Kshema Sahakarana Sangham, Kasaragod Hollow Bricks Nirmana Vyavasaya Kshema Sahakarana Sangham, Manjeswaram Poozhithozhilali Kshema Sahakarana Sangham and Port Manual Dredging Workers Kshema Sahakarana Sangham had submitted certificates from the registrar without furnishing the list of employees engaged in manual dredging, which was a prerequisite in the tender. On the date of tender, the tender assessment team verified the list of employees of the above four societies with the employee register kept in the port office. The tender forms submitted by these societies without required documents should have been rejected in the preliminary process itself, as done in the case of six other societies. However, the tender team accepted the tenders submitted by the above-mentioned societies without having sufficient documents. The representatives of the above four societies were asked to go outside the tender hall, and later, they were recalled to participate in the tender and allotted different port zones for manual dredging. In the process of the allotment, the tender committee showed some undue favour in favour of these four Co-operative Societies.

2.3. The petitioners, with dishonest intention, committed criminal misconduct and entered into a criminal conspiracy with accused Nos.3, 4 and 5, who were the representatives of the societies that participated in the tender and allotted manual dredging of sand in port zones to three ineligible societies represented by accused Nos.3, 4 and 5 by violating the tender procedures and thereby obtained undue advantage by illegal means.

3. The VACB conducted the investigation and submitted the final report against the petitioners and others alleging offences punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120-B read with Section 34 of IPC.

4. Heard the learned counsel for the petitioners and the learned Special Government Pleader (Vigilance).

5. The learned counsel for the petitioners made the following submissions:

5.1. The allegation of the prosecution that the four Cooperative Societies mentioned above did not have the required qualifications to participate in the tender is baseless.

5.2. There is no material to show that the petitioners obtained any pecuniary advantage or caused any pecuniary loss to the Government. There is also no material to show that any person obtained any pecuniary advantage consequent to the abuse of the position of the petitioners as public servants.

5.3. There was no competition i